Defining Hate Speech "Fairly Complex": Supreme Court Flags "Free Speech" Concern

Defining hate speech is complex but the real problem in tackling them lies in the implementation and execution of law and judicial pronouncements, the Supreme Court said on Friday, days after parts of Haryana were rattled by communal violence.

A bench of Justices Sanjiv Khanna and SVN Bhatti, which was hearing a plea against the rallies to be organised by right-wing outfits Vishva Hindu Parishad and Bajrang Dal in Delhi-NCR region over the communal clashes in Haryana along with other petitions against hate speeches, asked about whether the events were peaceful.

Senior advocate CU Singh, appearing for petitioner Shaheen Abdullah, said hate speeches were made at the rallies but no violence was reported.

The bench told Mr Singh that a solution to hate speeches can be found through collective efforts alone.

"Why don't you sit together and try to find a solution? You see, the definition of hate speech is fairly complex and it needs to be ensured that it does not transverse into the area of free speech.

"There is my 2020 judgement in the case of Amish Devgan versus Union of India which deals with balancing of competing interests of free speech and the need to prevent the spread of hatred and communal disharmony. There are several other verdicts of the top court. You see the main problem is implementation and execution," Justice Khanna told Singh and Solicitor General Tushar Mehta, who represented the Centre.

Mr Mehta said the top court has specified what hate speech is in the 2018 verdict in the Tehseen Poonawalla case and no one can justify hate speech against any community.

"The law is very clear that if any hate speech is made, one can lodge an FIR and, if FIR is not registered, then one can approach the court," Mehta said.

He, however, said some individuals and organisations were now approaching the Supreme Court directly instead of the police station concerned with complaints about hate speeches and seeking contempt action by the top court over violation of its orders. Also, he said, a new practice has emerged where people approach the court voicing apprehension about the possibility of hate speeches being made at an event and seeking advance ruling.

Mehta was referring to the April 28 order of the top court that directed all states and union territories(UTs) to register cases against those making hate speeches even without any complaint, terming these speeches as a "serious offence" capable of affecting the secular fabric of the country.

Extending the scope of its 2022 order beyond three states--Uttar Pradesh, Delhi and Uttarakhand, the top court had made it clear to authorities that any hesitation to act against hate speeches will be viewed as contempt of the top court and appropriate action will be taken against the erring officers.

The bench said there should be a mechanism so that no one has to come to the top court time and again. Social tension is in nobody's interest, it said.

"Everyone will have to find a solution as there has to be some way to deal with hate speeches. Everybody should not be coming to court and there should be some mechanism. We have thought of something and we will let you all know," the bench said and posted the matter for a resumed hearing after two weeks.

Mr Mehta said he has also received some video clips of hate speeches and the petitioner should be directed to amend his petition because he is selectively targeting only one community and ignoring the hate speeches made by others.

On August 2, with communal clashes claiming six lives in parts of Haryana close to Delhi, the top court had ordered enhanced deployment of security personnel in sensitive areas and a crackdown on hate speech but refused to stop the proposed rallies by VHP and Bajrang Dal in the NCR.

On October 21 last year, the top court directed Uttar Pradesh, Delhi, and Uttarakhand to crack down hard on those making hate speeches, calling them shocking for a country that is religion-neutral.

Holding that the Constitution of India envisages a secular nation, the court had directed the three states to promptly register criminal cases against the offenders without waiting for a complaint to be filed. 

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