SC to examine powers of EC to curb hate speech

CJI threatened to have CEC in court in half hour; notices issued for hate speeches in only 3 cases for 2019 elections

April 15, 2019 01:28 pm | Updated 10:53 pm IST - NEW DELHI

A view of the Supreme Court of India in New Delhi.

A view of the Supreme Court of India in New Delhi.

The Supreme Court on Monday gave the Election Commission of India (ECI) exactly 24 hours to explain its lawyer’s submissions that the poll body is largely “powerless” and “toothless” to act against religious and hate speeches by candidates during the on-going Lok Sabha election campaigning.

During the hearing, Chief Justice of India Ranjan Gogoi even threatened to have the Chief Election Commissioner (CEC) in the courtroom within the next half hour if the court did not get clear answers to its questions on the poll body’s powers under the law against candidates who spew vitriol.

Notice issued

The court found that the ECI had issued notice for hate speeches and campaigning for votes on the basis of religion in only three cases so far. The three include Uttar Pradesh Chief Minister Yogi Adityanath and Bahujan Samaj Party (BSP) supremo Mayawati.

The Election Commission, represented by advocate Amit Sharma, said Mr. Adityanath had been issued an advisory. Ms. Mayawati, the ECI said, had asked for votes in the name of religion.

“So what about Mayawati? She was supposed to reply to you by April 12... Today is April 15. She has not replied. What does the law permit you to do in such cases? Answer us... What will you do now? What are you empowered to do?” Chief Justice Gogoi asked the ECI.

“We will issue an advisory... We may file a complaint,” Mr. Sharma replied.

Mr. Sharma tried to reason, saying, “There is a procedure... We have to give them time to reply.”

“So you are basically saying you [the ECI] are toothless and powerless against hate speeches. The most you can do is send a notice to the offending candidate. If the candidate replies, send him or her an advisory. Despite this, if there is violation of Model Code of Conduct, you may then file a criminal complaint... That is all? Those are your powers under the law?” Chief Justice Gogoi asked Mr. Sharma.

‘No other power’

Mr. Sharma concurred that was “no other power” with the ECI. “We [the ECI] cannot de-recognise or disqualify the person. This is the only power,” he submitted. Hearing this, the court decided to examine in detail the issue of the ECI’s powers to deal with hate and defamatory election speeches, and violations of the Model Code of Conduct.

It ordered an ECI official to be personally present in the court on April 16.

Mr. Sharma tried to explain that the ECI had “standing instructions” to act against hate speeches and the violation of the Model Code.

“What do you mean by ‘standing instructions’? You are duty-bound... In certain matters like this, time is limited. You have to act promptly. Whether the outcome is good or bad, you have to get into it immediately,” Chief Justice Gogoi addressed the counsel.

Petition by NRI

The court was hearing a petition filed by a non-Resident Indian (NRI) Harpreet Mansukhani, highlighting the increase in hate and divisive speeches in the name of religion in the Lok Sabha elections of 2019.

The petition had called for strict action against political leaders and party representatives spreading hatred on religious and caste lines through the media, especially social media platforms.

The petition had urged the court to direct the constitution of a committee headed by a former apex court judge to closely watch the poll process and check the fairness of the ECI.

‘Great threat’

The petition said the communalism of Indian politics, and caste-based parties, were a “great threat to the spirit of the Constitution”.

Ms. Mansukhani, represented by senior advocate Sanjay Hegde and advocate Arup Banerjee, said, “India is beginning to look like Turkey under Erdogan or Russia under Putin, which are turning towards a populist majoritarian leader and right-wing politics for their salvation.”

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