The Supreme Court on Monday said that it could not decriminalise a penal provision to punish hate speech as the government opposed BJP leader Subramanian Swamy's plea challenging constitutional validity of two sections of the Indian Penal Code providing for curbing hate speech and activities prejudicial to the maintenance of peace and harmony.
"Can we decriminalise the law? It can't be that there can't be a law to punish" the hate speech, observed a bench of Justice Anil R. Dave and Justice A.K.Goel as it asked Swamy to approach the high court to raise his challenge to sections 153A and 295A of the IPC.
"Have you challenged the validity before the high court? Let the high court first decide," said the bench.
Opposing the plea by Swamy challenging the validity of section 153A, Solicitor General Ranjit Kumar told the court that his plea against the section was along with his prayer for the quashing of non-bailable warrants (NBW) against him.
"If the prayer for the quashing of the NBW is not granted, then other prayers do not become PIL," he told the bench, adding that his plea for the quashing of NBW is pending before the high court and he can amend it and raise his challenge to section 153SA there also.
Section 153A provides for punishment "with imprisonment which may extend to five years and shall also be liable to fine" for "promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony" while section 295A provides for punishment with imprisonment up to four years or with fine, or with both for "Deliberate and malicious acts, intended to outrage reliAgious feelings of any class by insulting its religion or religious beliefs".
Urging the court to hear his challenge to the provisions, Swamy said: "When the matter is about the fundamental right or the constitutionality of an penal provision, the question is whether I should be denied my fundamental right of freedom of speech and expression."
Telling the court that cases were filed against him out of political vendetta, he said that there was a "reckless misuse" of the provision by the previous UPA.
The case against Swamy relates to his March 2015 comments at Assam's Kaziranga University wherein he had said that mosques were just buildings with no religious sentiments attached to them and could be pulled down anytime.
During a programme in Guwahati, Swamy had also said that in Saudi Arabia, mosques, if required, are pulled down and constructed at other places.
Following a complaint, a case was registered against Swamy on charges of conspiracy and promoting enmity between different groups on grounds of religion.
Swamy has contended the provision of both sections are vaguely worded and were prone to be misused as was Section 66A of the Information Technology Act, 2000 which was recently read down by the apex court.
He said that there has to be a distinction between the incitement or advocacy and the expression of opinion.
