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Justice Madan Lokur, who retired from the Supreme Court of India, spoke on the constitutional limits and judicial interpretations of hate speech at an online discussion on ‘Defeating Hate, Defending the Constitution’ organised by ANHAD and the Satark Nagrik Sangathan on October 2, 2022. In his speech,
Justice Lokur looked at how the Supreme Court has interpreted hate speech and the laws around it over the years, and why it is important to think about this question urgently and find solutions within the constitution.
Read the full text of Justice Lokur’s comments below.
I would like to speak a little bit about hate and hate speech and the constitutional limits of hate speech and how the Supreme Court has interpreted hate speech and the laws.
We all know that under our Fundamental Rights chapter of the Constitution, Article 19 gives all of us, everybody, the Fundamental Right to Free Speech and Expression, and this has been expanded by the Supreme Court many years ago, in the 1950s, to freedom of the press. So it is not only that individuals have the freedom of speech and expression, but also newspapers, magazines, they also have the freedom of speech and expression. This is Article 19 (1A) of the constitution.
Now Article 19(2) provides a limit to free speech. It is not that because we have the fundamental right to free speech, anybody can say whatever he or she wants. There are certain limits and we are really concerned with 2 or 3 aspects of this. One is about public order, because that is something which is being used a lot to curb free speech. Not so much as sovereignty and integrity of India or the security of the state, but really public order is being mentioned as one of the reasons for curbing free speech.
Also, another reason is to prevent incitement to an offence. So you can’t kill somebody, although I think we have found in the recent past that to say “goli maaro” seems to be quite all right, but that’s one of the unfortunate aspects of all this.
How do we define public order? The Supreme Court has again dealt with the issue of public order or the definition of public order a long time back. In the 1960s they had dealt with the issue of public order.
So what the Supreme Court says is that you imagine three concentric circles. The largest circle is that of law and order which is something that we all know – if there’s a theft or if there’s a murder or if there’s some other crime, that’s an issue of law and order. So that would be the larger circle.
Within that you have a smaller circle, which is public order. So just because something is a law and order issue it does not mean it’s a public order issue. So there are a few things which could fall within the category of public order but not everything, although it may fall within the category of law and order.
Then the third concentric circle is an even smaller circle, and that is security of state or sovereignty and integrity of India. so it is under these, this third category, that you have something like the National Security Act or during the Emergency, you had the Maintenance of Internal Security Act (MISA). So that is a very narrow sort of a thing where the sovereignty, integrity of India or the security of the state is involved.
So public order really is not a law and order issue, but it is something much more than a law and order issue. Something like a riot for example would be a public order issue.
Now how has the Supreme Court actually deal with the issue of hate speech, which we have found in the last couple of years taking centre stage, so to speak. Can I say something, you know, which will offend somebody else? What are the limits for my speech? What can the state do if I transgress that limit? What is that limit? You know, these are issues that have been arising in the recent past.
The first such case that was taken up by the Supreme Court was in 2004. In one sense it was an important decision.
What had happened in that case was that Praveen Togadia, who was known at that time for giving speeches which would incite or inflame communal passions, he had wanted to go to Karnataka to give some speeches, he was invited to Karnataka to give some speeches, and the district authorities prohibited his entry – they said, ‘No we cannot permit you to give speeches over here because of the background that you have been giving these communally inflammatory speeches and there could be a, you know, public order issue in the sense that communal passions will be inflamed and then there could be riots and so on.’
So they said that there would be a public order issue if you are allowed to speak, given the background of your speeches in the past. This was challenged by Praveen Togadia. It was set aside by the Karnataka high court, then the state went up to the Supreme Court and the Supreme Court said that the restriction is reasonable, because of the background. It is known that he has been giving these communally inflammatory speeches and that there is a possibility, a real possibility, of a public order issue and therefore, the state was or the district authorities were well within their rights to prohibit his entry so that he does not make these speeches, which creates a public order issue.
The next case of some importance came in 2014. That was a case filed by an organisation called the Pravasi Bhalai Sangathan. Now this was with regard to politicians making inflammatory speeches. And to me it seems that this is a very important case because it lays down certain principles, certain guidelines within the judgment, not formal guidelines. The Supreme Court said we are not going to frame formal guidelines, but they did say that there are enough laws to tackle hate speech and we don’t need any further laws of this.
The problem is not that there is a shortage of laws. The problem is that these laws are not being effectively executed or effectively implemented. Some of the laws are the IPC, for example, Section 153a. You have the Protection of Civil Rights Act, you have the Representation of the People Act, you also have the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. So you have these laws which are in place, but they are not being effectively implemented, or they are not being properly implemented, that is one aspect.
So because we have these laws we don’t think, that’s what the Supreme Court said, we don’t think it is necessary for us to lay down any guidelines. You just have to proceed in accordance with the law. And, nevertheless, the Supreme Court did provide some kind of a working definition.
This was really the first time when a sort of a definition was provided by the Supreme Court as a working definition, not that this is hate speech and this is not hate speech – that’s not what the Supreme Court said. They said that we are providing you a working definition and you have to build on that. The legislature of parliament has to build on that.
But what is important about this judgment is that they recognised psychological harm that may be caused to people, by the use of hate speech. It’s not that somebody says something hateful or somebody is abusive or makes some communally inflammatory statement or something, and that’s it, it’s said and forgotten. It leaves behind a psychological impact and that is something which is very important which the Supreme Court recognised.
It doesn’t have to be violence, you know, just because somebody says something, it should not necessarily lead to a riot or lead to somebody beating up somebody else, but that psychological impact can be there and that would include, would fall within the definition of hate speech or the result of hate speech.
The Supreme Court also said, again very important, that hate speech can lead to discrimination, it can lead to ostracism, it can lead to segregation, it can lead to deportation, it can lead to violence. And then the Supreme Court went on to say that in extreme cases, it can lead to genocide. Now we have seen that during the Second World War, where this kind of hate speech led to the execution of 6 million Jews. So you know all this is is a part of hate speech, and all this is a result of hate speech or what could possibly be the result of hate speech – in extreme cases, the Supreme Court said it could lead to the genocide.
The Supreme Court also looked at the definition of sedition.
Now sedition also talks about hate, about hateful speech, and they said that well sedition talks about hateful speech and they tried to equate it in a sense with hate speech, but I think sedition should fall in a separate category altogether.
But at the end of it the Supreme Court said that given the status that we have, given the developments that have taken place, we would request the Law Commission of India to prepare a report and tell us how to define hate speech, how to proceed in matters of hate speech.
Now the result of the order of the Supreme Court was, I think, very liberal in the sense that violence is not necessarily a result of hate speech.
But the other important consequence was that the Law Commission of India came out with a report. It was the 267th report of the Law Commission. They looked into various aspects of hate speech and the development of the law, not only in India but also through the United Nations and some other countries, and they gave a very detailed report. Importantly, they also prepared a draft bill which could actually be placed before Parliament, debated, discussed, and enacted into a law if necessary. So they gave a draft bill but unfortunately no further steps have been taken, no action has been taken on the report of the Law Commission. In fact, the Law Commission has more or less ceased to exist, no chairperson has been appointed to the Law Commission for the last so many years, and in a sense it has become a defunct body. I don’t know whether it is because of the report that they gave or for some other reasons but today there is no effective Law Commission.
Anyway, the next important case or the next important development is the decision of the Supreme Court in the case of Amish Devgan. He’s a TV personality and he had said something which was offensive and the Supreme Court looked into the allegations that were made against him, looked into the case law all over again.
And the way I read the judgment of the Supreme Court in the case of Amish Devgan is that it has taken a step backward, in the sense it has tried to include violence as one of the consequences of hate speech, which you will remember when I had mentioned about the Pravasi Bhalai Sangathan. Violence was not considered as an impact.
But what the Supreme Court said was very important. They said that look at the content of the speech. Look at the intent of the speech or look at the intent of the speaker. Look at the harm or the impact that it has caused or is likely to cause. Now you could have content which could be good faith, you know somebody writes an article or somebody writes a you know research paper. It’s a legitimate purpose, so the content may be offensive, but there is no intent to cause any harm. It’s a part of the expression of a view that has been canvassed by somebody, which forms a part of the paper or forms a part of the research.
What is the intent, that is the other important thing that well it could be a neutral sort of a statement but is there an intent behind it which is hate? If it is so, well then you have to be very careful about it.
What is the impact that the speech has? It may not lead to violence, although in Amish Devgan’s case the Supreme Court hinted at violence, but it would certainly lead to psychological impact and psychological problems; ostracism, discrimination, segregation, violence.
All these would come in. So really, if you go by this content, intent, and harm, or impact, I think that that’s a good first step to take towards eradicating late speech, or curbing hate speech, or punishing hate speech under the Constitution and under the laws that we have.
Now, you know, when you talk about effective implementation and so on there is obviously misuse of the laws. I would just like to mention one case, two cases actually.
One is that of Patricia Mukhim. She’s a very seasoned and highly respected journalist in the Northeast, based in Meghalaya, in Shillong. She came out with a tweet or a Facebook post to say that the Government of Meghalaya is showing apathy towards the treatment of non-tribals, and action was taken against her. On the ground that it’s a public order issue and public order is constitutionally prohibited. And they filed a case against her.
She came to the Supreme Court and the Supreme Court said, ‘Listen she is trying to tell you, that is the government, she’s trying to tell you that please protect non-tribals. She’s not trying to inflame passions, it’s just absolutely the opposite. You know she wants to bring in peace, but you are interpreting it in such a manner that “oh you know she wants to create a problem”.’ So the Supreme Court struck down the the action that was taken against her, but this is how the law can be misused.
The second incident that I would like to mention is something which has happened yesterday. I read about it in the newspapers today. You’re all aware that there is a Bharat Jodo Yatra that is going on, and it’s in Karnataka it’s going on in Karnataka at the moment. And there was a person who was wearing a particular t-shirt, which carried a particular slogan, and the police found it offensive and they beat him up.
Why? Because it is offensive, right. It may not be hate but it is offensive and according to newspaper reports charges have been brought against him not formally in a court, of criminal intimidation. Now under Section 507 of the IPC I don’t see how that is possible, you know.
So the whole purpose of this is to somehow or the other avoid dissent, avoid disagreement. Either you are with us or you are against us, if you’re against us well it’s a problem, you know, we have enough laws to deal with what we think is hate speech. It may not be, but we think it is hate speech and we will take action against you and then you go to the court of law do whatever you want but the action has been taken. So this is, I think, where we have to be very careful when we talk about hate, when we talk about hate speech.
How are we going to regulate that under the constitution of India? I think it is time for us to think about it and time for us to do something positive to ensure that we wipe this out, and this divisiveness that is going on is completely wiped out.
Thank you very much.