By- Vikalp Sharma

“There is a fine line between free speech and hate speech. Free speech encourages debates whereas hate speech incites violence”.

-Newton Lee

The dangerous weapon that is being used nowadays during the election campaign is the Hate Speech’, which is defined as an “Expression that is abusive, insulting, intimidating, harassing, or which may incite to violence, hatred, or discrimination based on race, ethnicity, religion, or sexual orientation”[1].

There are two mechanisms that are used systematically during and after the elections. They are used basically to whip up anti-minority hatreds.[2]

Basically, it can be defined as a speech that provokes other people to hate a certain group in society. It is mainly because of the common characteristics like discrimination made on the basis of race, gender, religion, etc.

Though the need to exclude and avert hate speech is incontrovertible, opponents of hate speech restrictions often argue that the prohibition of hate speech may result in an infringement of freedom of expression, which could harm:

(A) Political awareness and expression;

(B) Legitimate criticisms and scholarly analysis of religion; and

(C) Humor and artistic expression.

In India, even though anti-hate laws impose a certain amount of restriction on the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, in G.V Godse v. Union of India[3]

High Court upheld its Constitutionality. It was basically upheld on the grounds of being a reasonable restriction intended at maintaining public order under Article 19(2) of the Constitution of India.

Legislative Approach

Elections in India are structured under the Representation of Individuals Act, 1951 (hereinafter referred to as RPA) to make sure elections take place in a free and fair manner.

Also, to elect an honest candidate, the RPA has laid down certain rules and prohibited certain acts that denigrate the purity of the elections. RPA categorizes deplorable acts committed during elections into two categories under Part VII. These are corrupt practices and electoral offences.

The basic distinction between the two categories is that when a wrong is done under corrupt practice. They are often brought before the Courts only at the top of elections by way of an election petition filed in accordance with the provisions of Article 329(b) of the Constitution of India.

Part VI of the RPA states that an electoral offence is often taken into cognizance and proceeded with. It is so because the offences are committed as per the provisions of the Criminal Procedure Code, 1973.

Also, a conviction for a corrupt practice involves civil disabilities like disqualification from voting and contesting elections for a particular period, a conviction for electoral offence attracts criminal liability like imprisonment for a term which can reach three years, or with fine, or both.[4]

Section123 and Section 125 of RPA govern the Act of unethical practices during elections. The charge of unethical practices is applicable to the candidates of the party and their agents.

However, after the changes brought in Section 79(b) of RPA defining who is a ‘Candidate’ made it easier for proposed candidates to escape from the charges as they defend themselves by saying that they haven’t filed the nominations forms yet.

The earlier Section used to define candidate as a person who is either proposed candidate or official candidate from any party involved in election campaigning which helped to prevent party agents to defer from giving hate speeches, but there was ambiguity in the understanding of the Section as it was hard to prove that the elevation of hatred through speeches and other means is part of an election campaign or not.

Therefore, in the landmark case of Raj Narain v. Indira Gandhi[5], Section 79 (b) of RPA was amended. The amended provision regarded only such person as a candidate who had been or claimed to possess had been duly nominated as a candidate at an election and not the one who was yet to be nominated.

Cases highlighting the shortcomings in the Provisions of the Act

The dark side of judicial interpretation, especially with Section 123(3) and Section 123 (3A) of RPA, can be seen in Ramesh Yashwant Prabhoo v. P.R. Kunte.[6] This case involved charges of corrupt practices against Prabhoo, the ex-mayor of Mumbai, and his ‘agent’ Bal Thackeray.

They made insulting references to Muslims and further declared a conflict against the Muslims. The Supreme Court concluded that the speeches made were in violation of Section 123 (3A), it demonstrated a more liberal approach towards some of the similar issues.

The Court observed that mere reference to any religion in an election speech does not bring it under Section 123(3) or Section 123 (3A).

Varun Gandhi who is a member of the Bhartiya Janta Party on March 7, 2009, made hate speech based on religious sentiments. Since he filed his nominations papers a month after making speech therefore, he was not an official candidate of the party for the elections as per the definition given under Section 79(b) of RPA.

Therefore, any grievance with esteem to the commission of corrupt practice under Section 123(3) or Section 123(3A) of RPA could not have been charged against him because he was not a candidate on the date when the hate speech was made[7].

It is very much evident that the definition of ‘Candidate’ is supporting the politicians to engage in corrupt practices such as making provoking communal speeches, instead of heling in the process of justice.

The misuse of this provision is largely owing to the fact that election campaigning in India starts much before a person files his nomination papers. This allows potential candidates to make provocative speeches to divide voters and garner votes without any fear of attracting disqualification under the law.

Model Code of Conduct

The RPA deals with situations that arise before the commencement of the elections and situations arising after the declaration of result of an election. The hate speech provisions thereunder are only applicable once elections are over.

Further, election petitions and criminal trials take an extended time and irrevocable damage could also because if an individual isn’t meanwhile restrained. So, as to carry out free and fair election campaigns and stop parties from practicing corrupt practices like hate speech, the Model Code of Conduct (hereinafter referred to as MCC) has been laid down which contains various guidelines about how the election campaign should be carried on.

MCC provisions are for the guidance of both candidates and political parties. Therefore, once the MCC comes into effect on the date of the announcement of an election, all party members would come within the purview of its provisions.[8] Thus, whether the hate speech is made by any person who is officially a party member will be directed under the guidelines of the MCC.

Suggestions and Conclusion

Since MCC lacks statutory sanction. The author herein suggests statutory sanctions be granted as MCC violations require quick response whereas the judicial process of examination of MCC violation would result in unnecessary delay, thereby rendering judicial decisions that are pronounced much after elections.

The law itself places an obligation on the judge trying an election petition to conclude it within six months from the date of its presentation; however, such expeditious disposal of election petition has only remained a dream.

Section 8A of RPA governs disqualification on the ground of corrupt practice. As per the present position of law, violation of Section 123 (3) or Section 123 (3A) entails disqualification under Section 8A of RPA.

The current practice, however, is a long and hard process as the order for disqualification can be issued only after it has passed through several phases of scrutiny.

Thus, Election Commission also should be permitted to act as an Election Tribunal for the purpose of dealing with complaints associated with violation of MCC provision whereby they will be required to deliver judgment within the campaign period.

This will ensure a situation that requires to be dealt with during the campaign period is met with an effective remedy that provides instant relief so that justice does not have to wait.

[1] Jae-Jin Lee, “Understanding hate speech as a communication phenomenon: another view on-campus speech code issues”, Communications and the Law, Vol. 19, 1997.

[2] Hate Speech and Hate Writing.

[3] G.V Godse v. Union of India, AIR 1971 Bom 56.

[4] K. Mendirratta & V.S. Ramadevi, How India Votes: Election Laws, Practice And Procedure 906- 08 (2007).

[5] Raj Narain v. Indira Gandhi, AIR 1975 SC 1590.

[6] Ramesh Yashwant Prabhoo v. P.R. Kunte, AIR 1996 SC 1113.

[7] https://timesofindia.indiatimes.com/india/Varun-files-nomination-declares-assets-worth-Rs5cr/articleshow/4434625.cms?

[8]Harbans Singh Jalal v. Union of India, (1997) 116 PLR 778.


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