Report No. 267
Politics and Hate Speech
6.10 Political speeches often assume a divisive tone in order to exploit social prejudices for electoral gains. However, this discourse must take place in an environment that does not foster abusive or hateful sentiments. Though, political rivalry might encourage the use of unwarranted language, it is unwise to restrict speech that merely showcases the tendency to evoke unwanted circumstances without intention.124 In order to promote robust and healthy debate, it is important that a fine balance is struck between freedom and restrictions.
6.11 In Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte & Ors.125, the Court analysed the meaning of sub-section (3A) of section 123 of The Representation of People's Act, 1951 (hereinafter RPA, 1951) observing that the said provision is similar to section 153A, IPC as "the promotion of, or attempt to promote, feelings of enmity or hatred" as against the expression "Whoever .... promotes or attempts to promote.....disharmony or feelings of enmity, hatred or ill-will ...." in section 153A, IPC. The expression 'feelings of enmity or hatred' is common in both the provisions but the additional words in Section 153A, IPC are 'disharmony ....or ill-will'.
The difference in the plain language of the two provisions indicates that even mere promotion of disharmony or ill-will between different groups of people is an offence under section 153A, I.P.C, while under sub- section (3A) of section 123 of the RPA,1951, only the promotion of or attempt to promote feelings of enmity or hatred, which are stronger words, are forbidden in the election campaign.
6.12 In Prof. Ramachandra G. Kapse v. Haribansh Ramakbal Singh126, it was held that the accused could not held responsible for the content of the election manifesto as he did not participate in making it. Also, in Manohar Joshi v. Nitin Bhaurao Patil & Anr.127, the Supreme Court observed that a statement by a candidate during election that first Hindu State will be established in Maharashtra cannot be considered a corrupt practice under section 123(3) of the RPA, 1951 as:
[the statement] by itself [was] not an appeal for votes on the ground of his religion but the expression, at best, of such a hope. However, despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion.
6.13 The recent judgment of the Apex Court, Abhiram Singh v. C.D Commachen (Dead) by Lrs.&Ors.128 analysed the law on corrupt practices under the Act, 1951 taking into account series of case laws and observed that Sub-section 3A was simultaneously introduced so as to provide that the promotion of or an attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language would constitute a corrupt practice where it was indulged in by a candidate, his agent or by any other person with the consent of the candidate or his election agent for furthering the election prospects of the candidate or for prejudicially affecting the election of any candidate. While widening the ambit of the corrupt practice as provided in sub-section (3), a significant change was brought about by the inclusion of the words "for any person on the ground of his".
6.14 The Constitutional validity of section 123(5) of the Act, 1951 was upheld by the Constitution Bench in which the sweep of the corrupt practice on the ground of religion was rather broad. The Court also made an observation that section 123(3A) has a different ambit. It does not mean vilifying another language or creating enmity between communities. It refers to the promotion of or attempt to promote hatred between different classes of citizens on the proscribed grounds but section 123(3A) does not refer to the religion, race, caste, community or language of a candidate or of a rival candidate (unlike section 123(3) which uses the expression "his"). Section 123(3A) refers to the promotion of 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.129