The Madras High Court in Kamal Hassan v. State. presents yet another instance where misconstruction of any phrase as a communally coloured remark can act as having a chilling effect over the freedom of speech and expression.
The aforesaid petition related to grant of anticipatory bail for the alleged hate speech delivered by the famous actor cum politician Kamal Hassan, who in a public meeting had stated that “the first extremist in independent India is a Hindu, who is Nathuram Godse”.
After giving due consideration to the matter, the Court granted Mr. Hassan a bail with a caution that the petitioner should not identify a fundamentalist, terrorist or an extremist, by his religion race, place of birth, residence and language but rather through his behavior.
The pertinent thing to note in the judgment was the advice given by the Courts to the media houses to refrain from creating a mountain out of a molehill by giving unnecessary airtime to words or gestures that might be coloured with religious remarks in relation to statements containing a hate speech.
It is firstly important to understand the concept of hate speech and how does a mere hate statement can turn into a colored religious remark. To understand this, we need to first understand the contours within which our free speech operates. Article 19(1) of the Constitution of India, guarantees the freedom to speech and expression. However, this right stands qualified by the exceptions presented under clause 2 of Article 19. The security of the State, public order, and incitement to an offence are some of these exceptions. Despite the fact that hate speech, per se, is not mentioned as an exception, the Courts have found it to be included in these listed exceptions and therefore while a citizen has the freedom to speech and expression, it is curtailed as per the laws made in light of these exceptions.
The necessity of putting a restriction to a speech that might qualify as a hate speech has been explained to by the Court in the case of State of Karnataka and another v. Dr.Praveen Bhai Thogdia. The Court held in the judgment that strong action needs to be taken against the comments that create disharmony or sacrifice public peace and tranquility. This is so because any speech of this sort might create communal disharmony which would destroy all the high values which the Constitution aims at. As welfare of the people is of paramount importance, the Court recognized the need to curb free speech that induces communal hatred.
There are various provisions in the IPC, in addition to other laws, to punish the promulgation of hate propaganda. Foremost in them are Sections 153A and 295A of the IPC. While Section 153 A punishes an act or speech which promotes enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., or acts done which are prejudicial to the maintenance of harmony, Section 295A condemns acts which are intended to outrage the religious feelings of any class by insulting its religion or religious beliefs. While at a first blush, these laws seem to serve the purpose of maintaining public tranquility, the problem comes in their execution as well as the wide scope within which they operate.
In Gopal Vinayak Godse v. Union of India, the Court considered whether the book Gandhi Hatya Ani Me authored by Nathuram Godse constituted an offence under Section 153A of the IPC. Despite having the chance to expand the horizon of the quintessential freedom of speech that forms the core of the democratic values prescribed by the Constitution, the Court chose to act against it. Rather, it provided two more conditions that resulted in having a chilling effect on the freedom to speech. It held that in a case involving Section 153A, it is not necessary to prove that enmity or hatred was in fact caused or that there was any intention to cause that hatred. Even if the Court considered the language of the text to be of such a nature that it could promote feelings of enmity and hatred then Section 153A could be applied. This case firstly did away with the necessary criteria of mens rea needed in cases of criminal trials and secondly it discharged the burden on the prosecution to prove the impact that the speech on the public. Further, it even went on to remove a truthful account of history as a defense to the offence.
Furthermore, these laws are used to curb the speech of any individual who raises a voice against the atrocities inflicted upon the general masses by the government or political leaders. The ambiguity as to what could be construed as a speech promoting enmity between different groups or outraging the religious feelings of any class is left for the Court to decide in every case. However, before the case comes to Court, an arrest can be made by the police without a warrant, on account of the offence being cognizable.
This defect in the law was partly cured by the judgment in Arnesh Kumar vs. State of Bihar and another wherein the Court stated that only when the Police officers has a reason to believe on the basis of information and material that the accused has committed the offence, could the arrest be executed. However, even here, the conspectus of ‘reason to believe’ is wide enough for a policeman, acting on the tip of a politician, to arrest a public spirited man for any remarks made by him.
Therefore, as can be seen, the law regarding hate speech needs to be revisited because of the possible chilling effect it can have on the freedom to speech in the country. Today, India is going through a turbulent time wherein the civil right and freedoms are being taken away by the instrumentalities of the State.
The recent example of the morphing of the image of West Bengal CM Mamata Banerjee and posting of a meme resulting in the accused being booked under charges that have been held unconstitutional by the Court goes on to show how the restriction on the freedom to speech can be played with by parties in power. The need to protect this freedom is now greater than ever and it is upon the Courts to set up a jurisprudence so as to protect it against all unwarranted external forces.
- Kamal Hassan vs State, available at https://www.livelaw.in/pdf_upload/pdf_upload-360993.pdf
- [(2014) 8 SCC 273]
- Kamal Hassan vs State – CRL OP(MD) No.7257 of 2019, available at https://www.livelaw.in/pdf_upload/pdf_upload-360993.pdf.
- State of Karnataka and another vs. Dr.Praveen Bhai Thogdia – (2004) 4 SCC 684
- Gopal Vinayak Godse vs Union of India – AIR 1971 Bom 56
This article is written by Neelabh Kumar Bist of Maharashtra National Law University, Mumbai.
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