JAFAR IMAM NAQVIversusELECTION COMMISSION OF INDIA

                    [2014) 8 S.C.R. 785


                    JAFAR IMAM NAQVI                             A
                              V.
            ELECTION COMMISSION OF INDIA
             (Writ Petition (C) No.429 of 2014)
                       MAY 15, 2014
                                                                 B
         [DIPAK MISRA AND N.V~ RAMANA, JJ.]

     Constitution of India, 1950: Article 32 - Power under -
Exercise of -Election speeches rendered during the election
campaign - PIL seeking direction to Election Commission to       C
take action against all politicians and political parties
indulging in making hate speeches during election campaign
- Held: It is not appropriate to entertain petition as PIL and
give directions - Matter of handling hate speeches could be
a matter of adjudication in an appropriate legal forum and       D
may also have some impact in an election disputes raised
under 1951 Act - PIL pertaining to speeches delivered during
election campaign, cannot be/f)ut on the pedestal of real PIL
- There are laws to take care of it-Representation of People
Act, 1951.                                                       E

    Public Interest Litigation - Evolution of Discussed.

    The instant writ petition has been filed seeking
direction to the Election Commission to take action
against all the politicians and political panies indulging       F
in making hate speeches in election campaign.
     The question which arose for consideration is
whether the Court in exercise of power under Article 32
of the Constitution should enter into the arena of effect        G
and impact of election speeches rendered during the
election campaign in public interest litigation.
    Dismissing the writ petition, the Court
                             785-                                H
    786     SUPREME COURT REPORTS              [2014] 8 S.C.R.


A       HELD: 1. The matter of handling hate speeches
  could be a matter of adjudication in an appropriate legal
  forum and may also have some impact in an election
  disputes raised under the Representation of People Act,
  1951. Therefore, to entertain a petition as a public interest
B litigation and to give directions would be inappropriate.
  [Para10] [793-D]

      Manohar Joshi vs. Nitin Bhaurao Patil and another
  (1996) .1 SCC 1699 and Prof.Ramchandra G.Kapse vs.
C Haribansh Ramakbal Singh (1996) 1 SCC 2068 - referred
  to.

       2. A public interest litigation pertaining to speeches
  delivered during election campaign, cannot be put on the
  pedestal of a real public interest litigation. There are laws
D to take care of it. In the name of a constitutional
  safeguard entering into this kind of arena, would not be
  within the constitutional parameters. [Para 11] [793-F;
  794-A]

E        Smt. Nilabati Behera alias Lalita Behera vs. State of
    Orissa and others AIR 1993 SC 1960: 1993 (2) SCR 581
    - distinguished.

       State of Bihar vs. Sir Kameshwar Singh AIR 1952 SC
  252: 1952 SCR 1056; Vishaka and others vs. State of
F Rajasthan and others AIR 1997 SC 3011: 1997 (3) Suppl.
   SCR 404; Daryo and others vs. State of U.P. and others AIR
  1961 SC 1457: 1962 SCR 574; Union of India and another
  vs. Raghubir Singh (Dead) by Lrs. etc. AIR 1989 SC .1933:
  1989 (3) SCR 316; Kanusanyal vs. District Magistrate,
G Darjeeling and others AIR ~973 SC 2684: 1974 (1) SCR
  621; MC.Mehta and another vs. Union of India & Ors. AIR
  1 ~87 SC 1086: 1987 (1) SCR 819; Pravasi Bhalai
  Sangathan vs. Union of India and others (2014) 3 Scale 552
  - referred to.
H
JAFAR IMAM NAQVI v. ELECTION COMMISSION OF 787
                    INDIA
                     Case Law Reference· :                         A
    AIR 1952 SC 252           Referred to            Para 4
    AIR 1993 SC 1960          Distinguished          Para 5
    AIR 1997 SC 3011          Referred to            Para 7        B
   AIR 1961 SC 1457           Referred to            Para 7
    AIR 1989 SC 1933          Referred to            Para 7
    AIR 1973 SC 2684          Referred to            Para 7
                                                                   c
    AIR 1987 SC 1086          Referred to            Para 7
    (201'4) 3 Scale 552       Referred to            Para 8
    (1996) 1 sec 1699         Referred to            Para 10
    (1996) 1 sec 2068         Referred to            Para 10       D

     CIVIL ORIGINAL JURISDICTION : Writ Pefition (C) No.429
of 2014.

    Under Article 32 of the Constitution of India.
                                                                   E
    Petitioner-In-Person.

    The Judgment of the Court was delivered by

      DIPAK MISRA, J. 1. The petitioner, a practising advocate     F
of this Court, as" pro bone publico has preferred this writ
petition with Article 32 of the Constitution with the following
prayers:"

    "(a) Issue a writ of mandamus in public interestor any other
    appropriate writ, order, direction, commanding respondent      G
    to take stern action against everyone and anyone found
    guilty as per law in view of the ongoing activities of the
    accused politicians and political parties and to ensure
    protection of the security of Election Staff posted at
    Varanasi and of public at large of the entire country;         H
    788      SUPREME COURT REPORTS                   [2014] 8 S.C.R.


A         (b) Issue a writ of mandamus in public interestor any other
          appropriate writ, order, direction commanding Respondent
          to withdraw the recognition given to such political parties
          resorting to illegal activities and to cancel the candidature
          of politicians fouod guilty before declaration the Election
B         Results.

          (c) Pass such other order or orders as this" Hon'ble Court
          may deem fit and proper in the facts" and circumstances
          of the case.""

C       2. The basic assertions in Li1e petition relate to speeches"
  which have been delivered during the recently finished election
  campaign by various leaders of certain political parties and how
  they have the effect potentiality to affect the social harmony. It
  is urged in the petition that these kind of hate speeches are
D totally unwarranted and can endanger the safety and security
  of public at large and undermine the structuralism of democratic
  body polity. Various examples have been giv~n and certain
  newspaper clippings have been annexed. In view of what we
  are going to finally say, we are not inclined to advert to the
E same.

        3. The petitioner appearing in person has submitted that
  in view of such hate speeches by political leaders when the
  equilibrium of the society is disturbed and there is a possibility
  of creating a crack in the multi-faceted fabric of the society, it
F is the constitutional duty of this Court to issue a writ or
  mandamus to the Election Commission of India to take
  appropriate steps. That apart, the petitioner-in-person has also
  made submissions for issue of a mandamus to cancel the
  recognition of such political parties and also to protect the
G liberty and safety of the citizens.

       4. The seminal question that emanates for consideration
  is whether the Court in exercise of power under Article 32 of
  the Constitution should enter into the arena of effect and impact
H of election speeches rendered during the election campaiQfl
JAFAR IMAM NAQVI v. ELECTION COMMISSION OF 789
           INDIA [DIPAK MISRA, J.]
in a public interest litigation. The petitioner commenced his           A
arguments.by stating that since the infancy of the Constitution,
this Court has not declined to declare a law wherever it has
found that it is unconstitutional. In that regard, he has
commended us to the decision in The State of Bihar vs. Sir
Kameshwar Singh 1 • On a careful reading of the said decision,          8
we find that the issue "decided therein has nothing to do with
the case of the present "nature.

     5. Learned counsel has ambitiously submitted relying on
the judgment of this Court in Smt. Nilabati Behera alias Lalita
Behera vs. State of Orissa and others2 wherein the Court                C
expanded the "concept of public remedy where there had been
violation of fundamental rights and further opined that the
concept of sovereign immunity would be not applicable. He has
drawn our attention to paragraph 19 of the said judgment which
reads as under:"                                                        D

      "We respectfully concur with the view that the court is not
      helpless and the wide powers given to this Court by Article
      32, which itself is a fundamental right, imposes a
      constitutional obligation on this Court to forge such new         E
      tools, which may be necessary for doing complete justice
      and enforcing.the fundamental rights guaranteed in the
      Constitution, which enable the award of monetary
      compensation in appropriate cases, where that is the only
      mode of redress available. The power available to this
                                                                        F
      Court under Article 142 is also an enabling provision in this
      behalf The contrary view would not merely render the court
      powerless and the constitutional guarantee a mirage but
      may, in certain situations, be an incentive to extinguish life,
      if for the extreme contravention the court is powerless to
      grant any relief against the State, except by punishment          G
      of th~ wrongdoer for the resulting offence, and recovery of
      damages under private law, by the ordinary process. It the
1.   AIR 1952 SC 252.
2.   AIR 1993 SC 1960.                                                  H
    790        SUPREME COURT REPORTS                 (2014] 8 S.C.R.


A         guarantee that deprivation of life and personal liberty
          cannot be made except in accordance with law, is to be
          real, the enforcement of the right in case of every
          contravention must also be possible in the constitutional
          scheme, the mode of redress being that which is
B         appropriate in the facts of each case. This remedy in public
          law has to be more readily available when invoked by the
          have not, who are not possessed of the wherewithal for
          enforcement of their rights in private iaw, even though its
          exercise is to be tempered by judicial restraint to avoid
          circumven"tion of private law remedies, where more
c         appropriate."

       6. The facts of the said case are absolutely different since
  it was stated in the s.aid case that it is within the power of the
  Court to formulate new tools which may be necessary for doing
D complete justice and for enforcement of fundamental rights
  guaranteed in the Constitution, whe.n there is violation of
  fundamental rights enshrined under Article 21 of the
  Constitution. Thus, the said decision has no applicability to the
  case in hand. That apart, the issue related to grant of
E compensation.

       7. Learned counsel has also drawn our attention to
  Vishaka and others vs. State of Rajasthan and others3wherein
  the Court taking note of the sexual harassment at work place
F and keeping in view the enforcement of the basic human rights
  or gender equality guaranteed against sexual harassment and
  more particularly against sexual harassment at work places
  issued guidelines and directed that the said guidelines and
  norms should be strictly followed and further observed that the
  same would be binding and enforceable in law. The other
G decisions which have been cited by the learned counsel are
  Daryo and others vs. State of U.P. and others4, Union of India

    3.   AIR 1997 SC 3011.
H 4. AIR 1961 SC 1457..
JAFAR IMAM NAQVI v, ELECTION COMMISSION OF 791
           INDIA [DIPAK MISRA, J.}
and another vs. Raghubir Singh (Dead) by Lrs. etc., 5                 A
Kanusanyal vs. District Magistrate, parjeeling and others 6 and
M.C.Mehta and another Union of India & Ors. vs. AIR 1987
SC 1086. 7 On a perusal of the aforesaid decisions, we find that
they pertain different field altogether. Hence, the principle
stated in Vishaka's case and the principles laid down in other        B
decisions are really not attracted to the present case.

     8. Lastly, the learned counsel has.brought to our notice a
recent three-Judge Bench decision of this Court in Pravasi
Bhalai Sang a than vs. Union of India and others 8 which              C
pertains to the legal remedy because of hate speeches
pertaining to inter state migrants. The Court adverted to various
submissions advanced at the Bar and took note of certain
decisions of the Supreme Court of Canada, dictionary meaning
of 'hate speeches' and the offences for the hate speeches in
Indian Penal ·Code, the Representation of People Act, 1951,           D
Co_de of Criminal Procedure, 1973, Unlawful Activities
(Prevention) Act, 1967, Protection of Civil Rights Act, 1955,
Religious Institutions (Prevention of Misuse) Act, 1980 and
thereafter Sections 124A, 153A, 153B, 295-A, 298, 505(1 ),
505(2) of Indian Penal Code, 1860 and eventually held as              E
follows:

              "21. While explaining the scope of Article 141 of the
              Constitution, in Nand Kishore v. State of Punjab,
              (1995) 6 SCC 614, this Court held as under:             F

              "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 uncjer
              Article 141 of the Constitution, for the Court is not
              merely the interpreter of the law as existing, but · G

5.   AIR 1989 SC 1993.
6.   AIR 1973 SC 2684.
7.   AIR 1987 SC 1086.
8.   (2014) 3 Scale 552.                                              H
    792      SUPREME COURT REPORTS                   [2014] 8 S.C.R.


A                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
B
          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
c         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
D         only in a situation where the will of the elected legislature
          has not y~t been expressed.
          25. It is desirable to put reasonable prohibition on
          unwarranted actions but there may arise difficulty in
          confining the prohibition to some manageable standard
E         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 "hate
          speech" and related issues. l:!_owever, of lately, the courts
          have shifted gears thereby paving the way for myriad of
F         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).
G
          9. Thereafter, the Court suggested as follows:"
          "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-
H         recognise a political party disqualifying it or its members,
JAFAR IMAM NAQVI v. ELECTION COMMISSION OF 793
           INDIA [DIPAK MISRA, J.]
    if a party or its members commit the offences referred to           A
    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 recommendations to the Parliament to
    strengthen the Election Commission to curb the menace               B
    of "hate speeches "irrespective of whenever made."
      10. The petitioner has submitted that this Court being the
guardian of the Constitution is obligated to issue notice, call
for the response and issue appropriate directions. Be it stated,
the Election Commission might have taken note of it and                 C
initiated certain action. The matter of handling hate speeches
could be a matter of adjudication in an appropriate legal forum
and may also have some impact in an election disputes raised
under the Representation of People Act, 1951. Therefore, to
entertain a petition as a public interest litigation and to give        D
directions would be inappropriate. We have said so in view of
the judgments in Manohar Joshi vs. Nitin Bhaurao Patil and
another9 and Prof. Ramchandra G.Kapse vs. Haribansh
Ramakbal Singh 10
                                                                        E
     11. Before parting with the case, it may be stated that
public interest litigation was initially used by this Court as a tool
to take care of certain situations which related to the poor and
under-privileged who were not in a position to have access to
the Court. Thereafter, from time to time, the concept of public
                                                                        F
interest litigation expanded with the change of time and fhe
horizon included the environment and ecology, the atrocities
faced by individuals in the hands of,the authorities, financial
scams and various other categories including eligibility of the
people holding high offices without qualification. But a public
interest litigation pertaining to speeches delivered during             G
election campaign, we are afraid, cannot be put on the pedestal


9. (1996) 1 sec 169.
10. (1996) 1 sec 206.                                                   H
    794          SUPREME COURT REPORTS               [2014] 8 S.C.R.


A of a real public interest litigation. There are laws to take care
    of it. In the name of a constitutional safeguard entering into this
    kind of arena, in our convinced opinion, would nof be within the
    constitutional parameters.

         12. In the result, we are' not persuaded, despite the adroit
8
    labour and vehement arguments by the petitioner-in-person to
    issue notice and accordingly, the writ petition, stands dismissed
    in limine.
    Nidhi Jain                                   Writ Petition dismissed.