PRAVASI BHALAI SANGATHAN Vs U.O.I. .
Bench: B.S. CHAUHAN,M.Y. EQBAL,A.K. SIKRI
Case number: W.P.(C) No.-000157-000157 / 2013
Diary number: 7256 / 2013
Advocates: PURUSHOTTAM SHARMA TRIPATHI Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 157 OF 2013
Pravasi Bhalai Sangathan …..Petitioner
VERSUS
Union of India & Ors. …..Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. The instant writ petition has been preferred, by an organisation
dedicated to the welfare of inter-state migrants, in the nature of public
interest seeking exercise of this court’s extraordinary jurisdiction
under Article 32 of the Constitution of India, 1950 (hereinafter
referred to as the ‘Constitution’) to remedy the concerns that have
arisen because of “hate speeches”, through the following prayers:
a. Issue appropriate writ, order, decree in the nature of mandamus declaring hate/derogatory speeches made by people representatives/political/religious leaders on religion, caste, region and ethnic lines are violative of Articles 14 (Equality before Law), 15 (Prohibition of
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discrimination on grounds of religion, race, caste or place of birth), 16 (Equality in matters of public employment), 19 (Protection of certain rights regarding freedom of speech etc.), 21 (Protection of Life and Personal Liberty) of Fundamental Rights read with Article 38 of the Directive Principles of State Policy and Fundamental Duties under Article 51-A(a), (b), (c), (e), (f), (i) & (j) of the Constitution and merits stringent pre-emptory action on part of the Central and State governments;
b. Issue appropriate writ, order, decree in the nature of mandamus declaring hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) to be an act against the Union of India which undermines the unity and integrity of the country and militates against non-discrimination and fraternity;
c. Issue appropriate writ, order, decree in the nature of mandamus declaring that “Fraternity” forms part of “Basic Structure” of the Constitution;
d. Issue appropriate writ, order, decree in the nature of mandamus directing mandatory suo motu registration of FIR against authors of hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) by the Union and State Governments, in the alternative, constitution of a committee by the Union of India in consultation with this Court for taking cognizance of hate/derogatory speeches delivered within the territory of India with the power to recommend initiation of criminal proceeding against the authors;
e. Issue appropriate writ, order, decree in the nature of mandamus directing mandatory imposition of “gag order” restraining the author of hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) from addressing the public anywhere within the territory of India till the disposal
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of the criminal proceeding initiated against him as a necessary pre-condition for grant of bail by the Magistrate;
f. Issue appropriate writ, order, decree in the nature of mandamus directing speedy disposal of criminal proceedings against authors of hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) within a period of 6 months;
g. Issue appropriate writ, order, decree in the nature of mandamus directing suspension of membership of authors of hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) from the Union/State Legislature and other elected bodies till the final disposal of the criminal proceedings;
h. Issue appropriate writ, order, decree in the nature of mandamus directing termination of membership of authors of hate/derogatory speech made on the lines of religion, caste, race and place of birth (region) from the Union/State Legislature and other elected bodies if found guilty;
i. Issue appropriate writ, order, decree in the nature of mandamus directing de-recognition of the political party of authors of hate/derogatory speech made on the lines of religion, caste, race and place of birth (region) by the Election Commission of India where the author is heading the political party in exercise of power vested inter-alia under Article 324 of the Constitution read with Sections 29A(5), 123(3) of the Representation of the People Act, 1951 and Section 16A of the Election Symbols (Reservation and Allotment) Order, 1968;
j. Issue appropriate writ, order, decree in the nature of mandamus directing the Union of India to have concurrent jurisdiction to prosecute authors of hate/derogatory speeches in addition to the States in terms of the mandate of Articles 227, 355 read with
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Article 38 of the Constitution which merit stringent pre-emptory action on part of the Central Government;
k. Issue appropriate writ, order, decree in the nature of mandamus directing the Union of India and respective States to enforce Fundamental Duties under Article 51-A (a), (b), (c), (e), (f), (i) & (j) of the Constitution by taking proactive steps in promoting national integration and harmony amongst the citizens of India;
l. Issue such other appropriate writ or direction that may be deemed to be just and equitable in the facts and circumstances of the case and in the interest of justice.”
2. Shri Basava Prabhu S. Patil, learned senior counsel appearing
on behalf of the petitioner, has submitted that the reliefs sought by the
petitioner is in consonance with the scheme of our Constitution as the
“hate speeches” delivered by elected representatives, political and
religious leaders mainly based on religion, caste, region or ethnicity
militate against the Constitutional idea of fraternity and violates
Articles 14, 15, 19, 21 read with Article 38 of the Constitution and
further is in derogation of the fundamental duties under Article 51-A
(a), (b), (c), (e), (f), (i), (j) of the Constitution and therefore warrant
stringent pre-emptory action on the part of Central and State
Governments. The existing law dealing with the subject matter is not
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sufficient to cope with the menace of “hate speeches”.
Hate/derogatory speech has not been defined under any penal law.
Accolade is given to the author of such speeches and they also get
political patronage. In such fact-situation, this Court cannot remain
merely a silent spectator, rather has to play an important role and issue
guidelines/directions in exercise of its powers under Article 142 of the
Constitution which are necessary for the said purpose as the existing
legal frame work is not sufficient to control the menace of “hate
speeches”. Therefore, this Court should grant aforesaid reliefs.
3. Shri Sidharth Luthra, learned ASG, Shri Rajiv Nanda, Shri
Gaurav Bhatia, learned AAG for the State of U.P., Ms. Asha Gopalan
Nair, Shri Gopal Singh, Ms. Ruchi Kohli, Shri C.D. Singh, and all
other standing counsel appearing on behalf of the respective States,
have submitted that there are various statutory provisions dealing with
the subject matter and the issue involved herein is a question of
enforcement of the said statutory provisions and any person aggrieved
can put the law into motion in such eventualities.
Shri Sidharth Luthra, learned ASG, has further submitted that
the issue of decriminalisation of politics as part of electoral reforms is
under consideration before this Court in Writ Petition (C) No. 536 of
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2011 and in the said matter, this Court had framed certain issues and
referred the matter to the Law Commission of India to study the
subject with regard to the Representation of People Act, 1951
(hereinafter referred to as “R.P.Act”) and may make appropriate
suggestions (report) to the Government of India vide order dated
16.12.2013 and, thus, Shri Luthra has suggested that in case there is
some deficiency in law, this Court should not act as super-legislature,
rather make a recommendation to the Law Commission to undertake
further study and submit its report to the Government of India for its
consideration/acceptance.
4. Ms. Meenakshi Arora, learned senior counsel appearing on
behalf of the Election Commission of India, has submitted that there
are various provisions like Section 29A(5) & (7) of the R.P. Act
empowering the Commission to examine the documents filed by a
political party at the time of its registration and the application so filed
must be accompanied by its constitution/rules which should contain a
specific provision to the effect that the association/body would bear
true faith and allegiance to the Constitution of India as by law
established and to the principles of socialism, secularism and
democracy and that they would uphold the sovereignty, integrity and
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unity of India. However, it has been suggested that Election
Commission does not have the power to deregister/derecognise a
political party under the R.P. Act once it has been registered. A
registered political party is entitled to recognition as a State or
national party only upon fulfilling the conditions laid down in
paragraph 6A or 6B of the Election Symbols (Reservation and
Allotment) Order, 1968 (hereinafter referred to as “Symbols Order”).
The Election Commission in exercise of its powers under Paragraph
16A of Symbols Order, can take appropriate action against a political
party on its failure to observe model code of conduct or in case the
party fails to observe or follow the lawful directions and instructions
of the Election Commission. The model code of conduct provides
certain guidelines inter-alia that no party or candidate shall indulge in
any activity which may aggravate existing differences or create
mutual hatred or cause tension between two different castes and
communities, religious or linguistic and no political party shall make
an appeal on the basis of caste or communal feelings for securing
votes. It further provides that no religious place shall be used as
forum for election propaganda. However, the Election Commission
only has power to control hate speeches during the subsistence of the
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code of conduct and not otherwise.
5. The Law Commission of India has prepared a consultation
paper and studied the matter further on various issues including
whether the existing provisions (Constitutional or Statutory) relating
to disqualification to contest elections need to be amended?
The Law Commission had earlier in its 1998 recommendations
emphasised on the need to strengthen the provision relating to
disqualification and in view thereof, it has been submitted by Ms.
Arora that it is only for the legislature to amend the law and empower
the Election Commission to perform a balancing act in following the
mandate of the relevant Constitutional and statutory provisions.
6. The Supreme Court of Canada in Saskatchewan (Human
Rights Commission) v. Whatcott 2013 SCC 11, succeeded in
bringing out the “human rights” obligations leading to control on
publication of “hate speeches” for protection of human rights defining
the expression “hate speech” observing that the definition of “hatred”
set out in Canada (Human Rights Commission) v. Taylor, (1990) 3
SCR 892, with some modifications, provides a workable approach to
interpreting the word “hatred” as is used in legislative provisions
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prohibiting hate speech. Three main prescriptions must be followed.
First, courts must apply the hate speech prohibition objectively. The
question courts must ask is whether a reasonable person, aware of the
context and circumstances, would view the expression as exposing
the protected group to hatred. Second, the legislative term “hatred” or
“hatred or contempt” must be interpreted as being restricted to those
extreme manifestations of the emotion described by the words
“detestation” and “vilification”. This filters out expression which,
while repugnant and offensive, does not incite the level of abhorrence,
delegitimisation and rejection that risks causing discrimination or
other harmful effects. Third, tribunals must focus their analysis on the
effect of the expression at issue, namely whether it is likely to expose
the targeted person or group to hatred by others. The repugnancy of
the ideas being expressed is not sufficient to justify restricting the
expression, and whether or not the author of the expression intended
to incite hatred or discriminatory treatment is irrelevant. The key is to
determine the likely effect of the expression on its audience, keeping
in mind the legislative objectives to reduce or eliminate
discrimination.
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7. Hate speech is an effort to marginalise individuals based on
their membership in a group. Using expression that exposes the group
to hatred, hate speech seeks to delegitimise group members in the eyes
of the majority, reducing their social standing and acceptance within
society. Hate speech, therefore, rises beyond causing distress to
individual group members. It can have a societal impact. Hate speech
lays the groundwork for later, broad attacks on vulnerable that can
range from discrimination, to ostracism, segregation, deportation,
violence and, in the most extreme cases, to genocide. Hate speech also
impacts a protected group’s ability to respond to the substantive ideas
under debate, thereby placing a serious barrier to their full
participation in our democracy.
8. Black’s Law Dictionary, 9th Edn. defines the expression ‘hate
speech’ as under:
“Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.”
9. In Ramesh v. Union of India, AIR 1988 SC 775, while dealing
with the subject, this Court observed:
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“..that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”
10. Given such disastrous consequences of hate speeches, the
Indian legal framework has enacted several statutory provisions
dealing with the subject which are referred to as under:
Sl.No. Statute Provisions 1. Indian Penal Code, 1860 Sections 124A, 153A,
153B, 295-A, 298, 505(1), 505(2)
2. The Representation of People Act, 1951
Sections 8, 123 (3A), 125
3. Information Technology Act, 2000 & Information Technology (Intermediaries guidelines) Rules, 2011
Sections 66A, 69, 69A Rule 3(2)(b), Rule 3(2)(i)
4. Code of Criminal Procedure, 1973 Sections 95, 107, 144, 151, 160
5. Unlawful Activities (Prevention) Act, 1967
Sections 2(f), 10, 11, 12
6. Protection of Civil Rights Act, 1955 Section 7 7. Religious Institutions (Prevention of
Misuse) Act, 1980 Sections 3 and 6
8. The Cable Television Networks (Regulation) Act, 1995 and The Cable Television Network (Rules), 1994
Sections 5,6,11,12,16, 17, 19, 20 & Rules 6 & 7
9. The Cinematographers Act, 1952 Sections 4, 5B, 7
11. In addition thereto, the Central Government has always
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provided support to the State Governments and Union Territory
administrations in several ways to maintain communal harmony in the
country and in case of need the Central Government also sends
advisories in this regard from time to time. However, in such cases,
as police and public order being a State subject under the 7th Schedule
of Constitution, the responsibility of registration and prosecution of
crime including those involved in hate speeches, primarily rests with
the respective State Governments.
12. The Central Government has also issued revised guidelines to
promote communal harmony to the States and Union Territories in
2008 which provides inter-alia that strict action should be taken
against anyone inflaming passions and stroking communal tension by
intemperate and inflammatory speeches and utterances.
The “Guidelines On Communal Harmony, 2008” issued by the
Ministry of Home Affairs, Government of India seek to prevent and
avoid communal disturbances/riots and in the event of such
disturbances occurring, action to control the same and measures to
provide assistance and relief to the affected persons are provided
therein including rehabilitation. The detailed guidelines have been
issued to take preventive/remedial measures and to impose
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responsibilities of the administration and to enforce the same.
Various modalities have been formulated to deal with the issue which
have been emphasised on participation of the stake holders.
13. So far as the statutory provisions, as referred to hereinabove,
are concerned, Section 124A of Indian Penal Code, 1860 (hereinafter
referred to as the ‘IPC’) makes sedition an offence punishable, i.e.,
when any person attempts to bring into hatred or contempt or attempts
to excite disaffection towards the Government established by law.
(Vide: Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955)
14. Sections 153A and 153B IPC makes any act which promotes
enmity between the groups on grounds of religions and race etc. or
which are prejudicial to national integration punishable. The purpose
of enactment of such a provision was to “check fissiparous communal
and separatist tendencies and secure fraternity so as to ensure the
dignity of the individual and the unity of the nation”. Undoubtedly,
religious freedom may be accompanied by liberty of expression of
religious opinions together with the liberty to reasonably criticise the
religious beliefs of others, but as has been held by courts time and
again, with powers come responsibility.
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15. Section 295A IPC deals with offences related to religion and
provides for a punishment upto 3 years for speech, writings or signs
which are made with deliberate and malicious intention to insult the
religion or the religious beliefs of any class of citizens. This Court in
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, has upheld the
Constitutional validity of the section.
16. Likewise Section 298 IPC provides that any act with deliberate
and malicious intention of hurting the religious feelings of any person
is punishable. However, Section 295A IPC deals with far more
serious offences.
Furthermore, Section 505(2) IPC provides that making
statements that create or promote enmity, hatred or ill-will between
different classes of society is a punishable offence involving
imprisonment upto three years or fine or both.
17. The Protection of Civil Rights Act 1955, which was enacted to
supplement the constitutional mandate of abolishing ‘untouchability’
in India, contains provisions penalizing hate speech against the
historically marginalised ‘dalit’ communities. Section 7(1)(c) of the
Act prohibits the incitement or encouragement of the practice of
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‘untouchability’ in any form (by words, either spoken or written, or by
signs or by visible representations or otherwise) by any person or
class of persons or the public generally. Similarly, intentional public
humiliation of members of the ‘Scheduled Castes’ and ‘Scheduled
Tribes’ is penalized under the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
18. Section 123(3) of the R.P. Act, provides inter-alia that no party
or candidate shall appeal for vote on the ground of religion, race,
caste, community, language etc.
Section 125 of the R.P.Act further restrains any political party
or the candidate to create feelings of enmity or hatred between
different classes of citizens of India by making such an act a
punishable offence.
19. Article 20(2) of the International Covenant on Civil
& Political Rights, 1966 (ICCPR) restrains advocacy of
national, racial or religious hatred that may result in
incitement for discrimination, hostility or violence
classifying it as prohibited by law.
Similarly Articles 4 and 6 of the International
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Convention on the Elimination of All Forms of Racial
Discrimination, 1965 (lCERD) prohibits the elements of
hate speech and mandates the member states to make
a law prohibiting any kind of hate speech through a
suitable framework of law.
20. Thus, it is evident that the Legislature had already provided
sufficient and effective remedy for prosecution of the author, who
indulge in such activities. In spite of the above, petitioner sought
reliefs which tantamount to legislation. This Court has persistently
held that our Constitution clearly provides for separation of powers
and the court merely applies the law that it gets from the legislature.
Consequently, the Anglo-Saxon legal tradition has insisted that the
judges should only reflect the law regardless of the anticipated
consequences, considerations of fairness or public policy and the
judge is simply not authorised to legislate law. “If there is a law,
Judges can certainly enforce it, but Judges cannot create a law and
seek to enforce it.” The court cannot re-write, re-cast or reframe the
legislation for the very good reason that it has no power to legislate.
The very power to legislate has not been conferred on the courts.
However, of lately, judicial activism of the superior courts in India
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has raised pubic eyebrow time and again. Though judicial activism is
regarded as the active interpretation of an existing provision with the
view of enhancing the utility of legislation for social betterment in
accordance with the Constitution, the courts under its garb have
actively strived to achieve the constitutional aspirations of socio-
economic justice. In many cases, this Court issued various
guidelines/directions to prevent fraud upon the statutes, or when it
was found that certain beneficiary provisions were being mis-used by
the undeserving persons, depriving the legitimate claims of eligible
persons. (See: S.P. Gupta v. Union of India & Anr., AIR 1982 SC
149; Bandhua Mukti Morcha v. Union of India & Ors., AIR 1984
SC 802; Union of India & Anr. v. Deoki Nandan Aggarwal, AIR
1992 SC 96; Supreme Court Advocates-on-Record Association &
Ors. v. Union of India, AIR 1994 SC 268; Vishaka & Ors. v. State
of Rajasthan & Ors., AIR 1997 SC 3011; Divisional Manager,
Aravali Golf Club & Anr. v. Chander Hass & Anr., (2008) 1 SCC
683; and Common Cause (A Regd. Society) v. Union of India &
Ors., (2008) 5 SCC 511).
21. While explaining the scope of Article 141 of the Constitution,
in Nand Kishore v. State of Punjab, (1995) 6 SCC 614, this Court
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held as under:
“Their Lordships decisions declare the existing law but do not enact any fresh law, is not in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing, but much beyond that. The Court as a wing of the State is by itself a source of law. The law is what the Court says it is.”
22. Be that as it may, this Court has consistently clarified that the
directions have been issued by the Court only when there has been a
total vacuum in law, i.e. complete absence of active law to provide for
the effective enforcement of a basic human right. In case there is
inaction on the part of the executive for whatsoever reason, the court
has stepped in, in exercise of its constitutional obligations to enforce
the law. In case of vacuum of legal regime to deal with a particular
situation the court may issue guidelines to provide absolution till such
time as the legislature acts to perform its role by enacting proper
legislation to cover the field. Thus, direction can be issued only in a
situation where the will of the elected legislature has not yet been
expressed.
23. Further, the court should not grant a relief or pass
order/direction which is not capable of implementation. This Court in
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State of U.P. & Anr. v. U.P. Rajya Khanij Vikas Nigam Sangarsh
Samiti & Ors., (2008) 12 SCC 675, has held as under:
“48. To us, one of the considerations in such matters is whether an order passed or direction issued is suscepti- ble of implementation and enforcement, and if it is not implemented whether appropriate proceedings including proceedings for wilful disobedience of the order of the Court can be initiated against the opposite party. The di- rection issued by the High Court falls short of this test and on that ground also, the order is vulnerable.” (Emphasis added)
24. Judicial review is subject to the principles of judicial restraint
and must not become unmanageable in other aspects. (Vide: King
Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18; State of
Haryana & Ors. v. Ch. Bhajan Lal & Ors. v., AIR 1992 SC 604;
and Akhilesh Yadav Etc. v. Vishwanath Chaturvedi, (2013) 2
SCC 1).
25. It is desirable to put reasonable prohibition on
unwarranted actions but there may arise difficulty in
confining the prohibition to some manageable standard
and in doing so, it may encompass all sorts of speeches
which needs to be avoided . For a long time the US
courts were content in upholding legislations curtailing
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“hate speech” and related issues. However, of lately,
the courts have shifted gears thereby paving the way
for myriad of rulings which side with individual freedom
of speech and expression as opposed to the order of a
manageable society. [See: Beauharnais v. Illinois, 343 U.S.
250 (1952); Brandenburg v. Ohio, 395 U.S. 444 (1969); and
R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992)].
26. In view of the above, the law can be summarised to the effect
that if any action is taken by any person which is arbitrary, unreason-
able or otherwise in contravention of any statutory provisions or penal
law, the court can grant relief keeping in view the evidence before it
and considering the statutory provisions involved. However, the court
should not pass any judicially unmanageable order which is incapable
of enforcement.
27. As referred to herein above, the statutory provisions and
particularly the penal law provide sufficient remedy to curb the
menace of “hate speeches”. Thus, person aggrieved must resort to the
remedy provided under a particular statute. The root of the problem is
not the absence of laws but rather a lack of their effective execution.
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Therefore, the executive as well as civil society has to perform its role
in enforcing the already existing legal regime. Effective regulation of
“hate speeches” at all levels is required as the authors of such
speeches can be booked under the existing penal law and all the law
enforcing agencies must ensure that the existing law is not rendered a
dead letter. Enforcement of the aforesaid provisions is required being
in consonance with the proposition “salus reipublicae suprema lex”
(safety of the state is the supreme law).
28. Thus, we should not entertain a petition calling for issuing
certain directions which are incapable of enforcement/execution. The
National Human Rights Commission would be well within its power
if it decides to initiate suo-motu proceedings against the alleged
authors of hate speech.
However, in view of the fact that the Law Commission has
undertaken the study as to whether the Election Commission should
be conferred the power to de-recognise a political party disqualifying
it or its members, if a party or its members commit the offences
referred to hereinabove, we request the Law Commission to also
examine the issues raised herein thoroughly and also to consider, if it
deems proper, defining the expression “hate speech” and make
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recommendations to the Parliament to strengthen the Election
Commission to curb the menace of “hate speeches” irrespective of
whenever made.
With these observations, the writ petition stands disposed of.
A copy of the judgment be sent to the Hon’ble Chairman of
Law Commission of India.
…………………………….J. (Dr. B.S.
CHAUHAN)
…………………………….J. (M.Y.
EQBAL)
…………………………….J. (A.K.
SIKRI)
New Delhi, March 12, 2014.
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