No defamation of leader if Atishi said BJP trying to buy MLAs with huge money: Delhi court

NEW DELHI: A Delhi court on Tuesday dismissed a criminal case filed by a BJP leader against Chief Minister Atishi, saying there was "absolutely no defamation of the media head of the BJP" if the AAP leader "accuses the BJP of trying to buy their MLAs with huge sums of money".

In his judgment, special judge Vishal Gogne said while such tactics may be "part and parcel" of political strategy, a court of law couldn't be a party to the creation of a chilling effect on freedom of speech by admitting or acting upon such efforts to silence whistleblowers or smaller political opponents.

The judge therefore underlined there was "absolutely no defamation of the media head of the BJP if the leader of the AAP accuses the BJP of trying to buy their MLAs with huge sums of money".

"It is the freedom of speech as an overarching principle which permits one man's subaltern to be another man's naxal; it permits one man's freebie to be another man's welfare; it even permits one man's martyr to be another man's militant. It is also not at all alien for the contemporary discourse to even doubt freedom fighters as abdicators," the verdict said.

To summon Atishi for the offence of defamation, said the court, would be suppressive of the freedom of speech and the accountability of public office.

Freedom per se should thrive only if it was guaranteed by the freedom of speech and expression as secured by the Indian Constitution, the judge added.

The court said the allegations were part of the freedom of political speech, which encompassed a wide variety of criticism, allegations and insinuations commonly made by political parties, activists or even lay citizens against other political formations.

"It is a matter of common and contemporary occurrence that politicians of all hues routinely accuse the other of either being in truck with a named industrialist or industrial house or even receiving trucks of money from such entities. Even as the cycle of elections settles in one context, it resumes in another," the order said.

Allegations of poaching of MPs or MLAs were also an evident phenomenon, the court said.

The judge said her allegations were in the nature of disclosing the commission of a criminal offence and merit investigation.

The judgment came on an appeal filed by the AAP leader against an order of a magisterial court, which issued summons to Atishi on the complaint of Praveen Shankar Kapoor, former media head and spokesperson of the Delhi BJP unit.

The judge said Atishi was in the nature of a whistleblower and couldn't be treated as having acted to defame the BJP, adding that the complaint by Kapoor was "an attempt to defeat criminal investigation and supress the freedom of speech as well as the right to know".

According to the complaint by Kapoor, Atishi levelled baseless allegations in a press conference held on January 27, and later on April 2, 2024 against BJP by saying it was approaching AAP's MLAs and offering them bribes to the tune of Rs 20-25 crore for switching sides.

The complaint also arrayed former chief minister Arvind Kejriwal as an accused in the complaint, however, the magisterial court did not find sufficient grounds to proceed against him in the order passed on May 28, 2024.

The judge noted it was Kejriwal's tweet based on which Atishi held the conference, and said, "It is quite striking that for allegations which entailed non summoning of Kejriwal, it was his colleague Atishi who came to be summoned when she had re-posted what he had said."

Even more startling is the approach of Kapoor who has not preferred any challenge to the non summoning of Kejriwal, the judge noted.

The judge said the pre-summoning evidence did not present adequate grounds to summon Atishi as an accused.

"The allegations made by Atishi through the tweet and press conferences are in the nature of disclosing the commission of a criminal offence and merit investigation. Atishi is in the nature of a whistleblower and cannot be treated as having acted to defame the BJP," the judge said.

The court observed the official version of the BJP, as reflected in the complaint of Virendra Sachdeva, Delhi unit president, to the Delhi police commissioner itself seeking registration of an FIR under the Prevention of Corruption Act upon Atishi's allegations "improbablised" defamation.

"The allegations made by Atishi constitute the exercise of the right to freedom of speech concerning political corruption and do not constitute defamation under section 500 IPC. The said allegations by Atishi also activate the right to know as a part of the right to vote of the citizens recognised in the electoral bonds case and other decisions of the Supreme Court," said the court.

The court said Kapoor could not establish that he was perceived, even by the ordinary BJP worker let alone the man on the street, as the leader with such position and authority to invite allegations of horse-trading from the leaders of another political party thereby damaging his reputation.

"The present complaint is evidently a case of someone else firing from the shoulder of Kapoor... Kapoor is not 'some person aggrieved'... but only looking to be 'some person aggrieved'. The machinery of criminal justice delivery ought not to be activated upon fishing exercises," the judge said.