Supreme Court Erred Again: Mistaken on Hate Speech as Free Speech


Supreme Court Erred Again: Mistaken on Hate Speech as Free Speech

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 By Sajid Sheikh, National Law University, Jodhpur

“The plain fact is that not all free speech is good speech. Which means that freedom of speech is not always a sound or just public policy.

Prof. Walter Berns, “Freedom, Virtue and the First Amendment” Baton Rouge : Louisiana State University Press, 1957.

The Supreme Court on Monday 3rd of March 2014, dismissed a PIL by Advocate M L Sharma seeking intervention by the court in directing the Election Commission to curb hate speeches. Dismissing the plea, the Apex court said that it could not curb the fundamental right of the people to express themselves.

 “We cannot curtail fundamental rights of people. It is a precious rights guaranteed by Constitution,” a bench headed by Justice RM Lodha said, adding “we are a mature democracy and it is for the public to decide. We are 128 million people and there would be 128 million views. One is free not accept the view of others”. Also the court said that it is a matter of perception, and a statement objectionable to a person might not be normal to other person.

After the public outrage against the Naz verdict where the Supreme Court showed us its inability to act, this dismissal and the erroneous comments on hate speech treating it as fundamental right i.e. the right to free speech has put up various doubts and future threats to the security, cohesion and solidarity of the nation.

“I am absolutely opposed to political correctness. You cannot confront hate speech until you’ve experienced it. You need to hear every side of the issue instead of just one.”

Jane Elliott, Anti Racism Activist

What amounts to Hate Speech

It is a very controversial term which means; any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or disparages or intimidates a protected individual or group; based on their race, ethnicity, national origin, religion, sexual orientation, or disability. This covers both  written as well as oral communication.

Provisions in Indian Constitution and Exceptions to Free Speech

The Constitution of India does not provide for a state religion.

Article 25(1) states, “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”.

 Article 19(1)(a) gives all citizens the right to freedom of speech and expression but subject to “reasonable restrictions” for preserving inter alia “public order, decency or morality Article 19(2).

 Article 28 prohibits any religious instruction in any educational institution wholly maintained out of state funds.

Indian Laws Against Hate Speech : Exceptions against Free Speech

India prohibits hate speech by several sections of the Indian Penal Code, the Code of Criminal Procedure, and by other laws which put limitations on the freedom of expression.

Section 95 of the Code of Criminal Procedure gives the government the right to declare certain publications “forfeited” if the “publication … appears to the State Government to contain any matter the publication of which is punishable under Section 124A or Section 153A or Section 153B or Section 292 or Section 293 or Section 295A of the Indian Penal Code”.

Section 153A of the IPC says, “Whoever (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, . . . shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Enacted in 1927, section 295A says, “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.

Also Read:  Weber’s Power and India’s Apex Court

“Public Order”

Public order has not been defined in Indian Law but in criminology, public-order crime is defined by Siegel (2004) as “…crime which involves acts that interfere with the operations of society and the ability of people to function efficiently“, i.e. it is behaviour that has been labelled criminal because it is contrary to shared norms, social values, and customs.”

Another view of Supreme Court : Optimistic view

The Supreme Court 8th April 2013 issued notice to the central government on a petition seeking framing of guidelines to curb elected representatives from delivering hate speeches in pursuance of their political goals.

An apex court bench headed by the then Chief Justice Altamas Kabir issued the notice after senior counsel Basva Patil told the court that such leaders deliver hate speeches repeatedly, inflaming regional, religious and ethnic passion. He also added that, if arrested after making the hate speech, they repeat their actions upon being released on bail. He urged that the rule of law should be strengthened and such leaders not be permitted to repeatedly make hate speeches.

The notice was also issued to the Election Commission of India, and the Maharashtra and Andhra Pradesh governments. The public interest litigation (PIL) was filed by the voluntary organisation Pravasi Bhalai Sangathan.

Recent Cases of Hate Speeches by Political Leaders

In January , A Hyderabad court  admitted a criminal petition against Majlis-e-Ittehadul Muslimeen (MIM) MLA Akbaruddin Owaisi for his inflammatory remarks , allegedly hurting sentiments of a community.

Also in January this year, Hindu religious leader Swami Kamlananda Bharati was  sent to jail for allegedly making a hate speech and promoting enmity on grounds of religion and race.

In Feburary 2013,  A court in Delhi directed Delhi Police to lodge an FIR against Maharashtra Navnirman Sena chief Raj Thackeray for allegedly branding Muslims from north India as insurgents and threatening them to throw out of the state.

In March 2013 BJP leader Varun Gandhi has been acquitted in the second of two cases that accused him of delivering hate speeches in Uttar Pradesh ahead of the national elections in 2009

Possible repercussions of the present Supreme Court verdict of 3rd March 2014

As there is always a possibility of disorder in India due to our socio and mislead political scenario, this verdict can be used as a defence by miscreant politicians. We have not yet recovered from the 2013 Muzaffarnagar Riots which claimed many innocent lives. Also the Lok Sabha elections are there and India being culturally, religiously and ethnically diverse, these miscreant politicians can use this verdict as an authorized licence to spread hate speech and thus provoke hatred and violence in the less wise minds of the people who fall prey to their easy tactics.  Also above mentioned incidents of proven hate speeches by these ill minded politician and the blatant approval of such act by the Supreme Court will surely boost such acts to happen in near future as the vote bank in India runs this way, mostly. Obviously the Supreme Court by its present verdict is surely mistaken to differentiate between hate speech and essentials of free speech and has definitely forgotten the reasonable restriction provided by our Constitution.


Lastly I end with the words of American Philosopher Richard Rorty;

 “Free discussion” here does not mean “free from ideology,” but simply the sort which goes on when the press, the judiciary, the elections, and the universities are free, social mobility is frequent and rapid, literacy is universal, higher education is common, and peace and wealth have made possible the leisure necessary to listen to lots of different people and think about what they say.



References :

 1.      “Supreme Court not to restrain hate speeches for ‘freedom’ ” at
2.      “Supreme Court issues notice to centre on curbing hate speeches” at:
3.      Hate speech laws in India at
4.      Toni M. Massaro, Equality and Freedom of Expression: The Hate Speech Dilemma at
5.      Hate Speech Debate at

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