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Report No. 267

Analysis of Hate Speech Jurisprudence in India

3.4 Hate speech can be curtailed under article 19(2) on the grounds of public order, incitement to offence and security of the State. The Supreme Court in Brij Bhushan v. State of Delhi14 opined that public order was allied to the public safety and considered equivalent to security of the State. This interpretation was validated by the First Constitution Amendment, when public order was inserted as a ground of restriction under 19(2).15

3.5 However, in Ram Manohar Lohiya v. State of Bihar 16, Supreme Court distinguished law and order, public order and security of State from each other. Observing that:

One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.

3.6 The standard applied for restricting article 19(1)(a) is the highest when imposed in the interest of security of the State. Also, a reasonable restriction under article 19(2) implies that the relation between restriction and public order has to be proximate and direct as opposed to a remote or fanciful connection.17

3.7 In Ramji Lal Modi v. State of U.P.18 the Supreme Court upheld the constitutional validity of this section 295A19 IPC and ruled that this section does not penalise every act of insult to or attempt to 'insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.'20 It was also held by the Court that the expression in the 'interest of public order' mentioned in article 19(2) is much wider that 'maintenance of public order'. Therefore, even if an act does not actually cause breach of public order, its restriction 'in the interest of public order' will be deemed reasonable.

3.8 In Ramesh v. Union of India21, the Supreme Court refused to adjudge speech in isolation and held that a movie that intends to impart message of peace cannot be considered to violate article 19(1)(a) just because it shows fanaticism and violence in order to express the futility of such acts. Thus, it is not the act itself but the potentiality of the act and its effect on public tranquility that justifies restriction under article 19(2).22In this case, the Court refused to treat the freedom of expression at par with the societal interests enumerated under article 19(2). It was observed that a restriction on speech was justified only if it was imminently dangerous to the community as it was held that:

The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and social interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.

The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg".23

3.9 In Shreya Singhal v. Union of India24, the court declared section 66 A of the Information Technology Act invalid as it did not establish any proximate relationship between the restriction and the act. It was opined that:

the nexus between the message and action that may be taken based on the message is conspicuously absent - there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility.

3.10 The court in this case differentiated between discussion and advocacy from incitement and held that the first two were the essence of article 19(1). Expression could only be restricted when discussion and advocacy amounted to incitement. The incitement was read as incitement to imminent violence in Arup Bhuyan v. State of Assam,25 wherein the Supreme Court declined to impute criminality on a person for being a member of a banned organisation unless that person resorted to violence or incited people to violence or created public disorder by violence or incitement to violence.

3.11 The context of speech plays an important role in determining its legitimacy under article 19(1)(a) of the Constitution. In State of Maharasthra v. Sangharaj Damodar Rupawate26 the Court observed that the effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.

In Arumugam Seervai v. State of Tami Nadu27, the Supreme Court upheld the prosecution under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for using the words `pallan', 'pallapayal' `parayan' or `paraparayan' with the intent to insult. The historical context of the impugned words was examined in this case.

3.12 Interpreting sections 153A and 505(2) of IPC in Bilal Ahmed Kaloo v. State of AP,28 the Court held that the common feature in both sections is that it makes promotion of feeling of enmity, hatred or ill-will between different religious or racial or language or regional groups or castes and communities and doing acts prejudicial to maintenance of harmony an offence. It is necessary that at least two such groups or communities should be involved to attract this provision. Merely hurting the feelings of one community or group without any reference to another community or group cannot attract either of the two sections.

3.13 In Babu Rao Patel v. State of Delhi 29 the Court held that section 153A(1) IPC is not confined to the promotion of feelings of enmity etc. on grounds of religion only, but takes into account promotion of such feelings on other grounds as well, such as race, place of birth, residence, language, caste or community.

3.14 The recent decisions show that the India follows a speech protective regime as in practice in the United States and the Courts are extremely cautious in restricting article 19 of the Constitution. The reason behind such a stance is the apprehension and fear of misuse of restrictive statutes by the State.

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