"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.

Friday, March 27, 2009

Review Article

EC’s order on the hate speech issue – A summary

Part II of Legal implications of hate speech in the milieu of elections. See Part I here.

EC suo motu took note of the reported incidences of hate speech and issued notice to Varun to explain his actions of violation of clause 1 and 3 of the Item No.1, which specifies General Conduct, of the MCC. The notice also required Varun to explain the charges of (1) attempting to promote enmity and hatred among different class of citizens on the ground of religion, (2) outraging the religious feeling of a particular community, and (3) promoting hatred and ill-will between two classes of citizens provoking a section of the citizens to indulge in violence. Notice was also issued to BJP to explain its actions.

The party in its reply took a safe stance of disassociating itself from the actions of Varun, though later actions of the party are contrary. But then we are not surprised about the actions of the BJP as we are so familiar with the diabolic actions of political parties and their unprincipled stands for gains, aren’t we?

Varun vied the contents of the notice and explained his position denying all the allegations. He contended that the CDs were doctored and what happened is a trial by media. As per the EC, Varun neither accepted nor rejected the contents of the speech, which became a crucial basis of the order of the Commission.

The Commission could not find any merit in the explanation of Varun. EC came down hard on the content of the speech and observed that expressions of this nature are pernicious as also contemptuous of the Constitutional ideals of secularism and democracy. The Commission co-opted the views of the SC of India in cases where such rhetoric has been the issue. (Ziauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra AIR 1975 SC, Abdul Hussain Mir Vs. Shamsul Huda AIR 1975 SC 1612 and Ramesh Yeshwant Prabhoo Vs.Prabhakar Kashinath Kunte and Others (1996) 1 SCC 130)

Being conscious of the limitations of the powers and the present position of law the Commission advised the party not to field Varun as a candidate. EC condemned the actions of Varun and censured him. Commission had already taken initiative to register criminal cases under IPC and R.P Act. The Commission directed the UP government to investigate and proceed in these matters with swiftness and alacrity. In the light of explanation tendered by BJP the Commission expressed its expectation that the party will not nominate Varun as its candidate.

(To be continued)

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