In the case Amish Devgan v Union of India, the judgment delivered by the Supreme Court contains an elaborate discussion on the concept of ‘hate speech’.
Justices A M Khanwilkar and Sanjay Khanna discusses the distinctions between ‘hate speech’ and ‘free speech’, the need to criminalize ‘hate speech’ and ‘free speech’, the need to criminalize ‘hate speech’ and the tests to identify it.
The judgment authored by Justice Khanna observed, “In a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy and, in fact, repudiates the right to equality.”
In Para 54 the Judgement said, “In this context, it is necessary to draw a distinction between ‘free speech’ which includes the right to comment, favour or criticise government policies; and ‘hate speech’ creating or spreading hatred against a targeted community or group. The former is primarily concerned with political, social and economic issues and policy matters, the latter would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group”.
The object of criminalising hate speech 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, sexual orientation, linguistic preference etc, the court observed.
The Court explained in Para 46 that ‘dignity’ “refers to a person’s basic entitlement as a member of a society in good standing, his status as a social equal and as bearer of human rights and constitutional entitlements”.
In this context of hate speech, “does not refer to any particular level of honour or esteem as an individual, as in the case of defamation which is individualistic”, the court clarified.
“Loss of dignity and self-worth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It affects an individual as a member of a group”, the Court observed.
“Preamble to the Constitution consciously puts together fraternity assuring dignity of the individual and the unity and integrity of the nation. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual’s and other in the form of individual’s obligation to others to ensure unity and integrity of the nation. The unity and integrity of the nation cannot be overlooked and slighted, as the acts that ‘promote’ or are ‘likely’ to ‘promote’ divisiveness, , alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law”(Paragraph 47).
Referring to an article by Alice E. Marwick and Ross Miller of Fordham University, New York (USA), elucidating on three distinct elements that legislatures and courts can use to define and identify ‘hate speech’.
They are as follow;
- Content-based element,
- Intent- based element and
- Harm- based element (or impact-based element).
In paragraph 48, the judgment explains these elements.
The judgment also added that the three elements are not “watertight silos and do overlap and are interconnected and linked”.
The Court said, “Only when they are present that they produce structural continuity to constitute ‘hate speech”
The test is, as they say in English Law, – ‘the man on the top of a Clapham omnibus’, the Court said
“Therefore, to ensure maximisation of free speech and not create ‘free speaker’s burden’, the assessment should be from the perspective of the top of the reasonable member of the public, excluding and disregarding sensitive, emotional and atypical. It is almost akin or marginally lower than the prudent man’s test. The test of reasonableness involves recognition of boundaries within which reasonable responses will fall, and not identification of a finite number of acceptable reasonable responses. Further, this does not mean exclusion of particular circumstances as frequently different persons acting reasonably will respond in different ways in the context and circumstances. This means taking into account peculiarities of the situation and occasion and whether the group is likely to get offended. At the same time, a tolerant society is entitled to expect tolerance as they are bound to extend to others”(Paragraph 49).
The Judgment recognizes a distinction between the speech advocated by dominant groups and the groups which are victims of historical oppression.
As follows in Para 51, the judgement observed;
“Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual. Their historical experience often comes to be accepted by the society as the rule, resulting in their words losing the gravity that they otherwise deserve. In such a situation, it is likely for persons from these communities to reject the tenet of civility, as polemical speech and symbols that capture the emotional loading can play a strong role in mobilising. Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech. This is recognition of the denial of dignity in the past and the effort should be reconciliatory”.
The statements by persons holding power and influence have to be analyzed in distinction from those made by an ordinary person on the street. Judgement observed.
The Court observed that;
“Persons of influence, keeping in view their reach, impact, and authority they yield on the general public or the specific class to which they belong, owe a duty, and have to be more responsible. They are expected to know and perceive the meaning conveyed by the words spoken or written, including the possible meaning that is likely to be conveyed. With experience and knowledge, they are expected to have a higher level of communication skills. It is reasonable to hold that they would be careful in using the words that convey their intent. The reasonable-man’s test would always take into consideration the maker. In other words, the expression’ reasonable man’ would take into account the impact a particular person would have and accordingly apply the standard”.
The Court observed that the law of ‘hate speech’ recognizes that all speakers are entitled to ‘good faith’ and ‘(no)-legitimate purpose’ protection.
“‘Good faith’ means that the conduct should display fidelity as well as a conscientious approach in honouring the values that tend to minimise insult, humiliation, or intimidation. The latter being objective, whereas the former is subjective. The important requirement of ‘good faith’ is that the person must exercise prudence, caution, and diligence. It requires a due care to avoid or minimize consequence. ‘Good faith’ or ‘no-legitimate purpose’ exceptions would apply with greater rigour to protect any genuine academic, artistic, religious or scientific purpose, or for that matter any purpose that is in the public interest, or publication of a fair and accurate report of any event or matter of public interest. Such works would get protection when they were not undertaken with a specific intent to cause harm”(Para 53).
“A publication which contains unnecessary asides which appear to have no real purpose other than to disparage will tend to evidence that the publications were written with a mala fide intention”, the Court observed.
‘hate speech’ has no redeeming or legitimate purpose other than hatred towards a particular group, the Court observed.
While refusing to quash the FIR registered against News 18 anchor Amish Devgan for his remarks against Sufi Saint Moinuddin Chishti while holding a debate on the Places of Worship Act 1991, the court made these observations.
In the Sudarshan TV News Case, another bench of the Supreme Court led by Justice D Y Chandrachud is also considering the issue of ‘hate speech’.