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State regulation of freedom of speech

Introduction

Freedom of speech is an individual’s right to freely express their opinions, ideas and thoughts without fearing prosecution for doing so. It is a fundamental human right that is enshrined in many international human rights instruments and is often considered as a cornerstone of democratic societies. But free speech may not always be pleasant. Caleb Yong in his article, “Does Freedom of Speech Include Hate Speech?” describes a type of speech known as “hate speech”. This type of speech targets someone based on their race, nationality, religion, gender, sexual orientation, or membership in another group.[1] Although hate speeches might morally target a group, any attempt to regulate such speech undermines one’s fundamental right to free speech and sanctions for vigorous censorship.

Why Free speech is important

There are various justifications for the free speech principle. Caleb Yong in his article talks about two main justifications. One is the consequentialist argument, which holds that allowing speech will result in special benefits that will outweigh the overall harm it causes. The second type of reasoning is non-consequentialist, which contends that regulation of speech unjustly violates the rights, dignity and autonomy of speakers, listeners, or bystanders.[2] The recommendations of the 2012 United Nations Special Rapporteur on Freedom of Speech and Expression suggested that no one should be penalised for statements that are true, showcasing the importance of truth that is promoted with free speech.[3] Absolute freedom of speech also guarantees a wide range of thoughts and viewpoints which will allow for enhancement of knowledge and advancements in technology, productivity, and civilization. Speech regulation and restriction instead will prevent a person’s personality from developing intellectually or spiritually. Protecting free speech is also vital because it helps democratically articulate, gather, and balance interests. In S Rangarajan v P Jagjivan Ram[4], the Court observed that a democratic government allows for open discussion and demands an active and intelligent participation from all its citizens and any attempt to restrict it would transform the democracy into an autocracy or dictatorship.[5] In the case of, Indibily Creative Pvt. Ltd. v Govt. Of West Bengal[6], the Court emphasized the importance of safeguarding all kinds of speech to ensure a civilized, tolerant society, and hence highlighted the importance of free speech in a modern society.

Does state regulation hamper the idea of free speech

The very idea of freedom of speech is to let individuals formulate their opinions without fear of authorities. The law attempts to prevent the spread of hateful ideas by coercively interfering with free speech leading to freedom of speech violation.[7] Soli J. Sorabjee in his article “Hate Speech Dilemma”, talks about the overriding concern for law and order that has prioritised the prospect of a public order disruption over the promise of free speech, making vigilante censorship acceptable.[8] It may be used to penalise those who oppose and criticize the policies of the State or to silence the opinions of the minorities in the country. The case of Baragur Ramachandrappa v State of Karnataka,[9] dealt with the unfair banning of a book by the state government on the ground that it was hate speech, overlooking individual interest of free speech. Siddharth Narrain in his article, “Hate Speech, Hurt Sentiment, and the (Im)Possibility of Free Speech” mentions a case where the Andhra Pradesh government ordered the forfeiture of copies of Veerabrahmam’s book Bible Bandaram. Justice Bhimasankaran in the case held that if insults are not made with the specific and intentional goal of offending the religious emotions of that class, then our law and Constitution permit citizens to insult religion and curtailing it would prevent truth.[10] Such instances showcase how the law in our nation makes it very easy for the authorities to curb free speech. It allows for anyone, who even merely disapproves of one’s content to take serious actions against them.

In S Rangarajan v P Jagjivan Ram[11] the court emphasised the importance of freedom of speech as a fundamental right guaranteed by Article 19(1) of the Constitution[12] with specific reference to films. In this case, the Supreme Court ruled that the producer’s right to free expression cannot be curtailed because of processions, demonstrations, or violent threats. A. G. Noorani in his article, “Films and Free Speech” notes that it is the responsibility of the state to preserve the right to free expression and not blame the speaker or ban the speaker’s speech instead.[13] Section 66A of the Information Technology Act 2000[14], penalises speech on the grounds of information being ‘grossly offensive’, possessing ‘menacing character’, ‘causing annoyance’, etc. In the case of Shreya Singhal v Union of India[15], the Supreme Court declared such grounds to be vague and undefined, and the provision was struck down as unconstitutional and violative of Article 19(1)(a) that guarantees freedom of speech.[16]

Provisions like Sections 295A and 153A in the Indian Penal Code[17] criminalise actions that outrage religious feelings and promote enmity between religions. Subjective provisions like these are often misused by state governments to ban publications and works that may have no intent to cause disharmony between groups. In the case of State of Uttar Pradesh v Lalai Singh Yadav[18], the Uttar Pradesh government ordered forfeiture of a book under Sections 153A and 295A of the Indian Penal Code[19]. However, the Supreme Court held that logical criticism of religious doctrine fell under the category of legitimate criticism. Such an analysis was necessary to demonstrate how state regulation would have promptly permitted seizure of the book had the court not intervened.[20] Similar to this, the Indian Penal Code’s[21] 505(2) penalises individuals who make, publish, or disseminate comments with the intention of inciting hostility, animosity, or ill will among members of different communities. Broad provisions like these allow for tyrannical restriction on the freedom of those whose statements might have merely made someone upset. Therefore, it is imperative that the impact of the words be evaluated by the standards of reasonable men rather than those of weak minds or of those who see danger in every opposing perspective. In the recent case of Shaheen Abdullah v Union of India[22], the Supreme Court directed Uttar Pradesh, Uttarakhand and Delhi Governments to take suo motu action against hate speech crimes without waiting for formal complaints. Similarly, the Law Commission of India, in its 267th report on ‘Hate Speeches’, recommended to add more stringent provisions like Section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases). Such judgements and amendments could prevent the law from treating everyone equally and penalise them for exercising their freedom of speech. In his article “Harassing Hussain: Uses and Abuses of the Law of Hate Speech”, Rajeev Dhavan contended that an offence of hate speech should only be made out in the first place only when there is clear and imminent danger to public order.[23] It is therefore necessary to take a deeper look at the possible dangers that hate speech might pose.

Should there be absolute freedom of speech

Some types of hate speech, such as vilification, have a primary intention of injuring and insulting the listener and are motivated by animosity and contempt.[24] Such hate speech has negative impacts on those who are already disadvantaged or marginalised and promotes violence against them. For example, BJP minister Nupur Sharma recently made the news for her comments about Prophet Muhammad which led to widespread protests for her arrest, for hurting the religious sentiments of Muslims throughout the nation.[25] Targeted vilification, like in the case of Sharma being Islamophobic comments, is condemned and discouraged because it poses a substantial risk to public order and does not further the purposes of free speech. Regulation of such speech is necessary to safeguard marginalised groups and to ensure an inclusive and respectful public conversation. In the case of Ramji Lal Modi v State of Uttar Pradesh[26], the court allowed for penalisation of only those acts of insult which were perpetrated with the ‘deliberate and malicious intention of outraging the religious feelings of a class’. Similarly Larence Liang in the chapter “Free Speech and Expression” of the book ‘The Oxford Handbook of The Indian Constitution’, cites the example of the case Life Insurance Corporation v Manubhai D Shah[27], where it was held that Article 19(1)(a), is not an absolute right and must be exercised in a way that does not jeopardise the rights of another.[28] In the case of Mithun Chakraborty v The State Of West Bengal[29] the Public Prosecutor argued that the object of criminalizing hate speech is to protect the dignity and to ensure political and social equality between different identities and groups.

Conclusion

Thorough analysis of hate speech and its impacts displays how thin the line between freedom of speech and abuse of this freedom is. The regulation of hate speech by the state is hence seen as a complex and controversial issue that involves balancing the right to free speech with the need to prevent harm and protect vulnerable groups. The key is to find a balance that allows for free exchange of ideas, while also ensuring that individuals and communities are not subjected to harmful and discriminatory speech. It is important to determine when the incitement or the imminent danger is high enough to actually impact the society adversely, hence justifying regulation of hate speech. Soli J. Sorabjee encouraged in his article that although there cannot be a universal model, acceptable to everybody, whenever there might be doubt between free speech or regulation, it is better to tilt the balance towards expression rather than suppression.[30]

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Written by Reema Nayak

 

[1] Caleb Yong, Does Freedom of Speech Include Hate Speech? 17 Res Publica 385–403, 386 (2011).

[2] Id at 387.

[3] Siddharth Narrain, Hate Speech, Hurt Sentiment, and the (Im)Possibility of Free Speech, 51 Economic and Political Weekly 119–126, 124 (2016), https://www.jstor.org/stable/44003415.

[4] S. Rangarajan vs P. Jagjivan Ram, (1989) SCC (2) 574

[5] Lawrence Liang, The Oxford handbook of the Indian Constitution, 843 (2016).

[6] Indibily Creative Pvt. Ltd. vs Govt. Of West Bengal, (2020) SCC (12) 436

[7] Yong, Supra note 1.

[8] Soli J. Sorabjee, “Hate Speech” Dilemma, Fortnight 27–27, 27 (1993), http://www.jstor.org/stable/25554070.

[9] Baragur Ramachandrappa & Ors v State Of Karnataka & Ors, (2007) 5 SCC 11.

[10] Narrain, Supra note 3.

[11] S. Rangarajan vs P. Jagjivan Ram, (1989) SCC (2) 574

[12] INDIA CONST. art. 19, cl. 1.

[13] A. G. Noorani, Films and Free Speech, 43 Economic and Political Weekly 11–12, 12 (2008), https://www.jstor.org/stable/40277656.

[14] The Information Technology Act, (No. 21 OF 2000).

[15] Shreya Singhal v Union of India (2015) 5 SCC 1.

[16] Liang, supra note 5.

[17] The Indian Penal Code, 1860 Act No. 45 Of 1860

[18] State of Uttar Pradesh v Lalai Singh Yadav (1976) 4 SCC 213.

[19] Supra note 16.

[20] Narrain, Supra note 10.

[21] Supra note 19.

[22] Shaheen Abdullah vs Union of India (2022) SC (872)

[23] Rajeev Dhavan, Harassing Hussain: Uses and Abuses of the Law of Hate Speech, 35 Social Scientist 16–60, 46 (2007), https://www.jstor.org/stable/27644194.

[24] Yong, supra note 7.

[25] Geeta Pandey, Nupur Sharma: The Indian woman behind offensive Prophet Muhammad comments, BBC News, June 9, 2022, https://www.bbc.com/news/world-asia-india-61716241.

[26] Ramji Lal Modi v State of Uttar Pradesh AIR 1957 SC 620

[27] Life Insurance Corporation v Manubhai D Shah (1992) 3 SCC 637

[28] Liang, supra note 14.

[29] Mithun Chakraborty vs The State Of West Bengal (2021)

[30] Soli J. Sorabjee, “Hate Speech” Dilemma, Fortnight 27–27, 27 (1993), http://www.jstor.org/stable/25554070.