Will Political Hate-speech remain Inexorable in India ?- The seemingly implausible conundrums one is confronted with.

On April 8 2013, the Supreme Court issued notices to the Centre, Maharashtra and Andhra Pradesh governments, and the Election Commission, seeking responses to the contentions of raised by the NGO Pravasi Bhalai Sangathan in a PIL which sought framing of guidelines to curb elected representatives, political and religious leaders from delivering hate speeches in pursuance of their narrow political goals. The timing of the Supreme Courts entertaining the PIL was quite apt, coming as it did on the heels of Varun Gandhis acquittal despite his incendiary communal tirade at Pilibhit in 2009. This is not an isolated incident- in the recent past, we have been helpless, mute witnesses to the brazen shenanigans of rabble-rousers like Praveen Togadia, the Owaisi brothers, and others of their ilk. The political chicanery and skullduggery have combined to ensure that such peddlers of hate continue to ply their trade with gay abandon. The only redeeming part, if one may say so, was the Mumbai Sessions Court upholding the conviction of two Shiv Sena CorporatorsJayawant Parab and Ashok Shinde, for inciting people during the 1992-'93 Bombay Riots. This was not unproblematic either- the Court, considering a host of mitigating factors, let them off with suspended sentences of only a couple of months.

As a nation, we seem to be racing on the path to being inured to all sorts of virulent speech- especially those reveling in misogyny, casteism, or communalism. Unscathed by a catena of judicial rulings, these continue to flourish. It is also trite that in some cases, most infamous being Joseph Bain DSouza (1995 CriLJ 1316 ) and the Late Justice J.S. Vermas Hindutva rulings twin monsters- Manohar Joshi [1996 SCC (1) 169] and Ramesh Prabhoo [1996 SCC (1) 130] , the Court has itself demonstrated that judicial rulings can also contribute in no small way to the burgeoning reservoir of hate-speech. Even if one goes easy on withering criticism, it can be said with certitude that the Courts handed hate-mongers a very potent tool with which invective can be used with impunity, yielding handsome political returns. In Joseph Bain DSouza (which involved a challenge to Bal Thackerays Saamna articles exhorting the people to drive out Muslim traitors), the Court held : If we take into consideration the article as a whole, it is clear that the criticism is against anti-national or traitors section of Muslims and their selfish leaders who are creating rift between Hindus and Muslims and in the aforesaid portion reference is also made that Muslims should understand the sentiments of Hindu majority and merge themselves in the national mainstream instead of being carried away by the 1

selfish leaders who were prompting to attack Hindus. , thereby creating a legitimate category of Muslims who ought to be hated.

Justice Verma went further in Ramesh Yashwant Prabhu, holding that Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism- giving juidicial imprimatur to the Saffron Brigades poll-plank of hate. Therefore, it can even be contended that firing a fusillade of hate-speech has become an indispensable and inalienable feature of election campaigning.

How does one rein in political hate-mongering? True to form, the various complainant governments /politicians are in no hurry to appeal the aforementioned acquittals. Even if they do, hopes of convictions remain a mirage. Varun Gandhis case fell flat because of lack of witnesses, Togadia will make the Maharashtra government pussyfoot because of the ostensible apprehension of communal riots, the Owaisis have political calculations to their advantage, Raj Thackeray would continue being the regressive curmudgeon.. It might be worthwhile to repose faith in the Election Commission (EC) since till now, with some support from the judiciary, it has put the best spanners in the works of those hell-bent upon subverting democracy. Moreover, NO political hate-speech is made in isolation or without a hawks eye on impending polls, or without an objective of living up to a particular political ideology. Article 324 of the Constitution vests in the EC the power and mandate of conducting free and fair elections. These powers include those of superintendence and control. Besides this, there are Sections 123 (3) and 123-A of The Representation of the People Act, 1951 (which define religious and communal appeals, among others as corrupt practices which entail disqualification) and the Model Code of Conduct (MCC) , which also prohibits candidates from using the rhetoric of invective for political gain. In addition to the above, going by the Supreme Courts ruling in Shri Suryakant Venkatrao Mahadik vs Smt. Saroj Sandesh Naik [1996 SCC (1) 384 ]- it happens to be the only case wherein a candidates election was cancelled on grounds of spewing communal hate, it appears that a deft combination of judicial intervention and strict enforcement of laws by the EC might just be the panacea. The Conundrums

Primarily, one comes up against a seemingly insurmountable obstacle is the fact that the Model Code of Conduct does not have statutory validity- it is more of a voluntary code of ethics which political parties and their candidates have decided to submit themselves to. Despite repeated recommendations by various committees on electoral reforms, the Legislature, for obvious reasons, has been loath to give legal teeth to it. So much so, that with all sorts of depredations being practised, the Code has become more of a shibboleth which everyone follows only in the breach. Second, when do the ECs powers to swing into action kick in? Even though the Punjab & Haryana High Court, in Harbans Singh Jalal v Union of India [(1997) 116 PLR 778] held that the EC can act even prior to the Notification announcing the commencement of the election process, it can do precious little to clamp down on political hate-speech all the year round. Third, giving statutory teeth to the MCC might prove counterproductive, in the sense that then it shall mandate a particular legal procedure to be adhered to before any action can be taken. And in the internecine alleys of legalese which characterise and dog the present system, swift and effective action to stem the tide of consequential violence and anarchy would be impossible. Fourth, the question of judicial intervention. As per the present statutory framework, an election petition can be filed only after the results are declared. Considering the archetypal tinderbox we are sitting on, the fiendish consequences of unbridled hate speech might just prove too onerous to rein in. The history of communal violence bears ample testimony to this fact. A critical question- what shall be the standards of judicial determination of hate in the context of political speech? The Supreme Court held in Babulal Parate vs State Of Maharashtra And Others ( AIR 1961 SC 884) that the clear and present danger test laid down by the US Supreme Court in Schenck (1919) is inapplicable here. Pertinent is the Supreme Court of Canadas ruling in R v Keegstra (1990) which recognised how inadequate the Schenck test was in the face of hate propaganda. Suffering that we are from judicially -sanctioned feelings of hate and offence, can we afford to go by the power of the thought to get accepted in the competition of the market [ per the US Supreme Court in Abrams (1919) ] in a situation where competitive hate-mongering is all too pervasive? The most fundamental question of all- what happens to the freedom of expression if political speech or even campaign speech is subjected to stringent legislative controls or executive fiat ?