Hate Speech Repudiates Right To Equality In A Polity Committed To Pluralism : Supreme Court

The judgment delivered by the Supreme Court in the case Amish Devgan v Union of India contains an elaborate discussion on the concept of 'hate speech'.The judgment delivered by a bench comprising Justices A M Khanwilkar and Sanjay Khanna discusses the distinctions between 'hate speech' and 'free speech', the need to criminalize 'hate speech' and the tests to identify it."In a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy and, in fact,repudiates the right to equality", the judgment authored by Justice Khanna observed.Hate Speech and Free SpeechThe judgment states that it is necessary to draw a distinction between 'free speech' and 'hate speech'."In this context, it is necessary to draw a distinction between 'free speech' which includes the right to comment, favour or criticise government policies; and 'hate speech' creating or spreading hatred against a targeted community or group. The former is primarily concerned with political, social and economic issues and policy matters, the latter would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group", the judgment said in paragraph 54.The Court observed that the object of criminalising hate speech is to protect the dignity of an individual and to ensure political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender identity, sexual orientation, linguistic preference etc. In the context, the Court explained that 'dignity' "refers to a person's basic entitlement as a member of a society in good standing, his status as a social equal and as bearer of human rights and constitutional entitlements"(Para 46).The Court clarified that dignity, in this context of hate speech, "does not not refer to any particular level of honour or esteem as an individual, as in the case of defamation which is individualistic"."Loss of dignity and self-worth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It affects an individual as a member of a group", the Court observed."Preamble to the Constitution consciously puts together fraternity assuring dignity of the individual and the unity and integrity of the nation. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual's obligation to others to ensure unity and integrity of the nation. The unity and integrity of the nation cannot be overlooked and slighted, as the acts that 'promote' or are 'likely' to 'promote' divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law"(Paragraph 47).Elements of Hate SpeechThe judgment refers to n article by Alice E. Marwick and Ross Miller of Fordham University, New York (USA), elucidating on three distinct elements that legislatures and courts can use to define and identify'hate speech'.They are :content-based element, intent-based element and harm-based element (or impact-based element).In paragraph 48, the judgment explains these elements as below :The content-based element involves open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society. It can include use of certain symbols and iconography. By applying objective standards, one knows or has reasonable grounds to know that the content would allow anger, alarm or resentment in others on the basis of race,colour, creed, religion or gender.The intent-based element of 'hate speech' requires the speaker's message to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message.This requires subjective intent on the part of the speaker to target the group or person associated with the class/group.The harm or impact-based element refers to the consequences of the 'hate speech', that is,harm to the victim which can be violent or such as loss of self-esteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena.The judgment also added that the three elements are not "watertight silos and do overlap and are interconnected and linked". "Only when they are present that they produce structural continuity to constitute 'hate speech'", the Court said.In this connection, the judgment also referred to the essay 'Defining Hate Speech' written by jurist Andrew F. ...

Hate Speech Repudiates Right To Equality In A Polity Committed To Pluralism : Supreme Court

Manu Sebastian

'Hate speech' has no redeeming or legitimate purpose other than hatred towards a particular group.

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