Timely directive

The Supreme Court’s directive to the Law Commission to form some clear guidelines on hate speech is timely because a large number of complaints and cases relating to it occur during election campaigns.

The court has also asked the Commission for its views on whether candidates can be disqualified and political parties derecognised for making hate speeches. The Commission’s recommendations may not be available for use during this campaign period, and in any case, the court has felt any tightening of the legal provisions and enabling the Election Commission to take action in cases of hate speech lie in the realm of parliament’s powers.

However, it has observed that there is no legal vacuum as such, because existing statutory provisions, particularly the penal law, provide sufficient remedy to curb the menace. It thinks that the problem is more of lack of implementation of laws than of their absence, and asked the law enforcement agencies to take strong action against those who create enmity and disaffection based on religion, caste, ethnicity, region or other divisive factors.

The court’s direction and observations show that there are problems of both definition and execution of laws. It is well known that offensive speeches inviting action under relevant provisions of the Indian Penal Code or the Representation of People Act are not often pursued. Bal Thackeray had always got away with hate speech. The Shiv Sena and some other parties have revelled in it.

Even when cases were pursued, the results have not been the best and consistent. BJP leader Varun Gandhi was unconvincingly let off by the trial court for a speech he made during the 2009 Lok Sabha election campaign. There are many other cases of failures of follow-up legal action and prosecution.

While better execution of laws is needed, a sharper definition is also important. This is because what is considered as hate speech on one forum or in one context may not be seen so on other forums and in other contexts. Action against hate speech should not also curb free speech, which is a fundamental right. The court, in fact, refused to give a general instruction to the Election Commission on dealing with speeches during the campaign on this ground.

Some countries have specific laws on hate speech while others do not. The Law Commission’s views might throw clearer light on the matter. But its reports are usually ignored by the government and parliament.

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