"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, March 24, 2009

Review Article

Legal implications of hate speech in the milieu of elections Part I

A secular nation can ill afford elections fought on communal lines. The constitution and statute makers were well aware of it and have made provisions in law to curb the menace. Recently, Varun Gandhi is in light for violation of the same. The order of the EC may be seen here.

This piece is an attempt to map the legal implications of hate speech in the locale of elections and to raise certain concerns.

The archangel, the Constitution of India, declares India to be a secular nation. Two streams of law deal with this issue: Indian Penal Code and the Representation of People Act, 1951(R. P Act). Beside these, Model Code of Conduct (MCC) is also relevant while mapping the legal framework. A number of judicial decisions have interpreted and applied these laws, and therefore these too become relevant for the discussion.

R.P Act

The R.P Act classifies condemnable acts during elections into two categories; corrupt practices and electoral offences. Appeal in the name of religion, caste, community or language is a corrupt practice as per section 123 (3) and promotion or attempt to promote enmity and hatred amongst different groups of people is both a corrupt practice [S. 123 (3A)] and an electoral offence [S. 125]. Corrupt practices attracts only the actions of the candidate whereas electoral offences could be committed by ‘any one’.

Finding of commission of corrupt practices will result in disqualification for being a member of the House. Electoral offence will attract penal consequence to the extent of imprisonment for 3 years or fine or both. Section 8 (1) (i) mandate for disqualification for a period of 6 years if punished with only fine or the period of imprisonment plus 6 years, in case punishment involves incarceration.

Indian Penal Code.

Though IPC has a specific chapter on offences relating to elections (chapter IX A), hate speech do not figure in there. The offence and punishment for inflammatory speeches are in Sections 153A, 295A and 505 (2). The punishment ranges from 2 years to 3 years imprisonment and/or with fine.

Incidentally, if the person is found guilty under sections 153 A and 505 (2), minimum of 6 years disqualification will be the result (section 8 (1) (i) and (ii)). If the verdict is for imprisonment for two years under section 295, the disqualification will run for 6 years from release according to section 8 (3) of R.P Act.

Consequences of disqualification

Disqualification have two consequences as per section 7 (b) of the R. P Act. One; being ineligible to contest the election and the other; being ineligible to continue as a member, if already elected. The disqualification of an elected member on the ground of corrupt practice is governed by section 8A of the R.P Act.

Model Code of Conduct

The weak limb in the legal stratum is the MCC. The MCC is not a legislation but is a guideline by the Election Commission (EC). This code draws its legitimacy from Article 324 of the constitution, which vests the power of superintendence, direction and power of conduct of elections with the EC. The fact that MCC bears the endorsement of almost all major political parties is a relevant aspect, though weak in legal tenability.

The EC has the track record of cancelling elections for violation of MCC. Cancellation of bye-election of Kalka constituency of Haryana State Legislature in 1993, Ranipet constituency bye- election to Tamil Nadu State Assembly in 1993. . There are also instances of Chief Ministers reimbursing aircraft charges based on the direction of EC due to violation of MCC (see, S.K Mendiratta, How India Votes: Election Laws, Practice and Procedure (2nd ed.), LexisNexis Butterworths, 2006, 633-643). There are a number of orders passed by the EC for contravention of MCC, the order mentioned earlier against Feroz Varun Gandhi being the latest.

The general conduct guideline in MCC categorically prohibits insinuatory speeches in segregatory planks. The guideline is applicable both to the parties and the candidates.

The MCC becomes operational from the date of announcement of election schedule, (UOI v. Harbans Singh Jalal. Date of Judgment 06-04-01) which in the 2009 general elections is 2/3/2009.

(To be continued)

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