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Not hate speech if stand-up comics poke fun at religion, but it is when evangelists do: Madras HC

Hearing a plea filed by a priest booked for allegedly mocking Hindus, Madras HC draws distinction between those who can seek immunity from criminal prosecution in hate speech cases.

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New Delhi: A stand-up comedian who exercises his fundamental right to poke fun at others while performing on stage can claim protection from prosecution for hate speech. However, an evangelist cannot claim similar privilege because he “cannot insult or outrage others’ religion or their religious beliefs”, the Madras High Court has said.

In a 31-page order dismissing a petition filed by a Kanyakumari-based priest, who faces an FIR for allegedly mocking the “Hindu tradition of worshipping Bharat Mata”, a single-judge bench of Justice G.R. Swaminathan Friday drew a distinction between those who can seek immunity from criminal prosecution in hate speech cases.

It said the aspect of “who” delivered the speech, and “where”, are relevant to determine whether punitive action can be taken against the alleged offender under the law.  

“The words uttered by the petitioner are sufficiently provocative. They reek of malice and supremacism. The question is whether the state can ignore such incendiary statements as that of a lunatic fringe,” the order said. “The answer has to be in the negative. The petitioner is a charismatic Catholic priest. He commands a large following.”

Father P. George Ponnaiah had approached the high court to seek the quashing of a criminal case registered against him under various sections of the Indian Penal Code (IPC), including 295 (A) and 153 (A). 

While the first section deals with attempts to insult the religion or religious beliefs of a class of citizens, 153 (A) penalises acts intended to promote enmity between different groups on ground of religion, race, place of birth, residence and language.

He was also accused of organising an unlawful assembly at his house on 21 July 2021, which the prosecution claimed was a Covid superspreader. The meeting was convened to mourn the demise of Father Stan Swamy, a tribal activist who died while he was in judicial custody in connection with the Bhima-Koregaon incident.

According to the prosecution, Ponnaiah’s speech was widely circulated on social media. In the speech, it said, he is seen making fun of a BJP MLA who walks barefoot “out of respect for mother earth”. 

He is also said to have claimed that the “network of Catholic priests was tapped by him and his associates to canvass votes in favour of the Dravida Munnetra Kazhagam (DMK) which won the recently (2021) concluded Tamil Nadu legislative assembly election”.

Ponnaiah also allegedly boasted about the increase in Christian population in the district to 62 per cent from 42 per cent. Among other things, he is said to have attacked Prime Minister Narendra Modi and Home Minister Amit Shah in his speech.

Ponnaiah’s counsel said the petitioner had already circulated a video expressing regret and clarifying that his words were not intended to hurt the religious sentiments of the Hindus. 

On reading the speech in its entirety, one can conclude he only wanted to voice his feelings in support of minority rights and interests, the defence added.

Ponnaiah’s petition was opposed by two “public interested individuals”, who argued that “one cannot be permitted to give vent to hate speech”. 

The court’s attention was drawn to a 2021 Supreme Court decision that defined hate speech as a form of expression through which the speaker primarily intends to vilify, humiliate or incite hatred against the targets.


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‘Visceral attack on religious beliefs of Hindus’

At the outset, the court held that charges of convening an unlawful assembly cannot be invoked against Ponnaiah because the meeting was held to mourn the demise of Father Stan Swamy and demand the opening of places of worship that were shut due to Covid. 

The court observed that since none of the attendees suffered from Covid or contributed to its spread, Ponnaiah could not be accused under the Epidemic Diseases Act either.

However, Justice Swaminathan took a dim view of Ponnaiah’s remarks regarding the traditional Hindu practice of venerating the five elements of nature, including “mother earth”, as divine entities.

Justice Swaminathan quoted literary works of various seers, intellectuals and scholars to highlight the “deeply emotional veneration in a very large number of Hindus” for “Bharat Mata”.

He concluded: “There was absolutely no need or necessity to mount a visceral attack on the religious beliefs of the Hindus. It was unwarranted and utterly unrelated to the occasion. That is what makes it deliberate and malicious. 

“The petitioner poked fun at those who walk barefoot out of reverence for Mother Earth. He stated that Christians wear shoes so that they won’t catch scabies. He painted Bhuma Devi and Bharat Mata as sources of infection and filth.”

A reading of Ponnaiah’s speech “as a whole does not leave any one in doubt” that his “target is the Hindu community”, the judge held, upholding Section 153 (A) against him.

“He is putting them (Hindus) on one side and the Christians and Muslims on the other. He is clearly pitting one group against the other. The distinction is made solely on the ground of religion. The petitioner repeatedly demeans the Hindu community,” the order ruled.

Talking about the principle of “who” “what” and “where” to determine the charges, the judge said it was too much “for the petitioner to be compared to revered leaders like Dr B.R. Ambedkar”. 

He added the shield of fundamental rights guaranteed under the Constitution would be available to a judicial reformist, an academic or an artiste, such as Charles Darwin, Christopher Hitchens, Richard Dawkins, Narendra Dabholkar and M.M. Kalburgi.

Even stand-up comedians, including Munawar Faruqui or Alexander Babu, can exercise their fundamental right to poke fun at others, for which their religious identity is irrelevant, the court noted.  

“The persons concerned voice their opinions or give vent to their expressions in their capacity as satirists,” the judge said.

But on the other hand, an evangelist like the petitioner cannot claim a similar privilege. “This is because he views the other religionists as a constituency to be poached. He cannot be called a disinterested or neutral commentator,” the judge said, while writing extensively on “crypto-Christians”, or Hindus who have converted to Christianity, but call themselves Hindus for the purpose of availing reservation.

The judge also condemned religious conversions becoming a “group agenda”, and expressed concern over the “changing demographic profile” of Kanyakumari, where, the judge observed, Hindus had become a minority.

The judge said if an individual converts out of his or her personal conviction, the choice must be respected and cited examples of eminent personalities who have done so. But religious conversions cannot be a group agenda, he warned.

“I am certain that on the Judgment Day, God shall admonish the petitioner for having committed an un-Christian act,” the judge said, concluding the verdict.

(Edited by Sunanda Ranjan)


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