Should we restrict hate speech?

One of the tricky questions of human rights law is how to approach the regulation of hate speech. There is a spectrum of hate speech regulation, swinging from the extremely libertarian US Supreme Court approach to hate speech (which I'll summarise shortly) to the aggressively restrictive German approach (for obvious historical reasons). Most countries fall somewhere in the middle here, regarding free speech as a highly important and valuable right, but preventing the right from being exercised where it was likely to cause harm, or infringe on other rights of groups or individuals (hence, the denial of the Holocaust has been restricted in different countries on grounds of fomenting hatred for Jews, infringing religious freedom and denying dignity to Jewish people).

Before moving onto hate speech in the Indian context, a brief mention of the American practice. The First Amendment to the US constitution codifies what appears to be an absolute right to free speech - "Congress shall make no law... abridging the freedom of speech". This right has generally been interpreted so as to exclude certain devalued forms of expression from the definition of "speech" under the US constitution (obscenity, "fighting words" which incite people to violence and libel are good examples) but to protect all which falls under the classification of speech. Even in the case of incitement to hatred, however, the courts have struck down legislation which has restricted hate speech on the grounds of it being hate speech. So, for example, the court has allowed members of the American Nazi Party to march through neighbourhoods with a high concentration of Jewish persons (because the injunction was granted against them solely because they were Nazis planning to march in a neighbourhood of Holocaust survivors- Smith v Collin, 439 U.S. 916 (1978) and Collin v Smith, 578 F.2d 1197 (1978). In order to be constitutionally valid restriction on speech, therefore, a restriction on hate speech in the US can probably never discriminate on the basis of the viewpoint of the State in relation to the content of the speech. The US Constitution is unique, however, in not using any form of balancing justifications for analysing freedom of speech restrictions (the Indian constitution, does provide for "reasonable" restrictions on freedom of speech). Some authors are of the opinion that this is done because it is presumed that an absolute guarantee of the freedom of speech ensures equality as it ensures governmental neutrality in the regulation of speech.

The Indian constitution does not contain an absolute restriction on the freedom of speech. Like most other common law former colonies, Art. 19 (2) of the constitution permits for "reasonable restrictions on [the freedom of speech and expression] ... in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an offence". In addition to the constitutional provisions, the IPC also allows for restrictions on speech and expression where similar interests are affected (Ss. 153-A/B, 295, 295 -A, 296, 297, 298, 505 are some examples). Clearly, therefore, the Indian constitution (and statutory law) allow for far wider restrictions on the freedom of speech and expression than the US Constitution does. Particularly, unlike in the US, the requirements for valid hate speech regulation are not very stringent, in the sense that the discriminatory treatment of ideas by Indian law is tolerated under the Indian constitution.

I will argue however, that the courts in India (and the statutes as they exist) ought to import the American practice, rather than continue to regulate hate speech in the current manner. The practice of hate speech regulation in India has been highly arbitrary. Depending on the political groups (or the dominant ideology) in power at a given time in the country, regulation of Hindu extremist speech (see the facts of Dr. Ramesh Yeshwant Prabhoo v Shri Prabhakar Kashinath Kunte and Others, AIR 1996 SC 1113 which deals with the legislative and executive action taken against Bal Thackeray and Manohar Joshi), of Muslim extremist organisations (see for e.g. the SIMI ban) and so on indicates clearly that the state restricts speech in a selective and non-uniform manner. Arbitrariness, in this context, leads to inequality because these groups (Hindu, Muslim, Sikh etc) have their speech rights restricted on the basis of their religion rather than merely because of the content of their speech; and this substantially undermines the equal treatment guarantee available to people across the country.

Additionally, I would argue that deregulation of hate speech will enhance equality among religions and communities in India. A pluralistic society can only grow when there is free and frank discourse in the public sphere, and restrictions on one group's right to access this sphere creates inequalities. This not only flows from the previous point that this gives the State the potential to abuse its powers in an arbitrary manner, but also because exercising a free speech right is empowering for minorities. Let me illustrate - if a religious extremist organisation publishes statements hatefully directed at another religion, we have 2 situations which may arise -

a. The State bans the publication and/or the group

b. The other members of the community react to the publication and/or the group (both positively and negatively)

In situation b. the community assumes agency, and forges a sense of community identity within (or in relation to) the national (or larger group) identity, which, if nurtured, could lead to the beginnings of a process of integration (because it is a process of empowerment through discussion). In situation a. before any of this arises, the State acts to deprive the community of agency and contextual identity. This could, if exploited improperly, lead to resentment and subsequent conflict.

This would work just as well for majority as well as minority groups, there will be equal and non-regulated (i.e. non arbitrarily regulated) discussions among all groups in a pluralistic society, which will define their relations with each other, and also with the nation-State. Where the State steps in to regulate hate speech, it breaches the equality which ought to exist in the public sphere, and this leads to one community being privileged over the other.

What do you think?