Hate Speech

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The supreme Court, in Pravasi Bhalai Sangathan vs. Union of India, (2014) 11 SC 477 (“Pravasi Bhalai Sangathan”) speaking through Dr. B.S. Chauhan, J., has dealt with ‘hate speech’ as having an innate relationship with the idea of discrimination. That the impact of such speech is not measured by its abusive value alone, but rather by how successfully and systematically it marginalises people. The definition of ‘hate speech’ as propounded by this Court in the aforesaid case, is extracted hereinunder: “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 [the] 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.” (Emphasis by me) This Court referred to the judgment of the Supreme Court of Canada in Saskatchewan Human Rights Commission vs. William Whatcott, 2013 SCC 11 (“Saskatchewan”) (Canada) wherein it was held that human rights obligations form the basis for the control of publication of "hate speeches." The Canadian 42 Supreme Court further declared that 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. That 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. Placing reliance on the observations of the Canadian Supreme Court, this Court in Pravasi Bhalai Sangathan observed that the offence of hate speech is not limited to causing individual distress but would target persons who are members of certain groups or sections of society which breeds discrimination and consequently, hostility.

16.3. In India, human dignity is not only a value but a right that is enforceable. In a human-dignity-based democracy, freedom of speech and expression must be exercised in a manner that would protect and promote the rights of fellow-citizens. But hate speech, whatever its content may be, denies human beings the right to dignity. In this regard, it may be apposite to refer to a recent decision of this Court in Amish Devgan vs. Union of India, (2021) 1 SCC 1 (“Amish Devgan”) wherein this Court speaking through Sanjeev Khanna, J. undertook an analysis of ‘hate speech’ as being antithetical to, and incompatible with the foundations of human dignity. Protection of ‘Dignity’ as a 43 justification for criminalization of ‘hate speech’ was discussed as follows:

“46. […] Dignity, in the context of criminalisation of speech with which we are concerned, refers to a person's basic entitlement as a member of a society in good standing, his status as a social equal and as bearer of human rights and constitutional entitlements. It gives assurance of participatory equality in inter-personal relationships between the citizens, and between the State and the citizens, and thereby fosters self-worth. Dignity in this sense does not refer to any particular level of honour or esteem as an individual, as in the case of defamation which is individualistic.

47. Preamble to the Constitution consciously puts together fraternity assuring dignity of the individual and the unity and integrity of the nation. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual's obligation to others to ensure unity and integrity of the nation. The unity and integrity of the nation cannot be overlooked and slighted, as the acts that 'promote' or are 'likely' to 'promote' divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law. The purpose is not to curtail right to expression and speech, albeit not gloss over specific egregious threats to public disorder and in particular the unity and integrity of the nation. Such threats not only insidiously weaken virtue and superiority of diversity, but cut-back and lead to demands depending on the context and occasion, for suppression of freedom to express and speak on the ground of reasonableness. Freedom and rights cannot extend to create public disorder or armour those who challenge integrity and unity of the country or promote and incite violence. Without acceptable public order, freedom to speak and express is challenged and would get restricted for the common masses and law-abiding citizens. This invariably leads to State response and, therefore, those who indulge in promotion and incitement of violence to challenge unity and integrity of the nation or public 44 disorder tend to trample upon liberty and freedom of others.” (Emphasis by me)

Further, referring to the views of Alice E. Marwick and Ross Millers in the report titled “Online Harassment, defamation, and Hateful Speech: A Primer of the Legal Landscape,” this Court in Amish Devgan elucidated as follows on three distinct elements that legislatures and courts can use to define and identify ‘hate speech’:

“72.1. The content-based element involves open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society. It can include use of certain symbols and iconography. By applying objective standards, one knows or has reasonable grounds to know that the content would allow anger, alarm or resentment in others on the basis of race, colour, creed, religion or gender.

72.2. The intent-based element of 'hate speech' requires the speaker's message to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message. This requires subjective intent on the part of the speaker to target the group or person associated with the class/group.

72.3. The harm or impact-based element refers to the consequences of the ‘hate speech’, that is, harm to the victim which can be violent or such as loss of selfesteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena.

72.4. Nevertheless, the three elements are not watertight silos and do overlap and are interconnected and linked. Only when they are present that they 45 produce structural continuity to constitute 'hate speech'.” It was further clarified that the effect of the words must be judged from the standard of “reasonable, strong-minded, firm and courageous men and not those who are weak and ones with vacillating minds, nor those who scent danger in every hostile point of view.” That in order to ensure maximisation of free speech, the assessment should be from the perspective of a reasonable member of the public.

16.4. Further, in a landmark Judgment of the United States’ Supreme Court in the matter of Chaplinsky vs. State of New Hampshire, 315 U.S. 568 (1942) (“Chaplinsky”) “hate speech” was defined by Murphy J. to mean “fighting words, which by their very utterance inflict injury or tend to incite an immediate breach of peace. It has been observed that such utterances are no essential part of any exposition of ideas, and are of slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

16.5. The term ‘hate speech’ does not find a specific place in Article 19(2) of the Constitution and it appears that it does not constitute a specific exception to the freedom of speech and expression under Article 19(1)(a). Possibly the framers of the Constitution 46 did not find the same to be of relevance in the Indian social mosaic considering that the other cherished values of our Constitution such as fraternity and dignity of the individual would be strong factors which would negate any form of hate speech to be uttered in our Country. This may be having regard to our social and cultural values. However, with the passage of time, a wide range of Indian statutes have been enacted with a view to control hate speech. It may be useful to refer to a few of such provisions, with a view to examine the sufficiency of the existing framework in checking ‘hate speech’ although, the said term has not yet been precisely defined till date by the Parliament.

i) The Indian Penal Code (“IPC”) contains provisions which prohibit hate speech. Section 153-A penalises the promotion of class hatred. Section 153-B penalises “imputations, assertions prejudicial to national integration". Section 295- A penalises insults to religion and to religious beliefs. Section 298 makes it a penal offence to utter words, makes sounds or gestures with the deliberate intention of wounding the religious feelings of another. Section 505 makes it a penal offence to incite any class or community against another. Chapter XXII, IPC punishes criminal intimidation.

ii) Section 95 of the Code of Criminal Procedure, 1973 (“CrPC”) empowers the State Government to forfeit 47 publications that are punishable under Sections 124-A, 153-A, 153-B, 292, 293 or 295-A of the IPC. Section 107 empowers the Executive Magistrate to prevent a person from committing a breach of peace or disturbing public tranquillity or doing any wrongful act that may cause breach of peace or disturb public tranquillity. Section 144 empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf to issue orders in urgent cases of nuisance or apprehended danger. The above offences are cognizable.

iii) Section 7 of the Protection of Civil Rights Act, 1955 penalises incitement to, and encouragement of untouchability through words, either spoken or written, or by signs or by visible representations or otherwise.

iv) Section 3(g) of the Religious Institutions (Prevention of Misuse) Act, 1988 prohibits religious institutions to allow the use of any premises belonging to, or under their control for promoting or attempting to promote disharmony, feelings of enmity, hatred, ill-will between different religious, racial, linguistic or regional groups or castes or communities.

v) Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 punishes an intentional insult or intimidation with intent to humiliate a 48 member of a Scheduled Caste or Tribe in any place within public view.

vi) Section 8 of the Representation of the People Act, 1951 disqualifies a person from contesting elections if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression. Section 123(3-A) of the same Act declares "the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate", a "corrupt practice".

vii) The Cable Television Networks (Regulation) Act, 1995 requires that all programmes and advertisements telecast on television conform to the Programme Code and the Advertisement Code. Rule 6, Cable Television Networks Rules, 1994 lays down the Programme Code and prohibits the carrying of any programme on the cable service which:

(a) contains an attack on religion or communities or contains visuals or words contemptuous of religious groups or which promotes communal attitudes; 49

(b) is likely to encourage or incite violence or contains anything against maintenance of law and order or which promotes anti-national attitudes;

(c) criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country;

(d) contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups. Similarly, the Advertising Code under Rule 7 of the Cable Television Networks Rules, 1994 prohibits the carriage of advertisements on the cable service which hurt the religious susceptibilities of subscribers, which derides any race, caste, colour, creed or nationality, or incite violence or disorder or breach of law. The Cable Television Networks (Regulation) Act, 1995 empowers the authorised officer appointed under the Act to prohibit the transmission of a programme or channel, if it is not in conformity with the Programme Code or the Advertisement Code; or if it is likely to promote disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups; or is likely to disturb public tranquillity. Further, the Central Government is empowered to prohibit the transmission or 50 re-transmission of any channel or programme in the interest of the sovereignty, integrity or security of India or of public order.

viii) Under the Cinematograph Act, 1952, a film can be denied certification on various grounds, including on the ground that it is likely to incite the commission of an offence or that it is against the interests of the sovereignty and integrity of India or public order.

ix) The Information Technology Act, 2000 (IT Act) allows the interception of information by the authorities in the interest of public order, or the sovereignty and integrity of India, or for the purpose of preventing incitement to the commission of a cognizable offence. Section 66-A of the same Act which sought to penalise information that is "grossly offensive" or of "menacing character" or despite knowledge that it is false, is sent to cause annoyance, inconvenience, danger, obstruction, insult, criminal intimidation, enmity, hatred or ill-will, was struck down in Shreya Singhal on the ground of, inter alia, vagueness.

x) Norms of Journalistic Conduct, 2010 issued by the Press Council of India (constituted under the Press Council Act, 1978) contain extensive guidelines on the reporting of communal incidents. 51 The content of speech is sought to be controlled in all the aforesaid statutes when the same is made not only by public functionaries but any ordinary citizen also through whatever medium of dissemination.

16.6. One of the recommendations of the 267th Law Commission was to insert Sections 153C and 505A and associated provisions in the CrPC to deal with ‘Hate Speech’. As per the Law Commission report, the proposed provisions would read as under: “153-C- Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe–

(a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”

“505-A- Causing fear, alarm, or provocation of violence in certain cases: Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i)within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence, against that person or another, shall be 52 punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”. The proposed provision under Section 505-A, seeks to control not only speech that could potentially incite violence or hurt the feelings of a community or dampen national integrity, but also seeks to check threatening or derogatory remarks, made on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe, and which cause fear or alarm. While speech of the former category has been traditionally regarded as ‘hate speech,’ generally vitriolic or ‘derogatory’ statements, which are made on the grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe, have traditionally not been considered to qualify as ‘hate speech,’ no matter how unwarranted or disparaging such statements may be.

16.7. Traditionally, ‘hate speech’ is the term used to describe speech that can potentially cause actual material harm through potential social, economic and political marginalisation of a community as declared by this Court in Pravasi Bhalai Sangathan. However, in the present case, in my opinion, we are concerned with a more overarching area of derogatory, vitriolic and disparaging speech, which is actually not ‘hate speech’ simplicitor as has been traditionally sought to be defined 53 and understood. I am concerned with speech that may not be linked to systematic discrimination and eventual political marginalisation of a community, but which may nonetheless have insidious effects on the societal perception of human dignity, values of social cohesion, fraternity and equality cherished by “We the people” of India.

16.8. Andrew F. Sellars, in his essay published by Harvard University, titled 'Defining Hate Speech,’ has examined the concept of ‘hate speech’ in different democratic jurisdictions. The author has identified that certain remarks, which, although may not be ‘hate speech’ in the strict sense of the term, border on the said term. That even tacit elements of intent of the speaker to cause harm, may constitute some species of hate speech. Intent may refer to non-physical aspects like to demean, vilify, humiliate, or being persecutorial, disregarding or hateful. The author has also recognised that in some contexts, “at home speeches” may themselves amount to hate speeches as such speech can now be uploaded and circulated in the virtual world through internet etc. The only pre-requisite is that the speech should have no redeeming purpose, which means that “the speech primarily carries no meaning other than hatred, hostility and ill-will.” 54 Beyond ‘hate speech’:

17. The expansive scope of ‘hate speech’ as set out above, would include within its sweep not only ‘hate speech’ simplicitor which is defined as speech aimed at systematic discrimination and eventual political marginalisation of a community, but also other species of derogatory, vitriolic and disparaging speech.

18. A philosophical justification to control and restrain derogatory, vitriolic and disparaging speech has been very poignantly conveyed by Lau Tzu, a celebrated Chinese philosopher and writer, in the following words: "Watch your thoughts; they become words. Watch your words; they become actions. Watch your actions; they become habit. Watch your habits; they become character. Watch your character; it becomes your destiny.”

19. Theoretical and doctrinal underpinnings justifying restraints on derogatory and disparaging speech, may be traced to two primary factors: human dignity as a value as well as a right; the Preambular goals of ‘equality’ and ‘fraternity.’