Revisiting the Contours of Constitutional Protection: The Debate of Free Speech v. Hate Speech – I

In a country considered a democratic haven, off late, a lot of controversies have crept up regarding safeguarding the freedom of speech and expression. The most recent in the chain being the Bloomsbury India controversy. On August 22, Bloomsbury India announced that it would no longer be publishing a book called ‘Delhi Riots 2020: The Untold Story’. Bloomsbury took this decision, as per their statement, because the pre-publication launch was apparently planned without its knowledge and with the “participation of parties of whom the publishers would not have approved”. The publishing house further added that it supported ‘freedom of speech’ and respected the Indian Constitution as well as the United Nations Universal Declaration of Human Rights (UDHR) but also had ‘a deep sense of responsibility towards society’. This move has received a mixed reaction with some people hailing it as a constructive measure to prevent further ostracization of minorities in India, whereas others have spoken harshly branding the publishing house as ‘jihadist’ and ‘urban Naxals’. However, the question that still looms large is whether the freedom of speech and expression was curbed arbitrarily. This article tries to delve into the legalities of the issue and examine the existing literature and laws.

Freedom of Opinion and Expression: The International and National Stance

The Universal Declaration of Human Rights (UDHR) was passed by the United Nations General Assembly in 1948 to prevent the occurrence of another Holocaust in the future. It was evident from the pre-warring days that a state with no regard for an individual’s fundamental rights can cause severe disruption in the global order.  As a result, every major nation of the world expressed its commitment to promote and observe a full suite of fundamental human rights, which were to be inalienable and protected internationally. Of all the fundamental rights that we have simply by the virtue of being a human, the most important of them is listed in Article 19 of the UDHR, which lays down the foundation for the protection of the freedom of opinion and expression. The rights contained within the UDHR, including freedom of opinion and expression, are currently firmly protected by the international treaties, human rights covenants and domestic human rights laws of many countries. Faring along similar lines, the framers of the Indian Constitution incorporated, within Article 19(1)(a) of the Indian Constitution, the freedom of speech and expression with a provisional restriction under Article 19(2). Over the years, the judiciary has acted vigilantly to fight against any arbitrary curb in the freedoms guaranteed and that attitude continues to this day.

Hate Speech v Free Speech: The Brandenburg Test of Advocacy 

Freedom of Speech is the bulwark of a democratic government as well as a prominent prerequisite for liberty. It plays a major role in the proper functioning of the democratic process. The debate on free speech is not a nascent development; it has been ongoing since ancient times of the Socratic Trial, with intellectuals over the years terming the debate as one concerning the mother of all liberties. Whether it be the case of Maneka Gandhi v. Union of India (1978) where Justice Bhagvati pressed on its importance by stating that;

If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential” 

or the case of Whitney v. California (1927) in the United States of America, where Justice Louis Brandeis made a classic statement on the freedom of speech and said that any freedom without it would be futile. As a result, any exercise of one’s freedom of speech today, no matter how communally or politically motivated, entails the whole spectrum of safeguards and restrictions on free speech as laid down in the Constitution of India. The present case seems to dwell in the same sphere of misunderstood liberties and overlooked duties.

Justice Patanjali Shastri in the AK Gopalan v The State of Madras (1950) observed;

man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals.

In the same way, though the freedoms of speech and expression are indeed guaranteed by the Indian Constitution, there exist certain restrictions imposed on them by the virtue of Article 19(2). The ‘reasonable’ restriction clause allows the state to impose restrictions on exercise of the right conferred by Article 19 (1) on grounds of protection of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. These restrictions were laid down by the First Amendment Act, 1951 because it was well understood that the liberty of one must not lower the liberty of others. Hence, reasonable legal restrictions needed to be imposed on the exercise of freedom of speech. 

The present case dangles between the territory of free speech and hate speech. On the one hand, the Bloomsbury Book controversy has tried to propagate well spelt out ideas against a particular community and, on the other hand, the supporters of the withdrawal have pressed that such withdrawal is nothing more than pure censorship of the freedom of speech and expression. To better understand this fine demarcation between propaganda and freedom of speech, the landmark case of Shreya Singhal v Union of India (2013) can be referred. Justice Rohinton Fali Nariman specifically says in his judgment that the court needed to adopt the test laid down by the U.S. Supreme Court while interpreting the First Amendment to the U.S. Constitution in the historic case of Brandenburg v Ohio (1969), which much like Indian Constitution’s Article 19 talks about the various rights of Americans. It was clearly stated that where there arose a case of distinguishing between advocacy and incitement, the court needed to consider the difference between the act of advocating a certain point of view and inciting somebody to take up arms against the government or something of a similar nature. Though the former would indeed be protected, the later speech is something that cannot be afforded any protection. Thereby, any protection that could be given to hate speech is specifically ruled out, implying that hate speech cannot be delivered in the same way as free speech.

Mohd. Rameez Raza is a student of Bachelor of Law at Integral University, India; he is also the Columnist for CNES, JGU. Raj Shekhar is a student of BA. LL.B. at National University of Study and Research in Law, India.

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