No Power To De-recognize Political Party If Its Members Make Hate Speeches : Election Commission To Supreme Court

The Election Commission of India has told the Supreme Court that it does not have the legal power to withdraw the recognition of a political party or disqualify its members, if a party or its members indulge in hate-speech.

In the counter-affidavit filed in response to a PIL seeking measures to curb hate speech, the Commission pointed out that the Supreme Court had in the case Pravasai Bhilai Sanghatan versus Union of India (2014) referred to the Law Commission of India the question whether the Election Commission should be conferred the power to de-recognise a political party disqualifying it or its members, if a party or its members commit the offence of hate speech. However, the Law Commission of India's 267th Report neither answered the Court's question as to whether the Election Commission of India should be conferred the power to derecognise a political party disqualifying it or its members, if a party or its members commit the offence of hate speech nor expressly made any recommendations to the Parliament to strengthen the Election Commission of India to curb the menace of hate speech. However, the Law Commission suggested that certain amendments be made to the Indian Penal Code and the Code of Criminal Procedure."

Provisions of IPC and RP Act invoked to curb hate speech during election campaigns

The Election Commission has told the Supreme Court 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 Counter Affidavit submitted by the Director (Law) of the Election Commission of India pointed out that Hate Speech has not been defined under any existing Law in India, but there are a few legislations that have a bearing on hate speech such as :

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)

It was also pointed out by the Election Commission in the Counter that the issue of hate speech has been dealt with by the Supreme Court in Pravasi Bhalai Sangathan vs Union of India and Jafar Imam Naqvi vs Election Commission of India. It has been submitted that in Pravasi Bhalai Sangathan, the court had referred the matter to the Law Commission to define Hate Speech and make recommendations to Parliament to strengthen the ECI to curb its menace. The Law Commission in its report had recommended Criminal Law (Amendment) Bill, 2017 with insertion of Sections 153C and 505A. It was also recommended that Model Code of Conduct should also be amended, however no recommendations were made by Law Commission regarding strengthening of the ECI.

Model Code of Conduct has provisions to control hate speech

As a measure, the Counter Affidavit stated that the ECI has made amendments to the Model Code of Conduct and if its brought to the notice of the ECI that "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 measures like issuing advisory cautioning the candidate from campaigning for a specified period of time or even initiation of a criminal complaint

The ECI also pointed out that a list of DO's and DON'T's has been drawn up which has been directed to be given the widest publicity to be brought to the knowledge of all the contesting candidates, to be followed by all candidates and political parties.

The ECI also submitted that the Model Code of Conduct has listed certain practices as corrupt practices and electoral offences in the IPC and RP Act. It was also pointed out that an election petition under Section 100 of the RP Act can be filed against any candidate or his agent for commission of any corrupt practice and that the Supreme Court has also held in Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra that any appeal to vote or refrain from voting, made by a candidate or his agent which prejudicially affects the electoral prospects of other, on the ground of religion, caste, race, community, etc, shall fall within the definition of corrupt practices under Section 123 of RP Act. Abhiram Singh vs C. D. Commachen was also referred to by the Election Commission.

The ECI was responding to the PIL filed by Ashwini Upadhyay.  

Ashwini Kumar Upadhyay vs Union of India and Ors - WP(C) 943/2021