The Supreme Court will hear on Monday a petition by BJP leader Subramanian Swamy that challenges the constitutional validity of anti-hate speech provisions and alleges that the statute violates fundamental rights.
Swamy has challenged the validity of Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony) of the Indian Penal Code.
He currently faces a case in Assam’s Karimganj for allegedly delivering an inflammatory address at Kaziranga University.
Swamy says the section was used against him “malafide and maliciously” to penalise him for his “clearheaded extensive research” and ideological beliefs. All this was done to make him conform to the norms of certain “special ideological and religious groups”, he alleged in the petition.
At least five recent FIRs have been filed or summonses issued against him in Delhi, Mumbai, Karimganj, Mohali in Punjab and Thrissur in Kerala for “presumed hate speech”, he said.
The Centre has opposed his petition and termed it “not maintainable”. In February, solicitor general Ranjit Kumar told the top court that Swamy’s was a “personal interest litigation” as a non-bailable warrant (NBW) had been issued against him for alleged hate speeches.
“He is aggrieved because an NBW has been issued against him by a court with regard to his hate speeches. He is being personally prosecuted for an offence and, hence his plea is, in fact, a personal interest litigation,” Kumar had said, asserting that the petition was not maintainable.
As Swamy pointed out his plea for quashing of NBW was already before the Gauhati high court, Kumar said the BJP leader could also raise the issue of constitutional validity before the high court.
“How many high courts should I go to? Across the country, FIRs are being lodged against me by several state governments. This is a question of my fundamental right. This court is an appropriate forum to examine the validity of the provisions of the IPC,” Swamy had said, clarifying that he had not challenged the validity of Section 153A IPC before the high court.
Swamy wanted his matter be transferred to the bench headed by Justice Gogoi, saying the previous bench headed by him was ready to examine the constitutional validity of the provisions.
A trial court in Assam had issued an NBW against him for failing to appear before it on March 19, last year in a case of alleged hate speech. But the SC had on July 2 last year stayed the execution of the NBW.
In November last year, the NDA government took a U-turn before the Supreme Court, weeks after supporting Swamy’s prosecution for hate speech against Muslims in a book on terrorism.
In a fresh affidavit, the home ministry told the top court that its earlier submission – accusing Swamy of promoting hatred and enmity between two communities- was not a comment on the criminal case pending against him but merely a statement of the fact about his prosecution.
The government had on October 28, 2015 filed an affidavit in response to Swamy’s PIL, asserting that Swamy had violated the law because the book’s “theme, its language, its innuendoes, the similies it employs and the moral of its story, if any – in order to ascertain whether the offending passages read in the context of the book as a whole fall within the mischief of section 153 A.
“The book has to be considered in all its aspects as it contains matter which promotes feelings of enmity and hatred between Hindus and Muslims in India,” it had said.