Hate Speech Repudiates Right To Equality In A Polity Committed To Pluralism : Supreme Court

The judgment delivered by the Supreme Court in the case Amish Devgan v Union of India contains an elaborate discussion on the concept of 'hate speech'.

The judgment delivered by a bench comprising Justices A M Khanwilkar and Sanjay Khanna discusses the distinctions between 'hate speech' and 'free speech', the need to criminalize 'hate speech' and the tests to identify it.

"In a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy and, in fact,repudiates the right to equality", the judgment authored by Justice Khanna observed.

Hate Speech and Free Speech

The judgment states that it is necessary to draw a distinction between 'free speech' and 'hate speech'.

"In this context, it is necessary to draw a distinction between 'free speech' which includes the right to comment, favour or criticise government policies; and 'hate speech' creating or spreading hatred against a targeted community or group. The former is primarily concerned with political, social and economic issues and policy matters, the latter would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group", the judgment said in paragraph 54.

The Court observed that the object of criminalising hate speech is to protect the dignity of an individual and to ensure political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender identity, sexual orientation, linguistic preference etc.

In the context, the Court explained that 'dignity' "refers to a person's basic entitlement as a member of a society in good standing, his status as a social equal and as bearer of human rights and constitutional entitlements"(Para 46).

The Court clarified that dignity, in this context of hate speech, "does not not refer to any particular level of honour or esteem as an individual, as in the case of defamation which is individualistic".

"Loss of dignity and self-worth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It affects an individual as a member of a group", the Court observed.

"Preamble to the Constitution consciously puts together fraternity assuring dignity of the individual and the unity and integrity of the nation. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual's obligation to others to ensure unity and integrity of  the nation. The unity and integrity of the nation cannot be overlooked and slighted, as the acts that 'promote' or are 'likely' to 'promote' divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law"(Paragraph 47).

Elements of Hate Speech

The judgment refers to n article by Alice E. Marwick and Ross Miller of Fordham University, New York (USA), elucidating on three distinct elements that legislatures and courts can use to define and identify'hate speech'.

They are :

• content-based element,
• intent-based element and
• harm-based element (or impact-based element).

In paragraph 48, the judgment explains these elements as below :

The content-based element involves open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society. It can include use of certain symbols and iconography. By applying objective standards, one knows or has reasonable grounds to know that the content would allow anger, alarm or resentment in others on the basis of race,colour, creed, religion or gender.

The intent-based element of 'hate speech' requires the speaker's message to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message.This requires subjective intent on the part of the speaker to target the group or person associated with the class/group.

The harm or impact-based element refers to the consequences of the 'hate speech', that is,harm to the victim which can be violent or such as loss of self-esteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena.

The judgment also added that the three elements are not "watertight silos and do overlap and are interconnected and linked".

"Only when they are present that they produce structural continuity to constitute 'hate speech'", the Court said.

In this connection, the judgment also referred to the essay 'Defining Hate Speech' written by jurist Andrew F. Sellars in paragraph 29. The judgment also referred to jurisprudence of foreign jurisdictions such as USA, Germany, Australia and also ECHR.

Reasonable man test for effect of speech

The effect of the words must be judged from the standard of reasonable,strong-minded, firm and courageous men and not by those who are weak and ones with vacillating minds, nor of those who scent danger in every hostile point of view.

The test is, as they say in English Law, – 'the man on the top of a Clapham omnibus', the Court said.

"Therefore, to ensure maximisation of free speech and not create 'free speaker's burden', the assessment should be from the perspective of the top of the reasonable member of the public,excluding and disregarding sensitive, emotional and atypical. It is almost akin or marginally lower than the prudent man's test. The test of reasonableness involves recognition of boundaries within which reasonable responses will fall, and not identification of afinite number of acceptable reasonable responses. Further, this does not mean exclusion of particular circumstances as frequently different persons acting reasonably will respond in different ways in the context and circumstances. This means taking into account peculiarities of the situation and occasion and whether the group is likely to get offended. At the same time, a tolerant society is entitled to expect tolerance as they are bound to extend to others"(Paragraph 49).

Content and Context important

As the content of the speech, its context is also important in determining whether it will amount to 'hate speech'.

'Content' has more to do with the expression, language and message which should be to vilify, demean and incite psychosocial hatred or physical violence against the targeted group, the judgment observed.

The 'context' has a certain key variable,namely, 'who' and 'what' is involved and 'where' and the 'occasion,time and under what circumstances' the case arises.

The judgment recognizes a distinction between the speech advocated by dominant groups and the groups which are victims of historical oppression.

In this regard, the judgment observed as follows in paragraph 51.

"Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual. Their historical experience often comes to be accepted by the society as the rule, resulting in their words losing the gravity that they otherwise deserve. In such a situation,it is likely for persons from these communities to reject the tenet of civility, as polemical speech and symbols that capture the emotional loading can play a strong role in mobilising. Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech. This is recognition of the denial of dignity in the past,and the effort should be reconciliatory"

The judgment also observed that statements by persons holding power and influence have to be analyzed in distinction from those made by an ordinary person on the street.

"Persons of influence, keeping in view their reach, impact and authority they yield on general public or the specific class to which they belong, owe a duty and have to be more responsible. They are expected to know and perceive the meaning conveyed by the words spoken or written, including the possible meaning that is likely to be conveyed. With experience and knowledge, they are expected to have a higher level of communication skills. It is reasonable to hold that they would be careful in using the words that convey their intent. The reasonable-man's test would always take into consideration the maker. In other words, the expression'reasonable man' would take into account the impact a particular person would have and accordingly apply the standard", the Court observed in this regard.

'Good faith and 'legitimate purpose' protection

The Court observed that the law of 'hate speech' recognises that all speakers are entitled to 'good faith' and '(no)-legitimate purpose' protection.

"'Good faith' means that the conduct should display fidelity as well as a conscientious approach in honouring the values that tend to minimise insult, humiliation or intimidation. The latter being objective, whereas the former is subjective. The important requirement of 'good faith' is that the person must exerciseprudence, caution and diligence. It requires due care to avoid or minimise consequence.'Good faith' or 'no-legitimate purpose' exceptions would apply with greater rigour to protect any genuine academic, artistic, religious or scientific purpose, or for that matter any purpose that is in public interest, or publication of a fair and accurate report of any event or matter of public interest.Such works would get protection when they were not undertaken with a specific intent to cause harm"(Para 53).

The Court observed that 'hate speech' has no redeeming or legitimate purpose other than hatred towards a particular group.

"A publication which contains unnecessary asides which appear to have no real purpose other than to disparage will tend to evidence that the publications were written with a mala fide intention", the Court observed.

The Court made these observations while refusing to quash the FIR registered against News 18 anchor Amish Devgan for his remarks against Sufi Saint Moinuddin Chishti while holding a debate on the Places of Worship Act 1991.

Another bench of the Supreme Court led by Justice D Y Chandrachud is also considering the issue of 'hate speech' in the Sudarshan TV News Case.

Click here to read/download the judgment