Election Commission to SC: No Legislative Authority to De-Recognize Political Party If its Members Make Hate Speeches

election commission of India - law insider

Sakina Tashrifwala

Published on: September 15, 2022 at 22:16 IST

The Election Commission of India has informed the Supreme Court that it lacks the legislative authority to revoke a political party’s recognition or disqualify its members if the party or those individuals engage in hate speech.

In the counter-affidavit submitted in response to a PIL calling for action to stop hate speech, the Commission noted that the Supreme Court had referred to the Law Commission of India, the question of whether the Election Commission should be given the authority to de-recognize a political party, disqualifying it or its members, if the party or members commit the offence of hate speech in the case of Pravasi Bhalai Sangathan versus Union of India (2014).

However, the Law Commission of India’s 267th Report neither explicitly recommended to the Parliament that the Election Commission of India be strengthened to combat the threat of hate speech nor did it respond to the Court’s question regarding whether the Election Commission of India should be given the authority to derecognize a political party, thereby disqualifying it or its members, if a party or its members commit the offence of hate speech.

The Law Commission did advise making some changes to the Code of Criminal Procedure and the Indian Penal Code, though.

IPC and RP Act provisions were used to stop hate speech during election campaigns.

The Supreme Court has been informed by the Election Commission that,

In the absence of any specific law governing ‘Hate Speech’ and ‘Rumour Mongering’ during elections, the Election Commission of India employs various provisions of the IPC and the RP Act, 1951 to ensure of that members of the political parties or even other persons do not make statements to the effect of creating disharmony between different sections of society.”

The Director (Law) of the Election Commission of India asserted in the counter affidavit that while hate speech has not been defined by any Indian law now in force, it is subject to a number of other laws, including the following:

Indian Penal Code – Sections

  • 153A (Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc.)
  • 153B (Imputations, assertions prejudicial to national integration)
  • 295A (Deliberate and malicious acts, intended to outrage religious feelings)
  • 298 (Uttering words with deliberate intent to wound the religious feelings)
  • 505 (Statements conducing to public mischief)

Representation of People Act – Sections

  • 8 (Disqualification on conviction for certain offences)
  • 123(3A) (Corrupt Practices)
  • 125 (Promoting enmity between classes in connection with election)

Code of Criminal Procedure – Sections

  • 95 (Power to declare certain publications forfeited and to issue search warrants for the same)
  • 107 (Security for keeping peace in other cases)
  • 144 (Power to issue order in urgent cases of nuisance or apprehended danger.

The Election Commission further noted in the Counter that the Supreme Court has addressed the problem of hate speech in the cases of Pravasi Bhalai Sangathan vs. Union of India and Jafar Imam Naqvi vs. Election Commission of India.

In the case of Pravasi Bhalai Sangathan, it has been claimed that the court had sent the issue to the Law Commission so that it may define hate speech and give suggestions to Parliament about how to enhance the ECI to lessen its threat.

The addition of Sections 153C and 505A to the Criminal Law (Amendment) Bill, 2017 was suggested by the Law Commission in its report.

Additionally, it was suggested that the Model Code of Conduct be altered, but the Law Commission made no suggestions about the ECI’s strengthening.

Model Code of Conduct has Provisions to Control Hate Speech

As a precaution, the Counter Affidavit claimed that the ECI has modified the Model Code of Conduct and will take action if informed. The Model Code of conduct is as follows:

“Any candidate or his agent is indulging in any speech that promotes, or attempts to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language, the Election Commission of India takes strict note of the same and thereby issues a Show Cause Notice to the concerned candidate or person calling upon him/her to submit his/her explanation.”

The ECI also takes action, such as issuing a warning against the candidate campaigning for a predetermined amount of time or even filing a criminal case.

The ECI also noted the creation of a list of DOs and DON’Ts that has been instructed to receive the most attention in order to be known to all candidates running for office and to be adhered to by all candidates and political parties.

The ECI further argued that certain actions were identified as corrupt practises and electoral offences in the RP Act and IPC by the Model Code of Conduct.

The Supreme Court ruled in Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass that any candidate or his agent can be sued in an election under Section 100 of the RP Act for the commission of any corrupt activity.

The definition of corrupt activities under Section 123 of the RP Act includes any call to vote or refrain from voting, issued by a candidate or his agent, which negatively affects the electoral chances of others on the basis of religion, caste, race, community, etc.

A. Singh versus C. D. Commachen was also referred to by the Election Commission.

The ECI was responding to Ashwini Upadhyay’s PIL.

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