Opinion Supreme Court on hate speech: The problem on the ground is extraordinary. Extraordinary measures are needed to address it
SC’s direction that contempt action can be initiated against officials for not taking action against hate speech will be remembered as a turning point in its history
M R Shamshad writes: This is the second time that the Supreme Court has invoked the constitutional mandate of "fraternity" and "secularism" to ensure that constitutional principles govern the basic ethos of societal values. In relation to hate speech, the recent direction of the Supreme Court making it incumbent upon the regulatory mechanism to take action is a reflection of the judicial will to deal with an issue which has been largely missing for the past few years. Within the last week, this is the second time that the Supreme Court has invoked the constitutional mandate of “fraternity” and “secularism” to ensure that constitutional principles govern the basic ethos of societal values.
An important aspect of this direction is that the court can be approached to initiate contempt action against responsible officials for non-action on hate speech. This is in line with the contempt action which can be taken for violation of the directions relating to the rights of the arrestees passed in the celebrated judgment of D K Basu (1997). Most of the directions of D K Basu were introduced in the Code of Criminal Procedure by way of an amendment, and these directions became statutory provisions. Non-compliance with the said statutory provisions could no longer remain a subject of contempt action. There is no doubt that the D K Basu line of statutory regulation is frequently violated. If any victim is able to take up this issue, they have to start from the Court of the Magistrate.
The non-action of police authorities in initiating criminal action has already taken up a lot of the time of the constitutional courts. The present order on hate speech is also an outcome of the non-action of police authorities, despite the mandatory requirement under the CrPC. There are instances where, when a mob protested against the non-action of the police against hate speech, FIRs were registered against the protestors themselves and they were arrested. In these cases, no action was taken against the initial crime. At the same time, there are instances when similar crimes of hate speech, coming from a different class of people, are taken cognisance of and action is taken quickly. That makes the entire process whimsical and unequal.
In a 2014 judgment, a five-judge bench of the Supreme Court clarified that the registration of FIR was “mandatory” under the existing law. The direction is of a general nature, which should ordinarily attract the contempt jurisdiction of constitutional courts. There are instances when the Supreme Court has exercised its contempt power in relation to other general directions to keep a check on the “rule of law”.
The Tehseen Poonawalla judgment (2018) also mandated the police to register an FIR against those who disseminate irresponsible and explosive messages with content which is likely to incite mob violence, etc. What should one do if the regulatory mechanism does not follow these directions? Should the process of the court be soft against the police mechanism only because they discharge a part of the sovereign function? In a democratic system, the answer should be “no”.
In the last three to four years, there have been innumerable instances of hate speech in the public domain. Action has been taken in a select few, either due to the court’s directions or by treating those instances as a separate class. There are instances where in hate crimes, due to the non-action of police, the complainant approached the magistrate’s court and the case was rejected using past Supreme Court judgments, stating that the state’s sanction would be needed for the registration of FIR under Section 153A. In this process, the complainant lost confidence in the system and the accused felt emboldened.
The 267th Law Commission Report suggested adding new provisions to make speech inciting hatred and speech that causes fear, alarm, or provocation of violence a criminal offence under the Indian Penal Code (IPC), 1860. Given the attitude of the regulatory mechanism, even if the law is made, only time will tell how much difference it will make on the ground.
At this stage, this is not simply an issue of talking about peaceful co-existence and tolerance to promote constitutional values. There have been calls for genocide, and any difference in lifestyle has been turned into an issue of national integrity and security. Asserting the constitutional rights of Muslims is projected as a favour to the community, and on serious fundamental rights issues, people talk of “balancing the equation”. Many times, courts also get persuaded by the strong perception created through this mechanism.
The problem on the ground is extraordinary. Extraordinary measures are needed to address it. In this entire process, non-action or inappropriate action on hate speech has emerged as a much bigger problem than hate speech itself. This is why this order of the Supreme Court is not only important but will be remembered as a turning point in the history of the court.
The writer is an advocate at the Supreme Court
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