IASbhai Daily Editorial Hunt | 21st Sep 2020
Go confidently in the direction of your dreams. Live the life you have imagined.–Henry David Thoreau
EDITORIAL HUNT #147 :“Freedom of Speech vs Hate Speech | UPSC“
Freedom of Speech vs Hate Speech | UPSC
Suhrith Parthasarathy is an advocate practising at the Madras High Court
Define the contours of hate in speech
The Sudarshan News case is a chance to infuse clarity on offensive speech, hate speech, and the exceptional cases
SYLLABUS COVERED: GS 2 : Fundamental Rights
It is believed that only answer to misused freedom is more speech. Comment -(GS 2)
- The Verdict
- Ambiguity in Laws and Framework
- Downside of more Speech
- PREVIOUS JUDGEMENT : August 28, when the Court said that it must be circumspect in imposing any prior restraint on speech, especially since statutory authorities were vested with powers to ensure compliance of the law.
- CIRCUMSTANCES CHANGE : Following the Court’s original order, four episodes in the series were aired, portraying what the channel described as a jihadi conspiracy by Muslims to infiltrate India’s civil services.
- FALSE STATEMENTS : To this allegation, the show added a number of evidently false statements.
- THE VERDICT : The Court noted, were not only “insidious” but were also made in “wanton disregard of the truth”.
- BREACHING PROGRAMME CODE : Therefore, even on the face of it, the episodes had brought the entire Muslim community into “public hatred and disrepute”.
DELINEATING THE AMBIGUOUS
- PERMISSIBLE LAWS : Our laws present several complications when an attempt is made to distinguish permissible speech from hateful criminal conduct.
- BACKGROUND : The Supreme Court’s own past precedent has scarcely helped clarify matters.
- DEMARCATION OF LINE : To be sure, this exercise (dividing a line between hate speech and freedom of speech ) has to be delicately handled.
- WORKING DEFINITION : A working definition of hate speech will have to be drawn by interpreting our laws in conjunction with the constitutional right to free speech.
- LEARNING FROM DEMOCRACIES : While attempting to draw a line, it might be valuable to study the basic thesis that undergirds a consensus across most liberal democracies.
- DEFINITION : Hate speech refers to utterances that incite violence, hatred, or discrimination against people on the basis of their collective identity, be it race, ethnicity, religion, gender or sexuality.-Prof. Waldron’s
- LIMITATIONS : The limitation in these cases should be restricted to those categories of minorities who are vulnerable.
- CERTIFIED : On the other hand, speech that describes all Buddhists as amoral would qualify.
- CREATING SATIRES : A work of satire on a religious figure that outrages the sentiments of his followers will be safeguarded.
- NULLIFICATION : The speech that vilifies an entire community by describing them, say, as “anti-nationals” would go unprotected.
- IMPACT : Hate speech attacks two key tenets of a democratic republic: the guarantee of equal dignity to all, and the public good of inclusiveness.
DOWNSIDE TO MORE SPEECH
- CENSORSHIP : It is impossible to conceive bright-line rules that can distinguish between speech that only offends and speech that arouses hatred.
- MISUSE OF SPEECH : A right to absolute freedom of speech can be abused.
- NOT ALL SPEECH ARE EQUAL : Commercial speech, libel, and fighting words are afforded a lower standard of protection.
- NOT ALL LAWS ARE EQUAL : All laws are a matter of construction; Most European democracies adopt principled standards that distinguish hate speech from merely offensive or rebarbative speech.
- COUNTERING SPEECH : Countering speech with more speech is plausible only when there is a balance of power across society.
- ASSURANCE : There can be no assurance that hate speech will somehow be sieved out of the veritable marketplace of ideas.
- PRESENT TREND : The country’s hate-speech laws have suffered from ambiguity .
- INDIAN PENAL CODE (IPC) : Section 153A and Section 295A of the IPC criminalises speech that seeks to promote enmity between different groups.
- LIMITATIONS : The speech/acts that outrage/s religious feelings, are no more than a poor imitation of what hate speech laws ought to be.
- CONSEQUENCES : As a result, they militate against the permissible grounds for limiting free speech enumerated in Article 19(2)of the Constitution.
FREEDOM OF SPEECH
- INCITEMENT :The first of those grounds demands that speech must reach a level of incitement to be criminalised.
- RE-IMAGINATION : The second ground requires a re-imagination of our hate speech laws.
- MORALITY SWING : It obliges us to read morality not as societal morality but as constitutional morality.
- UNSHIELDED SPEECH : Speech that merely causes offence and is no more than disparaging or unpleasant, would continue to remain shielded.
- VULNERABLE SPEECH : But speech that treats communities with disparate concern, by creating in them a sense of dread, a sense of exclusion from civic life, will go unprotected.
ISSUE OF PRIOR RESTRAINT
- UNIFORMITY OF LAWS : The Constitution offers no protection to hate speech, the state’s failure to apply the Programme Code uniformly is linked to a wider incongruence in the law’s contents.
- ENUMERATED PROVISIONS : PROVISIONS Substantive hate speech provisions in the IPC, the Programme Code is also much too vague.
- DELETERIOUS IMPACT : We have repeatedly seen the deleterious impact that injunctions on speech have on the right to information and democracy.
- RULE BASED ORDER : We certainly do not need an analogous regime for the broadcast media. But, at the same time, a rule against prior restraint cannot be unconditional.
- LITTE ROOM : A lot will ride on how the Court strikes this balance — for hate speech, once uttered leaves little room for restitution.
The Supreme Court must chisel its contents into a feasible, constitutionally committed model.
SOURCES: THE HINDU EDITORIAL HUNT | Freedom of Speech vs Hate Speech | UPSC