Provisions of penal law, RP Act and Model Code of Conduct used to control hate speech, EC tells SC

EC's response came to a PIL by BJP leader Ashwini Kumar Upadhyay for the Centre to bring legislative measures for the hate speech

The Election Commission (EC) has told the Supreme Court (SC) that it employed provisions of the Indian Penal Code and the Representation of People Act to ensure that members of the political parties do not make statements for creating disharmony between different sections of the society.

"In absence of specific laws on 'hate speech' and 'rumour mongering' during the polls, it also used its Model Code of Conduct as well as 'Do's and Don'ts' for the candidates and political parties for the purpose," it said.

The EC filed a written response to a PIL by BJP leader and advocate Ashwini Kumar Upadhyay for the Centre to bring legislative measures for the hate speech and rumour mongering.

The poll panel said it takes strict note if any candidate or his agent indulged in any speech that promotes, or attempts to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language.

In such cases, the EC issued a show cause notice to the concerned candidate or person calling upon him/her to submit his/her explanation. Based upon the explanation, it issued advisories cautioning such defaulting candidate/person or prohibiting him/her from campaigning for a specified period of time or even initiation of a criminal complaint, in case of repeat offenders, the reply said.

The poll panel also pointed out it had already issued a 'Model Code of Conduct for the Guidance of Political Parties and Candidates' and 'Do's and Don'ts' for them after the announcement of elections and till the completion of the process.

It stated, "There should be no appeal on basis of caste/communal feelings of the electors; and no such activity should be attempted, which may aggravate existing differences or create mutual hatred or cause tension between different castes/communities/religious/linguistic groups."

The EC said that as per the direction of the SC in Pravasi Bhalai Sangathan (2014), the Law Commission of India examined the issue of whether the Election Commission of India should be conferred with the power to derecognise a political party disqualifying it or its members if a party or its members commit the offence of hate speech.

"The Law Commission neither made any recommendations with regard to the specific query...nor made any recommendations to the Parliament to strengthen the Election Commission of India to curb the menace of "hate speeches", irrespective of whenever made," the reply stated.

The poll panel also said, in Jafar Imam Naqvi vs Election Commission of India (2014), the petitioners sought mandamus from the SC to the EC to withdraw the recognition given to such political parties resorting to illegal activities and to cancel the candidature of politicians found guilty of vitriolic speeches before declaration the election results.

"However, this court dismissed the writ petition on the ground that the petition under Article 32 of the Constitution regarding speeches delivered during an election campaign does not qualify as public interest litigation and that the Court cannot legislate on matters where the legislative intent is visible," it said.

The EC further said it filed the present reply to bring on record the position of law, as it was made a party in the instant PIL by Upadhyay by the top court on May 13, 2022, though no relief has been claimed against it.