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No law on poll hate speech so acting under IPC & Representation of People Act, EC tells apex court

Election Commission was responding to former BJP spokesperson Ashwini Upadhyay's petition demanding direction to Modi govt to take steps to curb hate speech & rumour mongering.

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New Delhi: The Election Commission of India (ECI) told the Supreme Court Monday that it has been taking recourse to provisions of the Indian Penal Code (IPC) and The Representation of the People (RP) Act, 1951, to deal with political parties indulging in hate speech, because of the lack of a specific law dealing with hate speech and rumour-mongering during polls.

The ECI was responding to a petition filed in August last year by former BJP spokesperson, advocate Ashwini Kumar Upadhyay.

“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 that members of political parties, or even other persons, do not make statements to the effect of creating disharmony between different sections of the society,” submitted the ECI in an affidavit.

Upadhyay’s petition has demanded direction to the central government to take “effective stringent steps to control hate speech and rumour-mongering in order to secure rule of law, freedom of speech and expression, right to life liberty and dignity, and other fundamental rights of citizens”. It had also sought a direction to the government to take steps for the implementation of recommendations mentioned in a 2017 Law Commission of India report on hate speech.

The ECI in its response claimed that “acts of making hate speeches are often interconnected with appeals to religion, caste, community, etc, during election campaigning”.

It pointed out that the Supreme Court had, in 2014, urged the Law Commission of India to look into making recommendations to the Parliament to “strengthen the Election Commission to curb the menace of ‘hate speeches’ irrespective of whenever made”.

However, the ECI has told the court that the Law Commission of India did not make any recommendations on whether the ECI should be empowered to derecognise a political party, disqualifying it or its members, if a party or its members indulge in hate speech.

The ECI affidavit pointed out that the commission did suggest various amendments in criminal law to penalise the offence of incitement of hatred, and causing fear and alarm, or provocation of violence in certain areas. This is what Upadhyay now wants the Supreme Court to direct the central government to implement.

It then listed the measures it takes when any candidate or their agent indulge in hate speech. The ECI added that it takes “strict note” of it and issues them a show cause notice.

“The Election Commission takes various measures against the defaulting candidate/person, based on his or her reply, such as issuing advisories cautioning them or prohibiting them from campaigning for a specified period of time or even initiating a criminal complaint in the case of repeat offenders,” the affidavit explained.

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Not defined under any law

The Supreme Court allowed the ECI to be added as a party to the PIL in May this year. This was after Upadhyay asserted that hate speech frequently happens during elections, even when the model code of conduct is enforced.

In response, the ECI has now pointed out that “hate speech has not been defined under any existing Law in India”.

The ECI added that, currently, the provisions which deal with hate speech include sections 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc), 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) and 505 (statements conducing to public mischief) of the IPC, and provisions of the RP Act and Code of Criminal Procedure (CrPC).

Section 125 of the 1951 Act also provides for a three-year jail term for anybody who promotes feelings of enmity or hatred between different classes of citizens on the grounds of religion, race, caste, community or language, in connection with an election.

It also referred to various Supreme Court judgments on the issue of hate speech during elections.

A 2017 Supreme Court judgment on the issue was brought to the notice of all recognised national and state political parties through a letter, asking them to inform candidates to “desist from any activities that would amount to soliciting votes in the name of religion, caste, etc in any manner,” said the ECI in its response.

The ECI further told the apex court that despite the fact that the model code of conduct does not have “legal sanctity”, it has issued guidelines prohibiting candidates from indulging in “any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic”.

(Edited by Poulomi Banerjee)

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