Today, the Supreme Court declined to adjudicate, on merits, a PIL requesting it to frame guidelines prohibiting political hate speech. Citing separation of powers concerns, it delegated the task to the Law Commission. The judgment, however, has some observations that – albeit obiter – are of great significance for free speech in India.

In Paragraph 6, the Court cites two Canadian cases with approval. The first, Canada v. Taylor, was a case about the constitutional validity of Canadian hate speech laws. The issue turned on whether proscribing hate speech violated the right to free expression. The Court upheld the constitutionality of hate speech legislation, and expressly framed the issue as one of equal participation in a pluralistic democracy. The direct effect of hate speech – both by the psychological effect it had on the individuals (mostly, of minority groups) so singled out, as well as its contribution to an atmosphere in which certain groups were systematically regarded as inferior – would stifle the opportunities of members of those groups to participate in the society on terms of equality and dignity. The ultimate goal of hate speech legislation, the Court held, is to prevent the kind of racial and religious discrimination that has been so divisive for societies all over the world. Specifically, the Court focused on the constitutional meaning of the phrase “hatred or contempt”, and observed that it had to be informed by the commitment to protecting “equality and dignity”, and categorically warned against conflating it with subjective “offense”. 

The second Canadian case the Court cites is that of Saskatchewan v. Whatcott. That case – as the Court observes – made it clear that there is a distinction between expression that is “repugnant and offensive”, and that which rises to “abhorrence, delegitimization and rejection that risks causing discrimination and other harmful effects.” Once again, notice that two out of three words directly implicate equality concerns – in particular, concern with the equal moral membership in society of all citizens, regardless of their group affiliations. The Court in Whatcott went on to add that the repugnancy of the idea in itself is not enough – the question is whether the effect of the expression is to expose the group to hatred by others – that is, whether it would incite other members of the society to deny the equal moral membership of the targeted groups (classic example – which the Court cited earlier in Taylor – German Jews in Nazi Germany).

In paragraph 7 of its judgment, the Indian Supreme Court then directly incorporates the Whatcott rationale. Let us excerpt paragraph 7 – which ought to be in quotation marks – in full:

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.”

There are four distinct ideas in this paragraph, that we need to unpack.

(1) What is at stake here – as explained above – is equality. The use of the terms “marginalise” and “delegitimise” highlight the fact that hate speech essentially holds a certain group to be unworthy of the general respect and dignity enjoyed by all other individuals in a pluralistic democracy.

(2) Hate speech is not about what targeted individuals might find subjectively offensive.

(3) Hate speech needs to be curtailed because of consequential reasons – in particular, its direct causal connection with actual discrimination (this is the point Waldron makes, that we discussed in the last post – an environment corroded with hate speech is a distinctly unwelcoming to targeted groups).

(4) Hate speech has a silencing effect that prevents the full participation of targeted groups in democracy – either through self-censorship because of fear of being attacked, or because the voices of targeted groups are distorted or unheard by the majority that is fed on delegitimising hate speech (another equality point).

In Whatcott, the Court went on to stress the difference – yet again – between hate speech and causing affront, ridicule or belittling of specific individuals. It also emphasised that one reason why the standard of protection for hate speech is lower is because it does nothing to serve the accepted free speech goals of promoting discourse – rather, it shuts down discourse because of its silencing effect.

After incorporating the Canadian test into its judgment, the Supreme Court then brings a whole host of legislation within the broad ambit of “hate speech”: in particular, Ss. 124A (sedition), 153A and B, 295A (insulting religious beliefs), the Representation of Peoples Act (election issues), Protection of Civil Rights Act (untouchability), S. 66A et al of the IT Act, and so on (paragraph 10). But if all this legislation is hate speech legislation – and if the Court’s framework analysis in paragraphs 7 and 8 is what must be undertaken when adjudicating what “hate speech” is – then logically, the interpretation of – say, S. 295A – must be informed by this particular understanding of hate speech.

So, for example – as we have argued before on this blog – when we are interpreting the word “insult” in S. 295A, we can’t restrict it to purely subjective feelings of offense or wounded pride. In today’s case, the Supreme Court gives us a methodology for interpreting such sections that are broadly consonant with liberal principles. That is, what S. 295A seeks to do is to ensure prevent discrimination against individuals for their religious beliefs, and to achieve this aim by preventing religious hate speech. What constitutes religious hate speech, then, under 295A, is speech that expressly deligimises or marginalizes – to use the Court’s expressions – individuals on the basis of their religious affiliations. Take three hypotheticals statements, taking an imaginary religion X:

Statement A: “You Xians actually believe in past lives and reincarnation? That is so utterly ridiculous and stupid.”

Statement B: “Turns out that some of your Xian Gods were serial sex addicts – your own religious texts indicate that.”

Statement C: “You Xians are cockroaches, and need to be eradicated.”

Keeping in mind our discussion above, and in previous posts, it is obvious that Statements A and B do not amount to 295A-prohibited religious hate speech, no matter how much offense they cause, and how much they infuriate. There is nothing in those two statements that denigrates Xians as persons, questions their equal moral membership in society, or denies them the right to participate in a pluralist democracy on equal terms. Statement C, on the other hand, falls clearly within the proscription, and for all the reasons adduced above, can be prohibited on liberal grounds.

(Needless to say, on this standard, there is absolutely no chance that Wendy Doniger’s books can be legally banned under 295A)

Today’s observations have no precedential force, but once again – like in the recent pornography decision – they lay the base for future developments of India’s free speech laws that are consistent with basic principles of political liberalism, pluralism and equality. It remains to be seen whether the Supreme Court will choose to walk down that road.