Seeking legitimacy for hate speech

BY PADMAJA SHAW| IN Judgements | 23/11/2015
The outcome of Subramanian Swamy’s case is going to be important for the future of both free speech and hate speech in India.
PADMAJA SHAW traces the trajectory of hate speech restrictions
(Left) Supreme Court of India (right) Subramanian Swamy


Ongoing efforts to give legitimacy and legal sanction to hate speech has taken another step forward with Subramanian Swamy’s case coming up for a hearing before the Supreme Court.

A case of hate speech was filed against Subramanian Swamy for his book on 'Terrorism in India' under Sections 153A of the Indian Penal Code. Dr Swamy has challenged the constitutionality of the sections of the IPC dealing with hate speech, saying they curtail free speech..

The Supreme Court is also examining an earlier 2013 PIL which said that lack of guidelines led to the failure to prosecute hate-speech perpetrators such as Raj Thackeray and Akbaruddin Owaisi. While admitting the PIL, the bench said that hate speech hurt the secular character of the nation. Does the nature of the Indian state in some ways make it inevitable that hate speech ultimately will triumph? And what is considered hate speech?

This issue of hate speech has been central to communal politics from the 1920s when fundamental rights were being debated and drafted for incorporation into a future Constitution by the Nehru Report. The fundamental rights that were finally incorporated guaranteed the right to freedom of speech and expression but faced their first challenge in 1950 when two cases came up before the Supreme Court – one from the left and one from the right.

The Madras government of the time banned the entry and circulation of Cross Roads, a left-leaning journal edited and published from Bombay by Romesh Thapar, under the Madras Maintenance of Public Order Act, 1949. The Communist Party was banned under the Madras province then, following the Communist-led Telangana Armed Peasant Struggle and the provincial government sought to prevent the circulation of left literature that questioned the policies of the state.

The second case was that of Organizer, an RSS mouthpiece publishingincendiary stories in the aftermath of partition. The Delhi administration passed an order under the East Punjab Public Safety Act, 1949, requiring the publication to submit to pre-censorship all communal content that it might plan to publish.

In both the cases, the Supreme Court held that ‘public safety’ and ‘public order’ were not included in Article 19(2) and that freedom of speech and expression cannot be restricted by public safety laws unless those laws are directed “solely against undermining of the security of the state or overthrow of it.”

These judgments brought about the first amendment to the Indian Constitution.

The statement of objects and reasons to the 1st Amendment 1951 introduced by Pandit Nehru says:

“The citizen's right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.”

The amendment added the phrases the security of the State, public order, and incitement to an offence to the restrictions.  To appease the concerns expressed during the debates about possible erosion of the right to free speech, the word reasonable was added before the restrictions.

Soon after the first amendment was passed, in a 1951 case Justice Rajamannar who heard the “S. Ananthakrishnan vs The State Of Madras on 19 October, 1951” case cited British law and said:

"The liberty of the Press is indeed essential to the nature of a free State; but this consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he published what is improper, mischievous or illegal he must take the consequence of his own temerity." (4 B1. Com. 151, 152).

The Stanford Encyclopaedia on Free Speech begins the discussion on free speech by saying “The first thing to note in any sensible discussion of freedom of speech is that it will have to be limited. Every society places some limits on the exercise of speech because speech always takes place within a context of competing values.”

It goes on to describe two broad principles around which this possibility of restriction can be discussed. One is the principle of offence. The other is the harm principle.

Quoting John Stuart Mill’s book ‘On Liberty’, it says that “any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else.” The only limitation Mill places on this is the Harm Principle – “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” He also provides telling examples of how mobs can be incited to kill through some forms of free speech.

In this context, if we recall some recent examples, Panchajanya, the RSS mouthpiece, ran a cover story defending the Dadri lynching with the argument that the killing of Mohammad Akhlaq in Dadri over beef consumption rumours could not have been “without reason“ and even the “Vedas mandate killing of those who slaughter cows“. Several elected representatives also made similar statements justifying the lynching. These statements are a direct incitement to violence, abetment to murder and should be punishable under criminal laws of the land.

It is clear that the Indian state has failed repeatedly in holding people who operate on the fringes of crime and who take shelter behind the right to free speech to account, despite both Constitutional protection and the legal remedies that are available to it. No cases are booked against the magazine, the writer and its editor. No action is initiated against elected legislators when they openly abet crime.

However, this is not the case when the state deals with left-wing progressive movements. There is a systematic blackout of information and the suppression of the ideas of some groups in the public domain.  Operation Greenhunt against the Naxalites and attempts to prevent newspapers in Nagaland from publishing news from banned groups are two examples.

The state has brought in Orwellian public security acts and uses them to arbitrarily arrest, indefinitely detain, torture and sometimes kill activists and suspected sympathisers who question the state and its economic strategies. Binayak  Sen and GN Sai Baba are cases in point. They were arrested and jailed for prolonged periods merely on account of guilt by association.

In Arup Bhuyan vs the State Of Assam on 3 February, 2011, Justice Markandey Katju clearly rejects the ‘doctrine of guilt by association’ which convicts people merely because they are members of an organization even when they have not advocated or indulged in violence themselves.

The rights discourse cannot be devoid of the basic morality of respect for others as human beings. The Constitution guarantees right to life, freedom from discrimination, right to religion, assembly, and freedom of speech and expression. In practice, free speech has become a weapon to assault other rights like the right to religion and protection against discrimination whether based on gender, religion, caste or ethnicity.

On the one hand, certain vocal groups use the offence argument to silence free speech on the ideas that are not acceptable to them, while using the same right to free speech to threaten to harm those who do not follow their prescriptions.

The media and successive governments have built a consensus around what can be demanded by way of rights and what cannot be. It has become a crime to demand political, cultural and economic rights. If they work as an NGO, they are likely to be persecuted, funding curtailed and registrations cancelled.

Greenpeace is the latest such instance. Those who demand land rights, those who demand rights for the indigenous and the poor populations are easily labelled as anti-national or, if you are Subramanian Swamy, Naxalites.

The outcome of Subramanian Swamy’s case challenging the constitutional validity of the hate speech and defamation provisions of Sections 153, 153A, 153B, 295, 295A, 298 and 505 of the Indian Penal Code is going to be important for the future of both free speech and hate speech in India.


Padmaja  Shaw is a media scholar, columnist, broadcast journalism trainer, and a retired professor of journalism.



The Hoot is the only not-for-profit initiative in India which does independent media monitoring.
Subscribe To The Newsletter
The new term for self censorship is voluntary censorship, as proposed by companies like Netflix and Hotstar. ET reports that streaming video service Amazon Prime is opposing a move by its peers to adopt a voluntary censorship code in anticipation of the Indian government coming up with its own rules. Amazon is resisting because it fears that it may alienate paying subscribers.                   

Clearly, the run to the 2019 elections is on. A journalist received a call from someone saying they were from Aajtak channel and were conducting a survey, asking whom she was going to vote for in 2019. On being told that her vote was secret, the caller assumed she wasn't going to vote for 'Modiji'. The caller, a woman, also didn't identify herself. A month or two earlier the same journalist received a call, this time from a man, asking if she was going to vote for the BSP.                 

View More