While rejecting BJP leader PC George’s
anticipatory bail plea in a case involving remarks against the Muslim
community, the Kerala High Court raised concerns over the increasing instances
of statements fuelled by caste and religious divisions.
"Nowadays, there is a tendency to make
statements based on religion, caste etc. These are against the basic structure
of our Constitution. These tendencies should be nipped in the bud,"
Justice PV Kunhikrishnan observed in the bail order.
The Court also highlighted the inadequacy
of existing penal provisions in addressing hate speech offenses, emphasizing
that offenders can often evade imprisonment by merely paying a fine. The
relevant provisions under the Bharatiya Nyaya Sanhita—Section 196(1)(a), which
pertains to promoting enmity between different groups on religious and other
grounds, and Section 299, which deals with deliberate and malicious acts
intended to outrage religious sentiments by insulting a religion or its
beliefs—fail to mandate imprisonment. Under both these provisions, the
prescribed punishment includes imprisonment for up to three years, a fine, or
both, leaving it to the Court’s discretion to impose only a monetary penalty
instead of a jail term.
The Court further noted a significant gap
in the legal framework, pointing out that even repeat offenders of hate speech
laws do not face enhanced punishment, thereby reducing the deterrent effect of
these provisions. It stressed that the absence of stricter penalties for
second-time offenders allows individuals to repeatedly engage in divisive and
inflammatory rhetoric without facing severe consequences. Recognizing the
broader implications of this issue on social harmony and public order, the
Court underscored the urgent need for legislative intervention. It urged the
Parliament and the Law Commission to take this matter into serious
consideration and explore necessary amendments to strengthen the legal
framework governing hate speech offenses.
"For the offences under Sections
196(1) (a) and 299 of the BNS, the maximum punishment that can be imposed is
three years or fine or with both. Even for a second offender, there is no
higher punishment...This is a serious matter to be looked into by the Law
Commission and the Parliament. The Registry will forward a copy of this order
to the Chairman of the Law Commission of India," the Court observed.
The petitioner's lawyer argued that the
remarks were a mere "slip of the tongue," made in response to
provocation from a co-panellist. However, addressing this claim, the Court
asserted that a politician of the petitioner's stature, if so easily provoked,
is unfit to continue as a political leader.
"I am forced to say that, a politician
like the petitioner, who has about 30 years of experience as an MLA can be
provoked easily like this, he does not deserve to continue as a political
leader." The Court also rejected the contention of the petitioner that he has
apologised through his Facebook page.
The Court said, “the petitioner is a Senior
politician and was an MLA for 30 years representing a Constituency. The people
will closely watch his speech, statements and even behaviour. The politicians
should be a role model to the society. After making abusive statements which
may result in communal disharmony, the apology given by the petitioner cannot
be accepted. The petitioner ought to have thought that he was participating in
a live coverage discussion on a channel. Lakhs and Lakhs of people are watching
the television.”
The Court further emphasized that bail
cannot be granted solely on the grounds that custodial interrogation is not
required. It clarified that while deciding on bail, the Court must take into
account the accused's past conduct and the gravity of the allegations.
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