This article is written by Anusha Mohapatra, a third-year student of Symbiosis Law School Hyderabad
Hate speech is an extreme form of discourse directed towards private individuals or particularly racial/ ethnic groups. Its central purpose thus is to generate a sense of inferiority directed towards that person or group. Any governmental or political message and criticism is peripheral to this primary message of racial inferiority. It is a form of speech that is substantially offensive to its victims.
Inflammatory speeches are those forms of speeches that may incite beliefs in harmful ideas, can be disruptive in nature, to the extent that they tend to threaten public peace precisely because of its content. These may include group defamation, hate symbols and others such as material support of terrorists.
Legislative Backing and Judicial Developments
Whilst drafting statutes in a country, a country must be alive to the parameters of the free speech/hate speech debate. These may include understanding and demarcating the scope and kind of regulation of hate speech that should be carried out. For instance, Australia has a sound regulation for regulating hate speech.
All the state must do herein, to secure an environment free from such hateful discourse, is to introduce a regime of conduct with stricter norms which also fall and comply with the tenets of the test of reasonableness. In furtherance of the same, the judiciary has played a central role in safeguarding the rights of the citizens whilst also maintaining due cognizance of what may constitute to be offensive. In one such case regarding a PIL filed in the Bombay HC, a restrain action was sought so as to remove and ban content by an Abu Faizal, so as to stop the upload of alleged communally sensitive material which could possibly lead to communal disharmony. The move that the court adopted herein, was to also instruct Facebook and YouTube officials to check such communally sensitive material when these are put up on their platforms and the bench referred to the Information Technology Act, 2000 for acknowledging the implications of such objectionable content.
Test of Reasonableness
Reasonableness is an essential element of equality. Thus, any procedure under Article 21, must answer the ‘test of reasonableness’, so as to be in conformity with Article 14 of the Constitution of India. Thus, in order to do so, it must be ‘right, just and fair’ and not ‘arbitrary, fanciful, and oppressive’
Right to Free Speech
The principle of freedom of speech, is understood to mean, to cover any form of human expression intended for public communication. Thus any speech, even though it could cause some measure of harm to the public, is to be given a certain degree of immunity from governmental restraint.
The preamble of the Constitution of India, ensures to all its citizens, ‘liberty of thought, expression, belief, faith and worship.’ Being the basic structure of the constitution, it gives an idea as to the general purpose for enactment of these provisions. The Constitution uses the word expression, which has a very wide connotation. Thus, its interpretation ranges from oral to written forms of expression, made via art or modern technology as well. Thus, Fundamental Right to Speech and Expression extends to the internet medium as well. It has been guaranteed to us under Article 19(1)(a) of the Constitution in accordance with Article 19(2). Although these do restrict free speech, these are constitutionally validated rights. These freedoms are subject to restriction by the state and also subject to judicial scrutiny.
The reasonable restrictions enshrined in the Constitution in Article 19 have been through a multitude of cases, clarified by the Supreme Court of India. In Chintaman Rao v. State of MP, the court derived that the restraint on enjoyment of this right should not be arbitrary or excessive in nature, which goes beyond what is required in the interests of the public.
Information and Technology Act, 2000
Further with the advent of technological innovations such as the Internet, a number of constitutional implications arouse regarding the same. In Shreya Singhal v. Union of India, extensive questions regarding this constitutionally safeguarded right was under scrutiny with respect to Section 66A of the Information and Technology Act or I.T Act of 2000, providing for punishment for offensive material. This case brought into question the lack of inclusion of grossly offensive and sexually explicit messages under the garb of the 8 subjects falling under Article 19(2).
International Covenant on Civil and Political Rights (ICCPR) & The Universal Declaration Of Human Rights
There being no international treaty to protect such human rights as mentioned other than existing international agreements and conventions, yet international instruments can actually ensure the compliance of governments to human rights standards. The ICCPR thus, under the Universal Declaration of Human Rights mandates all ratifying countries to ensure freedom of thought, freedom of opinion, and expression. India being a signatory since 10th April 1979, the protectionary mechanism offered by ICCPR obligates its signatory countries to refrain from interfering in protected personal liberty. Although the ICCPR during its inception, had no allocation for human rights with respect to issues of internet users, yet gradually, identification of the usage of the internet as a means to disseminate information throughout the globe has begun.
Article 19 and Article 20 of the ICCPR protect an individual’s right to hold opinions as well as the right to freedom of expression, especially without interference.
Curtailment of Hate Speech
There could be various possible discrepancies that would arise with the regulation of hate speech. Firstly, it presupposes that such regulation may lead to a curtailment of the freedom of speech. Secondly, it may not aptly classify such regulation, as being harmful rather than offensive. Thirdly, the critics opposed to regulation of hate speech tend to contend it to be a rather difficult task to accomplish.
It becomes a crucial task to restrain such hatred inducing speeches for in a social fabric such as India’s, any such expression could easily trigger communal disharmony amongst religious communities and has disruptive implications on public peace and tranquility. Thus, strong action must be taken so as to uphold the values enshrined in the Constitution.
Free Speech Consequentialism
An understanding of the costs of free speech brings into question, the point of contention, that is, balancing the value of speech against its societal costs. This cost benefit analysis, in due accordance with the societal implications of such an enabling provision, can help determine the boundaries as to what can be condoned and what can’t be. Under this particular doctrine, one can weigh so as to assess, whether a particular kind of speech causes harms that may outweigh its benefits or whether the government has especially strong reasons for regulating any form of speech. Thus, this principle helps ascertain the harms caused by speech vis a vis the virtues.
The law must then resort to guard against the legislature and executive all that is subversive, offensive and irrational, so as to ensure the interests of public morality, order and stability. After all, any such right which could be exercised in adherence to the right to free speech as under the constitution, must not be oblivious to the fact that it is and will be subservient to the larger interest of the society, and national interest. Disrupting public order shall be followed by the introduction of strict norms and policies to curb such conduct. Thus, a framework that recognizes a need to incorporate constraints on speech, with due adherence to constitutional and criminal laws can help tackle speech induced issues arising in a society like ours.