The recent state elections in Bihar witnessed the return of Lalu Prasad Yadav as a key political player in the state. However, the elections were also notable for the bitter exchanges between the contesting parties in their election rallies and advertisements. On November 7, a day before the results of the elections were declared, the Indian Express carried a report terming this “the worst political campaign in the state’s electoral history.” Based on data from the Election Commission (EC), the Report found that “the state poll machinery filed 13 FIRs against star campaigners of different political parties for ‘hate speech’, a first for elections in Bihar.”

In this post, I provide a brief timeline of the EC’s interventions during the election period followed by an exposition of the law on hate speeches made during the election period and arrive at a comprehensive standard of determining the same as per established Supreme Court case law. Thereafter, I shall identify some inflammatory statements made by various politicians as reported in the media. Finally, I will provide a short analysis about whether these statements can withstand the standards developed by the Court.

 Timeline of Events

The EC announced the dates for the elections on September 9. On September 17, the EC issued an advisory to all contesting political parties to maintain “high standards during election campaigns” in relation to provocative and inflammatory speeches.

A month from the date of announcements of elections, on October 9, the EC criticised all contesting political parties about

the plummeting levels of political speeches by various political party leaders and candidates … The tone and tenor of the political speeches have been found to be calculated to cause mutual hatred, disharmony or ill-will and aimed at to aggravate the differences between different political parties and classes of citizens on the grounds of religion, caste and community …

On October 31, taking stock of the vitriolic political content found in advertisement spaces in newspapers, the EC directed the parties and newspapers not to public any such content that has “the potential of aggravating the differences between different classes of citizens of India and also creating mutual hatred, ill-will and disharmony amongst different social and religious communities”.

On November 1, the EC specifically pulled up Amit Shah for stating that “if Nitish-Lalu win, then consequences will be felt in Bihar and firecrackers will be burst in Pakistan.”

Finally, on November 4, a day before the polls, an exasperated EC noted instances where its above directions were violated and directed that any political advertising for the next day will necessarily have to be pre-certified by it.

 Arriving at a Hate Speech Standard for Elections

The hate speech regime in election laws is contained in two distinct provisions in the Representation of People Act, 1951 (ROPA). The first is sec. 123(3A), which outlaws the “promotion of … feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate …”

The other provision is sec. 125, which states that “Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable …”

The right to stand for elections is a special right created by the ROPA. This right is not a common law right or indeed a fundamental right. Accordingly, if any person wants to contest elections, he/she must play by the rules laid down in the ROPA. On an election platform, one cannot defend one’s statements by claiming the right to free speech under Art. 19(1)(a) of the Constitution. This proposition was first held in Jumuna Prasad. As a logical corollary, the restrictions on statements made on an election platform need not necessarily be compliant with Art. 19(2). Such restrictions need only be proved, beyond a reasonable doubt, under sec. 123(3A) or sec. 125 of the ROPA.

The standard to be used in determining whether a statement constitutes “hate speech” was laid down in Ziyauddin. The Court prescribed an effects test; specifically whether the effect of the statements on “ordinary average voters” would lead to the promotion of feelings of enmity or hatred between different classes. Thus, the intention of the person making the statement is rendered irrelevant, and only the effect of that statement on the “ordinary average voter” in the circumstances is taken into consideration.

In this context, in Kultar Singh, the Court has issued a caveat. It held

In reading such documents, it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one another, are all a part of the game, and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light.

Thus, the effect of the speech on the ordinary average voter taking account of the partisan context appears to be the standard to determine whether a statement violates sec. 123(3A) or sec 125 of the ROPA.

Applying this standard

Now, let us use this standard to verify the validity of the statements rounded up by the EC and other similar controversial comments.

On October 31, the Election Commission apparently singled out two BJP advertisements. They stated

• Voton ki kheti ke liye aatank ki fasal seenchtha kya sushasan hai? (‘Is good governance about harvesting votes by sowing terrorism?’)
• Daliton-Pichhadon ki thali kheench, alpasankhyakon ko aarkashan parosney ka shadyantra kya sushasan hai? (‘Is it good governance to hatch a conspiracy to snatch reservations from Dalits and Backwards and give it to the minorities?’)

The first statement was a shot at the incumbent Chief Minister about, as one article put it, “being soft on terror in order to win the support of Muslims.” The obvious implication here was that Muslims are supportive of and/or intentionally complicit in terrorism.

The second statement openly pits caste against religion in the domain of affirmative action. The inference here was that, if relected, the current Chief Minister would rob the Backward Classes of their reservations and hand it to Muslims. Here, by pandering to the “Dalits and Backwards”, the advertisement borders on sensitive communal topics. This statement must also be seen in light of the Prime Minister’s polarizing remarks a few days earlier that “Nobody will be allowed to take away your reservation and give it to any other community in pursuit of their vote bank politics.”

With respect to partisan context, these advertisements were published in written form and distributed freely. Consequently, the question of partisan feelings akin to an election rally does not arise. The effect of these statements on the ordinary average voter is a question of fact that should be decided by a Court.

As mentioned earlier, on November 1, the EC scrutinized Amit Shah’s statement that “If Nitish-Lalu win, then consequences will be felt in Bihar and firecrackers will be burst in Pakistan.”

Again, the implication of this statement was that the Nitish-Lalu political alliance was essentially a pro-Muslim one. Reading this with the earlier mentioned advertisements on “soft on terror”, one narrative (and thus effect on the ordinary average voter) that could be implied is that a pro-Muslim alliance will be conducive to terror and thus firecrackers will be burst in Pakistan. Again, this question of fact must be determined judicially through the use of witnesses and it can be near impossible to surmise.

Here, it may be noted here that all these statements are pointed at political parties or leaders directly and not religion or caste. However, as held in Ebrahaim Sait,

A speech, though its immediate target is a political party, may yet be such as to promote feelings of enmity or hatred between different classes of citizens. It is the likely effect of the speech of the voters that has to be considered

Moreover, this case also held that hate speech allegations in the ROPA employ the criminal law standard of proof beyond reasonable doubt, where the burden lies on the election petitioners.

Moving forward, it would be interesting to note if the elections of various candidates are challenged in Courts and these remarks and statements are interpreted.