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Democracy, politics and hate speech

Anu Bhuvanachandran

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Post-colonial India has earmarked in the Preamble of its Constitution that the nation is Sovereign, Socialist, Secular, Democratic, Republic, Justice, Liberty and Equality. The term democracy has grown to the extent that for running a government, to win the elections, the proposed representative of the people of India contesting for election took free license to discriminate any group, defame any set of people and even to the extent to express hatred towards a particular group in open without hesitation. Once this desert was in thirst of freedom; now it is spilling back to ocean.

The scope, demand and utility of hate speech arise often a year towards elections and wholly shuts on the final day of election campaign. Hate speech is not just limited to this. Whenever an issue arises in the state or at central level the same hate speech works. It is to look that whether hate speech resolve the issue on which the hate speech sprouted out. In fact democracy thrives on disagreements provided they do not cross the boundaries of civil discourse.

WHAT EXACTLY IS HATE SPEECH?

Indian Law has no definition for hate speech. But the meaning of the term can be carved from various acts recognized as offences such as sedition, promotion of enemity between different groups on grounds, imputations and assertions prejudicial to national integration, deliberate and malicious act based on religion, sex, race, place of birth etc.; rumour or report causing public mischief under the Indian Penal Code; acts disqualified under several legislations such as the Representation of the People Act, 1951, provisions penalizing incitement to and encouragement of untouchability under the Protection of Civil Rights Act, 1955 etc. Drawing from the available sections and essence intending to portray hate speech; it is expressly targeting a particular group based on geography, religion, sex, place of birth or any other discriminating factor, for the purpose of winning or achieving the target socially, economically and politically.

WHY HATE SPEECH HAS WIDE SCOPE IN A DEMOCRATIC SOCIETY?

In a democratic system of governance, it is “for the people, of the people and by the people”. Theoretically, democracy is a dividend of utilitarianism but the practice have put shrugs on the theory rather than giving wings. Democratic system of governance shows green card for representation of the people and public interest governance in consonance with the public laws of the land. Public laws are for protecting the public interest and whoever wins the public interest would survive and be empowered to decide the governance for the future.

Winning public interest in the modern times is tedious hence crafting dummies to make the people believe and trust that the government which hails in future would actually meet the public interest. India is a country with multiple political parties where the two to three are strong enough to grow and secure monopoly in any near future. Hence there exist a tough competition to win the hearts of many through winning the public interests across the nation.

Since achieving every single public interest is cumbersome; pointing towards the flaws of ruling party which may or may not have a religious back up and flaming the emotions of the public at large through continuous hate speech was a trend in early nineties and the immediate years of second millennium. Hate speech was therefore procuring a wide scope with respect to democracy in India.

TREND TO OFFENCE: JOURNEY

As the ruling party and the opposition gave thrust on hate speech and rending unfulfilling promises to the public, the parties started achieving governance for some period. Afterwards the public intensified their protests for hate speech and raised their grievances to the court of law, the judiciary recognized the actual need for preventing and implementing penalties for hate speech.

The judicial intervention can be remarkably traced initially in the landmark case of Brij Bhushan v. State of Delhi in 1950 where it was opined for constitutional amendment to insert public order as a ground under art. 19(2).

Thereafter in Ram Manohar Lohiya v. State of Bihar [1966], the apex court portrayed observance of three concentric circles that is law and order with widest radius, followed by public order and finally the security of the state. On hate speech the law and order is undoubtedly affected due to the aggressive emotions raised between people and the consequential riots and protests. Due to the same, there occurs loss of public order and hence it extends higher probability to challenge and affect the security of the state. Hence the three concentric circles are achieved. Once the security of the nation and the law and order of the state gets affected by a trend, it will have to demarcate as an offence under appropriate law and the punishment shall be implemented. The Lohiya case was stood on violation of grounds under article 19(2) of the Indian Constitution.

Ramji Lal Modi v. State of U.P is another milestone to identify the defects of hate speech which was a trend during those days. But in Ramesh v. Union of India, the court indulged that a movie that intends to impart a message of peace cannot be considered to violate 19(1) (a) just on the ground that it shows fanaticism and violence in order to express the futility of such acts.

In 2014 vide case Pavasi Bhalai Sanghatan v. Union of India the Supreme Court requested the law commission to examine the issues raised pertaining to hate speech and make recommendation to the Parliament to strengthen the Election Commission to prevent hate speech in that respect.

The tremor of hate speech was spread throughout the nation in a modernized manner during the historic judgment in Shreya Singhal v. Union if India [2015], where the Supreme Court held section 66A is unconstitutional. The court analyzed this case and has drawn differences between discussion and advocacy from incitement and held that it is the essence of article 19(1) of the Indian Constitution.

It can be seen that the judiciary is crafting and winding wires of restriction in accordance with technology, modernization in the society and public perspective.

UPDATING LAWS BY HATE SPEECH LAW REPORT

penalizing hate speech in pre-law commission report can be checked in a flash of time. The Indian Penal Code 1860 is the document that penalizes several aspects contributing to hate speech. Section 124A penalizes sedition. Section 153A penalizes promotion of enmity between different groups on the ground of religion, race, place of birth, residence, language etc. and doing acts against the maintenance of harmony. Section 153B penalizes imputation and assertions prejudicial national integration. S.295A penalizes deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion and religious beliefs. In addition sections 298 and 505 cover difference aspects of hate speech. Apart from the Penal Code, section 8 of the Representation of People’s Act, 1951 disqualifies a person from contesting election if he is convicted for acts amounting to illegitimate use of freedom of speech and expression. Section 123 and section 125 prohibits promotion of enmity on grounds of religion, race, caste, community or language in connection election as a corrupt electoral practice and prohibits it. Section 7 of the Protection of Civil Rights Act penalizes encouragement of untouchability through words, signs or visible representations. Section 3(g) of the Religious Institution Prevention of Misuse Act 1988 prohibits use of place under religious institution for creating disharmony, feelings of enmity etc. Further sections 95, 107 and 144 empowers District Magistrate and state government to take measure on actions contributing to hate speech which are recognized as offences under the Penal Code.

Post Pravasi Bhalai Sanghatan case, a committee was constituted by the Law Commission to study the issues on hate speech under the chairmanship of Justice B.S. Chauhan. The Committee suggested amendment of Indian Penal Code and Code of Criminal Procedure which are incorporated in 2017 criminal law amendment. Let’s look at a glance on the same. Section 153C and 505A is inserted which deals with prohibiting incitement to hatred and causation of fear, alarm or provocation of violence in certain cases purporting to hatred. Amendment of 1st Schedule of the Cr.P.C has been made in the criminal law amendment.

IS HATRED NO MORE IN DEMOCRATIC INDIA?

No. It is there but in indirect form. It can be noted that the parties are now keen on spitting hate to a particular individual and therefore the defamation cases are increasing in the political sphere. In fact laws are not only the factor that can prevent hate speech, it is the mannerism of the system and the attitude of people in the parties who use hate speech tool must change. When the present situation is looked telescopically, I find that a new trend is emerging in democracy for winning the chair of governance. It is nothing but doing a part of promise which is made during the election campaign, rather than to throw spears of hatred to each other. The present trend is benefiting a few section of the society at least.

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Legally Speaking

TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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Legally Speaking

DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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Legally Speaking

ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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Legally Speaking

IN THE CIRP OF BOMBAY RAYON FASHIONS LTD, NATIONAL COMPANY APPELLATE TRIBUNAL (NCLT) STAYS THE CONSTITUTION OF COC

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The National Company Appellate Tribunal (NCLT) in the case National Company Appellate Tribunal (NCLT), comprising of the bench of Justice M. Venugopal (Judicial Member) and the technical member, Shri Kanthi Narahari observed while adjudicating an appeal filed in Prashant Agarwal v Vikash Parasprampuria, has stayed in the Corporate Insolvency Resolution Process (CIRP) the constitution of the Committee of Creditors (COC) of Bombay Rayon Fashions Ltd. on 15.06.2022, the order was passed.

FACTS OF THE CASE:

The Operational Creditor or the Respondent, Vikash Parasprampuria is the sole Proprietor of Chiranjilal Yarn Traders and the respondent had supplied goods to a public listed company i.e., Bombay Rayon Fashions Limited (“Corporate Debtor”). The Operational Creditor raised nine invoices which was accepted by the Corporate Debtor without any demur and it was noted that the dispute, protest and part payments were also made towards certain invoices.

The reminder letter was sent by the Operational Creditor when the Corporate Debtor failed to release balance payments letters followed by a Demand Notice under Section 8 of the IBC dated 05.11.2020, which was delivered to the Corporate Debtor but no response was received from the Corporate Debtor.

MUMBAI NCLT PROCEEDINGS

An application under section 9 of the Insolvency & Bankruptcy Code, 2016 was filled by the Operational Creditor before the NCLT Mumbai Bench, seeking to initiation of CIRP against the Corporate Debtor, for defaulting in payment of Rs.1,60,87,838/-, wherein the principal amount was Rs. 97,87,220/- and remaining was interest. 01.11.2020, was the default date.

the Operational Creditor placed reliance so as to justify the compliance of Rs. 1 Crore threshold for initiating CIRP of the NCLT judgement in the case Pavan Enterprises v. Gammon India, it was held in the case that interest is payable to the Operational of Financial Creditor then the debt will include interest, in terms of any agreement. However, by including the interest component the threshold of Rs. 1 Crore was being me and no reply has been filled by the Corporate Debtor.

NCLT DECISION:

An order dated 07.06.2022, the NCLT Mumbai Bench observed that the Corporate Debtor had time and again by its letter, invoices and by making part payment acknowledged its liability.

It was stated by the bench that the application under Section 9 was complete in all respects as required by law and there was a default in the payment of debt amount by the Corporate Debtor. The bench accepted the application and the CIRP was initiated against the Corporate Debtor, Mr. Santanu T Ray, Interim Resolution Professional was appointed.

NCLT PROCEEDINGS:

An application was filled by the appellant, Prashant Agarwal before the NCLT against the order dated 07.06.2022.

The settlement was proposed by the Respondent by submitting that if it would be satisfied if the Appellant pays the principal amount along with the CIRP cost towards settlement and on the settlement proposal, the appellant is yet to seek instructions.

Accordingly, the bench in the CIRP of the Corporate Debtor stayed the constitution of CoC and the CIRP process would otherwise continue.

The Appellant to accept or reject the settlement proposal of the Respondent, the bench listed the matter on 07.07.2022.

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ESTOPPEL CANNOT OVERRIDE LAW: SUPREME COURT ACCEPTS UNSUCCESSFUL CANDIDATES’ CHALLENGES TO SELECTION PROCESS HELD AGAINST REGULATIONS

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The Supreme Court in the case Krishna Rai (Dead) Through LRs versus The Benarus Hindu University & Others observed and held that the principle of estoppel or acquiescence would not be applied in a selection process when the principle of estoppel is held contrary to the relevant rules.

The bench comprising of Justices Dinesh Maheshwari and Justice Vikram Nath observed and reiterated that that the procedure in the relevant service manual will prevail over the principle of estoppel and the principle of estoppel cannot override in the eye of law.

An appeal was considered by bench relating to the filling up of 14 posts in Class III (Junior Clerk) in the Benarus Hindu University by way of promotion. However, the notification inviting the applications from Class IV employees for promotion to Class III had not prescribed that interview will be conducted in addition to the typing test. It was also stated that the The service rules also did not mention interview for promotion to Class III. However, it finalized 14 candidates, the Board of Examiners conducted an interview as well.

Before the Allahabad High Court, some of the candidates challenged the selection process by some candidates, who did not get selected. The candidates alleging that through the manual did not prescribe an interview and the Board of Examiners conducted the interview by “changing the rules of the game”. The Selection process was set aside by the Single bench of the High Court by holding that a grave error was committed by preparing the merit list on the basis of the interview as well.

on appeal by the BHU, the division bench of the High Court set aside the judgement of the Single bench on the ground that the petitioners without protest after having participated in the interview, the petitioners are estopped from challenging the selection process after becoming unsuccessful. The appellants approached the Supreme Court challenging the order of division bench.

The Court noted that the Supreme Court held that the division bench fell in error by applying the principle of estoppel. the Manual duly approved by the Executive Council, According to para 6.4, all Class-IV employees who had put in five years’ service and passed matriculation examination or equivalent, those employees were eligible for the promotion to the post of Junior Clerk Grade.

the departmental written test of simple English, Hindi, and Arithmetic, but could not pass the typing test, was passed by the eligible candidates and still the candidates would be eligible for promotion.

It was observed by the Court that the Board on their own changed the criteria and by introducing an interview it made it purely merit based and the merit list was also prepared on the basis of marks awarded in the type test, the written test and interview.

The Top Court said that it is settled principle that the principle of estoppel cannot override the law and the manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.

The Court remarked, while referring to the precents that If the law requires something to be done in a particular manner, there can be no estoppel against law, then it must be done in that particular manner, and if it is not done in that particular manner, then in the eye of the law, it would have no existence.

It was stated that the case laws relied upon by the Division bench had no application in the facts of the present case as none of those judgments laid down states that the principle of estoppel would be above in the eye of law.

Accordingly, The judgement of the Single bench was restored and the appeal was allowed, the judgement of the division bench was set aside.

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