Hate speech vitiates the very purpose of freedom of expression, which is the free and fearless functioning of a human mind that constantly seeks answers and truth.

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THE contemporary Indian democracy is on the threshold of its constitutionalism. Amidst the deafening noise of the media and a structured and institutionalized political propaganda of the marginalization of minorities, every other day there is a renewed debate about what constitutes an exercise of freedom of speech and expression and what are the reasonable and legitimate restrictions that may be imposed on this exercise of freedom of expression.

In the context of the recently suspended BJP spokesperson, Nupur Sharma would have provocative statements that hurt the Muslim community, the answers to the following questions become relevant: what is the essential content of freedom of expression as a right in a civilized constitutional democracy and what are the reasonable limits limits attached to it? What constitutes this narrow line that differentiates an act of free speech from hate speech and how to identify this distinction?

Turning

The fundamental right to freedom of speech and expression as it is Section 19(1)(a) of the Indian Constitution is the very source from which all civil and political rights flow. Indeed, freedom of expression is a right that cannot and should not be unreasonably restricted, however uncomfortable the speech may be. However, a speech loses its right to be protected as soon as it becomes odious or incite violence.

By call a whole act of Jihad by the Muslim community, the media is just normalizing Islamophobia and peddling fake news.

Read also: The right to dissent without violence and hate speech is part of freedom

This distinction between freedom of speech and hate speech has been repeated many times not only by Indian courts, but also in other jurisdictions. For example, in the case of Shyam Balakrishnan vs Kerala State (2014), the Kerala High Court was very clear that a merely unpleasant ideology with uncomfortable beliefs does not constitute an offense in a democratic nation.

The court said “Being a Maoist is not a crime, even if the political ideology of the Maoists does not synchronize with our constitutional politics. It is a fundamental right to think in terms of human aspirations.

Similarly, perfectly clarifying the notion of freedom of speech and expression, the Delhi High Court, in the case of Priya Parameswaran Pillai v Union of India and others (2015), said:

Read also: After the Supreme Court ruling, we must fight against hate speech at the social and political levels

“Criticism, by an individual, may not be acceptable; even so, he cannot be muzzled. Many civil rights activists believe that they have the right, as citizens, to call the state’s attention to the incongruity of the state’s development policies. The state may not accept the views of civil rights activists, but that in itself cannot be reason enough to eliminate dissent.

Hate speech is far from freedom of expression when it becomes against the law against spreading hatred and/or inciting violence. The reasoning that can be inferred from this reasonable restriction is that it vitiates the very purpose of free speech, which is the free and fearless operation of a human mind that constantly seeks answers and truth. This can be explained by the harm principle proposed by the political philosopher and defender of individual freedom – John Stuart Mill.

It is an undeniable fact that there is an accentuated and institutionalized effort towards the demonization of the minority Muslim community in India.

The principle of harm states that any action, all actions of individuals should be permitted as long as they do not cause harm to another individual. Clearly, hate speech propagates hatred towards individuals or social groups, which may even incite violence and therefore cause significant harm to others. By itself, hate speech violates the very essence of the social contract that guarantees the rule of law and protection from the chaos of jungle rule.

Also read: Is Facebook fueling hate speech?

Legislative objectives

In the case of Pravasi Bhalai Sangathan v Union of India and others (2013), the Supreme Court relied on Canadian jurisprudence in the cases of Saskatchewan (Human Rights Commission) v Whatcott (2013) and Canada (Human Rights Commission) v Taylor, (1990) prescribe a three-step method for determining hate speech.

First, the courts must objectively apply the prohibition of hate speech. The question for courts to 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 “hate” or “hate or contempt” must be interpreted as being limited to the extreme manifestations of emotion described by the words “detestation” and “defamation”. This filters out expressions that, while repugnant and offensive, do not incite the level of aversion, delegitimization, and rejection that risks causing discrimination or other adverse effects.

Third, the courts must focus their analysis on the effect of the expression in question, namely whether it is likely to expose the targeted person or group to the hatred of others. The repugnance of the ideas expressed is not sufficient to warrant restriction of 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, bearing in mind the legislative goals of reducing or eliminating discrimination.

Hate speech is far from freedom of expression when it becomes against the law against spreading hatred and/or inciting violence.

Likewise, the Rabat Action Plan, who is a cadre trained by the Office of the High Commissioner for Human Rights (OHCHR), outlines a six-part threshold test for understanding hate speech. The test takes into account: 1) The social and political context, 2) The status of the speaker, 3) The intention to incite the audience against a targeted group, 4) The content and form of the speech, 5) The extent of its dissemination and 6) Likelihood of harm, including imminence.

Unpleasant influence

It is an undeniable fact that there is an accentuated and institutionalized effort towards the demonization of the minority Muslim community in India. In fact, observers have repeatedly warned and drawn similarities between India’s treatment of the minority Muslim community, its media’s involvement in spreading disinformation against the Muslim community, a concerted effort to defame and demonize all Muslims, and Dharm Sansads calling for the open killing of Muslimsas worrying signs of the imminence genocide.

In normalizing hate speech against minorities, the role of the media is palpable. By call a whole act of Jihad by the Muslim community, the media is just normalizing Islamophobia and peddling fake news. Indeed, the current situation of hate speech dystopia is everything that a healthy constitutional democracy should not be.

With the advent of social media, WhatsApp and several other sources of unverified information, hate speech is just a click away. Death threats, rape threats, metamorphosed images and fake muslim women auction have become normal online. Hate speech, when injected consistently over a period of time, has the ability to change our minds, our beliefs, our convictions and compel us to reject the rule of law and the stability of a constitutional democracy and a reasoned thought process and return to our animal instincts of chaos and murder.