The Dilemma in Interpreting Hate Speech

Amish Devgan vs Union Of India

By Aditya Pratap, Lawyer in Bombay High Court

The Deafening uproar of hate speeches in India has left us wondering as to what really  constitutes freedom of speech. Even after many deliberations by the Indian courts there exists no general legal definition of ‘hate speech’. However in the recent case of ‘Amish Devgan vs Union of India’ the apex court has tried to elaborate on the contents of a hate speech. The judgment sets a new test for the evaluation of hate speeches, which has sparked numerous discussions and controversies.

The facts of this case are quite interesting. Amish Devgan a renowned television journalist, while hosting a debate on his show ‘Aar Par’ regarding the Place of Worship Special Provision Act, called ‘Khawaja Moinuddin Chisti’ an “attacker” a “terrorist” and a “lootera”. Following this incident several FIRs were registered against him under Section 153A, 295A and 505(2) of the Indian Penal Code. Devgan later filed a writ petition before the Supreme Court requesting it to quash the FIRs. 

Legal provisions 

Section 153A makes it a criminal offence to  “Promote enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony..” 

Section 295A Deliberate and malicious acts, intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs.—Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 273 [citizens of India], 274 [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class,..”

Section 505(2) Statements creating or promoting enmity, hatred or ill-will between classes.— “Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.”

Rejecting Devgan’s plea in its judgement the Apex Court made several observations. For instance the judgement inter alia sites the case of ‘Ramesh S/o Chhotalal Dalal v. Union of India and Others,’ which provided that, “the effect of the words used must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”

Rejecting the ‘Hecklers veto’ the Court opined that the legality of a speech shouldn’t be judged from the standpoint of an overly-sensitive individual.

The court further reiterated the principle that every citizen of India has the right to express “divergent” and “extreme” views on controversial topics. It stated that the mere expression of ones opinion on a heated subject is not a criminal offence. It held that there must exist a serious likelihood of turbulence, or crimes of violence. The mere possibility of of public disorder must not be “remote, conjectural or farfetched”.

Interpretation of Section 295A

The Court restricted the applicability of this section and excluded casual observations that were not driven by malicious intent. It held that “emphasis shall be made on the calculated tendency of the said aggravated form of insult and also to disrupt the public order….. insults made towards a religion carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not fall under this provision.”

Interpretation of Section153 A (b)

Further while interpreting Section 153 A (b) of the IPC the court held that “the words ‘Public Tranquillity’ in clause (b) would mean order publique; a French term that means absence of insurrection, riot, turbulence or crimes of violence & would also include all acts which will endanger the security of the state, but not acts which disturbs only serenity, and are covered by the third & widest circle of law & order.”

The court further held held that people who occupy positions of influence have to be “more responsible” while exercising their fundamental right to freedom of speech and expression.

The judgment went on to state “that a speech by ‘a person of influence’ such as a top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a T.V. show carries a far more credibility and impact than a statement made by a common person on the street. Latter may be driven by anger, emotions, wrong perceptions or mis-information.”  This new test for ‘hate speech’ has raised quite some eyebrows.

Why “show me the man and I will show you the rule” test might set a dangerous precedent?

Our judicial system is founded on the premise that the law is equally applied to all persons, regardless of who they are. However this new test sets a different legal standard for those who are “influential persons”. This violates Article 14.

Secondly the court in its judgment has failed to define the criteria for a person to be “influential”. No quantitative test has been laid down by the court in order to identify the “social leaders of following”. This ambiguity poses as a danger as it makes room for error.

Conclusion

While the apex court did not provide a definition, it did make its stance clear, The observations made in the Amish Devgan case outlines important aspects required for recognising and proceeding against hate speeches.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Karthyayani Amblimath.

Cases argued by Aditya Pratap can be viewed here.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.

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