Supreme Court To Hear Pleas Seeking To Regulate Hate Speech In Public On November 22

In a writ petition filed by Dr. Syeda Hameed and Prof. Alok Rai seeking to fix accountability on police for not preventing hate speeches in public places, the Supreme Court today directed for serving advance notices to the Union of India Ministry of Home, Commissioner of Police, Delhi and GNCTD.

The writ petition was filed in the wake of the recent incident of anti-Muslim slogans being raised in a rally held at Jantar Mantar, New Delhi.

The bench of Justices AM Khanwilkar and CT Ravikumar has also directed for serving advance notice to Ministry of Home Affairs, Ministry of Law and Justice and Law Commission of India in a petition by Advocate Ashwini Kumar Upadhyay seeking issuance of directions to Centre to examine the international laws relating to 'Hate Speech' and 'Rumor Mongering' and take apposite effective stringent steps to control the same.

When the matter was called for hearing, the bench asked Advocate Shahrukh Alam for Dr Syeda Hameed to serve advance notice to the parties arrayed as respondents.

Although Advocate Shahrukh Alam requested the Top Court to issue notice in the petition, but the bench while expressing its disinclination for issuance of notice at the current stage, remarked,

"We'll hear you, but we're not inclined to issue notice.We can't hear you without hearing the other side. Serve an advanced copy of the petition. We'll hear you on November 22nd."

Remarking that both the petitions will be heard separately, the bench adjourned the same for November 22, 2021.

Details Of The Petition By Dr Syeda Hameed and Prof. Alok Rai

The petitioners in the instant petition drawn by Advocates Shahrukh Alam, Warisha Farasat and Rashmi Singh and filed through Advocate Sumita Hazarika had urged the Court to recognize that public authorities have a "duty of care" to prevent hate speeches and define the contours of liability when they wilfully let such speeches be made in contravention of constitutional and statutory laws.

The petition had averred that the Police authorities did not take any preventive action, which itself was in defiance of the guidelines set out by the Supreme Court in Tehseen Poonawalla v. Union of India.

The plea highlighted that failure of authorities in preventing hate speech had a spiraling effect inasmuch as it leads to motivated acts of violence. For instance, it had alleged that four days after the rally of 8 August 2021, there was an incident of 'hate crime' in Kanpur, UP on 12 August 2021 where a Muslim e-rickshaw driver was publicly attacked by a group of men.

In this backdrop it pointed out that the Indian Supreme Court in the case of Shreya Singhal v. Union of India had reiterated that speeches which were akin to a 'spark in a powder keg' were not permissible.

The Petitioner had cited the case of Amish Devgan v. Union of India which linked hate speech to violation of unity and fraternity, and ultimately to breach of human dignity, which is an essential component of Article 21. The judgment takes it further and makes a distinction between 'hate speech' and other offensive and even hateful speech, the petition avers.

"The distinction rests on the vulnerability of the targeted group to direct or structural violence. Offensive speech against the government for instance does not make it vulnerable to discrimination. On the other hand hateful speech consistently and continuously targeting a minority/ marginalized group might make them vulnerable to both structural and direct violence. Such speech qualifies as hate speech and even when not 'acting as spark in a powder keg' causes constitutional harm as per Amish Devgan," the Petitioner contended.

It was also highlighted that Public authorities frequently mix up dissenting speech with hate speech and clamp down on the former.

The plea states,

"Hate speech is not the same as anti-majoritarian speech or dissenting speech...hate speech feeds into a system of political/social discrimination and has a cumulative effect on the dignity of a group/community and its members."

Details Of Petition Preferred by Advocate Ashwini Kumar Upadhyay

The petition filed through Advocate Ashwani Kumar Dubey had also sought for alternatively, directing the Centre to take apposite steps to implement recommendations of Law Commission Report-267 on Hate Speech.

The petitioner had referred to the Top Court's judgement in Pravasi Bhalai Sangathan [AIR 2014 SC 1591] to argue that in case of inaction on part of the Executive for whatsoever reason, the Court has always stepped in to discharge its constitutional obligation to enforce the law.

"In case of a vacuum of legal regime, to deal with a particular situation, the Court may issue guidelines to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation," the petition stated in this regards.

Relief for directing and declaring that Sentence for committing the Offences Against Public Tranquility, Offences Relating to Elections, Offences Relating to Religion and Offences relating to Criminal Intimidation, Insult and Annoyance shall be Consecutive, not Concurrent was also sought.

Case Title: Dr. Syeda Hameed & Ors Vs Union of India and Ors and Ashwini Kumar Upadhyay v Union of India

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