Freedom of speech… permits one man’s freebie to be another man’s welfare, one man’s martyr to be another man’s militant: Court quashes summons against Atishi in defamation case

On May 28, 2024, a magistrate court in Rouse Avenue had summoned Atishi in the defamation case. Following this, she had moved a petition before a sessions court challenging the summons.

The sessions court of Special Judge Vishal Gogne on Tuesday allowed the petition and quashed the summons against her. “If the interpretation of the complainant is accepted, almost every top leader of every political party in India would become liable to prosecution for defamation,” Judge Gogne said in his order.

“A court of law cannot aid the tilting of the democratic balance between unequal political formations and against the right to freedom of speech and expressions…,” the court added.

To receive information regarding allegations made by a responsible leader of one party over poaching attempts by another was the “instrinsic right of the ultimate stakeholder in polity, which is the average citizen”, Judge Gogne said citing the right to know recognised in the electoral bonds case decided by the Supreme Court.

“If the allegations made by her (Atishi) carry the weight of evidence, it would be for the investigation authorities to examine the same. In the alternative, these are allegations of a political nature, which are fit to be answered at the hustings rather than in witness boxes of the courts,” Judge Gogne said.

Senior advocate Ramesh Gupta, representing Atishi, argued that Kapoor does not satisfy the criteria of being “some person aggrieved” within the meaning of Section 199 (prosecution for defamation) of the CrPC. His basic argument was that Atishi did not directly or indirectly name or indicate Kapoor as the person or being among the persons “attempting to lure away the MLAs of the AAP with an offer of bribe”, he added.

“Thus, a person looking to represent himself as ‘some person aggrieved’ by virtue of being a member of the party cannot claim legal status as an aggrieved purely upon his legal status as a member of the party,” noted Judge Gogne, siding with Gupta’s claims.

Stating that Atishi’s allegations regarding poaching of MLAs were part of the right to free political speech, the court said that there was “no particular reason… to discern heightened sensitivity of an allegation and treat it as defamatory only because it is made against the ruling party of the day”.

In all these discourses, the political question must be answered by the court of the people through elections and not the courts of law through discussions on defamation, it added.

On April 2, last year, Atishi had held a press conference claiming that she was approached by the BJP to join the party or face arrest by the Enforcement Directorate within a month. “They (AAP leaders) are trying to portray that the BJP is trying to subvert the government by illegal means,” advocate Amit Tiwari, representing Kapoor, had told a Delhi court earlier.