Sudarshan TV show row: Seven former civil servants move SC, seek authoritative ruling on ‘hate speech’

It is important for SC to issue an authoritative ruling setting out the scope and meaning of “hate speech”, so implementing authorities and courts receive clarity on the issue, the plea says

Seven retired civil servants belonging to an informal collective named Constitutional Conduct Group have filed an intervention application in Supreme Court seeking an injunction against the telecast of a show on Sudarshan TV, allegedly communalising the selection of Muslims in UPSC exams, legal news website LiveLaw.in has reported.

The top court's bench of Justices DY Chandrachud & KM Joseph had earlier refused to pass a pre-broadcast injunction order in this regard but had noted that during the hearing it had been highlighted that the expression of views derogatory to a particular community had a "divisive potential" and the petition had thus raised significant issues bearing on the "protection of constitutional rights".

The court while doing so had thus issued notice to Union of India, Press Council of India, News Broadcasters Association as well as Sudarshan News, returnable on September 15.

It is averred that prior to this, on September 1, the members of the collective, 91 in number had submitted a representation to the Home Minister and the Minister of Information and Broadcasting, pointing out that the said program would "generate hatred towards the largest minority community of the country", and was based on the demonstrable falsehoods about the supposed growth of Muslim representation in the civil services.

Apropos this, it is contended that the intervenors come before the court since the court had indicated that it would consider the larger questions dealing with the balance between the freedom of speech and the right of every citizen to fair and equal treatment, and seek leave to intervene in the proceedings titled Firoz Iqbal Khan V. Union of India & Ors.

"It is respectfully submitted that this is an important and urgent judicial task. There exist several legal provisions that prohibit, criminalise or otherwise penalise what is colloquially known as "hate speech". These include sections 153A and 153B of the Indian penal code, section 3(i)(x) of the SC & ST Act, Section 5 of the Cinematograph Act and the Programme Code which is passed under the authority of the Cable Regulation Network Act, and which is at issue in the present case," the plea says.

Thus, it is averred that that it is important for the top court issue an authoritative ruling setting out the scope and meaning of "hate speech", so citizens implementing authorities and courts of the first instance receive clarity on speech that it protected and speech that falls outside the scope of protection.

The plea highlights that penal provisions under the Indian Penal Code address the subject of hate speech and are applied in a manner that is inconsistent with the guarantees under Article 19(1)(a). "The interpretative task before this Hon'ble Court therefore is to distinguish between speech that is merely offensive, indecorous or in bad taste [and therefore covered by Article 19(1)(a)] and hate speech that is rightly penalised by Articles 153A & B and the other provisions pointed out above," the plea reads.

On drawing a survey of Indian constitutional provisions, precedent and international and comparative constitutional law, the intervenors point out that the following propositions for consideration:

• Offensive speech is distinct from hate speech;
• The Constitution protects offensive speech but does not protect hate speech. Penal provisional such as sections 153A & 153 B of the IPC must be interpreted in a manner that keeps the distinction between the two intact.
• Offensive speech is simply speech that causes subjective feelings of offence or outrage and nothing more. Such speech may be ill-considered, unwise and improper but it is not illegal.
• Hate speech goes beyond subjective feelings of offence and objectively has the effect of undermining constitutional equality, sending a message that a person or a group of people are not worthy of equal concern of respect and are not equal members of society, or are fair game for discrimination, hostility or violence.
• Determining hate speech, therefore, requires a contextual enquiry by judicial and other State bodies, looking at (a) the actual words used, (b) the meanings that they carry for their intended recipients, (c) any history of similar language, (d) and the likely consequences.
• Hate speech can be direct (calls to violence and discrimination), but it can also be indirect, through, insinuation, and what is popularly known as dog-whistling. This, therefore, requires judicial bodies to be sensitive to the nuances and specific histories of the speech in question.
• The distinction between offensive speech and hate may be parsed with the help of following examples:

1. Criticism, mockery and ridicule of respected and revered religious or cultural figures may be offensive but it is not hate speech. Calling for a boycott of the members of a religious or cultural community or implying that they are violent by nature or unpatriotic by virtue of their community affiliation is hate speech.
2. Mockery of religious beliefs or traditions may be offensive but it is not hate speech. Accusations of dual loyalties towards members of any faith - and suggestions of treachery by virtue of belonging to that faith - constitutes hate speech.
3. Speech that has historically been inseparable from practices of oppression and subordination is hate speech (see eg. of this Hon'ble Court's examination of the use the word "chamar", under the Prevention of Atrocities Act, in Swwaran Singh Vs. State).

In this backdrop, the plea contends, "It is respectfully submitted that there is no bright line between hate speech and offensive speech. Each case required the application of judicial mind and a nuanced weighing of circumstances involved"