BJP leader Subramanian Swamy BJP leader Subramanian Swamy

Asserting that “divisive forces cannot be allowed to prosper”, the BJP-led NDA government Tuesday supported the prosecution of BJP leader Subramanian Swamy for making a hate speech, and told the Supreme Court that he has violated provisions of the Indian Penal Code with his writing, which allegedly tends to promote hatred between Hindus and Muslims.

Submitting its affidavit in response to a notice by the top court, the Ministry of Home Affairs contended that Swamy, in his book titled Terrorism in India, had made a “hate speech against a community of India”.

“The book (is) to be considered in all aspects as it contains matter which ‘promotes feeling of enmity and hatred between Hindus and Muslims in India’. Therefore, the petitioner (Swamy) has violated sections of the IPC,” stated the affidavit.

The MHA filed its response to defend the validity of Section 153A of the IPC, which makes promoting enmity between different groups on grounds of religion, race, etc an offence. Swamy, following registration of various cases against him under Section 153A and similar IPC provisions relating to hate speech, had moved the Supreme Court, challenging the validity of Section 153A and a host of similar provisions on the ground that they violated the fundamental right to freedom of speech.

However, while defending the validity of these provisions, the MHA said it is not a defence under Section 153A that writing contains a truthful account of past events or is supported by a good authority if it is calculated to promote feelings of enmity or hatred.

The affidavit also seeks to counter Swamy’s argument that a person should not be prosecuted under these sections for expressing his views if there are no violent consequences or reaction within a reasonable span of time.

“It is not necessary to prove that as a result of such hate speech, some consequences should be caused. A mere attempt of delivering hatred is punishable. Intention to promote enmity or hatred, apart from what appears from the writing itself, is not a necessary ingredient of the offence. It is enough to show that the language of the writing is of a nature calculated to promote enmity or hatred,” it said.

The affidavit then cites Swamy’s book and says he has violated penal provision relating to hate speech, even though the BJP leader’s petition did not relate to the book at all.

“Unity of the country has to be preserved at all cost. Our Constitution is based upon the principle that persons of all caste, creed and religion must live together in harmony and that in the long run, prosperity and salvation are in the union and not in division,” said the MHA, adding that people cannot be allowed to spread hatred towards any community or class in the name of freedom of speech and expression as that would result in public disorder and riots.

Validity of penal provisions, the government said, cannot be questioned since the Constitution allows reasonable restriction on a citizen’s right to freedom of speech and the provisions are meant to maintain peace and harmony in the society.

It countered Swamy’s plea that hate speech provisions are too widely worded, arguing “the provisions are very clear and neither too widely worded nor indefinite…”

Swamy’s petition, which came up for hearing last week, is likely to heard next in January 2016.

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