Criminal Liability For Hate Speech During Elections
Criminal Liability for Hate Speech During Elections in Nepal
Legal Framework
In Nepal, hate speech during elections is treated seriously because it can disrupt public order, incite violence, and undermine democratic processes. Key provisions include:
Constitution of Nepal, 2015
Guarantees freedom of speech (Article 17) but allows reasonable restrictions on speech that threatens public order, morality, or rights of others.
Article 31 guarantees equality and prohibits discrimination on the basis of caste, religion, ethnicity, gender, or region.
Election-related Laws
Election Commission Act, 2063 (2007) and Local Level Election Act, 2074 (2017) prohibit speech or activities that incite hatred, discrimination, or violence against individuals or groups.
Section 26(1) of the Election Code of Conduct specifically prohibits statements that incite enmity, hatred, or caste/ethnic/religious discrimination during elections.
Muluki Criminal Code (2074)
Section 116: Criminal intimidation and incitement to commit offences.
Section 117: Provoking violence or enmity among communities.
Section 118: Promoting hatred or enmity based on caste, religion, or ethnicity.
Section 149–151: Offences related to disturbing public peace or election misconduct.
Principles of Criminal Liability
Intent (mens rea): The accused must intend or knowingly incite hatred, discrimination, or violence.
Act (actus reus): Public speech, statements, or social media posts that create tension or incite violence.
Election Period Sensitivity: Hate speech during elections is considered aggravated because it may affect democratic processes and law and order.
Case Studies
Case 1: Election Commission vs. Candidate A (2017, Kavre District)
Facts:
A candidate made speeches at rallies suggesting that a certain ethnic community would be excluded from development projects if another candidate won.
Legal Issues:
Whether such statements constituted hate speech and incitement under Election Code of Conduct and Criminal Code Sections 117 and 118.
Court Decision:
The Election Commission fined the candidate, issued a show-cause notice, and temporarily suspended campaigning. The court emphasized that public statements targeting ethnic groups violated election law and criminal provisions.
Significance:
Reinforced that electoral speech cannot target groups based on caste or ethnicity.
Clarified the Election Commission’s powers to regulate hate speech during campaigns.
Case 2: Supreme Court Review of Election Speech in Jhapa (2018)
Facts:
A candidate used social media to post messages calling for exclusion of religious minorities from voting in a local election.
Legal Issues:
Whether online messages constitute criminal incitement.
Applicability of Section 118 of the Muluki Criminal Code to digital communications.
Court Decision:
The Supreme Court held that online posts are equivalent to public speech and can attract criminal liability.
The candidate was fined and barred from campaigning for 30 days.
Significance:
Recognized the scope of hate speech laws in cyberspace, particularly during sensitive election periods.
Case 3: Candidate B vs. District Election Officer, Dang (2019)
Facts:
During a municipal election, Candidate B claimed that voting for opponents would lead to “loss of security and harassment of locals” based on caste differences.
Legal Issues:
Whether the statement amounted to criminal intimidation and hate speech under Sections 116 and 117.
Court Decision:
The District Court fined the candidate and issued a warning that repetition would lead to disqualification.
Court stated that intentional targeting of caste groups for electoral gain is prohibited.
Significance:
Demonstrated that courts actively monitor hate speech in local elections.
Established that threats based on caste identity are criminally actionable.
Case 4: Social Media Hate Speech during Province Election, 2022
Facts:
A candidate shared posts claiming that members of a particular ethnic group were corrupt and should not vote.
Legal Issues:
Whether social media posts are criminally liable for inciting enmity.
Application of Section 118 and Section 149 (disturbing public order).
Court Decision:
Candidate was arrested temporarily, fined, and required to remove posts.
Court noted that hate speech targeting ethnicity can escalate into violence and voter suppression, which is punishable.
Significance:
Confirmed that digital communications are within the scope of criminal liability.
Election authorities must act swiftly to prevent escalation.
Case 5: Criminal Conviction for Religious Hate Speech, Kathmandu 2023
Facts:
During a local election, a candidate publicly claimed that supporting candidates from a particular religion would harm national security.
Legal Issues:
Whether this speech violates Sections 118 and 149 for promoting religious hatred during elections.
Balancing freedom of speech with public order.
Court Decision:
The candidate was convicted of incitement, fined, and sentenced to six months imprisonment (suspended).
Court emphasized that freedom of speech is not absolute and cannot be used to intimidate or threaten a religious community.
Significance:
Reinforced that religious-based hate speech during elections is criminally punishable.
Case 6: District Court Case – Candidate C, Lalitpur 2021
Facts:
Candidate C called supporters to boycott voters from a neighboring district, claiming they would “steal jobs and resources.”
Legal Issues:
Whether the statement constitutes community-based hate speech and voter intimidation.
Criminal liability under Sections 116–118 of the Muluki Criminal Code.
Court Decision:
Court held that statements creating division among communities for electoral gain amount to criminal hate speech.
Candidate was fined, public apology ordered, and campaign suspension applied.
Significance:
Clarified that both local rallies and public statements can attract criminal liability.
Emphasized enforcement as a preventive measure for election-related violence.
Key Observations from Cases
Election period sensitivity – Courts and the Election Commission treat hate speech more seriously during elections.
Medium is irrelevant – Statements in rallies, speeches, or social media posts are all actionable.
Protected groups – Ethnic, religious, caste, and regional communities are particularly protected under Sections 116–118.
Penalties – Fines, temporary suspension from campaigning, public apology, and in severe cases, imprisonment.
Preventive enforcement – The Election Commission actively monitors speech to prevent violence or intimidation.
Freedom of speech limits – Even constitutionally guaranteed speech is restricted if it incites hatred, discrimination, or public disorder.
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