Hate speech and the law

Print edition : January 04, 2008

K.T.S. Tulsi, who quit as counsel for the Gujarat government. - G.P. SAMPATH KUMAR

K.T.S. Tulsi, who

THE Model Code of Conduct for the Guidance of Political Parties and the Candidates, enforced by the Election Commission at the time of elections, bars candidates from aggravating existing differences or creating mutual hatred or causing tension between different religious communities. It also lays down that there shall be no appeal to caste or communal feelings for securing votes. The E.C., which monitors violations of the code during elections, has the authority to seek explanations from the accused and impose punishments.

The campaign speech of Gujarat Chief Minister Narendra Modi at Mangrol in Surat district on December 4 led the E.C. to assume that he was prima facie guilty of violating the code, and therefore, to issue notice to him to explain his conduct. Modi replied to the E.C. on December 9 and partly denied the charges.

The portion of Modis speech, which was deemed to be offensive by the E.C., was, as translated by the Commission, as follows:

Modi: Congressmen say that Modi is indulging in encounter, telling that Modi has killed Sohrabuddin. Friends from Congress, you have a government at the Centre, if you have the guts send Modi to [the] gallows. You tell me what to do with Sohrabuddin.

From Crowd: not very clear (Kill him, Kill him)

Modi: Sohrabuddin, from whose possession a large cache of AK 47 rifles were found, same Sohrabuddin whom police of four States were looking for, Sohrabuddin who attacks police, Sohrabuddin who maintains connections with Pakistan, who raises eyes on Gujarat, then what will my police do? Should they [the Gujarat Police] go to take permission from Soniaben?

In his reply to the Commission, Modi pointed out that his speech, had to be read entirely in its context. It was a political response to Congress president Sonia Gandhis earlier reference to those who rule Gujarat as Mout ke saudagar (merchants of death). He denied that he had justified the encounter killing of Sohrabuddin Sheikh in November 2005.

The Supreme Court is monitoring the investigation of the killing by the Gujarat Police. The State government had informed the court that it was a fake encounter and it would punish those guilty of killing Sohrabuddin.

Therefore, the E.C. viewed Modis attempt to link Sohrabuddin to terrorism (when his government itself had earlier admitted in the Supreme Court that he was not a terrorist) as an effort to aggravate existing differences, or create mutual hatred or cause tensions between different communities.

CHIEF ELECTION COMMISSIONER N. Gopalaswami flanked by Election Commissioners S.Y. Quraishi (left) and Navin Chawla.-V.V. KRISHNAN

In his reply, however, Modi did not give a specific reply to the allegation that his speech was in direct contrast to his governments stand that Sohrabuddin was not a terrorist, and that he had covertly sought to exploit Sohrabuddins religion for political ends. Although Modi did not name Sohrabuddins religion, it was implicit and obvious in his speech, even if he had just referred to Sohrabuddins links to terrorism. Modis reply appeared to accuse the E.C. of seeking to restrict his freedom to campaign and reply to the political charges his adversaries made against him. He also sought to make a subtle distinction between encounters (which he believed are not bad) and fake encounters, even though such a distinction has no legal basis.

The speech, therefore, created grave misgivings not only at the Commission, but among those who had been assisting the Supreme Court in its monitoring of the Gujarat polices investigation into the killing. The Gujarat governments counsel, K.T.S. Tulsi, quit his brief in protest against Modi not taking him into confidence before branding Sohrabuddin a terrorist. The State government soon replaced him with another senior counsel to represent it in this case.

Rather than reject Modis aggressive reply to its notice, and hold him guilty of violating the Model Code of Conduct, the E.C. vacillated, and referred his reply to its legal cell for examination. Meanwhile, it issued a similar notice to Sonia Gandhi for allegedly making the offensive remark against Modi during her campaign. The E.C. also issued similar notices to Congress general secretary Digvijay Singh for using the expression Hindu terrorists in Gujarat, and to BJP leader V.K. Malhotra for accusing Sonia Gandhi of being a Hindu-hater.

It is in this context that the Supreme Court Bench comprising Justices Tarun Chatterjee and Dalveer Bhandari issued a contempt notice to Modi for his offensive speech at Mangrol. It required a day-long hearing and heated exchanges between the counsels for the parties to convince the Bench that Modi needed to be served a notice on the contempt application moved by Sohrabuddins brother, Rubabuddin Sheikh.

The Additional Solicitor-General, Gopal Subramaniam, who is assisting the court as amicus curiae, agreed: Modis speech is prima facie a complete interference with the process of justice. To make such a statement in a matter pending in this court is nothing but contempt. The court found force in the argument that Modis speech has created a surcharged atmosphere making it difficult to hold a free and fair trial in the case.

In a desperate move to stop the Bench from issuing notice to Modi, his counsel asked the Bench to ignore the emotional and political rhetoric of Modi and keep away from the political realm as Modi had not referred to the pending case at all in his speech. The Bench, however, was not convinced, and sought Modis reply to the contempt notice by the last week of January 2008. The Bench also decided to consider lyricist Javed Akthars plea that Modi be booked for exhorting the people to resort to violence, when it resumes hearing next month.

Although observers believed that the Benchs notice to Modi would influence the ongoing campaign in Gujarat, it goes to the credit of the Bench that it confined itself only to the gravity of the charge against Modi, uninfluenced by extraneous electoral considerations of political rivals in the State.

V. Venkatesan
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