Define the Contours of Hate in Speech

The Hindu     21st September 2020     Save    

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.