September 29, 2022

Electoral Commission to the Supreme Court

The Election Commission of India has told the Supreme Court that it has no legal power to revoke the recognition of a political party or disqualify its members, if a party or its members engage in hate.

In the counter affidavit filed in response to a PIL requesting measures to combat hate speech, the Commission noted that the Supreme Court had in the case Pravasai Bhilai Sanghatan vs Union of India (2014) referred to the Law Commission of India the question whether the Electoral Commission should be given the power to revoke the recognition of a political party by disqualifying it or disqualifying its members, if a party or its members commit the offense of hate speech. However, the 267th Report of the Law Commission of India did not answer the Court’s question whether the Electoral Commission of India should be given the power to deregister a political party by disqualifying it or by disqualifying its members, if a party or its members commit the offense of hate speech nor expressly make recommendations to Parliament to strengthen the Election Commission of India to reduce the threat of hate speech. However, the Law Commission has suggested that certain amendments be made to the Indian Penal Code and the Code of Criminal Procedure.”

Provisions of the IPC and RP Acts invoked to combat hate speech during election campaigns

The Election Commission told the Supreme Court that “in the absence of any specific law governing ‘hate speech’ and ‘rumour’ during elections, the Election Commission of India uses various provisions of the IPC and the RP Act 1951 to ensure that members of political parties or even other persons do not make statements to the effect of creating discord 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 in any existing law in India, but there are a few legislations which have an impact on hate speech hate, such as:

Indian Penal Code – Sections 153A (Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.), 153B (Imputations, assertions detrimental to national integration ), 295A (Deliberate and Malicious Acts to Outrage Religious Feelings), 298 (Uttering Words with Deliberate Intent to Injure Religious Feelings), 505 (Statements Conducive to Public Mischief)

Representation of the People Act – Sections 8 (Disqualification on conviction for certain offences), 123(3A) (Corrupt practices), 125 (Promotion of enmity between classes in connection with the election)

Code of Criminal Procedure – Articles 95 (Power to declare certain publications confiscated and to issue search warrants therefor), 107 (Security to keep the peace in other cases), 144 (Power to issue an order in the event of an emergency of nuisance or apprehended danger)

It has also been pointed out by the Electoral 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 v India Election Commission. It has been argued that in Pravasi Bhalai Sangathan, the court referred the case to the Law Commission to define hate speech and make recommendations to Parliament to strengthen ICE to reduce its threat. In its report, the Law Commission had recommended the Criminal Law (Amendment) Bill 2017 with the insertion of Sections 153C and 505A. It was also recommended that the model code of conduct also be changed, but no recommendation was made by the Law Commission regarding strengthening the ICE.

Model code of conduct contains provisions to control hate speech

As a measure, the counter affidavit stated that the ECI has made changes to the Model Code of Conduct and if it comes to the attention of the ECI that “any candidate or their agent engages in a speech which promotes or attempts to promote, feelings of enmity or hatred between different classes of Indian citizens on grounds of religion, race, caste, community or language, the Election Commission of India takes strict notice and issues so a notice of justification to the candidate or the person concerned, inviting him to present his explanations.” The ECI also takes actions such as issuing a notice warning the candidate to campaign for a specified period or even initiating a criminal complaint.

The ECI also pointed out that a list of do’s and don’ts has been drawn up, which aims to give the widest publicity to be brought to the attention of all candidates in the running, to be followed by all candidates and political parties.

The ECI also argued that the Model Code of Conduct listed certain practices as corrupt practices and electoral offenses in the IPC and PR 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 ruled in Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra that any appeal to vote or abstain from voting, made by a candidate or his agent, which prejudices the electoral prospects of others, on grounds of religion, caste, race, community, etc., falls within the of the definition of corrupt practices under Article 123 of the RP Law. Abhiram Singh v CD Commachen was also mentioned by the election commission.

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

Ashwini Kumar Upadhyay v Union of India and Ors – WP(C) 943/2021