Suhrith Parthasarathy September 21, 2020

The Sudarshan News case is a chance to infuse clarity on offensive speech, hate speech, and the exceptional cases

On September 15, the Supreme Court of India injuncted a Hindi-language television channel, Sudarshan News, from continuing its broadcast of a series titled “Bindas Bol”. This decision marked a departure from an order delivered on 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. But circumstances changed — 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.

To this allegation, the show added a number of evidently false statements. For example, it claimed that the upper age limit for Hindus attempting the civil service examination was 32 years, while the age limit for Muslims was 35; that Muslims were entitled to nine attempts at the examination when Hindus were entitled only to six. These assertions, the Court noted, were not only “insidious” but were also made in “wanton disregard of the truth”. Therefore, even on the face of it, the episodes had brought the entire Muslim community into “public hatred and disrepute”, and, in the process, had breached the Programme Code that regulated cable television.

Delineating the ambiguous

The channel’s contempt for facts, and its attempt to denigrate Muslims, might appear to be an obvious case of hate speech, but our laws present several complications when an attempt is made to distinguish permissible speech from hateful criminal conduct. The Supreme Court’s own past precedent has scarcely helped clarify matters. This case, therefore, represents something of an opportunity: to infuse clarity in our legislation by identifying the distinction between merely offensive speech and hate speech, and by making clearer still those categories of exceptional cases where the Constitution permits prior restraint. To be sure, this exercise has to be delicately handled. But that it is fraught with difficulties must not deter the Court from delineating what has long remained ambiguous.

A working definition of hate speech will have to be gleaned by interpreting our laws in conjunction with the constitutional right to free speech. But in attempting to draw a line, it might be valuable to study the basic thesis that undergirds a consensus across most liberal democracies — with the notable exception of the United States — on why states must deny protection to hate speech. This view is predicated on a philosophical defence which is perhaps best exemplified in the works of the scholar, Jeremy Waldron.

In Prof. Waldron’s 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. He says the limitation in these cases should be restricted to those categories of minorities who are vulnerable. Under this conception, a merely offensive statement would not qualify as hate speech. For example, a mockery of Buddhism’s tenets would not be illegal simply because it offends the sensibilities of its practitioners; on the other hand, speech that describes all Buddhists as amoral would qualify. Similarly, a work of satire on a religious figure that outrages the sentiments of his followers will be safeguarded, but speech that vilifies an entire community by describing them, say, as “anti-nationals” would go unprotected. This is because hate speech, as Prof. Waldron argues, 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

Prof. Waldron’s thesis has been met with substantial resistance from First Amendment scholars in America.

They argue that censorship is a bottomless pit, that it is impossible to conceive bright-line rules that can distinguish between speech that only offends and speech that arouses hatred. They do not deny that a right to absolute freedom of speech can be abused. But they believe the only answer to misused freedom is more speech. While there is some merit in this response. it ignores at least three significant factors.

One, that even under the First Amendment, not all speech is equal — commercial speech, libel, and fighting words are afforded a lower standard of protection. Two, that almost all laws are a matter of construction; after all, most European democracies adopt principled standards that distinguish hate speech from merely offensive or rebarbative speech. Three, that countering speech with more speech is plausible only when there is a balance of power across society. Experience shows us that there can be no assurance that hate speech will somehow be sieved out of the veritable marketplace of ideas.

India’s laws

Prof. Waldron’s theory is also appealing because it fits with India’s democratic vision. Specifically, it animates the values of liberty, equality and fraternity that the Constitution’s framers viewed as foundational. Until now, however, the country’s hate-speech laws have suffered from a Delphic imprecision. Read literally, Section 153A and Section 295A of the Indian Penal Code (IPC), which criminalise, respectively, speech that seeks to promote enmity between different groups and speech/acts that outrage/s religious feelings, are no more than a poor imitation of what hate speech laws ought to be. They are vaguely worded, and they are frequently invoked to quell speech that so much as offends a person’s belief. As a result, they militate against the permissible grounds for limiting free speech enumerated in Article 19(2)of the Constitution, and, in particular, the restrictions allowed on considerations of public order and morality.

The first of those grounds demands that speech must reach a level of incitement to be criminalised. That is, the utterance in dispute must go beyond advocacy. The second ground requires a re-imagination of our hate speech laws. It obliges us to read morality not as societal morality but as constitutional morality. Seen this way, speech that merely causes offence and is no more than disparaging or unpleasant, would continue to remain shielded. 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

While it is clear that 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. Just like the substantive hate speech provisions in the IPC, the Programme Code is also much too vague. The Supreme Court must chisel its contents into a feasible, constitutionally committed model. Hard as this exercise sounds, this is the easy part — it is in deciding whether a prior restraint on speech can be imposed that the Court must tread a finer line.

We have repeatedly seen the deleterious impact that injunctions on speech have on the right to information and democracy. Only last week the High Court of Andhra Pradesh gagged the press from reporting on a charge made against a former Advocate General of the State, despite the manifest public interest in the case. Likewise, the pitfalls of a rule of absolute prior restraint under the Cinematograph Act have been all too evident. 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. When it becomes evident that the basic objective of a broadcast is to evoke hatred and to vilify a vulnerable minority the law must find a way to foil the harm. A lot will ride on how the Court strikes this balance — for hate speech, once uttered, not only leaves little room for restitution but can also ramify to serve all manners of undemocratic ends.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

courtesy The Hindu