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Report No. 267

Judicial Doctrine

6.15 Courts have consistently upheld the constitutional validity of hate speech provisions, including sections 153A and 295A IPC on the basis of the 'public order', an exception carved out in article 19(2).130In State of U.P. v. Lalai Singh Yadav 131, the Supreme Court upheld the "the constitutional value of ordered security."132 In this judgment, ordered security was identified as a constitutional value that is to be safeguarded and courts should give preference to the State if their intent is to protect safety and peace. Here the principle of ordered security is enunciated as a positive principle, without which creativity and freedom are meaningless.

6.16 The Model Code of Conduct given by the Election Commission of India for the guidance of political parties and candidates should be amended to the extent that effect is given to the sub section (3A) of section 123 of the RPA, 1951. The first part of the Code i.e. General Conduct should expressly provide a provision that prohibits any kind of speech that promotes, or attempts to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

6.17 In the current scenario the threat of large fines is a deterring factor for publishers, artists, bloggers and those who do not have the financial muscle to contest hate speech litigation.

6.18 Other jurisdictions133 have developed extensive jurisprudence on hate speech law. Judges have tried to strike a balance between harm caused by hate speech and the threat to freedom of speech and expression. Any legal regulation of hate speech must take into account the principles that have evolved in these jurisdictions. For instance, in the Canadian case Sasketchwan v. Whatcott134, the Canadian Supreme Court limited the meaning of the term 'hatred' to extreme manifestations of "detestation" and "vilification".

In this case, the Court identified two categories of hate speech (i) marginalising individuals based on their membership of a targeted group, thus affecting inclusiveness and dignity (ii) impairing their ability to respond to substantive ideas under debate, thus creating a serious barrier to their full participation in democracy.135

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