Understanding The Supreme Court Order On Hate Speech And How It Could Play Out

The spectre of hate speeches has haunted the sociopolitical and legal spheres of our country for long and still continues to elude exorcism and pacification. 

The Hon’ble Supreme Court of India, in Writ Petition (Civil) No.940/2022, Shaheen Abdulla Versus Union Of India & Ors., has recently mandated the police forces of all Indian states to suo moto register FIRs in hate speech cases attracting offences under Section 153A, 153B, 295A and 505 of the Indian Penal Code (IPC), 1860, etc., even if no complaints are forthcoming and any failure to do so would place the concerned officers in contempt of court. 

The order comes as welcome deterrent in the backdrop of a mushrooming spate of hateful 
speeches all over India, communal, casteist, political, regional, linguistic or otherwise; and might serve well to discourage such individuals or groups who engage in such speeches for fear of police action and criminal prosecution. 

However, as a lawyer, it is my duty to scrutinise the order from all angles, especially in light of challenges that may arise in its implementation, especially the potential to give way to police arbitrariness, political weaponisation, and its impact on political or individual free speech and fair comment, given the absence of any specialised or targeted legislation to define and curb hate speech in an even-handed manner. 

What is hate speech and whether the law is adequate? 

The expression ‘hate speech’ has not been defined by any law in India, nor does it have any general legal definition. It is tough to define the said expression, as any such attempt towards prescribing a standard for determining unwarranted speech might lead to a serious intrusion into the citizens’ fundamental right to freedom of speech and expression and a consequent suppression of this valuable liberty. 

The Supreme Court of Canada, however, in Saskatchewan Human Rights Commission vs. William Whatcott, 2013 propounded a definition of hate speech as an effort to marginalise individuals based on their membership in a group. Using expressions that expose the group to hatred, it seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. 

Hate speech, thus, rises beyond causing distress to individual group members and has a societal impact, laying the groundwork for later, broader attacks on vulnerable groups that can range from discrimination to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. It 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. 

The said definition has been adopted by the Indian Apex Court in Pravasi Bhalai Sangathan vs. Union of India, (2014) wherein it was prayed that the state should take peremptory action against makers of hate speech. However, the Court did not go beyond the purview of existing laws to penalise hate speech as that would amount to ‘judicial overreach’ and referred the matter to the Law Commission of India to examine. 

The same resulted in the Law Commission’s Report No. 267 titled “Hate Speech”, which, while noting several infirmities in the existing legal framework in hate speech, recommended insertion of new Sections 153C and 505A in the IPC. Similar suggestions have also been made by T.K. Viswanathan Committee to curb online hate speech. However, the ubiquity of hate speeches stares us in the face, till date, as the IPC still remains untouched as far as hate speeches are concerned. 

Potential for Police Arbitrariness 

Theoretically, suo moto lodgement of FIRs by the police in hate speech cases, even if no complaint has been filed, sounds like a good idea. However, the same opens the door for police abuse of power. Our police are often accused of being selective and biased in registering FIRs, which leads to blatant abuse of power, harassment and victimisation of individuals and groups. 

Police officers may use the order to target individuals or groups they do not like, to settle personal scores, or even to earn political favours from the ruling party of the state by lodging frivolous FIRs against their political opponents. 

Moreover, the Apex Court’s order does not provide any guidelines or safeguards for the police to follow when deciding whether to directly register an FIR in a ‘hate speech’ case, so as to ensure its implementation in a fair and consistent manner. This lack of judicial guidance coupled with the absence of any statutory standards outlining the ambit and contours of ‘hate speech’, could lead to inconsistent and arbitrary decision-making by the police, which would result in serious excesses and violations of the rule of law. 

Political Weaponisation 

In India, hate speech has often been used as a political instrument to mobilise support, polarise voters, and garner votes. The Apex Court’s order may provide an edifice and breeding ground for weaponization of the criminal law by political parties to employ in their electoral strategy and campaigns. For instance, political parties may use the order to foist false FIRs in the states where they have their elected governments against rival party members or political opponents for alleged hate speech, in order to sully their image or to silence them. 

This could lead to a situation where the police all over the country are flooded with frivolous 
hate speech complaints, which would divert their attention from more serious crimes. Further, the order provides no safeguard to ensure that the police act in an independent and impartial manner and do not become tools in the hands of political parties. 

Impact on political and individual free speech

Free speech is always considered to be the quintessence of every democracy and its doctrine evolved as a bulwark against state’s power to regulate speech. So much so, that in the United States, hate speech has been conferred widespread constitutional protection by the First Amendment in the US Constitution, as also by the US Supreme Court. 

The freedom of expression is also one of the core freedoms to be enshrined in the Bill of Human Rights. The paramount value accorded to the expression, perhaps, explains the reluctance of the lawmakers and judiciary in in defining hate speech and creating exceptions that may curtail the spirit of this freedom. 

In India, freedom of speech and expression is a fundamental right guaranteed by the Constitution. This right includes the right to criticise the government, political parties, and public officials. However, the Supreme Court's order may be interpreted as curbing this right, especially in the context of individual and political commentary. It is not uncommon for individuals or politicians to make statements that are critical of each other or of the government or some electoral group or demographic. Such statements may be seen as hate 
speech by some, and the police may use the Supreme Court’s order to register FIRs against politicians or individuals for making such statements. 

This could have a chilling effect on free speech and socio-political discourse and may lead to self-censorship by individuals and politicians. Until the air around the definition and ambit of ‘hate speech’ is cleared and the police are trained to distinguish between hate speech and legitimate criticism or political comment, the order always runs the risk of being misused as a means to silence political dissent or criticism. 

Absence of specialised legislation

Finally, it is worth noting that the Supreme Court’s order has been issued in the face of a glaring lack of clarity as to what constitutes ‘hate speech’, as also in the absence of any concrete or specialised legislation to curb the same in an even-handed manner. 

While there are provisions in the Indian Penal Code (IPC) that deal with hate speech, they are often vague and open to interpretation. As experience tells us, these provisions are often used selectively by the police and there have been numerous instances where hate speech cases have been registered against individuals or groups who have criticised the government or its policies, while hate speeches by individuals or groups who are politically connected have gone unpunished. 

This selective application of the law has to some extent eroded public confidence in the justice system and has also led to a sense of impunity among those who engage in hate speech. Until there are proper guidelines to clarify what would actually constitute hate speech, consistent with the principles of free speech and expression, the order might run afoul of its intended purpose. 

Conclusion 

In conclusion, the Supreme Court’s order directing the police to suo moto register FIRs in hate speech cases is a step in the right direction. However, it is not without its flaws as already discussed above. 

It is imperative that any enacted law or judicial order related to hate speech is carefully crafted to ensure that it does not impinge upon freedom of speech and expression, while also protecting individuals and groups from the caustic effects of hate speech. 

In the absence of such law, in order to ensure that the Supreme Court’s order is implemented in a fair, just, and consistent manner, the police must be provided with clear guidelines on how to determine whether a statement constitutes hate speech, and their decision-making must be subject to review by a dedicated and independent body, desirably, in the nature of a Monitoring Committee, headed by senior lawyers or sitting or retired Judges of high court or the Supreme Court. 

Additionally, political parties and individuals must be discouraged from using hate speech as a political tool, and those who engage in such behaviour must be visited with dire and exemplary penal consequences. 

The issue of hate speech is a complex and multifaceted one, with no easy solutions. However, a concerted effort by all stakeholders, including the government, political parties, media and the public, can go a long way in addressing this problem and fostering a culture of harmony, tolerance and respect in society. Only then can we hope to achieve our constitutional goal of a truly democratic and perfect society, where all individuals are free to express their opinions without fear of persecution or discrimination.

(Shashwat Anand is a lawyer. He practices at the Supreme Court of India and High Court of Allahabad. Opinions are personal to the author.)