Art.32 of Indian Constitution -“hate speech”- PIL- against hate/derogatory speeches made by people representatives/political/religious leaders on religion, caste, region and ethnic lines - Apex court held that a petition calling for issuing certain directions which are incapable of enforcement/execution can not be entertained. - and further held that The National Human Rights Commission would be well within its power if it decides to initiate suo-motu proceedings against the alleged authors of hate speech. However, in view of the fact that the Law Commission has undertaken the study as to whether the Election Commission should be conferred the power to de-recognise a political party disqualifying it or its members, if a party or its members commit the offences referred to hereinabove, we request the Law Commission to also examine the issues raised herein thoroughly and also to consider, if it deems proper, defining the expression “hate speech” and make recommendations to the Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made. With these observations, the writ petition stands disposed of. =
a. Issue appropriate writ, order, decree in the nature of
mandamus declaring hate/derogatory speeches made by people
representatives/political/religious leaders on religion,
caste, region and ethnic lines are violative of Articles 14
(Equality before Law), 15 (Prohibition of discrimination on
grounds of religion, race, caste or place of birth), 16
(Equality in matters of public employment), 19 (Protection of
certain rights regarding freedom of speech etc.), 21
(Protection of Life and Personal Liberty) of Fundamental
Rights read with Article 38 of the Directive Principles of
State Policy and Fundamental Duties under Article 51-A(a),
(b), (c), (e), (f), (i) & (j) of the Constitution and merits
stringent pre-emptory action on part of the Central and State
governments;
b. Issue appropriate writ, order, decree in the nature of
mandamus declaring hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) to be an
act against the Union of India which undermines the unity and
integrity of the country and militates against non-
discrimination and fraternity;
c. Issue appropriate writ, order, decree in the nature of
mandamus declaring that “Fraternity” forms part of “Basic
Structure” of the Constitution;
d. Issue appropriate writ, order, decree in the nature of
mandamus directing mandatory suo motu registration of FIR
against authors of hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) by the
Union and State Governments, in the alternative, constitution
of a committee by the Union of India in consultation with
this Court for taking cognizance of hate/derogatory speeches
delivered within the territory of India with the power to
recommend initiation of criminal proceeding against the
authors;
e. Issue appropriate writ, order, decree in the nature of
mandamus directing mandatory imposition of “gag order”
restraining the author of hate/derogatory speeches made on
the lines of religion, caste, race and place of birth
(region) from addressing the public anywhere within the
territory of India till the disposal of the criminal
proceeding initiated against him as a necessary pre-condition
for grant of bail by the Magistrate;
f. Issue appropriate writ, order, decree in the nature of
mandamus directing speedy disposal of criminal proceedings
against authors of hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) within a
period of 6 months;
g. Issue appropriate writ, order, decree in the nature of
mandamus directing suspension of membership of authors of
hate/derogatory speeches made on the lines of religion,
caste, race and place of birth (region) from the Union/State
Legislature and other elected bodies till the final disposal
of the criminal proceedings;
h. Issue appropriate writ, order, decree in the nature of
mandamus directing termination of membership of authors of
hate/derogatory speech made on the lines of religion, caste,
race and place of birth (region) from the Union/State
Legislature and other elected bodies if found guilty;
i. Issue appropriate writ, order, decree in the nature of
mandamus directing de-recognition of the political party of
authors of hate/derogatory speech made on the lines of
religion, caste, race and place of birth (region) by the
Election Commission of India where the author is heading the
political party in exercise of power vested inter-alia under
Article 324 of the Constitution read with Sections 29A(5),
123(3) of the Representation of the People Act, 1951 and
Section 16A of the Election Symbols (Reservation and
Allotment) Order, 1968;
j. Issue appropriate writ, order, decree in the nature of
mandamus directing the Union of India to have concurrent
jurisdiction to prosecute authors of hate/derogatory speeches
in addition to the States in terms of the mandate of Articles
227, 355 read with Article 38 of the Constitution which merit
stringent pre-emptory action on part of the Central
Government;
k. Issue appropriate writ, order, decree in the nature of
mandamus directing the Union of India and respective States
to enforce Fundamental Duties under Article 51-A (a), (b),
(c), (e), (f), (i) & (j) of the Constitution by taking
proactive steps in promoting national integration and harmony
amongst the citizens of India;
l. Issue such other appropriate writ or direction that may be
deemed to be just and equitable in the facts and
circumstances of the case and in the interest of justice.”
=
It is desirable to put reasonable prohibition on unwarranted
actions but there may arise difficulty in confining the prohibition to
some manageable standard and in doing so, it may encompass all sorts
of speeches which needs to be avoided . For a long time the US courts
were content in upholding legislations curtailing “hate speech” and
related issues. However, of lately, the courts have shifted gears
thereby paving the way for myriad of rulings which side with
individual freedom of speech and expression as opposed to the order of
a manageable society. [See: Beauharnais v. Illinois, 343 U.S. 250
(1952); Brandenburg v. Ohio, 395 U.S. 444 (1969); and R.A.V. v. City
of St. Paul, 112 S. Ct. 2538 (1992)].
26. In view of the above, the law can be summarised to the effect
that if any action is taken by any person which is arbitrary,
unreasonable or otherwise in contravention of any statutory provisions
or penal law, the court can grant relief keeping in view the evidence
before it and considering the statutory provisions involved. However,
the court should not pass any judicially unmanageable order which is
incapable of enforcement.
27. As referred to herein above, the statutory provisions and
particularly the penal law provide sufficient remedy to curb the
menace of “hate speeches”. Thus, person aggrieved must resort to the
remedy provided under a particular statute. The root of the problem is
not the absence of laws but rather a lack of their effective
execution. Therefore, the executive as well as civil society has to
perform its role in enforcing the already existing legal regime.
Effective regulation of “hate speeches” at all levels is required as
the authors of such speeches can be booked under the existing penal
law and all the law enforcing agencies must ensure that the existing
law is not rendered a dead letter. Enforcement of the aforesaid
provisions is required being in consonance with the proposition
“salus reipublicae suprema lex” (safety of the state is the supreme
law).
28. Thus, we should not entertain a petition calling for issuing
certain directions which are incapable of enforcement/execution. The
National Human Rights Commission would be well within its power if it
decides to initiate suo-motu proceedings against the alleged authors
of hate speech.
However, in view of the fact that the Law Commission has
undertaken the study as to whether the Election Commission should be
conferred the power to de-recognise a political party disqualifying it
or its members, if a party or its members commit the offences referred
to hereinabove, we request the Law Commission to also examine the
issues raised herein thoroughly and also to consider, if it deems
proper, defining the expression “hate speech” and make recommendations
to the Parliament to strengthen the Election Commission to curb the
menace of “hate speeches” irrespective of whenever made.
With these observations, the writ petition stands disposed of.
A copy of the judgment be sent to the Hon’ble Chairman of Law
Commission of India.
2014(March. Part) judis.nic.in/supremecourt/filename=41312
B.S. CHAUHAN, M.Y. EQBAL, A.K. SIKRI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 157 OF 2013
Pravasi Bhalai Sangathan
…..Petitioner
VERSUS
Union of India & Ors.
…..Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. The instant writ petition has been preferred, by an organisation
dedicated to the welfare of inter-state migrants, in the nature of
public interest seeking exercise of this court’s extraordinary
jurisdiction under Article 32 of the Constitution of India, 1950
(hereinafter referred to as the ‘Constitution’) to remedy the concerns
that have arisen because of “hate speeches”, through the following
prayers:
a. Issue appropriate writ, order, decree in the nature of
mandamus declaring hate/derogatory speeches made by people
representatives/political/religious leaders on religion,
caste, region and ethnic lines are violative of Articles 14
(Equality before Law), 15 (Prohibition of discrimination on
grounds of religion, race, caste or place of birth), 16
(Equality in matters of public employment), 19 (Protection of
certain rights regarding freedom of speech etc.), 21
(Protection of Life and Personal Liberty) of Fundamental
Rights read with Article 38 of the Directive Principles of
State Policy and Fundamental Duties under Article 51-A(a),
(b), (c), (e), (f), (i) & (j) of the Constitution and merits
stringent pre-emptory action on part of the Central and State
governments;
b. Issue appropriate writ, order, decree in the nature of
mandamus declaring hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) to be an
act against the Union of India which undermines the unity and
integrity of the country and militates against non-
discrimination and fraternity;
c. Issue appropriate writ, order, decree in the nature of
mandamus declaring that “Fraternity” forms part of “Basic
Structure” of the Constitution;
d. Issue appropriate writ, order, decree in the nature of
mandamus directing mandatory suo motu registration of FIR
against authors of hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) by the
Union and State Governments, in the alternative, constitution
of a committee by the Union of India in consultation with
this Court for taking cognizance of hate/derogatory speeches
delivered within the territory of India with the power to
recommend initiation of criminal proceeding against the
authors;
e. Issue appropriate writ, order, decree in the nature of
mandamus directing mandatory imposition of “gag order”
restraining the author of hate/derogatory speeches made on
the lines of religion, caste, race and place of birth
(region) from addressing the public anywhere within the
territory of India till the disposal of the criminal
proceeding initiated against him as a necessary pre-condition
for grant of bail by the Magistrate;
f. Issue appropriate writ, order, decree in the nature of
mandamus directing speedy disposal of criminal proceedings
against authors of hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) within a
period of 6 months;
g. Issue appropriate writ, order, decree in the nature of
mandamus directing suspension of membership of authors of
hate/derogatory speeches made on the lines of religion,
caste, race and place of birth (region) from the Union/State
Legislature and other elected bodies till the final disposal
of the criminal proceedings;
h. Issue appropriate writ, order, decree in the nature of
mandamus directing termination of membership of authors of
hate/derogatory speech made on the lines of religion, caste,
race and place of birth (region) from the Union/State
Legislature and other elected bodies if found guilty;
i. Issue appropriate writ, order, decree in the nature of
mandamus directing de-recognition of the political party of
authors of hate/derogatory speech made on the lines of
religion, caste, race and place of birth (region) by the
Election Commission of India where the author is heading the
political party in exercise of power vested inter-alia under
Article 324 of the Constitution read with Sections 29A(5),
123(3) of the Representation of the People Act, 1951 and
Section 16A of the Election Symbols (Reservation and
Allotment) Order, 1968;
j. Issue appropriate writ, order, decree in the nature of
mandamus directing the Union of India to have concurrent
jurisdiction to prosecute authors of hate/derogatory speeches
in addition to the States in terms of the mandate of Articles
227, 355 read with Article 38 of the Constitution which merit
stringent pre-emptory action on part of the Central
Government;
k. Issue appropriate writ, order, decree in the nature of
mandamus directing the Union of India and respective States
to enforce Fundamental Duties under Article 51-A (a), (b),
(c), (e), (f), (i) & (j) of the Constitution by taking
proactive steps in promoting national integration and harmony
amongst the citizens of India;
l. Issue such other appropriate writ or direction that may be
deemed to be just and equitable in the facts and
circumstances of the case and in the interest of justice.”
2. Shri Basava Prabhu S. Patil, learned senior counsel appearing on
behalf of the petitioner, has submitted that the reliefs sought by the
petitioner is in consonance with the scheme of our Constitution as the
“hate speeches” delivered by elected representatives, political and
religious leaders mainly based on religion, caste, region or ethnicity
militate against the Constitutional idea of fraternity and violates
Articles 14, 15, 19, 21 read with Article 38 of the Constitution and
further is in derogation of the fundamental duties under Article 51-A
(a), (b), (c), (e), (f), (i), (j) of the Constitution and therefore
warrant stringent pre-emptory action on the part of Central and State
Governments. The existing law dealing with the subject matter is not
sufficient to cope with the menace of “hate speeches”. Hate/derogatory
speech has not been defined under any penal law. Accolade is given to
the author of such speeches and they also get political patronage. In
such fact-situation, this Court cannot remain merely a silent
spectator, rather has to play an important role and issue
guidelines/directions in exercise of its powers under Article 142 of
the Constitution which are necessary for the said purpose as the
existing legal frame work is not sufficient to control the menace of
“hate speeches”. Therefore, this Court should grant aforesaid
reliefs.
3. Shri Sidharth Luthra, learned ASG, Shri Rajiv Nanda, Shri Gaurav
Bhatia, learned AAG for the State of U.P., Ms. Asha Gopalan Nair, Shri
Gopal Singh, Ms. Ruchi Kohli, Shri C.D. Singh, and all other standing
counsel appearing on behalf of the respective States, have submitted
that there are various statutory provisions dealing with the subject
matter and the issue involved herein is a question of enforcement of
the said statutory provisions and any person aggrieved can put the law
into motion in such eventualities.
Shri Sidharth Luthra, learned ASG, has further submitted that
the issue of decriminalisation of politics as part of electoral
reforms is under consideration before this Court in Writ Petition (C)
No. 536 of 2011 and in the said matter, this Court had framed certain
issues and referred the matter to the Law Commission of India to study
the subject with regard to the Representation of People Act, 1951
(hereinafter referred to as “R.P.Act”) and may make appropriate
suggestions (report) to the Government of India vide order dated
16.12.2013 and, thus, Shri Luthra has suggested that in case there is
some deficiency in law, this Court should not act as super-
legislature, rather make a recommendation to the Law Commission to
undertake further study and submit its report to the Government of
India for its consideration/acceptance.
4. Ms. Meenakshi Arora, learned senior counsel appearing on behalf
of the Election Commission of India, has submitted that there are
various provisions like Section 29A(5) & (7) of the R.P. Act
empowering the Commission to examine the documents filed by a
political party at the time of its registration and the application so
filed must be accompanied by its constitution/rules which should
contain a specific provision to the effect that the association/body
would bear true faith and allegiance to the Constitution of India as
by law established and to the principles of socialism, secularism and
democracy and that they would uphold the sovereignty, integrity and
unity of India. However, it has been suggested that Election
Commission does not have the power to deregister/derecognise a
political party under the R.P. Act once it has been registered. A
registered political party is entitled to recognition as a State or
national party only upon fulfilling the conditions laid down in
paragraph 6A or 6B of the Election Symbols (Reservation and Allotment)
Order, 1968 (hereinafter referred to as “Symbols Order”). The
Election Commission in exercise of its powers under Paragraph 16A of
Symbols Order, can take appropriate action against a political party
on its failure to observe model code of conduct or in case the party
fails to observe or follow the lawful directions and instructions of
the Election Commission. The model code of conduct provides certain
guidelines inter-alia that no party or candidate shall indulge in any
activity which may aggravate existing differences or create mutual
hatred or cause tension between two different castes and communities,
religious or linguistic and no political party shall make an appeal on
the basis of caste or communal feelings for securing votes. It
further provides that no religious place shall be used as forum for
election propaganda. However, the Election Commission only has power
to control hate speeches during the subsistence of the code of conduct
and not otherwise.
5. The Law Commission of India has prepared a consultation paper
and studied the matter further on various issues including whether the
existing provisions (Constitutional or Statutory) relating to
disqualification to contest elections need to be amended?
The Law Commission had earlier in its 1998 recommendations
emphasised on the need to strengthen the provision relating to
disqualification and in view thereof, it has been submitted by Ms.
Arora that it is only for the legislature to amend the law and empower
the Election Commission to perform a balancing act in following the
mandate of the relevant Constitutional and statutory provisions.
6. The Supreme Court of Canada in Saskatchewan (Human Rights
Commission) v. Whatcott 2013 SCC 11, succeeded in bringing out the
“human rights” obligations leading to control on publication of
“hate speeches” for protection of human rights defining the expression
“hate speech” observing that the definition of “hatred” set out in
Canada (Human Rights Commission) v. Taylor, (1990) 3 SCR 892, with
some modifications, provides a workable approach to interpreting the
word “hatred” as is used in legislative provisions prohibiting hate
speech. Three main prescriptions must be followed. First, courts must
apply the hate speech prohibition objectively. The question courts
must ask is whether a reasonable person, aware of the context and
circumstances, would view the expression as exposing the protected
group to hatred. Second, the legislative term “hatred” or “hatred or
contempt” must be interpreted as being restricted to those extreme
manifestations of the emotion described by the words
“detestation” and “vilification”. This filters out expression which,
while repugnant and offensive, does not incite the level of
abhorrence, delegitimisation and rejection that risks causing
discrimination or other harmful effects. Third, tribunals must focus
their analysis on the effect of the expression at issue, namely
whether it is likely to expose the targeted person or group to hatred
by others. The repugnancy of the ideas being expressed is not
sufficient to justify restricting the expression, and whether or
not the author of the expression intended to incite hatred or
discriminatory treatment is irrelevant. The key is to determine the
likely effect of the expression on its audience, keeping in mind the
legislative objectives to reduce or eliminate
discrimination.
7. Hate speech is an effort to marginalise individuals based on
their membership in a group. Using expression that exposes the group
to hatred, hate speech seeks to delegitimise group members in the eyes
of the majority, reducing their social standing and acceptance within
society. Hate speech, therefore, rises beyond causing distress to
individual group members. It can have a societal impact. Hate
speech lays the groundwork for later, broad attacks on vulnerable that
can range from discrimination, to ostracism, segregation, deportation,
violence and, in the most extreme cases, to genocide. Hate speech
also impacts a protected group’s ability to respond to the substantive
ideas under debate, thereby placing a serious barrier to their full
participation in our democracy.
8. Black’s Law Dictionary, 9th Edn. defines the expression ‘hate
speech’ as under:
“Speech that carries no meaning other than the
expression of hatred for some group, such as a particular race,
especially in circumstances in which the
communication is likely to provoke violence.”
9. In Ramesh v. Union of India, AIR 1988 SC 775, while dealing with
the subject, this Court observed:
“..that the effect of the words must be judged from the
standards of reasonable, strong-minded, firm and
courageous men, and not those of weak and vacillating minds, nor
of those who scent danger in every hostile point of view.”
10. Given such disastrous consequences of hate speeches, the Indian
legal framework has enacted several statutory provisions dealing with
the subject which are referred to as under:
|Sl.No. |Statute |Provisions |
|1. |Indian Penal Code, 1860 |Sections 124A, 153A,|
| | |153B, 295-A, 298, |
| | |505(1), 505(2) |
|2. |The Representation of People Act, |Sections 8, 123 |
| |1951 |(3A), 125 |
|3. |Information Technology Act, 2000 &|Sections 66A, 69, |
| |Information Technology |69A |
| |(Intermediaries guidelines) Rules,|Rule 3(2)(b), Rule |
| |2011 |3(2)(i) |
|4. |Code of Criminal Procedure, 1973 |Sections 95, 107, |
| | |144, 151, 160 |
|5. |Unlawful Activities (Prevention) |Sections 2(f), 10, |
| |Act, 1967 |11, 12 |
|6. |Protection of Civil Rights Act, |Section 7 |
| |1955 | |
|7. |Religious Institutions (Prevention|Sections 3 and 6 |
| |of Misuse) Act, 1980 | |
|8. |The Cable Television Networks |Sections |
| |(Regulation) Act, 1995 and The |5,6,11,12,16, 17, |
| |Cable Television Network (Rules), |19, 20 & Rules 6 & 7|
| |1994 | |
|9. |The Cinematographers Act, 1952 |Sections 4, 5B, 7 |
11. In addition thereto, the Central Government has always provided
support to the State Governments and Union Territory administrations
in several ways to maintain communal harmony in the country and in
case of need the Central Government also sends advisories in this
regard from time to time. However, in such cases, as police and
public order being a State subject under the 7th Schedule of
Constitution, the responsibility of registration and prosecution of
crime including those involved in hate speeches, primarily rests with
the respective State Governments.
12. The Central Government has also issued revised guidelines to
promote communal harmony to the States and Union Territories in 2008
which provides inter-alia that strict action should be taken against
anyone inflaming passions and stroking communal tension by intemperate
and inflammatory speeches and utterances.
The “Guidelines On Communal Harmony, 2008” issued by the
Ministry of Home Affairs, Government of India seek to prevent and
avoid communal disturbances/riots and in the event of such
disturbances occurring, action to control the same and measures to
provide assistance and relief to the affected persons are provided
therein including rehabilitation. The detailed guidelines have been
issued to take preventive/remedial measures and to impose
responsibilities of the administration and to enforce the same.
Various modalities have been formulated to deal with the issue which
have been emphasised on participation of the stake holders.
13. So far as the statutory provisions, as referred to hereinabove,
are concerned, Section 124A of Indian Penal Code, 1860 (hereinafter
referred to as the ‘IPC’) makes sedition an offence punishable, i.e.,
when any person attempts to bring into hatred or contempt or attempts
to excite disaffection towards the Government established by law.
(Vide: Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955)
14. Sections 153A and 153B IPC makes any act which promotes enmity
between the groups on grounds of religions and race etc. or which are
prejudicial to national integration punishable. The purpose of
enactment of such a provision was to “check fissiparous communal and
separatist tendencies and secure fraternity so as to ensure the
dignity of the individual and the unity of the nation”. Undoubtedly,
religious freedom may be accompanied by liberty of expression of
religious opinions together with the liberty to reasonably criticise
the religious beliefs of others, but as has been held by courts time
and again, with powers come responsibility.
15. Section 295A IPC deals with offences related to religion and
provides for a punishment upto 3 years for speech, writings or signs
which are made with deliberate and malicious intention to insult the
religion or the religious beliefs of any class of citizens. This
Court in Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, has upheld
the Constitutional validity of the section.
16. Likewise Section 298 IPC provides that any act with deliberate
and malicious intention of hurting the religious feelings of any
person is punishable. However, Section 295A IPC deals with far more
serious offences.
Furthermore, Section 505(2) IPC provides that making statements
that create or promote enmity, hatred or ill-will between different
classes of society is a punishable offence involving imprisonment upto
three years or fine or both.
17. The Protection of Civil Rights Act 1955, which was enacted to
supplement the constitutional mandate of abolishing ‘untouchability’
in India, contains provisions penalizing hate speech against the
historically marginalised ‘dalit’ communities. Section 7(1)(c) of the
Act prohibits the incitement or encouragement of the practice of
‘untouchability’ in any form (by words, either spoken or written, or
by signs or by visible representations or otherwise) by any person or
class of persons or the public generally. Similarly, intentional
public humiliation of members of the ‘Scheduled Castes’ and ‘Scheduled
Tribes’ is penalized under the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
18. Section 123(3) of the R.P. Act, provides inter-alia that no
party or candidate shall appeal for vote on the ground of religion,
race, caste, community, language etc.
Section 125 of the R.P.Act further restrains any political party
or the candidate to create feelings of enmity or hatred between
different classes of citizens of India by making such an act a
punishable offence.
19. Article 20(2) of the International Covenant on Civil & Political
Rights, 1966 (ICCPR) restrains advocacy of national, racial or
religious hatred that may result in incitement for discrimination,
hostility or violence classifying it as prohibited by law.
Similarly Articles 4 and 6 of the International Convention on
the Elimination of All Forms of Racial Discrimination, 1965 (lCERD)
prohibits the elements of hate speech and mandates the member states
to make a law prohibiting any kind of hate speech through a suitable
framework of law.
20. Thus, it is evident that the Legislature had already provided
sufficient and effective remedy for prosecution of the author, who
indulge in such activities. In spite of the above, petitioner sought
reliefs which tantamount to legislation. This Court has persistently
held that our Constitution clearly provides for separation of powers
and the court merely applies the law that it gets from the
legislature. Consequently, the Anglo-Saxon legal tradition has
insisted that the judges should only reflect the law regardless of the
anticipated consequences, considerations of fairness or public policy
and the judge is simply not authorised to legislate law. “If there is
a law, Judges can certainly enforce it, but Judges cannot create a law
and seek to enforce it.” The court cannot re-write, re-cast or reframe
the legislation for the very good reason that it has no power to
legislate. The very power to legislate has not been conferred on the
courts. However, of lately, judicial activism of the superior courts
in India has raised pubic eyebrow time and again. Though judicial
activism is regarded as the active interpretation of an existing
provision with the view of enhancing the utility of legislation for
social betterment in accordance with the Constitution, the courts
under its garb have actively strived to achieve the constitutional
aspirations of socio-economic justice. In many cases, this Court
issued various guidelines/directions to prevent fraud upon the
statutes, or when it was found that certain beneficiary provisions
were being mis-used by the undeserving persons, depriving the
legitimate claims of eligible persons. (See: S.P. Gupta v. Union of
India & Anr., AIR 1982 SC 149; Bandhua Mukti Morcha v. Union of India
& Ors., AIR 1984 SC 802; Union of India & Anr. v. Deoki Nandan
Aggarwal, AIR 1992 SC 96; Supreme Court Advocates-on-Record
Association & Ors. v. Union of India, AIR 1994 SC 268; Vishaka & Ors.
v. State of Rajasthan & Ors., AIR 1997 SC 3011; Divisional Manager,
Aravali Golf Club & Anr. v. Chander Hass & Anr., (2008) 1 SCC 683; and
Common Cause (A Regd. Society) v. Union of India & Ors., (2008) 5 SCC
511).
21. While explaining the scope of Article 141 of the Constitution,
in Nand Kishore v. State of Punjab, (1995) 6 SCC 614, this Court held
as under:
“Their Lordships decisions declare the existing law but do not
enact any fresh law, is not in keeping with the plenary function
of the Supreme Court under Article 141 of the Constitution, for
the Court is not merely the interpreter of the law as existing,
but much beyond that. The Court as a wing of the State is by
itself a source of law. The law is what the Court says it is.”
22. Be that as it may, this Court has consistently clarified that
the directions have been issued by the Court only when there has been
a total vacuum in law, i.e. complete absence of active law to provide
for the effective enforcement of a basic human right. In case there is
inaction on the part of the executive for whatsoever reason, the court
has stepped in, in exercise of its constitutional obligations to
enforce the law. In case of vacuum of legal regime to deal with a
particular situation the court may issue guidelines to provide
absolution till such time as the legislature acts to perform its role
by enacting proper legislation to cover the field. Thus, direction can
be issued only in a situation where the will of the elected
legislature has not yet been expressed.
23. Further, the court should not grant a relief or pass
order/direction which is not capable of implementation. This Court in
State of U.P. & Anr. v. U.P. Rajya Khanij Vikas Nigam Sangarsh Samiti
& Ors., (2008) 12 SCC 675, has held as under:
“48. To us, one of the considerations in such matters is whether
an order passed or direction issued is susceptible of
implementation and enforcement, and if it is not implemented
whether appropriate proceedings including proceedings for wilful
disobedience of the order of the Court can be initiated against
the opposite party. The direction issued by the High Court falls
short of this test and on that ground also, the order is
vulnerable.” (Emphasis
added)
24. Judicial review is subject to the principles of judicial
restraint and must not become unmanageable in other aspects. (Vide:
King Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18; State of Haryana &
Ors. v. Ch. Bhajan Lal & Ors. v., AIR 1992 SC 604; and Akhilesh Yadav
Etc. v. Vishwanath Chaturvedi, (2013) 2 SCC 1).
25. It is desirable to put reasonable prohibition on unwarranted
actions but there may arise difficulty in confining the prohibition to
some manageable standard and in doing so, it may encompass all sorts
of speeches which needs to be avoided . For a long time the US courts
were content in upholding legislations curtailing “hate speech” and
related issues. However, of lately, the courts have shifted gears
thereby paving the way for myriad of rulings which side with
individual freedom of speech and expression as opposed to the order of
a manageable society. [See: Beauharnais v. Illinois, 343 U.S. 250
(1952); Brandenburg v. Ohio, 395 U.S. 444 (1969); and R.A.V. v. City
of St. Paul, 112 S. Ct. 2538 (1992)].
26. In view of the above, the law can be summarised to the effect
that if any action is taken by any person which is arbitrary,
unreasonable or otherwise in contravention of any statutory provisions
or penal law, the court can grant relief keeping in view the evidence
before it and considering the statutory provisions involved. However,
the court should not pass any judicially unmanageable order which is
incapable of enforcement.
27. As referred to herein above, the statutory provisions and
particularly the penal law provide sufficient remedy to curb the
menace of “hate speeches”. Thus, person aggrieved must resort to the
remedy provided under a particular statute. The root of the problem is
not the absence of laws but rather a lack of their effective
execution. Therefore, the executive as well as civil society has to
perform its role in enforcing the already existing legal regime.
Effective regulation of “hate speeches” at all levels is required as
the authors of such speeches can be booked under the existing penal
law and all the law enforcing agencies must ensure that the existing
law is not rendered a dead letter. Enforcement of the aforesaid
provisions is required being in consonance with the proposition
“salus reipublicae suprema lex” (safety of the state is the supreme
law).
28. Thus, we should not entertain a petition calling for issuing
certain directions which are incapable of enforcement/execution. The
National Human Rights Commission would be well within its power if it
decides to initiate suo-motu proceedings against the alleged authors
of hate speech.
However, in view of the fact that the Law Commission has
undertaken the study as to whether the Election Commission should be
conferred the power to de-recognise a political party disqualifying it
or its members, if a party or its members commit the offences referred
to hereinabove, we request the Law Commission to also examine the
issues raised herein thoroughly and also to consider, if it deems
proper, defining the expression “hate speech” and make recommendations
to the Parliament to strengthen the Election Commission to curb the
menace of “hate speeches” irrespective of whenever made.
With these observations, the writ petition stands disposed of.
A copy of the judgment be sent to the Hon’ble Chairman of Law
Commission of India.
…………………………….J.
(Dr. B.S. CHAUHAN)
…………………………….J.
(M.Y. EQBAL)
…………………………….J.
(A.K. SIKRI)
New Delhi,
March 12, 2014.
-----------------------
22
a. Issue appropriate writ, order, decree in the nature of
mandamus declaring hate/derogatory speeches made by people
representatives/political/religious leaders on religion,
caste, region and ethnic lines are violative of Articles 14
(Equality before Law), 15 (Prohibition of discrimination on
grounds of religion, race, caste or place of birth), 16
(Equality in matters of public employment), 19 (Protection of
certain rights regarding freedom of speech etc.), 21
(Protection of Life and Personal Liberty) of Fundamental
Rights read with Article 38 of the Directive Principles of
State Policy and Fundamental Duties under Article 51-A(a),
(b), (c), (e), (f), (i) & (j) of the Constitution and merits
stringent pre-emptory action on part of the Central and State
governments;
b. Issue appropriate writ, order, decree in the nature of
mandamus declaring hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) to be an
act against the Union of India which undermines the unity and
integrity of the country and militates against non-
discrimination and fraternity;
c. Issue appropriate writ, order, decree in the nature of
mandamus declaring that “Fraternity” forms part of “Basic
Structure” of the Constitution;
d. Issue appropriate writ, order, decree in the nature of
mandamus directing mandatory suo motu registration of FIR
against authors of hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) by the
Union and State Governments, in the alternative, constitution
of a committee by the Union of India in consultation with
this Court for taking cognizance of hate/derogatory speeches
delivered within the territory of India with the power to
recommend initiation of criminal proceeding against the
authors;
e. Issue appropriate writ, order, decree in the nature of
mandamus directing mandatory imposition of “gag order”
restraining the author of hate/derogatory speeches made on
the lines of religion, caste, race and place of birth
(region) from addressing the public anywhere within the
territory of India till the disposal of the criminal
proceeding initiated against him as a necessary pre-condition
for grant of bail by the Magistrate;
f. Issue appropriate writ, order, decree in the nature of
mandamus directing speedy disposal of criminal proceedings
against authors of hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) within a
period of 6 months;
g. Issue appropriate writ, order, decree in the nature of
mandamus directing suspension of membership of authors of
hate/derogatory speeches made on the lines of religion,
caste, race and place of birth (region) from the Union/State
Legislature and other elected bodies till the final disposal
of the criminal proceedings;
h. Issue appropriate writ, order, decree in the nature of
mandamus directing termination of membership of authors of
hate/derogatory speech made on the lines of religion, caste,
race and place of birth (region) from the Union/State
Legislature and other elected bodies if found guilty;
i. Issue appropriate writ, order, decree in the nature of
mandamus directing de-recognition of the political party of
authors of hate/derogatory speech made on the lines of
religion, caste, race and place of birth (region) by the
Election Commission of India where the author is heading the
political party in exercise of power vested inter-alia under
Article 324 of the Constitution read with Sections 29A(5),
123(3) of the Representation of the People Act, 1951 and
Section 16A of the Election Symbols (Reservation and
Allotment) Order, 1968;
j. Issue appropriate writ, order, decree in the nature of
mandamus directing the Union of India to have concurrent
jurisdiction to prosecute authors of hate/derogatory speeches
in addition to the States in terms of the mandate of Articles
227, 355 read with Article 38 of the Constitution which merit
stringent pre-emptory action on part of the Central
Government;
k. Issue appropriate writ, order, decree in the nature of
mandamus directing the Union of India and respective States
to enforce Fundamental Duties under Article 51-A (a), (b),
(c), (e), (f), (i) & (j) of the Constitution by taking
proactive steps in promoting national integration and harmony
amongst the citizens of India;
l. Issue such other appropriate writ or direction that may be
deemed to be just and equitable in the facts and
circumstances of the case and in the interest of justice.”
=
It is desirable to put reasonable prohibition on unwarranted
actions but there may arise difficulty in confining the prohibition to
some manageable standard and in doing so, it may encompass all sorts
of speeches which needs to be avoided . For a long time the US courts
were content in upholding legislations curtailing “hate speech” and
related issues. However, of lately, the courts have shifted gears
thereby paving the way for myriad of rulings which side with
individual freedom of speech and expression as opposed to the order of
a manageable society. [See: Beauharnais v. Illinois, 343 U.S. 250
(1952); Brandenburg v. Ohio, 395 U.S. 444 (1969); and R.A.V. v. City
of St. Paul, 112 S. Ct. 2538 (1992)].
26. In view of the above, the law can be summarised to the effect
that if any action is taken by any person which is arbitrary,
unreasonable or otherwise in contravention of any statutory provisions
or penal law, the court can grant relief keeping in view the evidence
before it and considering the statutory provisions involved. However,
the court should not pass any judicially unmanageable order which is
incapable of enforcement.
27. As referred to herein above, the statutory provisions and
particularly the penal law provide sufficient remedy to curb the
menace of “hate speeches”. Thus, person aggrieved must resort to the
remedy provided under a particular statute. The root of the problem is
not the absence of laws but rather a lack of their effective
execution. Therefore, the executive as well as civil society has to
perform its role in enforcing the already existing legal regime.
Effective regulation of “hate speeches” at all levels is required as
the authors of such speeches can be booked under the existing penal
law and all the law enforcing agencies must ensure that the existing
law is not rendered a dead letter. Enforcement of the aforesaid
provisions is required being in consonance with the proposition
“salus reipublicae suprema lex” (safety of the state is the supreme
law).
28. Thus, we should not entertain a petition calling for issuing
certain directions which are incapable of enforcement/execution. The
National Human Rights Commission would be well within its power if it
decides to initiate suo-motu proceedings against the alleged authors
of hate speech.
However, in view of the fact that the Law Commission has
undertaken the study as to whether the Election Commission should be
conferred the power to de-recognise a political party disqualifying it
or its members, if a party or its members commit the offences referred
to hereinabove, we request the Law Commission to also examine the
issues raised herein thoroughly and also to consider, if it deems
proper, defining the expression “hate speech” and make recommendations
to the Parliament to strengthen the Election Commission to curb the
menace of “hate speeches” irrespective of whenever made.
With these observations, the writ petition stands disposed of.
A copy of the judgment be sent to the Hon’ble Chairman of Law
Commission of India.
2014(March. Part) judis.nic.in/supremecourt/filename=41312
B.S. CHAUHAN, M.Y. EQBAL, A.K. SIKRI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 157 OF 2013
Pravasi Bhalai Sangathan
…..Petitioner
VERSUS
Union of India & Ors.
…..Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. The instant writ petition has been preferred, by an organisation
dedicated to the welfare of inter-state migrants, in the nature of
public interest seeking exercise of this court’s extraordinary
jurisdiction under Article 32 of the Constitution of India, 1950
(hereinafter referred to as the ‘Constitution’) to remedy the concerns
that have arisen because of “hate speeches”, through the following
prayers:
a. Issue appropriate writ, order, decree in the nature of
mandamus declaring hate/derogatory speeches made by people
representatives/political/religious leaders on religion,
caste, region and ethnic lines are violative of Articles 14
(Equality before Law), 15 (Prohibition of discrimination on
grounds of religion, race, caste or place of birth), 16
(Equality in matters of public employment), 19 (Protection of
certain rights regarding freedom of speech etc.), 21
(Protection of Life and Personal Liberty) of Fundamental
Rights read with Article 38 of the Directive Principles of
State Policy and Fundamental Duties under Article 51-A(a),
(b), (c), (e), (f), (i) & (j) of the Constitution and merits
stringent pre-emptory action on part of the Central and State
governments;
b. Issue appropriate writ, order, decree in the nature of
mandamus declaring hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) to be an
act against the Union of India which undermines the unity and
integrity of the country and militates against non-
discrimination and fraternity;
c. Issue appropriate writ, order, decree in the nature of
mandamus declaring that “Fraternity” forms part of “Basic
Structure” of the Constitution;
d. Issue appropriate writ, order, decree in the nature of
mandamus directing mandatory suo motu registration of FIR
against authors of hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) by the
Union and State Governments, in the alternative, constitution
of a committee by the Union of India in consultation with
this Court for taking cognizance of hate/derogatory speeches
delivered within the territory of India with the power to
recommend initiation of criminal proceeding against the
authors;
e. Issue appropriate writ, order, decree in the nature of
mandamus directing mandatory imposition of “gag order”
restraining the author of hate/derogatory speeches made on
the lines of religion, caste, race and place of birth
(region) from addressing the public anywhere within the
territory of India till the disposal of the criminal
proceeding initiated against him as a necessary pre-condition
for grant of bail by the Magistrate;
f. Issue appropriate writ, order, decree in the nature of
mandamus directing speedy disposal of criminal proceedings
against authors of hate/derogatory speeches made on the lines
of religion, caste, race and place of birth (region) within a
period of 6 months;
g. Issue appropriate writ, order, decree in the nature of
mandamus directing suspension of membership of authors of
hate/derogatory speeches made on the lines of religion,
caste, race and place of birth (region) from the Union/State
Legislature and other elected bodies till the final disposal
of the criminal proceedings;
h. Issue appropriate writ, order, decree in the nature of
mandamus directing termination of membership of authors of
hate/derogatory speech made on the lines of religion, caste,
race and place of birth (region) from the Union/State
Legislature and other elected bodies if found guilty;
i. Issue appropriate writ, order, decree in the nature of
mandamus directing de-recognition of the political party of
authors of hate/derogatory speech made on the lines of
religion, caste, race and place of birth (region) by the
Election Commission of India where the author is heading the
political party in exercise of power vested inter-alia under
Article 324 of the Constitution read with Sections 29A(5),
123(3) of the Representation of the People Act, 1951 and
Section 16A of the Election Symbols (Reservation and
Allotment) Order, 1968;
j. Issue appropriate writ, order, decree in the nature of
mandamus directing the Union of India to have concurrent
jurisdiction to prosecute authors of hate/derogatory speeches
in addition to the States in terms of the mandate of Articles
227, 355 read with Article 38 of the Constitution which merit
stringent pre-emptory action on part of the Central
Government;
k. Issue appropriate writ, order, decree in the nature of
mandamus directing the Union of India and respective States
to enforce Fundamental Duties under Article 51-A (a), (b),
(c), (e), (f), (i) & (j) of the Constitution by taking
proactive steps in promoting national integration and harmony
amongst the citizens of India;
l. Issue such other appropriate writ or direction that may be
deemed to be just and equitable in the facts and
circumstances of the case and in the interest of justice.”
2. Shri Basava Prabhu S. Patil, learned senior counsel appearing on
behalf of the petitioner, has submitted that the reliefs sought by the
petitioner is in consonance with the scheme of our Constitution as the
“hate speeches” delivered by elected representatives, political and
religious leaders mainly based on religion, caste, region or ethnicity
militate against the Constitutional idea of fraternity and violates
Articles 14, 15, 19, 21 read with Article 38 of the Constitution and
further is in derogation of the fundamental duties under Article 51-A
(a), (b), (c), (e), (f), (i), (j) of the Constitution and therefore
warrant stringent pre-emptory action on the part of Central and State
Governments. The existing law dealing with the subject matter is not
sufficient to cope with the menace of “hate speeches”. Hate/derogatory
speech has not been defined under any penal law. Accolade is given to
the author of such speeches and they also get political patronage. In
such fact-situation, this Court cannot remain merely a silent
spectator, rather has to play an important role and issue
guidelines/directions in exercise of its powers under Article 142 of
the Constitution which are necessary for the said purpose as the
existing legal frame work is not sufficient to control the menace of
“hate speeches”. Therefore, this Court should grant aforesaid
reliefs.
3. Shri Sidharth Luthra, learned ASG, Shri Rajiv Nanda, Shri Gaurav
Bhatia, learned AAG for the State of U.P., Ms. Asha Gopalan Nair, Shri
Gopal Singh, Ms. Ruchi Kohli, Shri C.D. Singh, and all other standing
counsel appearing on behalf of the respective States, have submitted
that there are various statutory provisions dealing with the subject
matter and the issue involved herein is a question of enforcement of
the said statutory provisions and any person aggrieved can put the law
into motion in such eventualities.
Shri Sidharth Luthra, learned ASG, has further submitted that
the issue of decriminalisation of politics as part of electoral
reforms is under consideration before this Court in Writ Petition (C)
No. 536 of 2011 and in the said matter, this Court had framed certain
issues and referred the matter to the Law Commission of India to study
the subject with regard to the Representation of People Act, 1951
(hereinafter referred to as “R.P.Act”) and may make appropriate
suggestions (report) to the Government of India vide order dated
16.12.2013 and, thus, Shri Luthra has suggested that in case there is
some deficiency in law, this Court should not act as super-
legislature, rather make a recommendation to the Law Commission to
undertake further study and submit its report to the Government of
India for its consideration/acceptance.
4. Ms. Meenakshi Arora, learned senior counsel appearing on behalf
of the Election Commission of India, has submitted that there are
various provisions like Section 29A(5) & (7) of the R.P. Act
empowering the Commission to examine the documents filed by a
political party at the time of its registration and the application so
filed must be accompanied by its constitution/rules which should
contain a specific provision to the effect that the association/body
would bear true faith and allegiance to the Constitution of India as
by law established and to the principles of socialism, secularism and
democracy and that they would uphold the sovereignty, integrity and
unity of India. However, it has been suggested that Election
Commission does not have the power to deregister/derecognise a
political party under the R.P. Act once it has been registered. A
registered political party is entitled to recognition as a State or
national party only upon fulfilling the conditions laid down in
paragraph 6A or 6B of the Election Symbols (Reservation and Allotment)
Order, 1968 (hereinafter referred to as “Symbols Order”). The
Election Commission in exercise of its powers under Paragraph 16A of
Symbols Order, can take appropriate action against a political party
on its failure to observe model code of conduct or in case the party
fails to observe or follow the lawful directions and instructions of
the Election Commission. The model code of conduct provides certain
guidelines inter-alia that no party or candidate shall indulge in any
activity which may aggravate existing differences or create mutual
hatred or cause tension between two different castes and communities,
religious or linguistic and no political party shall make an appeal on
the basis of caste or communal feelings for securing votes. It
further provides that no religious place shall be used as forum for
election propaganda. However, the Election Commission only has power
to control hate speeches during the subsistence of the code of conduct
and not otherwise.
5. The Law Commission of India has prepared a consultation paper
and studied the matter further on various issues including whether the
existing provisions (Constitutional or Statutory) relating to
disqualification to contest elections need to be amended?
The Law Commission had earlier in its 1998 recommendations
emphasised on the need to strengthen the provision relating to
disqualification and in view thereof, it has been submitted by Ms.
Arora that it is only for the legislature to amend the law and empower
the Election Commission to perform a balancing act in following the
mandate of the relevant Constitutional and statutory provisions.
6. The Supreme Court of Canada in Saskatchewan (Human Rights
Commission) v. Whatcott 2013 SCC 11, succeeded in bringing out the
“human rights” obligations leading to control on publication of
“hate speeches” for protection of human rights defining the expression
“hate speech” observing that the definition of “hatred” set out in
Canada (Human Rights Commission) v. Taylor, (1990) 3 SCR 892, with
some modifications, provides a workable approach to interpreting the
word “hatred” as is used in legislative provisions prohibiting hate
speech. Three main prescriptions must be followed. First, courts must
apply the hate speech prohibition objectively. The question courts
must ask is whether a reasonable person, aware of the context and
circumstances, would view the expression as exposing the protected
group to hatred. Second, the legislative term “hatred” or “hatred or
contempt” must be interpreted as being restricted to those extreme
manifestations of the emotion described by the words
“detestation” and “vilification”. This filters out expression which,
while repugnant and offensive, does not incite the level of
abhorrence, delegitimisation and rejection that risks causing
discrimination or other harmful effects. Third, tribunals must focus
their analysis on the effect of the expression at issue, namely
whether it is likely to expose the targeted person or group to hatred
by others. The repugnancy of the ideas being expressed is not
sufficient to justify restricting the expression, and whether or
not the author of the expression intended to incite hatred or
discriminatory treatment is irrelevant. The key is to determine the
likely effect of the expression on its audience, keeping in mind the
legislative objectives to reduce or eliminate
discrimination.
7. Hate speech is an effort to marginalise individuals based on
their membership in a group. Using expression that exposes the group
to hatred, hate speech seeks to delegitimise group members in the eyes
of the majority, reducing their social standing and acceptance within
society. Hate speech, therefore, rises beyond causing distress to
individual group members. It can have a societal impact. Hate
speech lays the groundwork for later, broad attacks on vulnerable that
can range from discrimination, to ostracism, segregation, deportation,
violence and, in the most extreme cases, to genocide. Hate speech
also impacts a protected group’s ability to respond to the substantive
ideas under debate, thereby placing a serious barrier to their full
participation in our democracy.
8. Black’s Law Dictionary, 9th Edn. defines the expression ‘hate
speech’ as under:
“Speech that carries no meaning other than the
expression of hatred for some group, such as a particular race,
especially in circumstances in which the
communication is likely to provoke violence.”
9. In Ramesh v. Union of India, AIR 1988 SC 775, while dealing with
the subject, this Court observed:
“..that the effect of the words must be judged from the
standards of reasonable, strong-minded, firm and
courageous men, and not those of weak and vacillating minds, nor
of those who scent danger in every hostile point of view.”
10. Given such disastrous consequences of hate speeches, the Indian
legal framework has enacted several statutory provisions dealing with
the subject which are referred to as under:
|Sl.No. |Statute |Provisions |
|1. |Indian Penal Code, 1860 |Sections 124A, 153A,|
| | |153B, 295-A, 298, |
| | |505(1), 505(2) |
|2. |The Representation of People Act, |Sections 8, 123 |
| |1951 |(3A), 125 |
|3. |Information Technology Act, 2000 &|Sections 66A, 69, |
| |Information Technology |69A |
| |(Intermediaries guidelines) Rules,|Rule 3(2)(b), Rule |
| |2011 |3(2)(i) |
|4. |Code of Criminal Procedure, 1973 |Sections 95, 107, |
| | |144, 151, 160 |
|5. |Unlawful Activities (Prevention) |Sections 2(f), 10, |
| |Act, 1967 |11, 12 |
|6. |Protection of Civil Rights Act, |Section 7 |
| |1955 | |
|7. |Religious Institutions (Prevention|Sections 3 and 6 |
| |of Misuse) Act, 1980 | |
|8. |The Cable Television Networks |Sections |
| |(Regulation) Act, 1995 and The |5,6,11,12,16, 17, |
| |Cable Television Network (Rules), |19, 20 & Rules 6 & 7|
| |1994 | |
|9. |The Cinematographers Act, 1952 |Sections 4, 5B, 7 |
11. In addition thereto, the Central Government has always provided
support to the State Governments and Union Territory administrations
in several ways to maintain communal harmony in the country and in
case of need the Central Government also sends advisories in this
regard from time to time. However, in such cases, as police and
public order being a State subject under the 7th Schedule of
Constitution, the responsibility of registration and prosecution of
crime including those involved in hate speeches, primarily rests with
the respective State Governments.
12. The Central Government has also issued revised guidelines to
promote communal harmony to the States and Union Territories in 2008
which provides inter-alia that strict action should be taken against
anyone inflaming passions and stroking communal tension by intemperate
and inflammatory speeches and utterances.
The “Guidelines On Communal Harmony, 2008” issued by the
Ministry of Home Affairs, Government of India seek to prevent and
avoid communal disturbances/riots and in the event of such
disturbances occurring, action to control the same and measures to
provide assistance and relief to the affected persons are provided
therein including rehabilitation. The detailed guidelines have been
issued to take preventive/remedial measures and to impose
responsibilities of the administration and to enforce the same.
Various modalities have been formulated to deal with the issue which
have been emphasised on participation of the stake holders.
13. So far as the statutory provisions, as referred to hereinabove,
are concerned, Section 124A of Indian Penal Code, 1860 (hereinafter
referred to as the ‘IPC’) makes sedition an offence punishable, i.e.,
when any person attempts to bring into hatred or contempt or attempts
to excite disaffection towards the Government established by law.
(Vide: Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955)
14. Sections 153A and 153B IPC makes any act which promotes enmity
between the groups on grounds of religions and race etc. or which are
prejudicial to national integration punishable. The purpose of
enactment of such a provision was to “check fissiparous communal and
separatist tendencies and secure fraternity so as to ensure the
dignity of the individual and the unity of the nation”. Undoubtedly,
religious freedom may be accompanied by liberty of expression of
religious opinions together with the liberty to reasonably criticise
the religious beliefs of others, but as has been held by courts time
and again, with powers come responsibility.
15. Section 295A IPC deals with offences related to religion and
provides for a punishment upto 3 years for speech, writings or signs
which are made with deliberate and malicious intention to insult the
religion or the religious beliefs of any class of citizens. This
Court in Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, has upheld
the Constitutional validity of the section.
16. Likewise Section 298 IPC provides that any act with deliberate
and malicious intention of hurting the religious feelings of any
person is punishable. However, Section 295A IPC deals with far more
serious offences.
Furthermore, Section 505(2) IPC provides that making statements
that create or promote enmity, hatred or ill-will between different
classes of society is a punishable offence involving imprisonment upto
three years or fine or both.
17. The Protection of Civil Rights Act 1955, which was enacted to
supplement the constitutional mandate of abolishing ‘untouchability’
in India, contains provisions penalizing hate speech against the
historically marginalised ‘dalit’ communities. Section 7(1)(c) of the
Act prohibits the incitement or encouragement of the practice of
‘untouchability’ in any form (by words, either spoken or written, or
by signs or by visible representations or otherwise) by any person or
class of persons or the public generally. Similarly, intentional
public humiliation of members of the ‘Scheduled Castes’ and ‘Scheduled
Tribes’ is penalized under the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
18. Section 123(3) of the R.P. Act, provides inter-alia that no
party or candidate shall appeal for vote on the ground of religion,
race, caste, community, language etc.
Section 125 of the R.P.Act further restrains any political party
or the candidate to create feelings of enmity or hatred between
different classes of citizens of India by making such an act a
punishable offence.
19. Article 20(2) of the International Covenant on Civil & Political
Rights, 1966 (ICCPR) restrains advocacy of national, racial or
religious hatred that may result in incitement for discrimination,
hostility or violence classifying it as prohibited by law.
Similarly Articles 4 and 6 of the International Convention on
the Elimination of All Forms of Racial Discrimination, 1965 (lCERD)
prohibits the elements of hate speech and mandates the member states
to make a law prohibiting any kind of hate speech through a suitable
framework of law.
20. Thus, it is evident that the Legislature had already provided
sufficient and effective remedy for prosecution of the author, who
indulge in such activities. In spite of the above, petitioner sought
reliefs which tantamount to legislation. This Court has persistently
held that our Constitution clearly provides for separation of powers
and the court merely applies the law that it gets from the
legislature. Consequently, the Anglo-Saxon legal tradition has
insisted that the judges should only reflect the law regardless of the
anticipated consequences, considerations of fairness or public policy
and the judge is simply not authorised to legislate law. “If there is
a law, Judges can certainly enforce it, but Judges cannot create a law
and seek to enforce it.” The court cannot re-write, re-cast or reframe
the legislation for the very good reason that it has no power to
legislate. The very power to legislate has not been conferred on the
courts. However, of lately, judicial activism of the superior courts
in India has raised pubic eyebrow time and again. Though judicial
activism is regarded as the active interpretation of an existing
provision with the view of enhancing the utility of legislation for
social betterment in accordance with the Constitution, the courts
under its garb have actively strived to achieve the constitutional
aspirations of socio-economic justice. In many cases, this Court
issued various guidelines/directions to prevent fraud upon the
statutes, or when it was found that certain beneficiary provisions
were being mis-used by the undeserving persons, depriving the
legitimate claims of eligible persons. (See: S.P. Gupta v. Union of
India & Anr., AIR 1982 SC 149; Bandhua Mukti Morcha v. Union of India
& Ors., AIR 1984 SC 802; Union of India & Anr. v. Deoki Nandan
Aggarwal, AIR 1992 SC 96; Supreme Court Advocates-on-Record
Association & Ors. v. Union of India, AIR 1994 SC 268; Vishaka & Ors.
v. State of Rajasthan & Ors., AIR 1997 SC 3011; Divisional Manager,
Aravali Golf Club & Anr. v. Chander Hass & Anr., (2008) 1 SCC 683; and
Common Cause (A Regd. Society) v. Union of India & Ors., (2008) 5 SCC
511).
21. While explaining the scope of Article 141 of the Constitution,
in Nand Kishore v. State of Punjab, (1995) 6 SCC 614, this Court held
as under:
“Their Lordships decisions declare the existing law but do not
enact any fresh law, is not in keeping with the plenary function
of the Supreme Court under Article 141 of the Constitution, for
the Court is not merely the interpreter of the law as existing,
but much beyond that. The Court as a wing of the State is by
itself a source of law. The law is what the Court says it is.”
22. Be that as it may, this Court has consistently clarified that
the directions have been issued by the Court only when there has been
a total vacuum in law, i.e. complete absence of active law to provide
for the effective enforcement of a basic human right. In case there is
inaction on the part of the executive for whatsoever reason, the court
has stepped in, in exercise of its constitutional obligations to
enforce the law. In case of vacuum of legal regime to deal with a
particular situation the court may issue guidelines to provide
absolution till such time as the legislature acts to perform its role
by enacting proper legislation to cover the field. Thus, direction can
be issued only in a situation where the will of the elected
legislature has not yet been expressed.
23. Further, the court should not grant a relief or pass
order/direction which is not capable of implementation. This Court in
State of U.P. & Anr. v. U.P. Rajya Khanij Vikas Nigam Sangarsh Samiti
& Ors., (2008) 12 SCC 675, has held as under:
“48. To us, one of the considerations in such matters is whether
an order passed or direction issued is susceptible of
implementation and enforcement, and if it is not implemented
whether appropriate proceedings including proceedings for wilful
disobedience of the order of the Court can be initiated against
the opposite party. The direction issued by the High Court falls
short of this test and on that ground also, the order is
vulnerable.” (Emphasis
added)
24. Judicial review is subject to the principles of judicial
restraint and must not become unmanageable in other aspects. (Vide:
King Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18; State of Haryana &
Ors. v. Ch. Bhajan Lal & Ors. v., AIR 1992 SC 604; and Akhilesh Yadav
Etc. v. Vishwanath Chaturvedi, (2013) 2 SCC 1).
25. It is desirable to put reasonable prohibition on unwarranted
actions but there may arise difficulty in confining the prohibition to
some manageable standard and in doing so, it may encompass all sorts
of speeches which needs to be avoided . For a long time the US courts
were content in upholding legislations curtailing “hate speech” and
related issues. However, of lately, the courts have shifted gears
thereby paving the way for myriad of rulings which side with
individual freedom of speech and expression as opposed to the order of
a manageable society. [See: Beauharnais v. Illinois, 343 U.S. 250
(1952); Brandenburg v. Ohio, 395 U.S. 444 (1969); and R.A.V. v. City
of St. Paul, 112 S. Ct. 2538 (1992)].
26. In view of the above, the law can be summarised to the effect
that if any action is taken by any person which is arbitrary,
unreasonable or otherwise in contravention of any statutory provisions
or penal law, the court can grant relief keeping in view the evidence
before it and considering the statutory provisions involved. However,
the court should not pass any judicially unmanageable order which is
incapable of enforcement.
27. As referred to herein above, the statutory provisions and
particularly the penal law provide sufficient remedy to curb the
menace of “hate speeches”. Thus, person aggrieved must resort to the
remedy provided under a particular statute. The root of the problem is
not the absence of laws but rather a lack of their effective
execution. Therefore, the executive as well as civil society has to
perform its role in enforcing the already existing legal regime.
Effective regulation of “hate speeches” at all levels is required as
the authors of such speeches can be booked under the existing penal
law and all the law enforcing agencies must ensure that the existing
law is not rendered a dead letter. Enforcement of the aforesaid
provisions is required being in consonance with the proposition
“salus reipublicae suprema lex” (safety of the state is the supreme
law).
28. Thus, we should not entertain a petition calling for issuing
certain directions which are incapable of enforcement/execution. The
National Human Rights Commission would be well within its power if it
decides to initiate suo-motu proceedings against the alleged authors
of hate speech.
However, in view of the fact that the Law Commission has
undertaken the study as to whether the Election Commission should be
conferred the power to de-recognise a political party disqualifying it
or its members, if a party or its members commit the offences referred
to hereinabove, we request the Law Commission to also examine the
issues raised herein thoroughly and also to consider, if it deems
proper, defining the expression “hate speech” and make recommendations
to the Parliament to strengthen the Election Commission to curb the
menace of “hate speeches” irrespective of whenever made.
With these observations, the writ petition stands disposed of.
A copy of the judgment be sent to the Hon’ble Chairman of Law
Commission of India.
…………………………….J.
(Dr. B.S. CHAUHAN)
…………………………….J.
(M.Y. EQBAL)
…………………………….J.
(A.K. SIKRI)
New Delhi,
March 12, 2014.
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