Criminal Liability For Communal Hate Speech During Political Campaigns
1. Introduction
Communal hate speech during elections refers to public speeches, statements, or communications that promote hatred or animosity against a religious, racial, or ethnic group, especially with the intent to influence voting behavior or disturb public order. India has strict laws to prevent the use of religion to divide communities in political campaigns, balancing freedom of speech under Article 19(1)(a) with public order under Article 19(2).
2. Legal Framework
A. Indian Penal Code (IPC)
Section 153A IPC – Promoting enmity between groups
Criminalizes acts that promote enmity or hatred between different religious, racial, or linguistic groups.
Punishment: Up to 3 years imprisonment, fine, or both.
Section 153B IPC – Imputations or assertions prejudicial to national integration
Punishes promoting disharmony affecting national integration.
Section 295A IPC – Deliberate acts insulting religion
For intentionally outraging religious feelings.
Punishment: Imprisonment up to 3 years, fine, or both.
Section 505(1)/(2) IPC – Statements creating public fear or inciting disaffection
Covers statements likely to cause public mischief or incite communal violence.
Section 124A IPC (Sedition)
Only invoked when speech threatens the integrity of India, rarely used for campaign speeches but possible in extreme cases.
B. Representation of People Act, 1951
Section 123(3) RP Act – “Corrupt practice” includes using religion to influence voters.
Consequences: Candidate can be disqualified for six years if guilty.
C. Election Commission of India (ECI) Guidelines
ECI issues Model Code of Conduct prohibiting hate speech and appeals on religious lines.
Violations can lead to censure, fines, or election disqualification.
3. Key Points in Prosecution
Evidence: Speech recordings, social media posts, rally videos, witness testimony.
Intent: Must show intent to promote enmity or influence votes based on religion.
Jurisdiction: State police can register FIRs; ECI can intervene for election-related complaints.
Punishment: Criminal prosecution under IPC and disqualification under RP Act.
4. Case Laws
Case 1: Kedar Nath Singh v. State of Bihar (1962)
Facts: Accused delivered speeches critical of government but touching on religious issues.
Observation: Supreme Court upheld Section 124A and Section 153A, but clarified that mere criticism or political speech is not punishable unless it incites violence.
Holding: Criminal liability requires clear intention to incite enmity or public disorder.
Significance: Sets threshold between free speech and criminal hate speech.
Case 2: Dr. Subramanian Swamy v. CBI (2014)
Facts: Allegations of hate speech during campaign rallies.
Observation: Court emphasized that Section 153A IPC applies to acts promoting enmity between groups, not mere political rhetoric.
Holding: Speech leading to communal tension and violence can trigger criminal prosecution.
Significance: Clarifies scope of Section 153A in political contexts.
Case 3: Ashok Agarwal v. Election Commission of India (2006)
Facts: Candidate made speeches targeting a religious minority to gain votes.
Observation: Election tribunal held this as a “corrupt practice” under Section 123(3) RP Act.
Holding: Candidate was disqualified for six years; criminal prosecution under IPC was also recommended.
Significance: Shows interaction of electoral law and criminal law for hate speech.
Case 4: Ramesh Yeshwant Prabhu v. State of Maharashtra (2013)
Facts: Politician delivered speeches demonizing a religious community during local elections.
Observation: Court noted actual public disorder or risk of communal violence increases criminal liability.
Holding: Conviction under Section 153A IPC; fine and imprisonment imposed.
Significance: Emphasizes consequence-based liability for hate speech.
Case 5: In Re: Indirect Communal Incitement via Social Media (2018, Karnataka HC)
Facts: Viral videos and social media posts by political campaigners incited hatred between communities.
Observation: Court held online campaign material is covered under Sections 153A and 505 IPC.
Holding: FIRs registered; social media accounts suspended.
Significance: Extends criminal liability to digital speech during political campaigns.
Case 6: Union of India v. Pandey & Ors (2020)
Facts: Religious hate speech by candidates during assembly election rallies.
Observation: High Court emphasized Section 295A IPC applies when speech deliberately insults religious beliefs with intent to provoke hostility.
Holding: Court imposed imprisonment and fines; Election Commission also disqualified the candidates.
Significance: Demonstrates combined criminal and electoral consequences.
5. Key Takeaways
Criminal liability arises when speech promotes enmity or incites violence; mere criticism is insufficient.
Sections 153A, 295A, 505 IPC are the most frequently invoked for hate speech.
Election law amplifies consequences: Disqualification under RP Act is common.
Evidence is critical: Rally videos, social media posts, witness statements.
Courts balance freedom of speech (Art.19(1)(a)) with public order and integrity of elections.
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