Can the Supreme Court fix India's hate speech problem?

The Supreme Court of India on February 2 highlighted fundamental problems when it comes to curbing hate speech. It bemoaned the fact that authorities were not taking any action against instances of hate speech despite orders from the apex court.

“You ask us to be embarrassed again and again by getting an order [and nobody taking action],” the bench remarked orally when a lawyer wanted to argue an application to prohibit a Hindu Jan Akrosh Morcha rally in Mumbai on February 5, on the grounds that this rally would be platforming anti-Muslim hate speech.

In another hearing on February 20, the Supreme Court highlighted a different problem. Staying action against Delhi Chief Minister Arvind Kejriwal for a speech from 2014, the court said that the provisions of the law covering hate speech were very broad and open to misuse.

These instances highlight problems with the implementation of the hate speech law in the country. In several instances, given inaction by governments, petitioners have to directly approach the highest court in the country for any action to be taken on hate speech. However, even that does not guarantee any result. On the other hand, existing provisions are often misused against innocuous speech as a way to target the critics of the government.

Before the court

Presently, a two-judge bench of the Supreme Court led by Justice KM Joseph is hearing a clutch of at least 12 petitions relating to regulating hate speech. These petitions deal with separate incidents of hate speech, such as meetings held in various parts of the country in 2021, where calls to take up arms against Muslims were made as well as speeches given in Delhi calling for Muslims to be boycotted and lynched.

Petitions have also been filed for communal television programmes, such as a 10-part series by the Hindi television channel Sudarshan Newsin 2020 on “a conspiracy to infiltrate the civil services by Muslims”.

In these cases, petitioners have complained to the court that the police have not taken any action to stop such speeches or to prosecute the people responsible after these speeches have been made. As a consequence, they have asked for the court to order investigations into these cases.

The petitions have also asked the court to issue directions to comply with guidelines laid down by the court in 2018 to deal with hate crimes such as mob violence and lynching. These guidelines prescribe both preventive and punitive measures against hate speech and the violence resulting from it. This includes directing the police to conduct regular investigations into people who are likely to spread hate speech as well as registering first information reports against speech that could cause mob violence.

The court also prescribed taking action against police officers who did not prevent or investigate such crimes.

Court’s orders

The Supreme Court has passed several orders in this batch of cases. On January 13, it asked the states to submit a response on the steps undertaken to follow the court’s guidelines on hate speech.

It has also asked several states to register cases for hate speech under the relevant sections of the Indian Penal Code without waiting for a complaint to be filed. “We make it clear that any hesitation to act in accordance with this direction will be viewed as contempt of this court and appropriate action will be taken against the erring officers,” the court said.

The court has also passed preventive orders against individual rallies. For instance, on February 3, it said that the Maharashtra government has to ensure that there is no hate speech delivered in the February 5 rally. It also asked the government to record the rally and submit it to court.

In rare instances, these orders have resulted in action. For instance, in April, the Uttarakhand government did not give permission to a “dharam sansad” or religious parliament in Roorkee and deployed heavy police forces after the court said that the state’s chief secretary would be responsible if any hate speech is delivered in the rally.

In some instances, the court has asked for punitive measures after an inflammatory speech was delivered and the police did not take any action. For instance, in an event organised by the religious group, Hindu Yuva Vahini in December 2021, the Delhi Police had initially refused to register a first information report against Sudarshan News editor Suresh Chavhanke for administering an oath to “die for and kill” to make India a “Hindu rashtra”, or a Hindu nation.

However, after the court expressed dissatisfaction with this, the police registered the first information report, nearly five months after the incident took place.

While the first information report is registered, the case has progressed slowly. In a hearing from February 20, the police told Chief Justice DY Chandrachud that the investigation is at an “advanced stage”.

Hate speech continuing

Despite the court monitoring these cases and asking state governments to take action against hate speech, instances of hate speech against religious minorities are reported frequently. Often, members of the ruling Bharatiya Janata Party are involved.

Lawyers and experts say that this is partly because the law is inadequate. However, the biggest impediment according to them is lack of action by the authorities on the ground.

“The problem is a combination of both inadequate law and misuse of present law,” said Siddharth Narrain, a lawyer and doctoral candidate researching online hate speech.

At present, there is no definition of “hate speech” in Indian laws, he explained. General provisions in the Indian Penal Code are used to prosecute offensive speech against groups. These include Sections 153A, which penalises actions that disrupt harmony and promote enmity between different groups; 153B, which punishes words or actions that cause hatred towards a community or imply that they should be deprived of their rights as Indian citizens; and 295A, which relates to outraging religious feelings of any class.

There is also rampant misuse of these sections. “The law is not implemented in an honest way,” said Delhi-based advocate-on-record Talha Abdul Rahman. He gave a recent example of the arrest of Congress leader Pawan Khera for calling the prime minister “Narendra Gautamdas Modi” – instead of Narendra Damodardas Modi. In that case also Section 153A was used despite the speech not being “criminal in any manner”, he said.

If implemented properly, these laws could in theory be used to tackle instances of hate speech. “These laws, along with court guidelines, are legally adequate to deal with instances of hate speech,” said Delhi-based advocate-on-record Anas Tanwir. “However, if we have to go seeking contempt every time there has been a case of hate speech, then it becomes pointless.”

Thus, he said that the responsibility also falls on lower courts, which supervise investigations, to ensure that action is taken in these cases.

Added Delhi-based advocate-on-record MR Shamshad, who is involved in the case, “If the court takes strict action against even some instances of hate speech – arrest people and hold the police accountable – then it will deter people.”

A new law?

Some petitioners in the case have also asked for the court to carve out a new definition of hate speech. For instance, one petition says that hate speech occurs even indirectly and requires “asymmetrical protection” of vulnerable minority groups, with distinct provisions. Something along lines of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

In its 267th Report , the Law Commission of India in 2017 noted that because of the general provisions in the law, courts are not able to successfully prosecute hate speech cases brought before them. It, therefore, recommended adding new provisions in the law to deal with speech that incites hatred or causes fear and alarm on grounds of religion or community.

While a new law would be a positive step, advocate Shamshad said, “The court has its own limitations. For every non-action by the police, who will keep knocking on the doors of the Supreme Court? Things have to be resolved on the ground.”

The Supreme Court has also appointed senior advocate Sanjay Hegde with advocate Tanwir to suggest guidelines to tackle the problems brought before the court.

“Can a solution be found?” asked senior advocate Hedge, “We do not really know. At the end of the day, who will ensure that the court’s directives are actually followed.”

He added that the court will have to look for solutions that are self-implementing.

According to Tanwir, having a separate definition will at least give the chance to specifically ask for registration of first information reports on hate speech. “Right now, no such opportunity is there,” he added.

The case is next listed for March 21. Lawyers say that the upcoming hearings will be crucial. If the court comes down strongly on the administration, that will send out an important message.