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Report No. 267

Examining Restrictions on Freedom of Speech and Expression

6.6 Analysis of the Constituent Assembly debates and the debate around the First and Sixteenth Amendments, restrictions to speech based on hate speech are located primarily under the terms 'public order' and to a lesser extent 'sovereignty and integrity' under article 19(2). Both sections 153A and 295A have been justified as restrictions under public order.116 The Supreme Court, in Ramji Lal Modi,117 has held that after the First Amendment in 1951, the language of 19(2) read - "in the interests of public order". This has to be read very widely, so a law like section 295A might not directly deal with public order but can be read to be "in the interests of public order".118

6.7 However, if hate speech is also about insulting persons or wounding religious feelings (without involving public order), then one could justify this under the 'decency and morality' clause of article 19(2). The Supreme Court held that section 123(3) was a constitutional restriction on speech, in the interests of decency.119 Similarly, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 proscribes "intentionally insult[ing] or intimidat[ing] with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."120 In Swaran Singh v. State121 the Supreme Court held that calling a member of a Scheduled caste "chamar" in public view would attract Section 3(1)(x).

6.8 The form of hate speech that the Supreme Court here is dealing with is insult. It is related to a history of humiliation faced by Scheduled Caste persons, and is not directed against public order. Using the word chamar to insult someone could constitute hate speech irrespective of whether it leads to a public order disturbance. The restriction on speech here is more directly linked to 'decency or morality' in article 19(2) than 'public order'.122 Similarly, the restrictions under section 153B (Imputations, assertions related to national integration) could be justified under the 'sovereignty and integrity' restriction in article 19(2).

6.9 Hate speech provisions are found in three different chapters of the IPC, "Of Offences Relating to Religion", "Of Offences Against the Public Tranquillity" and "Of Criminal Intimidation, Insult and Annoyance". Section 295A, IPC was enacted to specifically target speech that intended to outrage religious feelings by insulting religion or religious beliefs.123

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