COUNTERBALANCING THE RIGHT TO SPEECH WITH HATE SPEECH! : DIVYA SUGAND & VATSAL SAXENA

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ISSN: 2582-3655

COUNTERBALANCING THE RIGHT TO SPEECH WITH HATE SPEECH!*

Author : Divya sugand

Co-Author: Vatsal Saxena

ABSTRACT

This article deals with the topic of hate speeches, which, in spite of being primarily a topic of legal interest, has, in recent times, evoked fierce passions and provoked much debate and discussion – both formal and informal – among people from all walks of life. Beginning with a few definitions of the expression “hate speech”, the article then touches upon the Indian constitutional and statutory provisions that penalize the forms of expression aiming to promote enmity between people of different religious or caste communities. It is further followed by a discussion on the jurisprudence relating to hate speeches found in various common law jurisdictions, with necessary details wherever a genuine requirement was felt for such supplementing by judicial precedents to facilitate a better comprehension of the stance, the judiciary of a particular nation takes towards this issue. The article concludes with a discussion as to which approach is best suited to the modern democratic requirement of balancing the need to suppress hate propaganda with the defence of the individual’s right under “Article 19(1)(a) of the Indian Constitution”.

Keywords – hate speech, hate propaganda, forms of expressions and speech, promoting enmity, religious communities, communal harmony.

  • INTRODUCTION

Following the eruption of the controversy regarding the alleged raising of anti-national slogans by unidentified students at the Jawaharlal Nehru University and the subsequent student-administration face-off[1], and more recently, the arrest of groups of youngsters in Madhya Pradesh, Himachal Pradesh and Bihar for allegedly shouting anti-India slogans and celebrating the victory of the Pakistani cricket team in the ICC Champions Trophy 2017 finals against India[2], there has been a heated discussion regarding the scope and extent of “Right to Freedom of Speech and Expression” under “Article 19(1)(a) of the Indian Constitution” guaranteed to all citizens of India, accompanied by a rising clamour to define and penalise “hate speeches”. Quite apart from such incidents, it is common knowledge that speeches invoking memories of incidents such as communal riots, or of past injustices, and thereby seeking to polarize the electorate across constituencies on grounds of religion, caste, class, etc. have been old political tools put to use with varying degrees of success over the years. Hate speeches may also be delivered for reasons which are not purely political. But what exactly is a hate speech? Where should the line between a hate speech and all other exercises of the ‘freedom of speech and expression’ be drawn? It is in the context of these questions and controversies that it becomes all the more important to explore the judicial interpretation of hate speeches and to add one’s own viewpoint to the ever-growing body of discussion on this topic.

  • DEFINITION

With no universally recognized definition of a “hate speech” and with the arrival of the dynamic age of technology, it has become all the more difficult to fit hate speeches into a straightjacket definition. However, the following definitions may give us insights into the constituent elements of a hate speech.

Helen Darbishire defines it as an “expression or expressions that incite(s) hatred, particularly racial, national or religious in nature.”[3]

As per the Black’s Law Dictionary[4], “It is a 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.”

In the landmark case of PravasiBhalaiSangathan v. Union of India[5], Dr. B.S. Chauhan, J. observed the following with regard to the definition of hate speeches: “Hate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize 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 groups 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.”

The 267th Report of the Law Commission of India[6] defined it as “an expression which is likely to cause distress or offend other individuals on the basis of their association with a particular group or incite hostility towards them. There is no general legal definition of hate speech, perhaps for the apprehension that setting a standard for determining unwarranted speech may lead to suppression of this liberty.”

What can be gathered from these four definitions, therefore, is that regardless of the context in which a particular hate speech was delivered, it is the “incitement or provocation of hatred” with or without a clear intention to ensure that such provocation or incitement leads to violence against one or more communities that is central to all hate speeches, even if a hate speech found to have been delivered during election campaigning might not have necessarily intended to start a cycle of violence against one or more communities, but simply to polarize the electorate of a particular constituency by appeals to the religious sentiments of any community or communities.

  • THE INDIAN REGIME

Following the remarks made by a politician[7]in March 2009 against a minority community while on a campaign trail, the subsequent protests and the First Information Reports lodged against him in that connection, a need was felt to develop a separate law dealing with hate speeches in addition to the provisions already in existence, but nothing came out of it. Years later, following a series of hate speeches delivered by another politician in 2012 in different cities of Andhra Pradesh[8], the demands for a specialized law on hate speeches arose again[9][10], but remain unfulfilled even today, even though hate speeches are covered under multiple legislations. The same has been dealt with, later on in this article.

In the PravasiBhalaiSangathancase[11]it was stated by the Hon’ble Supreme Court of India that “given such disastrous consequence of hate speeches, the Indian legal framework has enacted several statutory provisions which directly or indirectly make the delivery of hate speeches an offence.”

The constitutional validity of the provisions for hate speech has been persistently upheld on the ground of ‘public order’, an exception under article 19(2) of the Constitution. In State of U.P. v. Lalai Singh Yadav[12], the Supreme Court upheld the “the constitutional value of ordered security and identified ordered security as a constitutional value that is to be safeguarded and courts should give preference to the State if their intent is to protect safety and peace. Here the principle of ordered security is enunciated as a positive principle, without which creativity and freedom are meaningless.”[13]In this judgment, it was observed by V.R. Krishna Iyer, J. that –

“The State, in India, is secular and does not take sides with one religion or other prevalent in our pluralistic society. It has no direct concern with the faiths of the people but is deeply obligated to not only preserve and protect society against breaches of the peace and violations of public order but also to create conditions where the sentiments and feelings of people of diverse of opposing beliefs and bigotries are not so molested by ribald writings or offensive publications as to provoke or outrage groups into possible violent action. Essentially, good government necessitates peace and security and whoever violates by books and bombs societal tranquillity will become the target of legal interdict by the State.”

The laws dealing with hate speeches have thus been given below under the following sub-headings:

  1. Constitutional Provisions
    • Article 19(1)(a) r/w 19(2)

‘Right to Freedom of Speech and Expression’ under article 19(1)(a), has often been a subject of heated debate and has hit the headlines time and again due to it being one of the most obvious and most important parts of the day-to-day lives of people of all socio-economic backgrounds. This right is undoubtedly essential for true democracy and should, therefore, be guarded against unnecessary and unfair curtailment. Thus, it is subject to certain “reasonable restrictions” given in article 19(2) viz. “the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.[14] However, these conditionalities were later introduced by the first amendment[15]and sixteenth amendment[16] of the Constitution. It must be noted that none of the conditions explicitly mentioned hate speech as one among it.

Most hate speeches are inherent of such nature as to invite restriction under more than one of the aforementioned grounds because they aim to disturb public order by inciting an audience to commit an offence or a number of offences against one or more communities. To elaborate further on the scope of article 19(2), the following observation by R.F. Nariman,J. in the landmark ruling of Shreya Singhal v. Union of India[17] may be quoted here:

“…… This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, etc.”

The expression “public order” mentioned in article 19(2) is one of wide import which has been touched upon in more than one Supreme Court judgment. The importance of this expression can be clearly seen from the fact that it is the harm caused – or feared to be caused – to not just one or two individuals, but to one or more communities, and therefore the public at large, which forms the single most important touchstone on which to test the impact of the alleged hate speech in order to properly decide whether or not it is a hate speech in the true sense of the term.

To throw more light on this expression, it would be pertinent to quote the observations of A.N. Ray, C.J. in Rev. Stainislaus v. State of Madhya Pradesh and ors.[18], which went as follows:

“The expression public order is of wide connotation. It must have the connotation which it is meant to provide as the very first Entry in List II. It has been held by this Court in Ramesh Thappar v. State of Madras[19] that “public order” is an expression of wide connotation and signifies the state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the Governments which they have established.”

A hate speech, therefore, can also be defined as one which poses a threat, direct or indirect, to ‘public order’ in the sense of the term used in the Indian Constitution, even though the phrase “public order” itself has not been – and cannot be – cast into any mould so far and should be interpreted by the Courts of law on a case-to-case basis with regard to justice, equity and good conscience.

However, the Constitution does not give an inexhaustible remedy or one that may be invoked at one’s convenience. This was aptly stated in the case of Jafar Imam Naqvi v. Election Commission of India[20]:

“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 dispute raised under the Representation of The People’s Act, 1951. Therefore, to entertain a petition as PIL and to give directions would be inappropriate. ….. A Public Interest Litigation pertaining to speeches delivered during election campaign ….can not be put on a pedestal of a real PIL. There are laws 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.”

1.2. Article 25(1)

Article 25(1) gives all persons the freedom of conscience and the right to freely practice, profess and propagate religion subject to public order, morality and health. The inclusion of the word “profess and propagate religion” in this article, as profession and propagation cannot be exercised without speech and expression, establishes a direct link between the right to freedom of speech and expression and the right to freedom of religion. This link was recognized by the Apex Court inRatilalPanachand Gandhi v. State of Bombay[21] in the following words:

“…… Thus, subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious beliefs as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution.”

The “exhibition” mentioned in the observation above is by itself one of the forms of speech and expression sought to be protected by the freedom of speech and expression enshrined under article 19(1)(a).

But the right to freedom of religion, like every fundamental right, is not absolute. The inclusion of the term “public morality” as a Constitutional restriction to the freedom of conscience and free profession, practice and propagation thus axiomatically means that nobody is free to lower the respect accorded to another religion in the estimation of the general public under the guise of propagating his own, or to do anything else which would constitute a threat to public order, morality, and health. In the case of Rev. Stainislaus v. State of Madhya Pradesh and ors.[22], the Supreme Court emphatically rejected the existence of a fundamental right to convert a person or persons to one’s own religion with a reference to its earlier decision in Ramjilal Modi v. State of Uttar Pradesh[23], where this court had held that the right to freedom of religion guaranteed by articles 25 and 26 of the Constitution is expressly made subject to public order, morality and health, and that:

“…. It cannot be predicted that the freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order.”

Thus, any speech aiming to (or which is likely to) upset public tranquillity in the name of the practice, profession, and propagation of one’s own religion is not protected under article 25(1).

1.3. Article 51A

With every right comes a corresponding responsibility. It is due to this reason that the Indian Constitution enlists 10 Fundamental Duties under article 51A. In relation to prevalent hate speeches, Dr. D.Y. Chandrachud, J. of the Bombay High Court, in the case of Kamal R. Khan v. State of Maharashtra[24] observed that:

“The politics of hate and intolerance is an anathema to our constitution …. Practicing hate or intolerance towards any segment of society is fundamentally contrary to a constitutional order in which the fundamental duty of every citizen under article 51A persists.”

  1. Criminal Provisions
    • The Indian Penal Code, 1860[25]

The following substantive provisions of the Indian Penal Code (IPC) cover the words and expressions constituting hate speeches:

  • “Sedition.e. bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards the Indian Government.”[26]
  • “Promoting enmity between different groups on either grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.”[27]
  • “Imputations, assertions prejudicial to national integration.”[28]
  • “Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.”[29]
  • “Uttering, words, etc., with deliberate intent to wound the religious feelings of any person.”[30]
  • “Intentional insult with intent to provoke breach of the peace.”[31]
  • “Statements conducing public mischief.”[32]
  • The Code of Criminal Procedure, 1973[33]

The following provisions of the Code of Criminal Procedure (CrPC) supplement the substantive provisions of the Indian Penal Code in dealing with matters related to purported hate speeches:

  • “Power to declare certain publications forfeited and to issue search warrants for the same.”[34]
  • “Power to ask for furnishing the security for keeping the peace in other cases.”[35]
  • “Power to issue an order in urgent cases of the nuisance or apprehended danger.”[36]

The scope and application of these provisions may be further explained by the following judgments–

  1. IPC section 153A’s scope in relations to hate speeches was first discussed primarily in Shib SharmaEmperor[37] where the moot-question before the Oudh Chief Court was whether a book entitled “Chaman Islam ki Sair” fell within the domain of this section.[38]It was observed by Thomas, C.J. that:

“Speaking for myself I look at such a matter, not as a ….. Learned Judge of a High Court, but as a common …. citizen of a town in India. I would place myself in the position of a Mahomedan who honors his Prophet, and then consider what my feelings would be towards a Hindu who ridiculed that Prophet, not out of any eccentricity but in the prosecution of propaganda started by a class of persons who are not Mahomedans. In such a position from the hatred of the author, I would, as an ordinary man, proceed to hatred of the class to which the author belonged and which instigated the author. There cannot be the slightest doubt that the writing such as that of the book before me …..  will certainly promote feelings of enmity and hatred between Hindus and Mahomedans.”

With this observation, the Court held the accused guilty under the abovementioned section as well as under section 295A of IPC.

  1. While elucidating the scope of sections 153A and 505(2) of IPC, in Bilal Ahmed Kaloo v. State of AP[39], the Court held that “the common feature in both section is that it makes promotion of feeling of enmity, hatred or ill-will between different religious or racial or language or regional groups or castes and communities and doing acts prejudicial to maintenance of harmony an offence. It is necessary that at least two such groups or communities should be involved to attract this provision. Merely hurting the feelings of one community or group without any reference to another community or group cannot attract either of the two sections.”[40]
  1. In the case of Ramlila maidan Incident, in re[41], while interpreting section 144 CrPC, the following observations were made by Dr.B.S. Chauhan, J.:

“Section 144 Cr. P.C. deals with immediate prevention and speedy remedy. Therefore, before invoking such a provision, the statutory authority must be satisfied regarding the existence of circumstances showing the necessity of immediate action. The sine qua non for an order under section 144 is urgency requiring immediate and speedy intervention by passing of order. The order must set out the material facts of the situation. Such a provision can only be used in grave circumstances for the maintenance of public peace. The efficacy of the provision is to prevent some harmful occurrence immediately. Therefore, the emergency must be sudden and the consequences sufficiently grave.”

  1. Other Statutory Provisions

The following provisions of other statutory acts and the rules therein provides protection from hate speeches in a following manner:

  • Information Technology Act, 2000[42] and Information Technology (Intermediaries Guidelines) Rules, 2011
  • “Punishment for sending offensive messages through communication service, etc.”[43] Though this provision has now been struck down in Shreya Singhal v. Union of India[44].
  • “Power to issue directions for interception or monitoring or decryption of any information through any computer resource.”[45]
  • “Power to issue directions for blocking for public access of any information through any computer resource.”[46]
  • “Due diligence to be observed by intermediary discharging his duties namely[47]– Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that”[48]–“is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever”[49]– “threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.”[50]
  • Representation of the People Act, 1951[51](RPA,1951)
  • “Disqualification from a person contesting the election if he is convicted for indulging in acts amounting to the illegitimate use of freedom of speech and expression such as the offenses punishable under section 153A, section 505, etc. of the Indian Penal Code, 1860.”[52]
  • “Prohibition, inter alia, appeals on the lines of caste, community, religion, etc. either by the candidate himself or anyone on his behalf in furtherance of his electoral prospects and speeches promoting enmity between communities along various lines, respectively.”[53]
  • “There is a prohibition on the promotion of enmity on grounds of religion, race, caste, community or language in connection with election as an electoral offence and makes it punishable with three years’ imprisonment, or with fine or both.”[54]
  • Protection of Civil Rights Act, 1955[55]
  • “Penalises incitement to, and encouragement of untouchability through words, either spoken or written or by signs or by visible representations or otherwise.”[56]

The scope and application of some of these statutory provisions may be further explained by the following judgments of the Hon’ble Supreme Court of India –

  1. In Ramesh YeshwantPrabhoo v. Shri PrabhakarKashinathKunte&Ors.[57], the Court analyzed section 123(3A) of the RPA, 1951, stating that:

“….the said provision is similar to section 153A, IPC as the promotion of, or attempt to promote, feelings of enmity or hatred as against the expression ‘Whoever …. promotes or attempts to promote…..disharmony or feelings of enmity, hatred or ill-will ….’ in section 153A, IPC.”The expression ‘feelings of enmity or hatred’ is common in both the provisions but the additional words in section 153A, IPC is‘ disharmony….or ill-will’.”The difference in the plain language of the two provisions indicates that even mere promotion of disharmony or ill-will between different groups of people is an offence under section 153A, I.P.C, while under subsection (3A) of section 123 of the RPA,1951, it is only the promotion of or attempt to promote feelings of enmity or hatred, which are stronger words, are forbidden in the election campaign.”[58]

  1. In the recent Constitution Bench verdict of Abhiram Singh v. C.D. Commanche (dead) through Legal Representatives and ors.[59], the following was observed by M.B. Lokur, J. (for the majority) regarding section 123(3) of the RPA, 1951:

“The purpose of enacting Clause (3) of section 123 of the Act and amending it more than once during the course of the first 10 years of its enactment indicates the seriousness with which the Parliament grappled with the necessity of curbing communalism, separatist and fissiparous tendencies during an election campaign (and even otherwise in view of the amendment of section 153-A IPC). It is during electioneering that a candidate goes virtually all out to seek votes from the electorate and Parliament felt it necessary to put some letters on the language that might be used so that the democratic process is not derailed but strengthened. Taking all this into consideration, Parliament felt the need to place a strong check on corrupt practices based on an appeal on the grounds of religion during election campaigns (and even otherwise).”

We can thus conclude with the words of Dr. B.S. Chauhan J. in one of his judgments[60] on the same issue of hate propaganda:

“The root of the problem is not the absence of laws but rather a lack of their effective regulation. Effective regulation of ‘hate speech’ 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 is being required in consonance with the proposition ‘SalusReipublicae Suprema Lex’ (Safety of the state is the supreme law)”

  • INTERNATIONAL LEGAL REGIME

The international legal regime on hate speeches shows a concern as serious as – if not greater than – the concern shown by nations regarding the speedy, effective and reasonable curbing of speeches that seek to drive a wedge between people of different religions, regions, cultures and communities and incite violence. The following text from the ‘267th Report of the Law Commission of India’[61] provides a succinct summary of the international legal provisions that aim to provide safeguards against hate speeches:  

“The working of the free speech doctrine very often points to the failure of this freedom in addressing the discriminatory, hostile and offending attitudes of some individuals and some small strata of the society. It was this viewpoint that led to the prohibition of ‘advocacy of national, racial or religious hatred that constitutes an incitement to discrimination, hostility or violence’[62] under article 20(2) of the International Covenant on Civil and Political Right, 1966. Similarly, articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1966 prohibits ‘dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin’ and mandates the signatory states to provide effective remedies and protection against such actions.”

“The issue of hate speech has assumed greater significance in the era of the internet since the accessibility of internet allows offensive speeches to affect a larger audience in a short span of time.”Recognising this issue, the Human Rights Council’s “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression”[63] on content regulation on internet, expressed that freedom of expression can be restricted on five major grounds, wherein one of the primary ground was hate speech (to protect the rights of affected communities)”[64]

A comparison of the Indian standpoint with that of some other common law jurisdictions will reveal commonalities as well as differences. Discussed below are some of them:

  1. United States of America

One of the biggest contributions to the freedom of speech and expression came from the United States of America in the form of the First Amendment to the Constitution of the United States which reads as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

In the Ramlila maidan Incident case[65], Swatanter Kumar, J. summarized the American position in the following manner:

“As a result of the widening of the power of judicial review, the US Supreme Court preferred to test each case on the touchstone of the rule of ‘clear and present danger’. However, the application of this rule was unable to withstand the pace of the development of the law and, therefore, through its judicial pronouncements, the US Supreme Court applied the doctrine of the ‘balancing of interests’. The cases relating to speech did not simply involve the rights of the offending speaker but typically they presented a clash of several rights or a conflict between individual rights and necessary functions of the government. Frankfurter, J., often applied the above-mentioned balancing formula and concluded that ‘while the Court has emphasized the importance of ‘free speech’, it has recognized that free speech is not in itself a touchstone. The Constitution is not unmindful of other important interests, such as public order, if the free expression of ideas is not found to be the overbalancing considerations.’ ”[66]

“Even in the United States there is a recurring debate in modern First Amendment jurisprudence as to whether First Amendment rights are ‘absolute’ in the sense that the government may not abridge them at all or whether the First Amendment requires the ‘balancing of competing interests’ in the sense that the free speech values and the government’s competing justification must be isolated and weighted in each case. Although the First Amendment to the American Constitution provides that the Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of the Constitutional government to survive. If it is to survive, it must have the power to protect itself against unlawful conduct and under some circumstances against incitements to commit unlawful acts. Freedom of speech, thus, does not comprehend the right to speak on any subject at any time[67].”

Although article 19(1)(a) of the Indian Constitution drew inspiration from the American experience of constitutionalism[68], there have been divergences between the jurisprudence in the United States and in India as to when speech may permissibly be restrained. Thus, some points of difference may be extracted as follows:

  1. While the Indian Constitution allows for ‘reasonable’ regulation of the press, the US Constitution does not. As observed by Douglas, J. in Kingsley Corp v. Regents of the University of New York[69], and quoted with approval in Lakshmi Ganesh Films, Hyderabad and ors. v. Government of A.P. and ors.[70]:

“If we had a provision in our Constitution for ‘reasonable’ regulation of the press such as India has included in hers there would be room for argument that censorship in the interest of [communal harmony or] morality would be permissible.”

  1. ‘The clear and present danger test’, an innovation of the American judiciary, was first laid down by Holmes, J. of the United States Supreme Court in Schenk v. United States[71] where while deciding constitutionally validity of restrictions on free speech, it was observed that:

“…….. the character of every act depends upon the circumstances in which it is done …. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. It does not even protect a man from an injunction against uttering words that have all the effect of force…..The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the Congress has a right to prevent.”

As per Bridges v. California[72], it requires that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” Thus, this test, stipulating the “only circumstances under which free speech may be restricted in the interests of public order”[73] has hence been found by Indian jurists to be “inapplicable to India, based upon fundamental differences between the US and Indian Constitutions”[74].

  1. In Brandenburg v Ohio[75], the United States Supreme Court distinguished between ‘incitement’ towards, and ‘advocacy’ of, violence on racial grounds – prohibiting the former while permitting the latter with the remark that “freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”[76].

In India, such an approach may not be desirable because of the protection which the Constitution of India affords to religious and cultural minorities and their rights to retain their identity as such[77], because people from different communities may freely misuse a freedom of such a vast scope to further their own ends, political or otherwise, by inciting a certain level of hatred and contempt, if not violence, against another community.  To this effect, the Supreme Court has concluded that ‘the public interest’ must ‘without a doubt have pre-eminence over any individual interest’ in the case of BaragurRamchandrappa and ors.  v. State of Karnataka and ors.[78]In this case, where a ban placed by the respondent – State on a book written by the petitioner – the author was challenged by the latter, it was observed by H.S. Bedi, J. that –

“The government thus has the power to nullify a publication which endangers public order, although the freedom of expression in this situation is undoubtedly restricted even though such freedom ‘is an indicator of the permanent address of human progress.’ It must also be noted that it would be difficult to examine all publications on a common yardstick and what may be a laughable allegation to a progressive people could appear as sheer heresy to a conservative or sensitive one.”

  1. Canada

The Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, opinion, and expression subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Pursuant to this, section 319 of the Criminal Code of Canada, RSC 1985 sanctions public incitement of hatred.[79] In the ParvasiBhalaiSangathan case[80], Dr. B.S. Chauhan, J. made the following observation after an analysis of various Canadian judgments while scrutinizing the Indian approach to hate speeches:

“The Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott,[81] 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[82] provides a workable approach wherein three main prescriptions must be followed[83] –

First, the 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” 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, delegitimization, and rejection that risks causing discrimination or other harmful effects.

Third, the 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 ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce discrimination.

Before that, the Canadian approach had also been discussed in the case of Union of India v. Naveen Jindal &anr.[84]wherein it was stated:

“section 2(b) of Canadian Charter states that “Everyone has the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” The section potentially could cover a wide range of action, from commercial to political, from journalistic privilege to hate speech to pornography.”

A comparison between the American and the Canadian approaches has been done is R. v. Keegstra.[85] The Court rejected the ‘clear and present danger’ test, on the basis that ‘it was incapable of addressing the harms hate propaganda causes’ and hence inapplicable to Canadian constitutional and cultural norms.[86] Hate propaganda was found to have only ‘marginal’ truth value, outweighed by the significant harm inflicted by hate speech on the constitutional value of ‘equality’. As noted in the majority judgment, Dickson, C.J. observed:

“The international commitment to eradicate hate propaganda and, most importantly, the special role has given equality and multiculturalism in the Canadian Constitution necessitate a departure from the view, reasonably prevalent in America at present, that the suppression of hate propaganda is incompatible with the guarantee of free expression.”

The standpoint of Canadian jurisprudence, therefore, is totally different from that of American jurisprudence on the question of hate speeches and the protection afforded to them by the Constitutions of these two democracies in that unlike the latter, Canadian jurisprudence never considered a test like the “clear and present danger” test to be fit for application in the first place, though now American jurisprudence to has moved away from it.

  • RECENT DEVELOPMENTS

On March 23, 2017, the Law Commission of India, in consonance with the observations of the Supreme Court in the judgment of PravasiBhalaiSangathancase[87]asking for a detailed consideration of the topic of hate speeches, came out with its 267th Report which was dedicated entirely to the topic of “Hate Speeches” – the first report of its kind so far. The report, inter alia, reflected upon the jurisprudence in this area of the law in India, South Africa, the United States, the United Kingdom, the European Union, and Canada; listed down certain criteria for the determination of hate speeches; dedicated a chapter to the review of the existing penal law prohibiting and punishing hate speeches, and ended with an Annexure that suggested amendments to the existing criminal law relating to hate speeches, also featuring a discussion on some of the non-legal recourses that could be taken to by governments and individuals to tackle the rapid rise of advocacy and incitement of hatred. The report identified six major criteria of hate speech which were –

  1. The extremity of the speech
  2. Incitement
  3. Status of the author of the speech
  4. Status of victims of the speech
  5. The potentiality of the speech
  6. Context of the Speech

The draft amendment Bill, named the Criminal Law (Amendment) Bill, 2017 suggests the insertion of two new sections in the Indian Penal Code – subject to the final ascent of the government – as it exists in its current form, namely:

  • 153C (Prohibiting incitement to hatred); and
  • Section 505A (Causing fear, alarm, or provocation of violence in certain cases)

Also, changes were suggested in the First Schedule to the Code of Criminal Procedure under the heading “Offences under the Indian Penal Code (45 of 1860)” making the proposed section 153C a cognizable and non-bailable offence punishable with imprisonment for two years, and fine up to Rs. 5000 under the jurisdiction of the Magistrate of the first class, and section 505A a non-cognizable and bailable offence punishable with imprisonment for one year and/ or with fine up to Rs 5000, or both under the jurisdiction of any magistrate.

  • THE CONCLUSION

While approaches to cases involving hate speeches like the one adopted in American jurisprudence (namely, the “clear and present danger test”) which accord so much significance to the protection of the right to free speech that they often overlook the benefits of banning a certain publication for the maintenance of communal harmony are harmful in that their adoption may result in the courts giving a free hand to the spread of hate propaganda, equally deleterious may be the lack of an objective test on which to judge which form of speech is likely to spread hatred and which one is not, as it will bring about an inconsistency that may stifle the very same cherished freedom of speech and expression that the courts were meant to protect. Even if a “one-size-fits-all” approach is undesirable for implementation in cases as sensitive as those involving the preservation of communal harmony and the alleged hurting of the sentiments of one or more communities, it is nevertheless desirable to have at least a rough set of guidelines ready for the reference of the Courts in such cases to facilitate more informed and consistent decision-making.

Regarding the suggestion of the making of a separate law to deal with hate speeches, as the Supreme Court of India had ruled in PravasiBhalaiSangathan case[88], there is no need to follow this suggestion primarily for the three reasons that may be summed up as follows –

  1. The forms of expression having a tendency to stoke communal tensions between two or more communities are already covered under multiple statutes which eliminates the need for passing a law meant purely to impose criminal liability on anyone and everyone whose expression or speech could have the aforementioned impact, though proponents of the latter demand may argue that a hate-speech-specific statute would be more desirable due to the consequent convenience that will arise with the passage of this Act.
  2. According to the theory of separation of powers, to which Indian democracy has always subscribed both in letter (in the form of the Indian Constitution) and in practice, the judiciary is empowered to legislate only if there is no existing law to deal with a particular topic, in which case a legislation by the Supreme Court would no longer be just an option, but would become a Constitutional requirement. However, where there is no void to be filled, as in the case of this topic, interference by the judiciary is unwarranted.
  3. Considering the large number of laws under which hate speeches are punishable, even if the Amendment proposed by the Law Commission of India is rejected, the parties aggrieved by expression aiming to incite violence or discrimination between communities are free to approach the courts of law under the existing statutory provisions, and that the actual problem under the current scenario is not the lack of the requisite laws to deal with hate speeches, but their effective implementation. It is incumbent upon the Courts, the lawmakers and the enforcers of the law i.e. the judicial, the legislative and the executive organs of the government to ensure that the law punishing hate speeches is not rendered a dead letter because of ineffective implementation.

This leaves only one solution to the burning question of “where to draw the line” – the adoption of the Canadian approach to hate speeches as discussed above.[89]

The reasons for the desirability of this approach are obvious. The first test requires Judges to apply a very basic “reasonability” test which results in no prejudice to the interests of any party involved in the case and can be applied without harming the unique nature of each case because the Courts have been given the liberty of deciding each case on its own merits.

The second test amply clarifies which kind of “hatred” would be taken into account while considering the legitimacy of any given form of speech or expression challenged before the Court, and that only such speech would be considered hate speech as would have the effect of driving one community against another, manifesting itself through discrimination, violence, etc.

The third and final test lays down that the ultimate deciding factor which the tribunals must not ignore while deciding whether or not the impugned form of speech or expression is illegal should be the impact of a given speech on its audience. The repugnancy of the ideas being expressed being subjective (and therefore difficult to decide) and the motive of the author of the expression being immaterial (since no person could conceivably deliver a hate speech without having a certain impact in mind), the most dispassionate and impartial way to determine whether or not the expression at issue is a hate speech would be whether it can be reasonably expected to ignite hatred in the hearts and minds of the people of community “A” against those of community “B” (or more communities, in case more than one communities have been targeted), which could possibly expose community “B” to discrimination at the hands of community “A”.

Therefore, it is suggested that Indian courts, while deciding cases that deal with hate speeches, adopt the Canadian approach to the extent permissible in view of the facts and circumstances of each individual case and keeping in mind the prevailing situation in India, and that there is, as of now, no requirement for the legislature to introduce a specific statute relating to hate speeches as this topic is already covered by sufficient laws to be able to deal with a hate speech in all possible manifestations. The remaining gaps (if any) can be plugged by creative judicial interpretation.

* By DivyaSugand and VatsalSaxena

[1]Internet Desk, “JNU row: What is the outrage all about?”, The Hindu, available at:http://www.thehindu.com/specials/in-depth/JNU-row-What-is-the-outrage-all-about/article14479799.ece(last visited on August 16, 2018).

[2]Times News Network, “19 arrested for cheering Pakistan’s Champions Trophy Victory”, Times of India, available at:http://timesofindia.indiatimes.com/india/19-arrested-for-cheering-pakistans-champions-trophy-victory/articleshow/59243368.cms(last visited on August 16, 2018).

[3]RitikaPatni and KasturikaKaumudi, “Regulation of Hate Speech”, 2WBNUJS Law Review (2009).

[4]Black’s Law Dictionary, 8th edition, at 4381.

[5](2014) 11 SCC 477, 485.

[6]Law Commission of India, 267thReport on Hate Speech, available at:http://lawcommissionofindia.nic.in/reports/Report267.pdf(last visited on August 16, 2018).

[7]Reuters Staff, “Varun Gandhi arrested over Muslim Hate Speech”, Thomson Reuters,available at:http://in.reuters.com/article/idINIndia-38758620090329(last visited on August 16, 2018).

[8]Times News Network, “AkbaruddinIn Trouble for Hate Speech”, Times of India, available at:http://timesofindia.indiatimes.com/city/hyderabad/Akbaruddin-in-trouble-for-hate-speech/articleshow/17803821.cms(last visited on August 16, 2018).

[9]Rajeev Dhawan, “India has many forms of ‘hate speech’, but no grounds for a tighter law”, DailyMail India, available at:http://www.dailymail.co.uk/indiahome/indianews/article-2334785/India-forms-hate-speech-grounds-tighter-law.html(last visited on August 16, 2018).

[10]Baba Umar, “Getting away with Hate Speeches in India”, Al-Jazeera, available at:

http://www.aljazeera.com/indepth/features/2014/04/getting-away-with-hate-speeches-india-201442474555948198.html(last visited on August 16, 2018).

[11](2014) 11 SCC 477, 486.

[12](1976) 4 SCC 213, 217.

[13]Supra 6 at 43.

[14]Constitution of India, 1959, art. 19(2).

[15]Constitution (First Amendment) Act, 1951.

[16]Constitution (Sixteenth Amendment) Act, 1963.

[17] (2015) 5 SCC 1, 130-131.

[18](1977) 1 SCC 677, 683.

[19]AIR 1950 SC 124, 125.

[20](2014) 15 SCC 420, 425.

[21]AIR 1954 SC 388, 392.

[22](1977) 1 SCC 677.

[23]AIR 1957 SC 620, 622.

[24](2009) 3 AIR Bom R 477, 486-87.

[25]Indian Penal Code, 1860 (45 of 1860).

[26]Id., s. 124A.

[27]Id., s. 153A.

[28]Id., s. 153B.

[29]Id., s. 295A.

[30]Id., s. 298.

[31]Id., s. 504.

[32]Id., s. 505.

[33]Code of Criminal Procedure, 1973 (2 of 1974).

[34]Id., s. 95.

[35]Id., s. 107.

[36]Id., s. 144.

[37]AIR 1941 Oudh 310, 314.

[38]Bhandari, M.K. and Narayan Bhatt, Mithilesh, “Hate Speech and Freedom of Expression: Balancing Social Good and Individual Liberty, The Practical Lawyer (2012).

[39]AIR 1997 SC 3483.

[40]Supra 6 at 13-14.

[41]2012 (5) SCC 1, 121-22.

[42]Information Technology Act, 2000 (21 of 2000).

[43]Id., s. 66A.

[44](2015) 5 SCC 1.

[45]Supra 42, s. 69.

[46]Supra 42, s. 69A.

[47]Information Technology (Intermediaries Guidelines) Rules, 2011, r. 3.

[48]Id., r. 3(2).

[49]Id., r. 3(2)(b).

[50]Id., r. 3(2)(i).

[51]The Representation of the People Act, 1951 (43 of 1951).

[52]Id., s. 8(1)(a).

[53]Id., ss. 123(3A) and 123(3B).

[54]Id., s. 125.

[55]The Protection of Civil Rights Act, 1955 (22 of 1955).

[56]Id., s. 7.

[57](1996) 1 SCC 130, 148.

[58]Supra 6 at 41.

[59](2017) 2 SCC 629, 672.

[60](2014) 11 SCC 477, 490.

[61] Supra6.

[62]Roger Kiska, “Hate Speech: A Comparison between the European Court of Human Rights and the United States Supreme Court Jurisprudence” 25 Regent University Law Review 119 (2012).

[63]See Supra 6 at 41. Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, 17th Session, A/HRC/17/27.

[64]Supra 6 at 17,18.

[65]Supra 28 at 29.

[66]Niemotko v. Maryland, 340 US 286, 292 (1951).

[67]Supra 41.

[68] Statement of DrAmbedkar, Constituent Assembly Debates, Vol.VII, 40,available at:http://cadindia.clpr.org.in/constituent-assembly-debates/VII/1948-11-04(last visited on August 16, 2018).

[69] 360 US 684 (1959).

[70] 2006 SCC OnLine AP 489, 495.

[71] 249 US 47 (1919).

[72] 314 US 252 (1941).

[73]Terminiello v. Chicago, 337 US 1 (1949).

[74]BabulalParate v. State of Maharashtra, AIR 1961 SC 884, 890-91.

[75] 395 US 444 (1969).

[76] Supra 6 at 29.

[77] See Part III, Constitution of India.

[78] (2007) 5 SCC 11, 20.

[79] Supra 6 at 29.

[80] (2014) 5 SCC 477, 484-85.

[81] 2013 SCC 11 (Can SC).

[82](1990) 3 SCR 892 (Can SC).

[83]Infra note 89.

54 (2004) 2 SCC 510, 540.

55 [1990] S SCR 697, 744-749.

[86] Kathleen E. Mahoney, “Hate Speech: Affirmation or Contradiction of Freedom of Expression”,

University of Illinois Law Review 789, 793 (1996) .

[87] (2014) 11 SCC 477, 490.

[88] (2014) 11 SCC 477.

[89] Supra note 83.

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