A writ petition was filed under Article 32, by an organisation dedicated to the welfare of inter-state migrants, requesting the court to issue direction to curb the evil practice of hate speech.
Counsel of behalf of petitioner
Counsel appearing on behalf of organisation submitted that, 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.
Counsel on behalf of Election Commission
Counsel appearing on behalf of Election Commission submitted 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.
The court referred the decision of Canadian court while judging its capability to discuss on hate speech matters.
The Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott 2013, 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, de-legitimisation 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.
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.
Legal Framework in India, to counter hate speech
The court noted that, India have sufficient legal framework to counter the practice of hate speech.
The Central Government had 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.
The court said that,
“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. The 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.”
The court further said that,
“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.”
The court finally concluded that,
“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.
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). 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.”
Pravasi Bhalai Sangathan v. Union of India, (2014)
 2013 SCC 11