Explainer | What Every Voter Should Know - The Law On Hate Speech By Electoral Candidates

But, can every kind of speech be considered an acceptable form of campaigning by the Election Commission of India (ECI) and the public at large?

This explainer simplifies from scratch the much-talked-of issue of 'hate speech' this election, and the law on hate speech delivered during election campaigns by party leaders and political members.

Is 'Hate Speech' Legally Defined?

Presently there is no statutorily prescribed definition of 'Hate Speech' in the Indian Legal System. However, a loose understanding of the expression means any speech that may incite hatred directed towards a certain class of individuals.

Prominently, the Law Commission's 267th Report on Hate Speech explained the term as an expression which is likely to cause distress or offend other individuals on the basis of their association with a particular group or incite hostility towards them. Interestingly, the Report also suggests certain parameters which Courts across different International jurisdictions have identified, these are - (1) the extremity of the speech; (2) incitement; (3) the Status of the Author of the speech; (4) the Status of victims of the speech; (5) Potentiality of the speech; (6) Context of the speech.

Often, the Judiciary and Law Commission have expressed its apprehension to devise a straight-jacketed formula on what would constitute hate speech and what would not. This essentially springs from the apprehension of unknowingly constraining the fundamental right to freedom of speech and expression as enshrined under Article 19(1)(a).

However, the Fundamental Right to Freedom of Speech and Expression is not absolute and can be curtailed on three major grounds under the constitutional limitations - (1) Public Order; (2) Incitement to offence; and (3) security of the State.

Interestingly, the Apex Court has fragmented expression in 3 forms - discussion, advocacy and incitement. In the decision of Shreya Singhal v. Union of India, while declaring S. 66 A of the IT Act (Punishment for sending offensive messages through communication service)as unconstitutional, the Supreme Court observed that while an expression in the form of a discussion or advocacy is protected under Article 19, incitement is not. So any expression which eventually starts as a discussion or advocacy but leads to incitement cannot be protected within the contours of Freedom of Speech and Expression.

The notion of 'incitement' as discussed in Arup Bhuyan v. State of Assam(2011) applied the test of "imminent violence". In the said case, the Supreme Court refused to accept the criminality of a person for merely being a member of a banned organisation unless such a person has incited people to violence or caused public disorder by violence or incitement to violence. However, it may be noted that recently a 3-judge bench led by Justice MR Shah had overruled the decision in Arup Bhuyan while upholding the constitutional validity of section 10(a)(i) of the Unlawful Activities (Prevention) Act 1967(penalty for membership in unlawful association). 

More so, the 2020 decision of the Supreme Court in Amish Devgan v. Union of India held that persons of influence ought to exercise more responsibility in their speech having regard to their reach. The Court while refusing to quash the FIR against the remarks made by News Anchor Devgan on the channel News 18 on the Sufi Saint Moinuddin Chishti, observed that the purpose of incriminating hate speech was (1) protecting the dignity of an individual; (2) ensuring political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender etc. 

The judgement further observed that 3 interconnected elements can be employed to define 'hate speech' -(a) content-based: express use of words and phrases considered offensive in general (objective standards applied) ; (b) intent-based: the speaker's intention was to directed to promoting only hatred, violence or resentment amongst different classes (element of subjectivity in deciphering intent); (c) harm-impact: assesses the consequences of the said speech towards the targetted victim community either in form of violence, low self-esteem, economic/social subordination, duress etc. 

"Only when they are present that they produce structural continuity to constitute 'hate speech'", the Court said. A detailed breakdown of the judgement can be read here. 

How hate speech is dealt with in the context of election campaigns is discussed in the coming segments of this explainer.

Which Criminal Law Provisions Deal Closest To The Idea Of Hate Speech?

From the above segment, it can be culled that hate speech constitutes two essential requirements- (1) expression in the form of a speech; (2) such a speech leading to violent or discriminatory or hateful impacts amongst different sections of society by pitching one group against the other.

The following are the criminal law provisions closely dealing with the above two aspects :

Section 153A IPC - penalises actions which promote enmity between different groups on the grounds of religion, race, place or birth, residence, language, etc or such acts which hinder the maintenance of public harmony.

Subsection (1) (a) under 153A IPC specifically penalises a person who by way of “words, either spoken or written or by signs or by visible representations or otherwise” causes disharmony, or feelings of enmity, hatred, or ill-will between different religious, racial, language or regional groups/castes/communities. The offender is punished for a maximum of 3 years or with a fine or both.

Section 298 IPC - penalises anyone who intentionally hurts another person's religious feelings by saying something; making a noise or gesture; or showing an object. This offence is attracted when the person hurt hears or sees such an offending expression. The offence is punishable by imprisonment for up to 1 year or with a fine or both.

Section 505 IPC- the provision broadly deals with statements, rumours or reports made which is conducive to public mischief. S. 505(1)(c) in particular penalises anyone who makes, publishes, or circulates any statement that intentionally causes incitement amongst different classes or communities, leading to the commission of offence by one class or community against the other.

Additionally, S. 505(2) punishes anyone who creates, shares or spreads any statement or report that contains rumours or alarming news with the intent to develop or increase, or which is likely to create or increase feelings of hostility, hatred, or ill-will between different groups based on religion, race, place of birth, residence, language, caste, or community.

In terms of the Procedural Law which can be adopted by the Courts & State Authorities to prevent or take action against hate speech, the following provisions of the CrPC are relevant to note - Section 95 (Power to declare certain publications forfeited and to issue search warrants for the same); Section 107 (Security for keeping peace in other cases) and Section 144 (Power to issue order in urgent cases of nuisance or apprehended danger)

RP Act & Election Commission's Mandate Over Hate Speeches During Elections

The Representation of People's Act 1951 (RPA), framed to maintain the integrity of the Indian Democratic governance, sets out the scheme for conducting general and state elections in a free and fair manner. One of the key areas that RPA governs is the criteria for qualifications, disqualifications of electoral candidates & electoral offences.

While the RPA also does not expressly define hate speech and the consequences of delivering hate speeches during election campaigns, the following provision sheds light on the covert presence of an anti-hate speech mechanism within the RPA :

(a) Corrupt Practices: S. 123 of the RPA defines 'corrupt practices' during the elections as those acts which include bribery; undue influence; appeal to vote on grounds of religion, caste, race etc; promotion of feelings of hatred between different classes; propagation of sati; publication of false statements against the personal character another candidate; booth capturing to name a few.

Within the elaborate list of 'corrupt practices' one can notice the inclusion of 'promotion of enmity and feeling hatred amongst classes a recurrent offence both in the RPA (S.123(3A)) and under the IPC (S. 153 A).

The other prominent 'corrupt practice' can be seen in the form of 'undue influence' under S. 123(2). It states that any undue influence caused by a candidate or his agent which interferes with the free exercise of voting rights falls under the ambit of corrupt practice. The specific scenarios of undue influence include (a) threatening a voter or a candidate with harm, social exclusion, or ostracization; (b) religious manipulation- making voters believe that voting for a particular candidate will lead to divine punishment.

(b) Electoral offences - Within chapter 3 of the RPA which details the different types of offences deemed as electoral ones, S. 125 features the foremost offence of Promoting enmity between classes in connection with election.

S.125, framed on similar lines of S. 153A IPC, provides that anyone who tries to promote or induce feelings of hate; conflict; and enmity between different groups during an election shall be punished with imprisonment up to 3 years, or a fine or both.

(c) Disqualification From Contesting Elections - S. 8 and S.8A of the RPA provide grounds for disqualification of a person from being chosen by voters or from holding a seat (after being chosen) in either of the Houses of the Parliament or State Legislature.

S. 8 enlists those offences in general, for the conviction of which a person is disqualified from elections. This includes S.153A (promotion of enmity) and S. 505(making statements which cause hatred or enmity between classes) of the Indian Penal Code as well as S. 125 (promotion of enmity in connection with elections). S. 8A disqualifies the candidate convicted on grounds of corrupt practices under the RPA.

In its Model Code of Conduct (MCC) for General Elections, the Election Commission of India has set out certain DOs and DON'Ts for each political party and candidate to follow throughout the campaigning and end of the elections. The implied restriction on delivering hate speeches also features in the list. General Conduct guidelines no.1, 3, and 4 provide :

“1. No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic;

3. There shall be no appeal to caste or communal feelings for securing votes. Mosques, Churches, Temples or other places of worship shall not be used as forum for election propaganda;

4. All parties and candidates shall avoid scrupulously all activities which are “corrupt practices” and offences under the election law, such as bribing of voters, intimidation of voters, impersonation of voters, canvassing within 100 meters of polling stations, holding public meetings during the period of 48 hours ending with the hour fixed for the close of the poll, and the transport and conveyance of voters to and from polling station;”

What Did The Court Observe In Pravasi Bhilai Sanghatan v. UOI ? Is The ECI In Need Of Reforms To Address the Issue Of Hate Speech?

In the landmark case of Pravasi Bhilai, the Supreme Court was posed with the legal issue of whether the ECI can be directed to de-recognise the political party of candidates who deliver hate speeches. In the said PIL, the NGO Pavasi Bhalai Sangathan sought directions from the Apex Court to restrain political persons from making hate speeches violative of Articles 14, 15,16,19, 21 and 38 of the Constitution.

While the Court refused to frame any guidelines on hate speech, it directed the Law Commission to dwell into the possibility of defining 'hate speech' and make suitable recommendations to the Parliament for strengthening the ECI's mandate in order to tackle the “menace of 'hate speeches' irrespective of whenever made”.

The Law Commission in its 267th Report stressed the difficulty in defining hate speech it reasoned that an attempt to define may lead to possible ambiguity and violation of freedom of speech by way of misuse of the provision.

“ Any ambiguity in a definition may allow intrusion into freedom of speech and expression.”

While the Commission remained silent on the scope of expanding the mandate of ECI's powers to curb the issue of hate speeches, it however recommended the insertion of two additional offences into the Indian Penal Code, namely- 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases) .

The Apex Court's Take: Key Observations On Hate Speeches During Election Campaigns

The Supreme Court has repeatedly observed that the issue of hate speeches by candidates should be met with proper legal remedies available under the penal provisions and that it would not be apt for the Court to lay down guidelines to regulate the speeches given by the candidate.

In the 2014 case of Jafar Imam Naqvi v. Election Commission of India, the Court noted that the issue of curbing hate speech by politicians and de-recognising such political parties cannot be contended before the Apex Court in the form of a PIL. The PIL sought to address the speeches given during the 2014 election campaigns by political parties, especially in the constituency of Varanasi, The bench of Justice Dipak Misra and Justice NV Ramana observed the following :

"A public interest litigation pertaining to speeches delivered during election campaign, we are afraid, cannot be put on the pedestal of a real public interest litigation. There are laws to take care of it. In the name of a constitutional safeguard entering into this kind of arena, in our convinced opinion, would not be within the constitutional parameters".

In another instance in 2014, the bench of Justice RM Lodha refused to entertain a PIL seeking restrictions on politicians indulging in "provocative and hate speeches". The bench remarked "We are 128 million people and there would be 128 million views. One is free not to accept the view of others,"

However, a hopeful decision in 2018 was made by the Top Court in Tehseen Poonawala v. Union of India which directed the Parliament to consider the need for making a law on mob lynching. A slew of preventive measures were also directed by the Court to prevent the crime of mob lynching and hate speeches. One of the measures mandated the State government to set up a special task force to get information on persons committing the crimes of mob lynching as well as spreading hate speeches, provocative statement and fake news.

The States are also required to assign a senior police officer at least of the rank of Superintendent as the Nodal Officer in each district. This Nodal Officer is to be aided by an officer of the ranks of a DSP in preventing mob violence and lynching.

Last year, the Supreme Court directed police forces of all States/UTs to suo motu register FIRs in hate speech crimes(offences attracting Section 153A, 153B, 295A and 506 of IPC) without waiting for any formal complaint.

In the ongoing matter relating to hate speeches, the Court had sought a follow-up on the compliance of the Poonawala Guidelines from 28 State Governments, in order to effectively and practically curb hate speeches. The detailed reports can be found here and here. The ECI is made a party to the present petition and has filed a response submitting to the Court that it lacks the powers to derecognise a political party or disqualify its members if a party or its members indulge in hate speech. In submitting so, the ECI also relied upon the above-discussed criminal law remedies under which an action against hate speech may be taken.

The bench of Justices Sanjiv Khanna and SVN Bhatti mulled over the possible solution of directing the Director General of Police of the States to form a committee to assess the content and veracity of hate speech complaints and issue appropriate directions to station house officers (SHO). It also granted time to the Centre to consider this suggestion and revert to their stand on it.

Concerning the issue of hate speech striking the foundational values of liberty, equality and fraternity, Justice BV Nagarathna's judgment in Kaushal Kishor v. State of UP observed that the political parties should regulate and control the speech of their functionaries and members.

“Hate speech strikes at the foundational values of the Constitution by marking out a society as being unequal. It also violates the fraternity of citizens from diverse backgrounds, which is the sine qua non of a cohesive society based on plurality and multiculturalism such as in India that is Bharat,” she wrote.

In light of the ongoing Lok Sabha elections of 2024, a recent plea in the Supreme Court filed by ex-IAS Officer Mr EAS Sarma and a former IIM Dean Mr Trilochan Sastry had sought directions to the ECI to initiate appropriate action against hate speeches being delivered by political campaigners for the 2024 General Elections. The petitioners had specifically sought directions to the ECI to initiate an investigation into the hate speeches allegedly given by Prime Minister Narendra Modi and Union Minister Mr Anurag Thakur which allegedly demonised and stereotyped the Muslim community in India.

However, on May 14, the Supreme Court bench of Justices Vikram Nath and SC Sharma dismissed the said petition, while expressing disinclination to interfere under Article 32.

The bench was also seized of another petition addressing the speech given by PM Modi on April 21, 2024 at Banswara, Rajasthan which allegedly promoted communal disharmony. The Court refused to entertain the said petition and pointed out that the petitioners should first exhaust their remedy before the ECI and then approach the Apex Court. The petition was dismissed as withdrawn.

 Also Read- Explainer | Appeal On Ground Of Religion & Use Of Religious Symbols For Votes As 'Corrupt Practice' Under RP Act