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ECI has clarified that no relief has been claimed by the petitioner, Ashwini Upadhyay, in the writ petition filed by him to curb hate speech, as against the Election Commission of India.
The Election Commission of India(ECI) has informed the Supreme Court that it has not been conferred with the power to derecognise a political party or to disqualify its members if the party or its members commit the offence of hate speech.
An affidavit stating thus has been filed by the ECI in response to a plea filed by Advocate Ashwini Kumar Upadhyay seeking direction to Centre to come out with "effective and stringent" measures to control hate speech and rumor mongering in the country.
In May this year, a Supreme Court bench of Justices AM Khanwilkar and JB Pardiwala allowed the petitioner in the plea seeking disqualification of persons from contesting elections if they are found to be engaging in hate speech, to add the Election Commission of India as a respondent party.
The affidavit filed by Vijay Kumar Pandey, Director (Law), ECI states that no relief has been claimed by the petitioner in the Writ Petition as against the Election Commission of India.
Referring to the judgment in the case of Pravasi Bhalai Sangathan vs. Union of India, wherein the issue of hate speech during the election was dealt with, the ECI submits that the top court had directed the Law Commission of India to suggest if the ECI can be given powers to derecognize a party or its member, who indulged in hate speech.
"...the Law Commission of India's 267th Report neither answered this Hon'ble Court's question as to whether the Election Commission of India should be conferred the power to derecognize a political party disqualifying it or its members, if a party or its members commit the offence of hate speech nor expressly made any recommendations to the Parliament to strengthen the Election Commission of India to curb the menace of “hate speeches’, it did suggest that certain amendments be made to the Indian Penal Code and the Code of Criminal Procedure", the affidavit adds.
The affidavit states that the Law Commission in its 267th Report on Hate Speech, rendered in March 2017, also observed that there is no water-tight compartment to deal with the various acts relating to hate speech which generally overlap.
ECI has further informed the top court that if it is brought to its notice that any candidate or his agent is indulging 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, the ECI takes strict note of the same and thereby issues a show cause notice to the concerned candidate or person calling upon him/her to submit his/her explanation.
"Pursuant to the same, the Election Commission of India takes various measures against the defaulting candidate/person, based upon his/her reply (if any), such as issue of 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)", further states the affidavit.
The affidavit by ECI succinctly points out that the question of commission of any corrupt practice by a returned candidate or his election agent or by any person with the consent of a returned candidate or his election agent can be raised in an Election Petition.
The top court has been further informed that in February 2017, an advisory was issued by ECI to all National and State political parties, directing them to desist from making any such statements that would create disharmony among various sections of the society.
For some background on the matter, it is important to note that the petition filed by Upadhyay stated that injury to the citizens is extremely large because hate speech and rumor mongering have the potential of provoking individuals or society to commit acts of terrorism, genocide, ethnic cleansing etc.
Upadhyay further stated that hate speech is outside the realm of protective discourse and has devastating effects on people’s lives and risks their health and safety.
Notably, Solicitor General Tushar Mehta sought permission from the Apex Court to examine the prayers in the said plea after the matter came up before the top court in April this year.
Case Title: Ashwini Kumar Upadhyay vs. Union of India
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