India has “lost the right to humour, the right to parody” due to “low threshold” of tolerance of free speech, Delhi High Court Justice S Muralidhar said on Saturday. Speaking at a symposium organised by the Centre for Communications Governance, National Law University, Delhi, Muralidhar said it is now “time to push for a higher threshold for what is hate speech”.
Muralidhar also said the laws on hate speech were “capable of misuse” in a country where “people get arrested for commenting on a CM’s health.”
The judge also discussed the increasing complications caused due to increasing use of internet-based communications technology, in deciding court cases, and added that the cyberspace with its social media was a “space for discourse” but “too many people” were “jostling for control of speech.” “It is more important to define what is not hate speech than to try and define the contours of hate speech,” Muralidhar said.
Madras HC Chief Justice Sanjay Kishan Kaul said while free speech includes statements that may “offend, shock or disturb certain sections of society” , judges are “not free from the perception of public opinion” when it comes to the issue of deciding on questions of free speech.
“It is necessary to break through tyranny of public opinion to encourage eccentricities,” Kaul said. He said the definition of “hate speech” is “as elusive as the definition of hate”.
Kaul said that the controversy over the Perumal Murugan book took arose because “sections” of the book were “taken out of context” to “create social war”.
Law Commission chairman Justice B S Chauhan, who had delivered the judgment on the nuances of Section 124 of IPC, sending the issue to the Law Commission for consideration, said that as a judge he was not aware that he would be tasked with heading the Law Commission. “Section 124A initially enacted to prevent overthrow of British government is now hit by Article 19,” said Chauhan, adding that “criminality and morality are not always the same.”
In his address, senior advocate Gopal Subramaniam said that hate speech was “unconstitutional” and “ripped the constitution apart”. “Democracy is under threat from complete subversion of speech on a continual axis,” said Subramaniam, adding that hate speech is the “worst form of manipulation.” Comparing hate speech to “wildfire”, he said that group identities are “necessary” as “minorities can be targeted in multiple ways.”
Senior advocate Anoop Bhambani also said that there is a need to consider whether “hate speech” is a part of protected right to “free speech”.