Seven retired civil servants belonging to an informal collective named Constitutional Conduct Group have filed an intervention application in Supreme Court seeking an injunction against the telecast of a show on Sudarshan TV which allegedly communalised the selection of Muslims in UPSC exams and termed it as ‘UPSC Jihad’.
The top court’s bench of Justices DY Chandrachud & KM Joseph had earlier refused to pass a pre-broadcast injunction order in this regard but had noted that during the hearing it had been highlighted that the expression of views derogatory to a particular community had a “divisive potential” and the petition had thus raised significant issues bearing on the “protection of constitutional rights”.
The intervenors stated that the Court had expressed an intention to consider the balance between free speech and other constitutional values that were raised in the instant UPSC Jihad case, and that it was important for the Court to do so.
The applicants in UPSC Jihad case have further stated that the Apex Court should issue an authoritative ruling on the scope and meaning of hate speech like UPSC Jihad so that citizens, implementing authorities, and courts of the first instance receive clarity on speech that is protected and speech that falls outside such protection.
“Freedom of speech and expression is not limited to what the ruling dispensation may find palatable or what public consensus may permit but includes the freedom to dissent, to question received wisdom and established social mores and to offend, shock or disturb.”
The plea in UPSC jihad case highlights that penal provisions under the Indian Penal Code address the subject of hate speech and are applied in a manner that is inconsistent with the guarantees under Article 19(1)(a). “The interpretative task before this Hon’ble Court therefore is to distinguish between speech that is merely offensive, indecorous or in bad taste [and therefore covered by Article 19(1)(a)] and hate speech that is rightly penalised by Articles 153A & B and the other provisions pointed out above,” the plea reads.
On drawing a survey of Indian constitutional provisions, precedent and international and comparative constitutional law, the intervenors point out that the following propositions for consideration of UPSC Jihad case:
- Offensive speech is distinct from hate speech;
- The Constitution protects offensive speech but does not protect hate speech. Penal provisional such as sections 153A & 153 B of the IPC must be interpreted in a manner that keeps the distinction between the two intact.
- Offensive speech is simply speech that causes subjective feelings of offence or outrage and nothing more. Such speech may be ill-considered, unwise and improper but it is not illegal.
- Hate speech goes beyond subjective feelings of offence and objectively has the effect of undermining constitutional equality, sending a message that a person or a group of people are not worthy of equal concern of respect and are not equal members of society, or are fair game for discrimination, hostility or violence.
- Determining hate speech, therefore, requires a contextual enquiry by judicial and other State bodies, looking at (a) the actual words used, (b) the meanings that they carry for their intended recipients, (c) any history of similar language, (d) and the likely consequences.
- Hate speech can be direct (calls to violence and discrimination), but it can also be indirect, through, insinuation, and what is popularly known as dog-whistling. This, therefore, requires judicial bodies to be sensitive to the nuances and specific histories of the speech in question.
- The distinction between offensive speech and hate may be parsed with the help of following examples:
- Criticism, mockery and ridicule of respected and revered religious or cultural figures may be offensive but it is not hate speech. Calling for a boycott of the members of a religious or cultural community or implying that they are violent by nature or unpatriotic by virtue of their community affiliation as UPSC jihad is hate speech.
- Mockery of religious beliefs or traditions may be offensive but it is not hate speech. Accusations of dual loyalties towards members of any faith – and suggestions of treachery by virtue of belonging to that faith – constitutes hate speech.
- Speech that has historically been inseparable from practices of oppression and subordination is hate speech (see eg. of this Hon’ble Court’s examination of the use the word “chamar”, under the Prevention of Atrocities Act, in Swwaran Singh Vs. State).
The plea stated that the offence of hate speech like indicating UPSC Jihad lies not in the distress that it may cause to individuals, but in “targeting their social standing by virtue of their membership of certain groups in a manner that leaves them vulnerable hostility, discrimination and violence”.