NDTV and FirstPost are carrying reports that the Supreme Court today dismissed a PIL asking the Court to require the Election Commission to prohibit hate speech by politicians during election campaigns. I don’t have access to a copy of the order (link, anyone?), but it seems that the Court made the following observations:
“We are 128 million people and there would be 128 million views. One is free not accept the view of others…”
“Let all shades of opinion come before the public. Let them decide…”
It’s unclear, of course, what precedential value these observations have, but it is important to note that:
– A complete ban on regulating hate speech is a position only followed in the United States. It is not the position in Canada, the EU and South Africa, to name three important constitutional courts.
– A complete ban on regulating hate speech – especially in the language that the Court has framed it, if the above quotations are accurate – has important consequences for doctrine. First of all, Indian law is full of provisions that criminalise some form of hate speech: S. 295A (at the centre of the Wendy Doniger controversy), The SC/ST (Prevention of Atrocities Act), and so on. Now, there are different ways of interpreting provisions like S. 295A, ways that are conservative and moralistic, but ways that are liberal as well (see, e.g., Waldron, The Harm in Hate Speech). For example, a liberal might argue that the word “insult” in S. 295A, which is doing much of the legal work in that Section, ought to be limited to speech that either intentionally, or by virtue of established social tradition, expressly denies the equal moral or human worth of the person it is addressed to, on the ground of the religion that they follow (such a test forms the basis of campus hate speech codes, for instance). Under today’s observations, however, it is difficult to see how S. 295A et al can be constitutional at all. Recall that what S. 295A does is essentially vest in communities a private right of public censorship. Now, if the reason for permitting hate speech is that all opinions ought to come before the public, then it is simply impossible that such a private right of censorship is consistent with that ideal.
– A complete ban on the regulation of hate speech has repercussions beyond the realm of hate speech as well. Let us consider the principled arguments in favour of this position:
(a) Perhaps the most famous one is the – almost cliched – “marketplace of ideas” argument. Every idea ought to have its turn in the grand marketplace, and ultimately, the market will decide which ideas are to survive and become common currency. It is not for government – and not for private parties using the mechanism of law – to impose controls and restrictions upon the marketplace of ideas. This seems to be what the SC is getting at when they refer to letting all opinions be before the 128 million people of India.
(b) Ideas of cultural democracy – advocated by scholars like Ronald Dworkin and Jack Balkin – ground free speech in ideas of equality. Every person, the argument goes, has an equal right to contribute to shaping the moral and cultural environment that they find themselves in, as a condition for the democratic legitimacy of the State. By excluding certain ideas from the public domain, the State does not treat those individuals with equal concern and respect.
(c) Ideas of autonomy hold that it is an insult to autonomous, responsible individuals to withhold from them ideas or words on the ground that it would be (morally or ethically or otherwise) harmful to them. As a corollary, by banning speech on the ground that it might lead to public order disturbances, the State attributes responsibility on the wrong person: if autonomous individuals take responsibility for their acts, and if autonomous individuals, on reading Pierre-Joseph Proudhon, decide to go and burn down the nearest bank, then the responsibility for that act lies not on Proudhon, or his writing, but on those thinking, reflecting individuals. This, again, seems to be at play when the Court observes that “let the public decide”.
(d) Ideas of cultural pluralism hold that in a pluralist democracy, the same speech, or the same set of ideas, can mean very different things to very different people. To put the matter extremely crudely, one man’s obscenity is another man’s art. The argument then goes that it is not for the government to privilege one section of the people over others, by making a value judgment about the impugned speech.
This is not, of course, to argue that the case against regulating hate speech doesn’t have powerful counter-arguments – it does. The point is that if the Court holds today that hate speech cannot be regulated or banned, then it institutionally commits itself to some manner of content-neutrality – the idea that the content or message of expression in itself cannot provide a ground for censoring it. If we look at each of the principled justifications provided above, they all embody some vision of (weak or strong) content neutrality. But if that is the case, then a lot of our law needs to be rethought. We need to start by rethinking what the words “decency and morality” mean, under Article 19(2). For example, is it consistent to justify a ban on Lady Chatterley’s Lover under the morality ground of Article 19(2), or the continued existence of 295A as constitutional – again, on the morality ground of 19(2) – while simultaneously holding that the morality ground doesn’t cover hate speech? Either we need to find a definition of “morality” that reconciles these two positions – or we need to achieve consistency by rethinking our interpretation of 295A et al.
Today’s observations have the potential to become a crucial point of departure for a full-fledged, long-overdue constitutional debate on what the philosophical foundations of Article 19(1)(a) and 19(2) are, what precisely they prohibit under the “public order, decency and morality” restriction, on what grounds, and how these grounds are consistent with the broader Constitution and our ideas of democracy and equality more generally. Whether or not that will happen, of course, is another question altogether.