‘Hate speech repudiates right to equality: SC’

The concept of “hate speech” was highlighted in the recent judgement given by the Supreme Court in the case Amish Devgan v/s union of India.

The judgment delivered by a bench comprising Justices A M Khanwilkar and Sanjay Khanna discusseD the distinctions between “hate speech” and “free speech”, the need to criminalise “hate speech” and how it repudiates the right to equality.

• The Supreme Court refused to quash multiple FIRs in the case against journalist Amish Devgan for his alleged defamatory remarks against Sufi saint Khwaja Moinuddin Chisti, observing that “persons of influence, keeping in view their reach, impact and authority… owe a duty and have to be more responsible”.
  • News18anchor Devgan made the alleged defamatory remarks against the Sufi saint in his news debate show, ‘Aar Paar’, on 15 June this year.
  • Seven FIRs were filed against Devgan in Rajasthan, Telangana, Maharashtra and Madhya Pradesh.

• The SC refused to quash multiple first information reports (FIRs) against Amish Devgan.
• The Court observed that “persons of influence, keeping in view their reach, impact and authority… owe a duty and have to be more responsible”.
• The judgment states that it is necessary to draw a difference between “free speech” and “hate speech”
• The court observed that the object of criminalising hate speech is to protect the dignity of an individual and to ensure political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender identity and linguistic preference etc.
• The court clarified that dignity, in this context of hate speech, it does not refer to any particular level of honour or self respect as an individual.

What is Hate Speech?

• Hate speech constitutes a criminal charge under Section 153A, which is the offence of promoting communal disharmony or feelings of hatred between different religious, racial, language or regional groups or castes or communities.
• 153B of the Indian Penal Code categorises the offence of promoting religious, racist, linguistic, community or caste hatred or incites any religious, caste or any other disharmony or enmity within India, through any speech either in written form or spoken.

How is it regulated in India?

• Section 298 of the IPC, similarly, classifies the offence of uttering words with the deliberate intent to wound the religious feelings of any person.
• Likewise, Section 505 of the IPC, criminalises the act of delivering speeches that incite violence.
• Sections 295A and 509A also have similar provisions.
• The 123(3A) of the Representation of the People Act, 1951, also criminalises hate speech by election candidates.
• In 2014, while addressing a Public interest Litigation seeking guidelines for regulating Hate Speech, the Supreme Court made certain observations.

What are the elements of hate speech?

• The SC judgement elucidated three elements of hate speech that legislatures and courts can use to define and identify hate speech:

1. 1. Content-based element
   2. Intent-based element
   3. Harm-based element (or impact-based element)

What is the difference between hate speech and freedom of speech?

• The Indian Constitution, under Article 19(1)(a) provides the right to freedom of speech and expression.
• However, under Article 19(2), the constitution also provides for the reasonable restrictions against free speechin the interests of 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.
• Hate speech is considered a reasonable restriction on freedom of speech and expression.

Will the reasonable restriction take away the liberty of an individual?

• The critics of restricting freedom of speech often argue that it would amount to taking away the liberty of an individual.
• However, under the guise of exercising intrinsic rights, many perpetrate the crime of hate speech, giving rise to an air of distrust, and terror.
• It must be understood that liberty is there for everyone.
• If in the name of free speech, a Hate Speech is given which marginalizes certain persons, then the liberty of those is taken away.

Is there any International Law regime around Hate Speech? 

• International human rights law has set standards by which states are supposed to adhere to strong directives against hate speech in their respective jurisdictions.
• Even though the essential right to free speech is a fundamental right, it also has certain reasonable restrictions that go with it.
• International Covenant on Civil and Political Rights (ICCPR): As per Article 19(3) of the ICCPR, the right of freedom of speech can be regulated in order to honour the rights of others and in the interest of public order, public health or morals.
  • Article 20(2) of the ICCPR also declares that any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prevented by law.
• European Convention on Human Rights: Similarly, Article 10(2) of the European Convention on Human Rights, provides reasonable duties and restrictions during the exercise of one’s fundamental right to free speech.
• United Nations Strategy and Plan of Action on Hate Speech: The United Nations Strategy and Plan of Action on Hate Speech provides that member states must identify and support actors who challenge hate speech. They are also mandated to build capacity and develop policies to address hate speech.
• Rabat Plan of Action: The Rabat Plan of Action, that was adopted by experts after a series of consultations that were convened by the United Nations Office of High Commissioner for Human Rights (OHCHR) derived authoritative conclusions and strong recommendations for the implementation of Article 20(2) of the ICCPR.

Concluding thoughts

Hate speech needs to be understood as the starting point or origin of marginalizing a particular class of persons under ‘fear of threat’. It should not be protected in the name of freedom of speech, otherwise, it will lead to violation of principles on which Indian democracy is built on.