| Headnote |
CONSTITUTION OF INDIA, 1950: Articles 14, 15, 19, 21 read with Article 38; Article 51-A (a), (b), (c), (e), (f), (i), (j) - Hate speeches delivered by elected representatives, political and religious leaders mainly based on religion, caste, region or ethnicity - Writ petition seeking stringent pre-emptory action on the part of Central and State Governments on the ground that the hate speeches militate against the Constitutional idea of fraternity and violates Articles 14, 15, 19, 21 read with Article 38 and are in derogation of the fundamental duties under Article 51-A (a), (b), (c), (e), (f), (i), (j) - Held: The statutory provisions and particularly the penal laws provide sufficient remedy to curb the menace of "hate speeches" - Thus, person aggrieved must resort to the remedy provided under a particular statute - The root of the problem is not the absence of laws but rather a lack of their effective execution - Therefore, the executive as well as civil society has to perform its role in enforcing the already existing legal regime - Effective regulation of "hate speeches" at all levels is required as the authors of such speeches can be booked under the existing penal law and all the law enforcing agencies must ensure that the existing law is not rendered a dead letter - Enforcement of the provisions is required being in consonance with the proposition "salus reipublicae suprema lex" (safety of the state is the supreme law) - Thus, petition calling for issuing certain directions which are incapable of enforcement/execution should not be entertained - The National Human Rights Commission would be well within its power if it decides to initiate suo-motu proceedings against the alleged authors of hate speech - Penal Code, 1860 - ss. 124A, 153A, 1538, 295A, 298, 505(2) - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Representation of People Act - ss.123(3), 125 - Maxim "salus reipublicae supreme lex". HUMAN RIGHTS: Hate speech - Steps taken by Government - Held: The Indian legal framework has enacted several statutory provisions dealing with the subject - In addition thereto, the Central Government has always provided support to the State Governments and Union Territory administrations in several ways to maintain communal harmony in the country and in case of need the Central Government also sends advisories in this regard from time to time - The Central Government has also issued revised guidelines to promote communal harmony to the States and Union Territories in 2008 which provides inter-alia that strict action should be taken against anyone inflaming passions and stroking communal tension by intemperate and inflammatory speeches and utterances -Penal Code, 1860 makes offences related to religion punishable - Similarly, intentional public humiliation of members of the 'Scheduled Castes' and 'Scheduled Tribes' is penalized under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - R.P. Act also restrains any political party or the candidate to create feelings of enmity or hatred between different classes of citizens of India by making such an act a punishable offence - Article 20(2) of the International Covenant on Civil & Political Rights, 1966 (ICCPR) restrains advocacy of national, racial or religious hatred that may result in incitement for discrimination, hostility or violence classifying it as prohibited by law - Similarly Articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (ICERD) prohibits the elements of hate speech and mandates the member states to make a law prohibiting any kind of hate speech through a suitable framework of law - Penal Code, 1860 - ss. 124A, 153A, 1538, 295A, 298, 505(2) - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Representation of People Act - ss.123(3), 125. Hate speech - Duty of courts - Held: Courts must apply the hate speech prohibition objectively - The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred - The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination. JUDICIAL INTERVENTION: Constitution clearly provides for separation of powers and the court merely applies the law that it gets from the legislature - If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it - The court cannot re-write, re-cast or reframe the legislation for the very good reason that it has no power to legislate - However, of lately, judicial activism of the superior courts in India has raised pubic eyebrow time and again - The directions are issued by the Court only when there has been a total vacuum in law, i.e. complete absence of active law to provide for the effective enforcement of a basic human right - In case there is inaction on the part of the executive for whatsoever reason, the court has stepped in, in exercise of its constitutional obligations to enforce the law - In case of vacuum of legal regime to deal with a particular situation the court may issue guidelines to provide absolution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field - Thus, direction can be issued only in a situation where the will of the elected legislature has not yet been expressed - Judicial activism - Judicial review. Words and phrases: Hate speech - Meaning and its effect - Held: Hate speech is an effort to marginalise individuals based on their membership in a group - Using expression that exposes the group to hatred, hate speech seeks to de-legitimise group members in the eyes of the majority, reducing their social standing and acceptance within society - Hate speech, therefore, rises beyond causing distress to individual group members - It can have a societal impact - Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide - Hate speech also impacts a protected group's ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy. |
