The rationale underlying these provisions is that in our country religious passions can be easily ignited by inflammatory speeches. These sections impose restrictions on the freedom of expression guaranteed under Article 19(1)(a) of the Constitution, a freedom subject to reasonable restrictions under the head of public order as specified in Article 19(2). Our Supreme Court has upheld their constitutionality.

Legal principles which emerge from judicial decisions construing these sections are:

— The speech or writing must be construed as a whole and not by stressing isolated passages torn from the context.

— If the speech or writing has the inevitable consequence of promoting communal disharmony between religious communities it is not a defence that the speaker or the writer did not intend to do so.

— The fact that no communal disturbances have taken place as a result of the speech or writings is immaterial.

— Criticism in moderate language of the religious practices or customs of a religion or its tenets is not prohibited.

For example, it is not an offence to condemn the practice of untouchability and sati and to urge for their total abolition. It is not impermissible to criticise the practice of triple divorce amongst Muslims or the punishment of stoning a woman for adultery. It is not an offence to doubt the divinity of Christ or the authenticity of miracles in the Bible, nor is it an offence to characterise religion as the opium of the people and priests and pujaris as exploiters of people’s credulity and superstitions.

Undeniably, the feelings of Hindus, Muslims and Christians would be hurt by these statements. However, such criticism cannot be equated with hate speech and cannot be criminalised; otherwise debate and discussion would be impossible in a free democratic society and social reforms cannot be effectuated. The overriding principle is that criticism should be rational and expressed in moderate language and should not degenerate into reviling or abusing any religion or its founders. This is the legal position irrespective of the announcement of elections.

Before elections are announced, by the issuance of notifications required under the Representation of the People’s Act (RPA), neither the model code of conduct nor the RPA ‘s provisions are triggered.

Afterwards, however, Section 125 of the RPA makes it an electoral offence for any person to, in connection with the election, promote feelings of religious enmity or hatred between different classes of citizens. Further, under Section 123 of the RPA, the election of a candidate can be invalidated on the ground of corrupt practice, if a charge of appealing to religion in the course of his election is proved.

The vexed question is: what happens during the interregnum? Can a person go on making inflammatory speeches with impunity, vitiating the atmosphere until his conviction? As the law stands at present, the Election Commission (EC) cannot debar such a candidate from contesting an election. Election petitions and criminal trials take a long time; irretrievable damage may be caused if a person is not meanwhile restrained. Can a criminal court or the EC injunct a person or a potential candidate from indulging in making provocative speeches?

The view that the EC can pass such a restraining order is problematic. The necessity and urgency of preventing inflammatory speeches which disturb communal harmony are indisputable. Therefore, the appropriate course of action would be to promptly promulgate an ordinance to amend Section 153A IPC and the RPA and confer express power to injunct a person from making inflammatory speeches — provided of course there is sound factual basis and reasonable grounds for passing such an order.

If the statements attributed to Varun Gandhi have in fact been made by him, they are prima facie violations of the law. One can certainly defend Hinduism or Hindu society against unwarranted and malicious criticism — so long as that does not translate into reviling and ridiculing members of another religious community. It is unfortunate that the EC did not give reasonable time or a personal hearing to Gandhi to establish his defence, for whatever it is worth. The country would not have been aflame if a week’s time were granted. That would also have obviated grievance on account of paucity of time and breach of the principles of natural justice and fair play.

The EC, conscious of its limitations under the existing law, has correctly not debarred Varun Gandhi from contesting. It has, however, chosen to give gratuitous advice that the BJP should not field Varun Gandhi as its candidate. This has generated a furious controversy. The EC’s advice was certainly beyond its purview and is not legally binding. However, there is a distinction between legality and political morality. It was heartening that the BJP initially disapproved of the utterances attributed to Varun Gandhi. It is disheartening that subsequently it has decided to field him as its candidate from Pilibhit and also to feature him in its election rallies. It cannot be overemphasised that maintenance of communal harmony is vital in our country. It is far more important than the impetuous Varun Gandhi and the legality or otherwise of the EC’s advice. Unfortunately, these aspects have apparently not been kept in mind by the BJP.

The writer is a former Attorney General for India

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