Hate Speeches Will Go Down If We Educate Masses About Importance Of Fraternity : Justice Abhay S Oka

Justice Abhay Oka of the Supreme Court, at a webinar, highlighted the importance of the Constitutional value of fraternity in curbing hate speech. He asserted that if the citizens are educated about the value of fraternity, the prevalence of hate speech will naturally decline.

“And most important thing, in our Preamble of the Constitution, the citizens of India have assured themselves various freedoms and apart from freedoms, fraternity. Fraternity is a very important ingredient of our Preamble to the Constitution. If we are able to maintain fraternity, If we are able to educate masses about the importance of fraternity, automatically, the instances of these hate speeches will go down”, he said.

Justice Oka underscored that beyond legal mechanisms, the prevention of hate speech requires extensive public education aimed at promoting social harmony and fraternity.

“This education is very important. By educating masses, we can strengthen their minds because ultimately, hate speeches have some effect on some people, because they have weak minds or they are polarized in terms of thinking, so therefore this public education is very important, and public education should be giving emphasis on achieving social and communal harmony and fraternity.”

Justice Oka was speaking at a Conference on Hate Speech against Religious and Caste Minorities at the Columbia Law School on April 11.

“77 years of existence of independence, 75 years of existence of Constitution, it is very unfortunate in India we come across several cases of hate speeches. That is one side of it. We also come across, In our country, gross violations of Article 19(1)(a) – freedom of speech and expression, as well as right to life under Article 21”, he said.

He highlighted the importance of balance between restricting hate speech and protecting the fundamental right to freedom of speech and dissent.

“If there is no freedom of speech and expression, there is no promotion for arts, literature and various other aspects of art, satire, stand-up comedy, if we start attacking this part of freedom of speech and expression, there won't be any dignity which will survive in life. Right to live with dignity will disappear…When we talk about hate speeches, ultimately the courts have to balance it with other rights available. Right to the dissent is also required, right to protest is required. It is part of a dignified life because if, as a human being, I feel that the government policy is completely wrong, it is against the interest of common man, I should have the right to protest. Otherwise my life is not meaningful at all. But it is necessary to remember, that the protest and dissent has to be by constitutional means”, he emphasised.

Justice Oka reflected on the origins of the fundamental rights enshrined in the Indian Constitution. He recalled that the rights granted to citizens emerged from the long struggle against British colonial rule.

“In freedom struggle we have seen how the British government targeted the freedom fighters, charged them with sedition. Many were prosecuted for shouting slogans. Many were detained because they participated in Satyagraha. And therefore, it was very necessary for the framers of the Constitution to provide these freedoms, because without these freedoms, independence has no meaning, it is very ineffective”, he said.

He elaborated on the importance of Article 19(1)(a) – the right to freedom of speech and expression – and its connection with Article 21, the right to life, stressing that both are essential to ensuring human dignity:

Justice Oka emphasised that Article 19(2), which allows for "reasonable restrictions" on freedom of speech in the interests of sovereignty, unity, security, public order, decency, and morality, is not a blanket power to curb free speech.

Justice Oka highlighted that hate speech is not defined anywhere in Indian legal system. However, there are several provisions in law which make various forms of hate speech punishable.

“Hate speech is one which spreads hatred against a race, religion, caste or group of individuals. It is speech which targets particular groups, religions, races, castes etc. Broadly speaking, speech can amount to hate speech, provided the effect of the speech is to provoke people to indulge in violence, or effect is to instigate one group to fight against another.”, he said.

Justice Oka said hate speech violates Article 21, as it undermines the right of the targeted person to live with dignity.

“In any society, in any democracy, if hate speech is allowed, it certainly affects right to live with dignity. Right to live with dignity becomes meaningless because when hate speech, whether it takes speech against the particular community, say for example in India against a religious minority Or a Scheduled Caste or schedule tribe, It takes away right of the person against whom that speech is addressed to live dignity. So hate speech may be offending various laws which are covered by clause (2) of Article 19. At the same time, hate speech also takes away fundamental right under Article 21. "

Justice Oka outlined several provisions addressing hate speech in both the Indian Penal Code of 1860 and its successor, the Bharatiya Nyaya Sanhita (BNS) of 2023:

Hate speech against the government (Sedition): He explained that section 124A of the IPC, often misused even in Independent India, criminalizes any spoken or written words that incite hatred or excite disaffection towards the democratically elected government.

Hate speech against religious and other minorities: He noted that section 153A of the IPC (equivalent to section 196 of the BNS) criminalises speech that promotes enmity based on religion, race, place of birth, residence, language etc., while section 295a of IPC deals with intentional insult to religious beliefs to outrage religious feelings. He noted that there are instances in India when hate speech has been made against religious minorities to provoke the members of the majority to attack the religious minority.

“Most of the hate speeches in India, I may be wrong there, but because I have only perspective of cases which come before the courts, but in the court we come across cases where mostly these hate speeches are against the religious minorities or which are in minority classes like Scheduled Castes”, he highlighted.

Hate speech against scheduled castes and tribes: Justice Oka emphasized that insulting a person from a scheduled caste or tribe—on the ground untouchable—is punishable under law. He also highlighted the strict provisions under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, including a prohibition on pre-arrest bail.

Hate speech for electoral advantage: finally, he mentioned that under the Section 123(3A) of the Representation of the People Act, 1951, hate speech used during election campaigns to target specific communities or incite communal tensions is also punishable by law. “In healthy democracy, political elements cannot use hate speeches. It's a matter of great concern”, he said.

He further highlighted the test developed in the case of Bhagwati Charan Shukla v. Provincial Government, C.P. & Berar, (1946 SCC OnLine MP 5), which was recently reiterated in the case of Imran Pratapgarhi v. Union of India, that the effect of spoken words has to be determined by considering standards of reasonable, strong minded, strong and courageous individuals.

Justice Oka noted the risk of undermining freedom of speech if the effect is determined on the perceptions of those with “weak and oscillating minds.”

Justice Oka said that provisions which make certain speeches or utterances or spoken or written words as offences, must not be abused to prevent people from expressing their views and expressing their dissent. He highlighted the need for continuous evolution of legal concepts to address the issue of hate speech.

“Hate speech and freedom of speech and expression, this is an area where there is always a scope to evolve the law, evolve new legal principles, evolve new concepts. And then we want these new concepts dealing with hate speech to take care of the changing society, the changing needs of the society.”