Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another; and this is the only check it ought to suffer, and the only Bounds it ought to know. - Benjamin Franklin (1722)

For years together, a lot has been said about free speech and one’s freedom of expression. The debate goes on from human rights to fundamental rights. In India, free speech is protected under Article 19(1) of the Constitution. However, with the gradual passage of time, free speech has faced certain obstructions from the State in terms of defamation, sedition and hate speech.

When we talk about hate speech, we refer to any form of speech or reference which reflects a certain extent of hatred towards an individual or a community, etc. the term ‘hate speech’ has not been formally defined in any of the Indian legislations, however, it is a term created out of social context and generally refers to any speech which a certain portion of the society disapproves of.

According to Black’s Law Dictionary, Hate Speech is:
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 well-known case of Pravasi Bhalai Sangathan v. Union of India[1], the Supreme Court did not penalize hate speech as it does not exist in any of the pre-existing legislations in India. Instead, the Supreme Court requested the Law Commission to address this issue in order to avoid its stepping into the forum of judicial overreach. This is primarily why the responsibility was handed over to the Legislature.

In the case of Canada (Human Rights Commission) v. Taylor[2], the understanding and determination of hate speech was laid down as follows:

Three main prescriptions must be followed. First, 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 or hatred or contempt 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, 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 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. 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.

The above reference was made in the case of Pravasi Bhalai Sangathan v. Union of India. After making the above reference and analysing the available laws regaulating hate speeches in India, the Court held that:

the statutory provisions and particularly the penal law provides sufficient remedy to curb the menace of hate speeches. Thus, person aggrieved must resort to the remedy provided under a particular statute. The root of the problem is not the absence of laws but rather a lack of their effective execution. Therefore, the executive as well as civil society has to perform its role in enforcing the already existing legal regime.

A recent example is the case of Amish Devgan v. Union of India and Ors. wherein the petitioner, while hosting a debate, had described Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as aakrantak Chishti aya... aakrantak Chishti aya... lootera Chishti aya... uske baad dharam badle.

This case focused on various necessary aspects of law in order to determine the understanding of hate speech. Section 153A of the Indian Penal Code was interpreted which talks about spreading of enmity between groups and doing acts prejudicial to harmony.

The Apex Court also examined the validity of FIR in order to decide upon the FIRs filed against Amish Devgan. Although the plea for quashing of FIRs was rejected, the Apex Court provided the petitioner with interim protection on the basis of his apology of not intending to spread hatred and his co-operation in investigation.

Subsequently, there was the case of Vinod Dua which took Amish Devgan’s case as a citation. Several FIRs were filed against Vinod Dua for apparently making seditious comments against the Government. Court granted him with protection against arrest on the basis of sedition whereas the investigation continued on the basis of the FIR. This case also held a lot of importance in determining the meaning of hate speech. This case majorly focused on free speech inclusive of criticism.

If we focus on the above-cited portions from the cited judgments, we understand that hate speech is basically made against a particular group or individual and it is entirely immaterial whether there was an intention to hurt the sentiments. As far as we consider intention to be irrelevant, we cannot pull down the provisions of Indian Penal Code into this issue because the basis of Criminal Law is mens rea which translates to ill intention.

Subsequently we are left with the Constitution of India. All that can be done is hate speech can be included under the objections to Article 19(1). Our Indian Constitution also underlines the concept of Utilitarianism coined by Jeremy Bentham and this concept refers to maximum happiness for maximum people. Maximum happiness rests with the freedom of speech and expression which also includes criticism. Such criticism can either be positive or negative. Criticism is considered to be hate speech when it affects the sentiments of a certain group. However, if we entirely focus on the effects upon sentiments, then it will turn out to be a huge attack on free speech guaranteed under Article 19(1).

End-Notes:

1. AIR 2014 SC 1591
2. (1990) 3 SCR 892

Written By:

1. Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates.
2. Somya Mishra is an Advocate, working with Diwan Advocates.