New Delhi: The Delhi High Court, while refusing to quash defamation proceedings against Congress MP Shashi Tharoor over his alleged “scorpion on Shivling” remarks targeting Prime Minister Narendra Modi, said that the comments not only defamed PM Modi but also the Bharatiya Janata Party (BJP) and the Rashtriya Swayamsevak Sangh (RSS) and also obliquely hurt the Hindu sentiments.
“The comment exemplifies that Shri Narendra Modi is unacceptable with many in the RSS establishment and compares the expression of their frustration, as dealing with a leader with the characteristics of a scorpion possessing a venomous instinct. The comments apparently not only defame Shri Narendra Modi but the party represented by him i.e. BJP, including RSS and the members of the party for having accepted the leadership,” Justice Anoop Kumar Mendiratta said on Thursday while dismissing Thraoor’s plea challenging the defamation proceedings initiated on a complaint filed by BJP leader and complainant Rajiv Babbar.
Tharoor sought quashing of trial court order summoning him as an accused in criminal defamation complaint
Tharoor sought quashing of April 27, 2019 order of the trial court summoning him as an accused in the criminal defamation complaint as well as quashing of the complaint.
“It cannot be ignored that the imputation against the legislative Head of a political party and the sitting Prime Minister of India has an important bearing on the image of the party, functionaries and the members of the party concerned and does not augur well to the system as it also impacts the electoral process,” the High Court, which also vacated its interim order by which it had stayed the criminal proceedings against Tharoor, said.
What did Tharoor say at Bangalore Literature Festival in 2018
Tharoor, while addressing the audience at Bangalore Literature Festival in 2018, said, “… and this personality cult has not sat very well with many in the RSS establishment. There’s an extraordinarily striking metaphor expressed by an unnamed RSS source to journalist …….which I quote here, in which they express their frustration with their inability to curb Mr. Modi, And the man says, “Mr. Modi”, he says is like a “scorpion sitting on a Shivling; you cannot remove him with your hand, and you cannot hit it with a chappal either.”
What did complainant Babbar say?
Babbar said that the imputation have been made defaming PM Modi, hurting the sentiments of crores of devotees of Lord Shiva, both in and outside the country outraging their religious beliefs, apart from lowering down the credit and image of the complainant (Babbar), RSS, as well as tarnished the image of BJP, its leaders, supporters and workers in the eyes of general public.
What did Tharoor argue before the High Court?
The counsel representing Tharoor argued Babbar is not an “aggrieved person” and the imputation was not personal to him and he has failed to show how an “identifiable group” or “collection of people” has been defamed by Tharoor. The counsel further submitted that reputation of Babbar cannot be tarnished by a mere referral to a journalistic article by petitioner Tharoor.
Tharoor’s counsel further argued that Babbar has not proceeded against the original author of the comment or the person who reported it and also failed to provide the reasons for the same and that prosecution have been launched frivolously in order to cause political and personal discomfort. A fair comment or an honest opinion cannot be considered as defamation or libel, the counsel added.
Defence of Tharoor is a question of fact which can only be decided during course of trial: High Court
The High Court said that the defence of Tharoor that the imputation was in good faith and a fair reproduction of an earlier published article is a question of fact which can only be decided during the course of trial.
“In exercise of powers under section 482 CrPC (Code of Criminal Procedure), it may be premature to give a definite finding on the basis of material on record that there was no element of bad faith on the part of the petitioner while imputing the aforesaid statement in the Literary Festival. There was sufficient material before the learned Judicial Magistrate for summoning the petitioner under section 500 of IPC,” the High Court said.
The High Court, while dismissing Tharoor’s plea, further said that “BJP” is a determinate and identifiable body and the complaint for defamation under section 500 of IPC is maintainable and if a well defined class is defamed, each and every member of that class can maintain a complaint.
