india

Is the freedom of speech absolute?

Understanding the constitutional and legal definitions as well as restrictions of free speech

In the wake of the war cry targeting minorities at a religious congregation in Haridwar, it’s high time India recognised hate speech as the vilest affront and the greatest dishonour to the freedom of speech as conceived and cherished by the Indian Constitution. Hate Speech as defined by the 267th report of the Law Commission of India is “an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like”. Any attempt to casually pass off such demagogic claptrap under the political tapestry of free speech in an election-bound State (Uttarakhand) amounts to the denial of all that the Constitution of India represents.

THE GIST

  • The Constituent Assembly extensively deliberated on Article 13 of the draft Constitution. The proposed restrictions to free speech were resisted on the ground that these were not seen in the American Constitution. Dr. Ambedkar countered these arguments by stating that the freedom of speech was not absolute in the U.S. as can be seen by numerous U.S. Supreme Court judgments restricting free speech.
  • The term ‘public order’ was added later by an amendment which is now known as the First Amendment. Jawaharlal Nehru was a staunch supporter of the First Amendment.
  • To effectively curb hate speech, Supreme Court requested the Law Commission of India to examine the issue. The 267th report of the Law Commission was of the clear opinion that new provisions in IPC such as section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases) were needed to address the issue.

The debates on limits to Free Speech

As the Constituent Assembly deliberated on Article 13 of the draft Constitution, which would later become Article 19 in the enacted Constitution, intense apprehensions were expressed on the proposed proviso to Article 13 listing restrictions to the freedom of speech and expression. These restrictions finally became Article 19(2). The exceptions under the same clause fell under four broad categories: “libel , slander, defamation”, “contempt of court”, “offends against decency or morality” and “undermines the security of or tends to overthrow the state.” The proposed restrictions were resisted on the ground that these sought to rein in free speech and are not seen in the American Constitution, which had tremendously inspired members of the Constituent Assembly. Dr. Ambedkar sought to douse the fire of concern by declaring, “It is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court. It would be sufficient to quote one such judgment of the Supreme Court in justification of the limitation on the right of free speech contained in Article 13 of the Draft Constitution.”

The First Amendment

As the original text of Article 19(2) did not contain the term ‘public order’, the pre-publication ban on newspapers/weeklies in Delhi and Madras under the state laws were invalidated by the Supreme Court on the ground that the amplitude of the restriction under Article 19(2) did not cover “public order”. This prompted Parliament to amend Article 19(2) by way of The Constitution( First Amendment) Act, 1951, to include ‘public order’ among other additional grounds, but with a general rider that such a law shall impose (only) “reasonable restrictions”.

Jawaharlal Nehru, the protagonist of the proposal, defended the First Amendment. In his address to Parliament, he said, “It has become a matter of the deepest distress to me to see from day to day some of these news-sheets which are full of vulgarity and indecency and falsehood, day after day, not injuring me or this House much, but poisoning the minds of the younger generation, degrading their mental integrity and moral standards. It is not for me a political problem but a moral problem. How are we to save our younger generation from this progressive degradation and the progressive poisoning of the mind and spirit?” The laws enacted under the ‘public order’ restriction included Section 153A , Section 153B, Section 295A and Section 502(2) of the Indian Penal code. However, the mesh of law was perforated by weak as well as selective enforcement.

The Supreme Concern

In Pravasi Bhalai Sangathan vs Union of India & Ors.(2014) the Supreme Court said: “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 delegitimise 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 [the] 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.”

On the proliferation of hate speech, the Supreme Court pointed out that “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.”

Further, the Supreme Court requested the Law Commission of India to examine the issue. The 267th report of the Law Commission was of the clear opinion that new provisions in IPC were required to address the issue.

It suggested the insertion of new Sections 153C (prohibiting incitement to hatred) and section 505A (causing fear, alarm, or provocation of violence in certain cases) to curb the menace of hate speech.

Despite a draft Bill being annexed to the report, none has been presented to Parliament so far.

Neither has the law been strengthened, nor the existing law strongly enforced. This sums up the citizens’ predicament

Abhilash M.R is lawyer practising in the Supreme Court.

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