'Whistleblowing, not defaming': Delhi court quashes plea by BJP leader against CM Atishi

New Delhi: The allegations made by Atishi constitute the exercise of the right to freedom of speech concerning political corruption and do not constitute defamation, a Delhi court on Tuesday said and dismissed a BJP leader's plea against Chief Minister Atishi.

Special judge Vishal Gogne said, "The allegations made by Atishi were infact in the nature of specific information regarding a possible criminal offence having been committed with the proposed use of large sums of money by a party with more against a party with less."

The order 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 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," the judge said.

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

"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 judge added, "If the allegations made by her 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."

The judge said a court of law couldn't aid the tilting of the democratic balance between unequal political formations and against the right to freedom of speech and expressions besides the right to vote through contrived criminal actions for defamation filed by non aggrieved persons.

The judge said it was for the probe authorities to examine if the allegations made by Atishi carried the weight of evidence, and added in the alternative these were "allegations of a political nature which are fit to be answered at the hustings rather than in witness boxes of the courts".

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 that 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."

The order said it was "inexplicable" the trial court found the content of the repost dated Janaury 27, 2024, to be defamatory whereas the basis of this post -- the original tweet by Kejriwal on Janaury 27, 2024 -- was not found defamatory.

"The impugned order consequently suffers material error and inconsistency going to the root of the issue at hand viz the nature of the purported defamatory statement itself," the judge said.

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

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

The court noted the official version of the BJP, as reflected by the complaint of Virendra Sachdeva, Delhi unit president, to the Delhi police commissioner, had itself sought registration of an FIR under the Prevention of Corruption Act upon allegations made by Atishi, thereby "improbablising" defamation.