Define the Contours of Hate in Speech

Context: The Sudarshan News case is a chance to infuse clarity on offensive speech, hate speech, and the exceptional cases.

Case Study: Concerns with the Sudarshan News Case- 

• Contempt of Facts: Evidently false statements portrayed in the show – It claimed-

• That the upper age limit for Hindus attempting the civil service examination was 32 years, while the age limit for Muslims was 35; 
• that Muslims were entitled to nine attempts at the examination when Hindus were entitled only to six.
• These assertion were not only “insidious” but were also made in “wanton disregard of the truth”.

• Attempt to denigrate Muslims: The episodes had brought the entire Muslim community into “public hatred and disrepute”.

• Breach of Programme Code: that regulated cable television.

Concerns with Hate Speech and its regulation in India

• Ambiguity and Vagueness in laws: Failure to distinguish clearly between permissible speech from hateful criminal conduct.

• Section 153A - which criminalise, respectively, speech that seeks to promote enmity between different groups 

• Section 295A of the Indian Penal Code (IPC), which criminalise speech/acts that outrage/s religious feelings are vaguely worded, and they are frequently invoked to quell speech that so much as offends a person’s belief. 

• Substantive hate speech provisions in the IPC and the Programme Code are also much too vague.

• Against the permissible grounds for limiting free speech enumerated in Article 19(2): in particular, the restriction allowed on consideration of public order and morality.

• Need to maintain public order restricts the speech to a level of incitement liable to be criminally charged.
• It obliges us to read morality not as societal morality but as constitutional morality.

• Ignores Public Interest: For E.g. The High Court of Andhra Pradesh gagged the press from reporting on a charge made against a former Advocate General of the State, despite the manifest public interest in the case.

• Leads to undemocratic ends: “once uttered, not only leaves little room for restitution but can also ramify to serve all manners of undemocratic ends.”

Defining Hate Speech: as exemplified by the works of the scholar, Jeremy Waldron.

• Definition: Hate speech refers to utterances that incite violence, hatred, or discrimination against people on the basis of their collective identity, be it race, ethnicity, religion, gender or sexuality.

• Significant Aspects of Hate Speech:

• The limitation in these cases should be restricted to those categories of minorities who are vulnerable.

• Merely offensive is not hate speech: 

• For E.g., a mockery of Buddhism’s tenets would not be illegal simply because it of­ fends the sensibilities of its practitioners.
•  A work of satire on a religious ?gure that outrages the sentiments of his followers should be safeguarded.

• Speech that vilify entire community is hate speech:

• Speech that describes all Buddhists as amoral would qualify.
• Speech that vili?es an entire com munity by describing them, say, as “anti-nationals” would go unprotected. 

• Attacks two key tenets of a democratic republic:

• The guarantees of equal dignity to all
•  The public good of inclusiveness.

• Arguments for Censorship:

• Not all speech is equal: Even under the First Amendment, not all speech is equal — commercial speech, libel, and fighting words are afforded a lower standard of protection.
• Adopted worldwide: most European democracies adopt principled standards that distinguish hate speech from merely offensive or rebarbative speech.

• Imbalance in power: Countering speech with more speech is plausible only when there is a balance of power across society. 

Conclusion

• Balancing prior restraint with censorship:

• The Court must tread a finer line in deciding whether a prior restraint on speech can be imposed 

• The pitfalls of a rule of absolute prior restraint under the Cinematograph Act have been evident. 

• Infuse clarity in our legislation by identifying the distinction between merely offensive speech and hate speech.

• Role of Judiciary: The Supreme Court must fine tune the  contents of Programme Code into a feasible, constitutionally committed model.