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

Bloomsbury and Freedom of Speech and Expression: A case for Horizontal Applicability?

The present case of Bloomsbury being accused of violating Freedom of Speech and Expression is a very peculiar issue as the allegations are not against the state but rather against a private entity. Thus, before further deliberations, it becomes pertinent to question the validity of the argument/accusation that Bloomsbury, a private entity, can be held liable for the violation of freedom of speech and expression as it is a general understanding that such freedoms are only enforceable against state or private entities carrying out state functions, for example corporations which are given rights to distribute electricity, water, etc. In such cases, if the private entity refuses to lend its services to all except a particular group, it can be made liable as effectively it is managing a state delegated function and hence, discrimination is prohibited. The major reason for such narrow operation of provisions for appeal against violation of fundamental rights by the state, was because of the belief that only a state can be the ‘prime’ abuser of a fundamental right and therefore rights were created as a means to protect individuals from oppressive State actions. However, time and again eminent scholars like M. P. Singh have cautioned against such rationalization. To sustain his view, he takes the help of objectives of the Indian Constitution and states that such horizontal applicability is justified as the Indian Constitution was drafted in response to not only oppressive ‘State’ actions but also to oppressive non-state actions. Even if we look at Articles 17, 23 and 24 which deal with the abolition of untouchability, human trafficking, forced labour, etc; we find that they were practised not only by the State but also by private individuals. This is one of the main reasons why these specific fundamental rights do not mention the word ‘State’ and have been held to be enforceable against private individuals. 

On that same note, it is striking to note that Article 19(1)(a) which gives every citizen of India the fundamental right to freedom of speech and expression does not mention the word ‘State’. The power of private entities has grown to a huge extent and we have numerous cases where these entities are indulging in abuses on speech and expression. The case of the Shiksha Bachao Andolan Samiti which resulted in the withdrawal of the book ‘The Hindus’ is a clear example of the growing anti-criticism attitude of private entities. The absence of the word ‘State’ from Article 19(1)(a), the inability of Article 12 and 13 to act as interpretative preambles to Part III, and the growing cases of ‘excesses’ and ‘abuses’ by private entities, make for a strong case of horizontal application of freedom of speech and expression. It would also be in consonance with the aim of this freedom, which is to ensure prevention of exploitation that has been a significant characteristic of our troubled colonial past. Hence, horizontal applicability in Bloomsbury’s case cannot be outrightly denied on its mere fact of being a private entity.

The major argument against the above assertion can be that the two paradigms of private players and state are totally different, considering the scheme and construction of Article 19(1)(a) and Article 19(2).  The problem with the state imposing a ban is that it has a monopoly on the power of criminal sanction, and, hence, in other words, the state ‘can’ impose a ban. A private player like Bloomsbury neither has the monopoly in publishing so evidently nor can it impose a ban. These laws being ‘public law’ are on equal footing with other laws, such as constitutional law, and, hence, are generally seen as vertically applicable only. Even if for an instance we stick by the opinion that Article 19(1)(a) should apply only to the ‘State’, we find that the scope of Article 19(2) becomes increasingly foggy and unsubstantiated. Article 19(2) lays down restrictions ranging from the parameters of defamation, morality, and obscenity. They do not merely cover the ‘individual and state relationship’ but also an ‘individual- individual relationship’. This logic can be pitched to argue against the classification of Article 19 as a pure ‘public law’ and hence the regulations under it can lead us to recognize that the constitution can regulate private actions as well, which has been the logic followed where certain rights were made exercisable against the private individuals.

Analysing Bloomsbury’s Stance: Does ‘a deep sense of responsibility towards society’ validate the restriction? 

Article 19(2) uses two major concepts for the imposition of reasonable restrictions: ‘public order’ and ‘security of the state’. The concept of ‘public order’ is wider than ‘security of the state’ and probably the one being put up for defence by Bloomsbury when it claims the reason behind its conduct as ‘a deep sense of responsibility towards society’. But will it pass the test of reasonableness? When we analyse the reported contents of the book, we find that not much is known about the book and that it claims to present the ‘untold story’ of three days of violence that engulfed North East Delhi in February 2020. However, as per media reports, the book frames the violence as a conspiracy by ‘urban Naxals’ and ‘jihadists’ with links to the Islamic State and ‘professional sharpshooters’. It further blames the ‘Muslim mobs’ for violence in ‘key areas’ and links it to protests against the Citizenship Amendment Act at Shaheen Bagh and Jamia Milia Islamia at the other end of the city. Looking at these statements which are unsurprisingly backed by no concrete proof, they are prima facie inflammatory against a particular community and religion. We also need to understand that these statements are being made and propagated through print medium also.

Looking at the existing state of affairs and the stigmatized public opinion against the Muslim community, the book would have only added fuel to the ravaging fire. To say whether it was a reasonable or unreasonable violation of Freedom of Speech and Expression would not be possible based on the tiny bits and pieces of available details on the content of the book. A book targeting the society’s marginalized community can have the power to confirm and strengthen people’s prejudices against the group in question, which only marginalizes and disenfranchises them further. This is dangerous from a public order perspective and was even pointed out by Justice Chandrachud in the case of Indibility Creative v. Govt of West Bengal. 

“However, we cannot ignore that like all forms of speech and expression, satirical expression maybe restricted in accordance with the restrictions envisaged under Article 19(2) of the Constitution. For example, when satire targets society’s marginalized, it can have the power to confirm and strengthen people’s prejudices against the group in question, which only marginalizes and disenfranchises them more.”

This rationale is in strong consonance with the South African constitutional model of understanding hate speech. In South Africa, ‘hate speech’ is asymmetrical, i.e. it has no fixed criteria of being chalked out and is generally left for judicial determination in case of any issues. In contrast to the circumscribed model, which very particularly defines what will and will not constitute hate speech, it denounces/prohibits any expression that stigmatizes a vulnerable class of people in a manner that could create a popular opinion of discrimination against them. Indian courts have failed to come up with a strong model, even though attempts were made in 2014 when the Supreme Court declined to adjudicate, on merits, a PIL requesting it to frame guidelines prohibiting political hate speech and delegated the task to the Law Commission, citing separation of power concerns. The judgment’s obiter is of great significance for the free speech and hate speech jurisprudential debate in India. 

Even though no concrete understanding exists today of what can be termed or not termed as a definite hate speech, the major parameters as of now, which are used to determine hate speech are that of sentiments, both personal or religious, getting hurt. Though this approach has worked as a viable approach, still, for reasons obvious, are constitutionally unsustainable owing to the open ended and subjective scope as what may offend a particular group may not offend another group with same values. If a reasonable opinion was to be drawn from existing sources and jurisprudential outlook in the context of the current public fervor against a particular community, the book could indeed have threatened the ‘public order’, and there exists no question that such a step would without a doubt stand the test of reasonability.

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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