11

HATE SPEECH
If we cannot eschew hatred, atleast let us
eschew group tred. May we see
could have been born as
that we
each other

In a mark American judgment, the expression "hate speech" was

dscribed by Murphy
J as:
fighting words-t
-those which by their very utterance intlict
r Or tend to incite an immediate breach of peace. It has been
observed that such utterances are no essential part of any exposi
tion of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly out-
weighed by the social interest in order and morality?

The subject of hate speech has gained significance in recent years with
the increase in communal contlagrations accompanied or caused by com-
munal hate campaigns. The media, through newspapers, television or
the Internet has an important role to play in the context of hate speech.
owerful, potentialy provocative and far-reaching, the media has time
and again allowed itself to be used to fuel such
campaigns through active
propaganda or irresponsible reporting. Equally, the media is capable of
and
n quelling the effects of hate speech through responsible
restrained reporting
Hitler's anti-semitic
An S Infamous of all hate campaigns was
Paul Joseph
propaganda in Nazi rmany in the:1930s. Hitler appointed
0ebbels Minister of Public Enlightenment".
Goebbe!Isgenius
Propaganuaanda through
propaganda through
the m a s s
the ma
media which he lay in orchestratin up hysteria
in favour of
systematically used to whip During this time,
Nazis and the Third Reich and
againsi
Vikram Seth, Two Lives 315 US 568
(T942),
(2005)
Per Murphy J in Lhaplinsky Hampshire, 86 L Ed ro31:
"
Chaplinsky
v. New
i v.
 MEDIA
LAW HATE EECH 403
FACETS
OF
402
participated in
the hate campai
gns
cartoons, free speech must be protected
ctively described in close against o rp e r
verse
se
the
society.
an essential
Bor instance,
detail he aleged
.
One
newspapers
Europecan
Der
Sturmer,
gentile always blonde
girls, re
of ti-Islamic film,
anti-i Innocence of Muslims
paper,
of Jews on
and an went viral
ashing outrage and violence across the Muslim world
and feate
on
assaults
blubber-lipped Jew
shue-eyod, ashing
2012,
sexual thick-nosed, In
featured n in lavatoty ouTube, unle
of the US ambassador to Libya" and
Its
cartoons
carried on its front page the bric: "Die Juden. resulting
i nt h e ehe
he killing
kilingt r Libya. The episode raised
situations
and
are our
rtune). For iits
mistortune). editor, Julius sind wnser questions
the
the
about
difficulty
diffic in
regulating the spread of hate
Jews
Ungluck" (the
lower than
animals.imals. They w
were
e r e excreta-ScheicCiche
Strei nortant
propagana in
importa
the age of
socia
Jews
were
Newspapers of
the time were MLA from
a n MI n Hyderabad, Akbaruddin Owaisi
instigators and instrrestricted to 2013,
Scheisser. was
the Juden actuall i In
Januaryfor his rabble rousing hate speeches mocking Hindus and Hindu
They w e r e
recording of
events.
they had ents ofof hate ed Hindus as
"impotent" and
German editors
claimed that
pecial access to
rrested
Gods. Hearmy,
described
ny, and
and boasted that 250 million. Muslims necded only 15
the Indian police as an
propaganda.
people, the would call
In the n a m e of the for stern meas
lic opinion.
government against
he lews, be
the Jews, being apprised well in advanee
impotent
vithout police intervention to show one billion Hindus who was
ures by the werful. He has been booked for spreading communal hatred,
measures were on the anvil. Thus, the
government was
minutes
that the made ainst India and sedition amongst other charges. Soon
as though
it was only responding to public demand. ging war against
appear
engineered and reported
to have been carried out by
Jews. he Murders a
retaliatory hate speech
was made in Maharashtra
by Pravin
were
stories of mass indignation:and predict that: press after, speeches, freely available on YouTube are highly inflam-
would then whip up Togadia. The
turn on the Jews. Series of riots followed such stories. This waeould
part of hateful and divisive.
matory,
organised anti-semitism
in Germany and Goebbels plaved an.
in it. LEADING AMERICAN AND ENGLISH
The a/tI attack in New York carried out by terrorists was followed CASES ON HATE SPEECH
by a wave of Islamophobia and hate attacks on Muslims acros the
has evolved over the years largely in an effort to address
world. The Toon controversy was triggered by cartoons of the Prophet In the US, the law
Atrican-Americans and Jews. Landmark cases
Mohammed published in Holland. The editor of Denmark's largest sell racist propaganda against
in the US
the subject include National Socialist Party of America
ing newspaper, Jyllands-Posten, approached 40 cartoonists to draw their on
v. New Hampshires and
representations of the Prophet. Twelve cartoonists obliged and among v.Village of Skokies (Skokie), Chaplinsky
the controversial cartoons published was one showing the Prophet with Beauharnais v. Ilinois.7
out of an announcement made by the
National
a bomb in his turban, another of him standing on a cloud greeting dead The Skokie case arose
suicide bombers with "Stop, stop, we have run out of virgins!", a mock Socialist Party of America that peaceful public meeting would be held
a
in the village of Skokie, a Chicago suburb. The protest marchers in the
ing allusion to the promise of houris in heaven for jehadis. Predictably,
worn by the Nazis under
were to wear uniforms reminiscent of those
the cartoons created a furore, sparking violent protests in different parts were to carry
of the world. In India, there were violent protests and clashes in several Hitler and Swastika armbands or emblems. The marchers
messages such as
Cities and one Muslim minister from U.P. publicly offered a reward of party banner containing a Swastika and bearing Men". More than halt
7SI crores for beheading the cartoonists. The cartoon controversy Ied White Free Speech" and "Free Speech for White of them were survivors
or
to the severing of diplomatic ties and demands for trade sanctiony Or the population of Skokie was Jewish, many
World War II. These victims ofter
bans. In several countries, which included India, Russia, Jordan, Yen VaZ1 Concentration camps during lead peaceful lives,
free from
and Algeria,
governments initiated criminal investigations against O nad resettled in America expecting to to restrain the pro
tors and journalists
responsible for reprinting the cartoons. ECution. The village officials filed a suit seeking
the Swastika ordistrib
demands from Muslim countries for an apology, he
repeated Danish
u rhat ESfronm wearing their uniforms displaving hatred against persoiud
Prime Minister stood firm and aterials "which would incite or promote
the
refused to apologise on the grou amount
government did not control the media:and to intervenewould: ise but Intolerance m
India
a Censorship and
to
CiVIl
violation of free speech. Some individual editors did apolo
mocking (2008).
dVan, Publish and Be Damned:
society in Europe generally maintained that no matter S.53 LEd 2d 96: 432 US 43
6. 86 L
Ed ro31: (1977)
315 US 568
3. Ward
Rutherford, Hitler's Propaganda Machine (1978). 7. 96 L
Ed 919: 343 US 250
(1942
(1952).
 MEDIA
LAWw
OF
404
FACETS
HATE CH 405

of Jewish
faith or ancestry".
The plaintiffs
and wilful attempt to
alleged that the gAA, rcumstances. There
of speech,
the
are certa well
pr vention and
defined and
narrowly lim-
planned was
a
"deliberate

incite racial thes

Skokie and to incite
exacerbate narch as itedclasses

hought to raise any punishme of which

constitutional problem.
sensibli
have never been
population in
ties of the Jewish and reli and obscene, the profane
injunction in
reigplousain
grantead an
favou and the lihelous
hatred". The trial judge
These
include.

Our of B
of i
1nhe insulting 'hghting'
words and
flict injury or tend words-those
National
Socialist Party went in appeal, the or

which by
tiffs. The the an. to incite
Court refused
stay the injunction pending
to Ppeal and their very
It has been an
immediate
observed that such utterances
matter eventually wene
and so Pea| of
US Sudid the
peace.

Court of Illinois. The to the breach part of any exposition of ideas, are
Supreme and are of uch slightno
American Civil Liberties Union truth that any benefit that may be
successfully defapreme
Court where
the esse

step
as a
to
value
to free speech and the entire injunction defend cialthem
rom is clearly outweighed by the socíal interest inderived
order
the Nazis' right
acated. The case
had some ramatis personae:.
Collin
of America leader and son of Frank andmorality.

National Socialist Party

hol wish holoca
holocau
leader Sol Goldstein, a harnais v. llinois,
B, president of the White
Circle League
survivor; Skokie community the distribution
of leaflet.calling
a
upon the Mayor and
Nazis; the survivor
demonstration against the rganisedthe
who planned a counter the o halt
Chicago to halt further encroachment, harassment and
City
Albert Smith who wanted to protect the townspeople; and Skokie mayor ncil of inva-
Liberties Union lawyer David Goldberger, himself American
their
white people, property, neighbourhood and persons by "the
Civil Jew a sion of "one million selfr
leaflet called upon
defend-
etend. respecting white
Jews. Even nite." and added that "if persuasion and the need topeople
ing the free speech rights of Nazis against the Negro":

American Civil Liberties Union won the case, it was a pyrrhic. Chicago
to un
pre
vent he white race becoming mongrelised by the Negro will not unite us,
in
20.000 of its members lett the organisation. Eventually, the patu as victory a
the aggresSIons, |rapes], beries, knives, guns and marijuana of
celled the march. An hour long rally was held in Chicago where acan- B was convicted under the Ilinois statute declar-
400 surely will."
policemen protected 25 Nazi There were
demonstrators. some ar theNegro for any person to manutacture, publish, sell or exhibit
arrests unlawful
and stone-throwing but no serious violence. An American comment ing it
ry nublication which "portrays depravity, criminality, unchastity or
on this case opines that in a case Such as this,
upholding the right of fres adk of virtue of a class of citizens or any race, colour, creed or religion
speech made the most sense because:
IT]he danger of intolerance towards ideas is so pervasive an issue is productive of the breach of
0rContempt, derision or obloquy or whichrefused
to instruct the jury that
in our social lives, the process of mastering a the peace or riots." At the trial, the judge
capacity for toler in order to convict the words "must pass the clear and present danger
ance so difficult that it makes sense somewhere in the
system to
attempt to confront that problem and exercise more self-restraint test or even the defence of truth". The Supreme Court in a :4 decision
than may otherwise be required. [On] this basis, then, tolerance afhrmed the conviction. Frankfurter J observed:
becomes a] symbolic act
indicating an awareness of the risks and If an utterance directed at an individual may be the object of
dangers of intolerance and a commitment to developing certain criminal sanctions, we cannot deny to a State power to punish
attitude towards the ideas and beliefs of others.8 the same utterance directed at a defined group unless, we can
to
that this is a wilful and purposeless restriction unrelated
Chaplinsky was an earlier case that arose out of the conviction of a mem $ay
the peace and well being of the State.... Moreover, it would be
ber of the sect called Jehovah's Witnesses, for violation of a provision or
the public laws of New uite outside the scope authority [for] us to deny that the
of our
Hampshire, which made it an offence to
aadres Lunois legislature may unwarrantably believe
that a man's job
any offensIve, derisive reet

or other public place.

or
annoying words to another person
The appellant contended that the
in
statute va s
iolated d his educational opportunities and the dignity accorded to
of the racial and
may depend as much on the reputation as on his
the I4th Amendment to the US Constitution and denied the ap Ous group to which he willy nilly belongs
own
peech
his right of freedom of speech. The US Supreme Court rejectea chak nerits. This being so we are precluded from saying tnat sp
lenge. Murphy J held: tu if directed at
concededly ishable when immediately outlawed the afhliated in society
and esteem
Allowing the broadest scope to the language and purpos of
individsal Wose position
Individual may be inextricably involved.
tne rourteenth Amendment, it is well understood that the 1
of freedonm
of speech is all
not absolute at all times and
u
8.
Bolinger, "The Skokie Free
Speech

Theory", 8o Mich L Rev Legacy: Reflections Easy

"Easy Case' and baplinsky New US 568 (1942).
Ed 919: 343 USHampshire,
on an v. 86 L Ed
617 (1982), a 0.96 L
1o31: 315

629-31 250 (1952

 LAW
MEDIA
OF
406
FACETS
HATE SPEECH 407
Ilinois in commorn of the
As to the
defense of truth, non with India", security State",
a showing
not only that the utterane
state many
the States
nd
rity of
i n t e g r i t yo f I l

and"detamation"
"incitement to an offence"
requires made 'with facts,
publication be good m butfor and
also that the tives and statutes contain provisions that
adian
Indian
ends:' Both elements are necessary if the defense ot assist
nropaganda. In fact, these provisions are much in con-
range
justifiable wide
is to Awid
A
hate PrTIK
prevail.
The US Supreme Court has struck down hate speech law in i
where a "clear and present danger" wider than
trolli

JS
i nt h e U S
or
he established. Some of these
d i r e c t c a u s em u s :
or an immedi-

of a resentment rather than

incitement of hat pivor a t ea n dd i n
provisions are:
able Television Networks (Regulation) Act,
causation
on

permissible oleessnce.
how vicious or sever
no matter I. The Cable
Abusive invective 1995 requires
thatall programmes and advertisements telecast on 1995 requires
television con-
words" insult or provoke violence n
the "hghting code and the

Networks Rules, 1994advertisementcode5 Rule 6,

or gender"1 programme

colour, creed, religion race, form to the

form
to

Likewise, in England, R. Chief Metrobol:.an

n v.
Cable
Television
lays down the
an
attempt to prosecute the Stipe ode and prohib ahibits the carrying of any programme
Magistrate, ex p Choudhury," programme on the cable
ofThe Satanic Verses for blasphemy and au
hor sediti and service which:

court held that the common law fblasphemy was confined to protecting
The ailed. The (a)
contains
an
a n attack
religion or communities or visuals
att on
or
y the Christian religion and, in any event, it wou words contemptuousor religious groups or which promotes
words
communal attitudes;16
sible by judicial decision to set clear limits to the offence if
extended. The allegation that the publication of the book
impos
were to be th is likely to encourage or incite violence or contains anvythino
to create hostility between Musl1ms and other classes of e against mainte
ntenance of law and order or which
as was, promotes anti-
even if true, insufficient to constitute the offence
of sedition sing national attitudes;17
has to be proof of incitement to violence against the there d criticises, mal1gns or slanderS any individual in person or cer-
reiected an attempt to have the publisher, Penguin The Court State tain groups, segments of social, public and moral life of the
Books,
ander the Public Order Act, 1986 for provoking violence by prosecuted country;18
copies of the book to shops that later suffered bomb attacks.distributing
It was held
d) contains visuals or words which reflect a slandering, ironical
that unless the unlawful violence was the direct and and snobbish attitude in the portrayal of certain ethnic, lin-
immediate
the publication of the insulting words, there was no case result of
for prosecution guistic and regional groups.9
under Section 4, Public Order Act, 1986. The act of Similarly, the advertising code under Rule 7, Cable Television
to retail outlets could not be distributing a book
regarded as the immediate and direct cause Networks Rules, 1994 prohibits the carriage of advertisements
of unlawtul violence to which the bookseller may later be subjected by on the cable service which hurt the religious susceptibilities
fanatics or terrorists.4 In the UK,
offence. Blasphemy laws have been blasphemy
is no longer a criminal of subscribers,20 which derides any race, caste, colour, creed or
replaced by a law that seeks to check nationality21, or incite violence or disorder or breach of law.
racial and religious hatred, the
Racial and Religious Hatred Act, 2006. The Cable Television Networks (Regulation) Act, 1995 empow
ers the authorised officer appointed under the Act to prohibit the
Legal provisions in India transmission of a programme or channel, if it is not in conform-
t y with the programme code or the advertisement code or t t
Hate speech does not find place in Article 19(2) of the
theretore, does not constitute Constitution and 1S likely to promote disharmony or feelings ot enmity, hatred or
specific exception to the treedom o
a
ill-will between different religious, racial, linguistic or regional
speech and expression under Article 19(1)(a). It would have to the
Into Article
19(2) under De
other specified exceptions such groups or is likely to disturb public tranquillity.3 Further,
as
"sovereug 5 and 6, Cable Television Nerworks (Regulation) Act, 1995.
I1. R.A.V. v. St. Paul,
12.
(1991)
120 L Ed 2d
305: 5o5 US 377 017. Kule 61)(¢), Cable Television Networks Rules, 1994.
3.
1 All ER
306 (DC). (1992) 1bid, Rule 6(1)e).
K.v. Chief Metropolitan Stipendiary 18. Ibid,
Rule 6(1)i).
(1990) 3 WLR 986: Magistrate, ex p Choudhury, 1991* QB 429 19. Ibid,
Rule
(1991) I All ER 306 (DC).
Horseferry Road Metropolitan Stipendiary (1994
20.
Ibid, Rules6(1}\m).
7(1); 7(3-A).
TQ8
where260:(1990) 3 WLR 1006: Magistrai
rate, p Siadatan, ex 21.
Ibid, Rule
Ibid, Rule 7(2}i).
this with India,
the book was (1991) 1 All ER 324 (DC). COp re 22.
altogether banned. 23.S. 19, Cable7(2}(ii).
Television Networks (Regulation) Act, 1995.
 MEDIA LAW
FACETS OF
408
HATE SPEECH 409
Central Government
is e wered to prohibit the ities be invo
groupsor Communit red. It was
held that
re-transmission of any channel or
or:security of India.
programme in thetransmis
int without reterence to anothe cannot merely inciting
C o m m u n i t yw i t h o u tr e f e r

less it could be shown that attract

sovereignty, integrity or
of unless

e Cinematograph Act, I952, film

narticular religious, racial or
Words,
limo. the
the sed had acted
a
can hordere other particular
relio

linguisticor
cation on various grounds, including on the
to incite the commission of an offence or that it
denieitd certh.
ground that
In
against a
under
or of
either ofthe
the provisions. " t was
group, he could not
held that the be
is guiltyi n b o t h the offences is the
of the sovereignty and integrity of India organst thne inter, likely held
ingredient

etween diffe
promotion of enmity, hatred or
fferent religious, racial,
common
ests
. The Information Technology Act, 2000 allows the lic order 25 l - w .
nmunities. Howev linguistíc regional grou
while Section
or
roups,
interception ds, either spoken or ritten153-A
castes o r Com

information by the authorities the interest of words, covers a case

sovereignty and integrity of India, or for the purn public rder,
der, or the where
a
person

jisible representatic
by
nromotes or attempts to promote
or by
signs or by
incitement to the commission of a
cognizable offence 26 preventing of such feeling,
Section o5(2), promotion s
feelings should
haveother
Act also penalises
the
sending of offensive messages The Same
s by
n dpublishing
er or rculating the ement or report." In beenwords,
done
insult, injury, enmity, hatred or ill-will.27 under Section 5o5(2), lication is an.essential ingredient while this is
cause
4. Norms of [ournalistic Conduct, 2010 issued by the Press Section 153-A. nerefore, Section
n os
t o under
5o5 would have ,
India (constituted under the PressCCouncil of India Act, Council of from the point
of view ofthe med.O5 greater
tain extensive guidelines on the reporting of
communal 1978) con-
levance
Section 295-A IPC, on theother hand, is intended to ensure respect for
The Penal Code, I860 (IPC) contains provisions nunal incidents. religious sentiments of persons of different religious communities or
S.
hate propaganda. Section I53-A penalises the
which t h e re

promotion off class creeds.,31 Deliberate and icious intention is necessary. In a case under
hatred. Section 295-A penalises insul to
religion
beliefs. Section 298 penalises one who utters
and to
religiov
Section 295-A, lik Section 153-A, publication is not necessary.
words, makes sound As pointed out lier, hate peech is not an exception speciically
or gestures with thedeliberate intention of
wounding the
feelings of another. Section 5os makes it a penal offence religio
rarved out under Article I9/2) but could be read into some exceptions

to incite
listed under Article 19(2) such as the interest of public order, security
any class or community against another. Chapter of the State, or incitement to an offence. There are cases where a hate
ishes criminal intimidation.
XXII, IPC pun- campaign may not actually cause a breach of public order but would,
6. Section 3(1)(«) of the Scheduled Castes and the Scheduled nevertheless, fall within the expression "in the interest of public order".
(Prevention of Atrocities) Act, 1989 punishes an intentional Tribes
insult The Supreme Court has applied a broad interpretation to the expression
or intimidation with intent to humiliate a member of a scheduled in the interest of". In Ramji Lal Modi v. State of U.P," rejecting a con-
caste or tribe in any
place within public view. stitutional challenge to Section 295-A, the Supreme Court held:
T]he expression 'in the interest of makes the ambit of the pro-
Indian case law tection very wide. A law may not have been designed to directly

Bilal Ahmed Kaloo v. State maintain order and yet it may have been enacted in the
public
ecution of a Kashmiri
of A.P.,28 was case arising out of the pros
a
interest of public order.
youth under Terrorist and Disruptive Activities It is pointed out that Section 295-A has
been included in
(Prevention) Act, 1987 for offences under Sections I24-A, I53-A, 436 religion
Chap. 15,Penal Code, which deals with offencerelating tranqui
to

Sos2) iPC tor inciting people in Hyderabad against atrocities claimedanu and not in
Chap. 8 which deals with offences against the
nave been committed by the army on Kashmiri Muslims and for exnor ty and from this circumstance it is faintlyhave sought to be urgeu,
no bearing on tne
ng Muslim youth to takeup arms. The Supreme Court
concludeu rore, that offences relating to religion and consequenty a
neither
Case
Section 153-A nor
Section sosl2) could apply to the facts o the
of
dintenance public order or tranquillity
and imposing restre
since for either section to apply, it two W Creating an offence relating to religionand expression cannot
was necessary that at
iee right to freedom of speech
24. Ibid, S. 20. cl the Article 19. A Constitu
25. S. 5-B, n the protection of clause (2) of
26. S. 69,Cinematograph Act, 1952.
Information
29. lbid,
30. Ibid, (SCC) 437, para. 16.
Technology Act, 200o.
27.d. 66-A, Information (SCC) 436,
31. S. Veerabadran para. 1o.
Naicker, AIR 1958
SC ro32: 1959
Technology Act,
Technology (Intermediaries 2000. See also, S.
79

7*
and Information

SCR 1211. 7ettiar v, E.V. Ramaswami

28. (1997) 7 SCC 431: AIR Guidelines) Rules, 2011. 2 AIR

1997 SC 3483. 1957 SC 620: 1957 SCR 860.
 MEDIA LAW
FACETS OF
410

the right to freedom of religin

HATE SPEEM 411
which guarantees
the argument utterly
is untenable.
to The right will show Government is
competent to 199 an
freedom A State

99-A even if the order

gion assured by Articles
those
and health.
1s expressly made
Therefore, it cannotsubject
u n d e rS e c t i o n

its area, th matter objectionable

has matter 1s
sorteiture
lic order, morality to
be r puh Aished utside rinted
that freedom of ion can have no
public order or that a
bearing whateverredioncted Comparat
circulation w í t h i n its area and even
publis

ation within ifively inei. or

tharatively little
i r t 0rticularly felt in that area. In otheharmful consequences
or
no
maintenance of
creating an
offence nces
ing to religion cannot under any ci:
rela. is quite word
Cquential, the plare
printingand cir
heen enacted in the interests of public order. Those said to have
two
and circulation
order passed by
aa State Cco
State inconsequential
Government
termscontemplate that restrictions may be
imposed on articles in
the rights n
under Section under Section
99-5 only
guaranteed by them the interests
in of public order, 33 be halleng
challenged
in relation to the
that High 99-A can
in
Court which
territories of that State.
Similarly, in Kedar Nath Singh v. State of Bihar,34
jurisdiction
has
tothe order under
Article 226 would be However,
Section 5o5 IPC, it was held repelling the
hallenge,he challenge
challenge

constituent elements of the offence under Section sos that each

Challenge ain any High Court exercising
jurisdiction in relationmaintainable
oft hin which the cause of action,
within to
wholly or in part territo-
on the security of the State or public order.
Hence, the effe direct effer es

ce, Thus, even though the order may have

not exceed the bounds of reasonable restrictions
Had such a wide interpretation of the under Article would provision of
tortfeiture beenen passed
the Delhi Government, it could be challenged
had passed
r9(a:
expression v
ambay High Court as copies of the bookunder Article z26
not been applied, perhaps a large number of cases of "in the i terest of" in t
had been seized
did not actually erupt into disorder or hate speec in the latter's
jurisdiction.
silently by its victims would have fallen outside the violence,
or which
were
which n
The court repelled the
challenge to the validity of
borne 3
124-A, 153-A and 295-Å areSection 99-A,
exception. purview holding that Sections
of national
State of U.P. v. Lalai Singh Yadav," arose out imnortance, having Country-wide repercussions, that problems
forfeiture of the book, Ramayan: A True
of a
challenege the nal animosity and sedition could not be of
Criminal Procedure Code, 1898 (CrPC). The Reading under Section confined
Droblems and that the limitations imposed by Section on the as local
book finding that it "deliberately and government forfeited99-A, the freedom of speech could not de regarded as excessive99-A
religious feelings of a class of citizens maliciously
of India,
intended to outrage
the Further, although there was no provision which
in nature.
their religion and viz., Hindus by required that
religious beliefs and the insultine the writer or publisher should be heard before
able under Section
295A". However, sincepublication passing
whereof is punish- an order
of forfeiture,
statement of the Section 99-A mandates Sections 99-8 and g9-D provided for a full judicial
grounds of the government's the review of the order and therefore, the section
could nor constitute
none in the
notification forfeiting the opinion, and there was an unreasonable restriction
Gopal Vinayak Godse v. Union book, the same was struck down37 on fundamental rights.
the forfeiture of a of India3* arose out of a On Section 153-A IPC it
was held: 1) It is not
book
CrPC. The assassin titled, Gandhi Hatya Ani Mee under Section challenge to aresult of the objectionable necessary to prove that as
of Mahatma matter, enmity or hatred was in fact caused
brother of the
author, the Gandhi, Nathuram Godse was99-A the
between different classes. Nor is
2) intention to promote enmity or hatred,
of petitioner in the proceedings. The
forfeiture, issued by the Delhi apart from what appears in the
writing itself, a necessary ingredient
Tained matter which "promotes Administration stated that thenotihcation
book con
ne
offence. It is enough to show that the language of the writing is ofota
Hindus Muslims in India and the
and feelings of enmity and hatred between ature calculated to promote feelings of enmity or hatred, for the rea-
under Section 153A of the publication of which is punishabic
I.P.C. 1860". The
at a person must be presumed to intend the
natural consequences
republished the same Maharashtra Govern i t3) The objectionable matter must be read
court (a notification
special Bench of the under its name. On npermissible to rely upon stray passages and try o whole-t 5
as a
Section 99-h, to

33. Ibid,
Bombay High Court) held: dCiOus process of inferential reasoning. 4) In order to
ascertain tne
(SCC)
34. AIR 1962 622, paras. 7-8.
SC 955: into probable consequences of the writing, it is permiibie to tase
35. Tbid,
(AIR) (1962) 2 CriLJ 103. Meantconsideration the
nt as al
the class
class of readers for whom the book is primarily
36. (1976) 4 SCC970.213: AIR also the state of the classes or communities
338. ee also, 1977 SC 202. at the
at
therellevant time. If thefeelings between of
AIR 1971Harnam Das State of 5) writing is calculated to promote feelings
Bom 56:
v.

(197o) 72 BomU.P., AIR 1961 SC 1662:

487
enmity or
mity
ul or hatred, it is no defence to that the writing contains a truth-
LR 871. (1962) 2 *
account of say
history.
 MEDIA LAW
FACETS OF ATE SPEECH 413
412

On a careful
examination of the book and
applying CHA Hashmi Memorial Trust v.
Govt. (NCT
of Delbi), the
found that the book did not
the five
Safdar
struck
High Courtstruck down a notification of tho Delhi),
attetestes
the court conta e
out above, 95 CrPC on the
the ground thar i .Overnment
and hatred d under Section
it
uld be said to promote feelings of enmity he failed to state the
n o r i e n

slinms in India. The central theme of the book Was t h n Hind" g r o u n d so f f o r f e i t u r

he notification was directed against
by Nathuram Godse was not an act of athat Mahatma Buddhist tradition and "Ram Katha" posters
Katha'.
in two
Gandhi's murder "Ram

with deliberate and malicious in lain

calculated political lunatic but a
assassination-the genesis off the assassination itled,
which
had "v
intention been
the perception held by
the assassin (and the author) that Gandhi digion eulated and displayed by Sahmat to insult or
1
pub-
the Muslim community leadin nut
ed, c i r c u l a t e

attempt aSule
of of a particular comnunity and these POSters t ins
a policy of appeasing ursued
he partition on the nromote posters also pro-
of reli
the country for which
Hindus paid a heavy price. The to
r e ground
l u n d of religious
book, different religious communities harmony
attempt
or a feel-
painted a sympathetic picture of Nathuram and glorified
tion of the Mahatma, but the court was not called uvon alled upon to
doubtless,
the assassi
note

ing
of enmity
between
o f f e n c ep u n i s h a b ,
different

tion 153A and 295A LP.C."

which act is an
The court held
that basis. The court's task was merely to udge the tailed to meet rh
meet the mandate of
book on
ascertain
notihcation
295-A andSections
the glorification of Nathuram and his acts could be said to ether hat the did it fail to mention the
since
only not
grounds on which its opin-
ings ofennmity or hatred between the two communities, promote feel- I53-A but ffailed to even identify the particular
which the court
based
community which
ion posters were intended to insult. Further, there was no evidence of any
was

found, it did not. Accordingly, the order of

forfeiture was quashed.
In Babu Rao Patel v. State (Delhi Admn.)," the Supreme e Or malicious intention on the part of the trust.
that Section I53-A IPC is not confined to the promotion of
Court hala
iato Bhadra v. State of W.5., the question arose as to whether
ings
enmity on the ground of religion alone but on other grounds as well L hook Dwikhandito by the Bangladeshi author, Taslima Nasreen,
as race, place of birth, residence, language, caste or h in India under Section 295-A IPC. The book was
community, In hic could be proscribed
article published in a newspaper, the appellant had described the the third lume of an autobiographical trilogy by the
Muslim
community as "a basically violent race", as intolerant and blood-thires
ublished as
aurtor and was deeply critical turning into a theocratie
of Bangladesh
with a tradition of rape, loot and murder. Muslims were of religion the position of women. The
State and the adverse impact
on
vilified as beine
the proud descendents of the "foul" Mughals. The court book is an acerbic outburst against gender exploitation and inequality
viction under Section 153-A, holding that the
upheld the con
publications by the appel- sanctioned by religion. Through her harsh and shocking depiction of the
lant promoted feelings of enmity, hatred and ill-will out of
between the Hindu state of things, the author seems to want to jolt her countrymen
and Muslim communities. The
publication could not be defended on the their complacency and make an attempt towards reform through secular
ground that it was a political thesis or a historical truth.
democracy. The order of forfeiture, issued by the government of
West
In R.V. Bhasin v. State
of Maharashtra,40 a full Bench of the Bombay Bengal under Section 95 of the CrPC, stated that passages in the book
High Court upheld a notification under Section CrPC were published with "the deliberate and malicious intention of outraging
titled, Islam: A Concept of Political World Invasion banning
95 a book

Muslims. The forfeiture was chal-

by
court upheld the right of the author to criticise Islam but held that the religious feelings of Muslims in India..." The
book went far the lenged not the by a foreigner, but by an
author, Indian citizen who had
beyond that by incorporating lurid details attributed to uired copy of the book and claimed that
a as a "person having any
the Prophet's life, by insulting the Prophet, Islam and Indian Muslims. rignt
Crest in any... book" under Section 96 CrPC, beenundamental
his
The court held:
der Article 19(1)(a) to receive information had violated. i was
as
An author has a
right to put forth a perspective that a particular apreliminary objection to his locus standi that he qualinea
religion is
secular. This is a view point which one has
not
to assert.
a
rign an interested person" under Section 96. Calcutta High
However, if a book reeks of hatred for a particu The was upheld by a special
Bench of the
community, if it contains rabid material and there ue enge the effect of
the objec-
no sincere appears to D the ground that Section 295- confines authored by a
handling of the subject but a mala fide exercise to st ble matter the book
communal passions, one must pause and consider to citizens of India and that
is in conditions and poSition
ne interest
of the whetne
general public to allow its circulation. Bangladeshi author about the social and political
be intended
to outrage
Women in her own country could not said to book was
secular
the Wn ofthe
39. (1980) 2 SCC
40. 2010 All MR 402: AIR 1980 SC 763. sentin O M u s l i m s in India. The theme
Cri 357.
4I. Ibid, 2001
para. 56.
43. 2006 Cri LJ 3689: (2oor) 6o DRJ 208.
Cri LJ
368 (Cal).
 MEDIA LAW

414
FACETS
OF
HATE SPEECH
415
ure and
the author's intentions were by no stretetch CHA.
deliberat
winning Joseph Lelyveld's book on Ma tma Gandhi,
Mahatma Gandhi
and His
orize

maliciously outrageous to Indian luslims. The book,

rea
G r e a tS o u l :

Pulitze
M a h a t n a

Struggle With India

of archival
consistent with the autho.d as aa whole basis material, that G because it aause
and not in isolated parts, was on
the
German bod ad
through her writing. Tlar ohi. with th mosex-
a
of bringing about soCial
retorm
hinteionship by the
by
ations author responded to the ban with name of Hermann
to the
Muslim citizens should be outraged by such writing would
be ggest that The aitselffa de"uCd
some
anguish: "In a
aspersion or intlicting
an insult to that class of citizens castin
ting an calls democracy, it is shameful
a
to ban a book
doing the banning,."7thatThis
that
It would be rather disheartening
to note that the p o v e r . COuntry
read,
including the
th
people who are no

have faith and confidence ahos nt of has several book bans, includi The
West Bengal does not one be true of ne
Satanic V
rity of its own citizens of that class and tends, on the other matu-
trend seems be-when there isis even potential Verses. The
to be-when a
to recognise the soaring voice of fundamentalism and i nd, kes no chances and
panders to its controversy,
general

national voice of the masses who did not take exception th the he
the ibook. So what, if the courts constituency by
omptly
banning
proceedtoOto quash
quash the
the book was read by them over a considerable
period before The government already accomplished ite
has
being proscribed.44 ban?
ion of
of the
champion it
agenda
vote-bank had set out to
by projecting
the
In Baragur of
Ramachandrappa v. State Karnataka," the Suprema d. tself as
ie that neither anyone in government nor theappease. The
irony usually is
upheld the forfeiture of the novel Dharmakaarana under Section Ourt read the book. community
be aggrieved has
the novel SaidManzar Sayeed Khan v. State of Maharashtra," arose out of the
to
on the ground that offended the religious sentiments of the d
lowers of Basaveshwara, a 12th century saint. The State Government ad to be:taken under Sections I53 and
153-A IPC against the
tionsought
issued a notification directing forfeiture of the book under Seetiou
5
author andpublishers of the book titled Shivaji: Hindu King in Islamic
of the code. A petition under Section 96 was dismissed by a
three-iudo
Bench of the High Court. The Supreme Court found that the book con.
ldia, which, it was alleged, contained objectionable passages against
rhe Maratha warrior king. The action was preceded by a mob rampage
tained offensive and scandalous allegations against the sister of the scholar who had assisted the author and the
saint resulting in the assault of a
and suggested that her son was an illegitinmate child and in Pune where thousands of rare books
accordingly dis ransacking of a research institute
missed the appeal. How insinuations against some members of the and manuscripts were destroyed. The investigation was quashed by the
saint's
family could justify forfeiture
explained. The court held that
was not
Supreme Court holding that the requirements of Section 153-A of the
Sections 95 and 96 of the code are preventive
provisions designed to pre- code were not met, and that mens rea for the offence, the intention to
empt any disturbance of public order. Section 95 does not by itself create create feelings of enmity or hatred amongst different classes of people
a criminal offence and the reference to the various sections of the IPC
could not be made out. The intention had to be judged from the book as
are
descriptive of the kind of offences which need to be prevented by a a whole, its
language and the circumstances in which the book was out
writ-
declaration under Section 95. Section
95 does not require that it should ten. A strongly worded o r isolated passage was insufhcient to make
be "proved" to the satisfaction of the State
Government that all require the offence under Section 153-A.
ments of the 19
punishing sections, including mens rea, are fully establishea. Likewise, in State of Maharashtra v. Sangharaj Damodar Rupawate,"
Itwas enough if it appeared to the government that the ingredients of the the or
offence were made out. The
court held that Section 95 cannot
otincation issued under Section 9s CrPC, by government
to be violative of sa De
4anarashtra directing forfeiture of the same book Sbivaji:
Hinau
KMg
Article 19(1)(a) because there is an efficacious remeuy that no oftence was
made

under Section 96 for C India was quashed on the ground

aggrieved party."°
an failed to proauce au
d e r Section I53-A and that the government enmity berween dif-
Unfortunately,
bank politics
India, in
most government bans are
motivatu y voteof material to suggest that the publication caused any identi
rather than any genuine zeal to terer
been
in question
protect the sentimci Nor had the
fied.Ommunities.
mmunities
any community. The notification which
swiftness and mindlessness with which some The Bombay High Court judgment quashing the
roversialin publications have been banned, makes it obvious that for
obody
s upheld by the Supreme Court, took a broad
view of the expresSIon
hold that it
SItting government cared betore CrPC to
proceeding to ban them. In
tostudy the publications in quest any person having est" under
Section 96
be intormed, as
March 2011, the State of jarat banned included "an interest in the right to
44. lbid.
Gujaia elzen having an

45. (2007) 5 SCC 1I.

47. Daily News &
46. Ibid, 23, para. 19. 2007) 5 SCC
Analysis, 31-3-201
AIR 2007 SC 2074
:
49. (201o)7 SCC 398.
 MEDIA LAW
FACETS OF
416 HATE SPI ECH
417
larger part
of his right of frecdom ch anu
of speech
and pression".
and
the
arisfaction of the government that all re
a
Court laid
down the broa parameters to test he to , including mens rea, were irement of pun-
validity Theoof a fully
hingsections,

Supreme
notification under
Section 95 CrPC: valid onus to dislodge. and rebut the prima
facie established;
of the groundsof its opinion by the State
a 8. T
ernment that ti offending publication comes opinion of the gov
The s t a t e m e n t c
within the ambit of
vitiateGovernme
I.
offence, including its
is mandatory and a total absence thereof would
ment the decla the
relevant requirement of n t isis
such intention has to begatheredt eintent the on
the h edec and
the grounds of D e gathered trom the
ration of forfeiture. 1heretore,
language,
applicant

thereof,
opinion must be stated in the notification issued governmen contents
and i m p o r t

effect of the
words used in the
code and while testing the validity of the notifcon
he offending
material must be
ng material
has toconfine the enquiry to the grounds so fication, the
disclo judged from the standards of
reasonable,
ourageous men, and not those of weak and strong-minded,
firm and
Grounds of opinion must mean conclusion of facteOsed vacilla
2.
must necessarily he f those who scent danger in every hostile point of view.minds,
The class
nor
opinion is based. Grounds the or the
the import of
of tho
readers, for whom the book is primarily meant, would also be
effect or the tendency of matters contained in the
cation, either whole
as or in portions of
it, as publi. offending ot
rea for judging the probable consequences of the writing."
a

choo A mere
illustrated by pas relevant

sages which the government may repetition of threat to law and

of the section will not answer the
opinion or reproduction
ment of a valid notihcation. However, at the same time, it ic
not
necessary that the notification must bear a verbatim record of +
forfeited material or give a detailed gist thereof.
. The validity of the order of forteiture would depend on the merit
of the grounds. The High Court would set aside the order
feiture, if there are no grounds of opinion because it there are no
grounds of opinion, it cannot be satished that the grounds given by
the government justify the order. However, it is not the duty of the
High Court to find out for itself whether the book contained any
such matter whatsoever.
4. The State cannot extract stray sentences of portions of the book
and come to a finding that the said book, as a whole, ought to be
A perceived
:oed thr order is a routine
excuse for govern-
require ment: to censor films or books that express uncomfortable or incon-
venientpoints of view. In Prakash Jha Productions v. Union of India,"
k State Government of U.P. sought to prohibit the screening of the
lm"Aarakshan" which dealt with the sensitive subject ofreservation
far Dalits. The film had already passed muster with the Censor Board
of fot comstituted under the Cinematograph Act, 1952 and received a UA cer
tifcate. The Examining Committee of the Censor Board comprised of
members belonging to Scheduled Castes and Tribes and the OBC (Other
Backward Castes). A legal expert and an expert on the Dalit movement
were also present during the preview of the film. Norwithstanding a
certifhcate by the Board, the Uttar Pradesh Government issued an order
under Section 6(1), Uttar Pradesh Cinemas (Regulation) Act, 1955, Sus-
pending exhibition of the film on the ground that it was likely
to cause

forfeited. a breach of peace. The film was being screened in the rest of the country
5. The intention of the author has to be gathered from the language,
without a breach of peace. The Supreme Court quashed the order, tolk
contents and import of the offending material. If the allegations that
1OWing the ruling in Union of India v. K.M. Shankarappa," holding On
made in the offending article are based on folklore, tradition or its impact
e an expert body had cleared the film after considering
history, something in extenuation could perhaps be said for tne ublic, it was no excuse to say that there could bea breach
orpeace
aurhor. had be tolerated in demo-
a
6, Ch Justified the ban. Divergent views to

If the writing is calculated

to promote feelings of
enmityor hatrd, Cratic
ety and the State Government was bound to ensure tnat aw
by holding
t is no defence to charge under Section I53-A IPC that the wrir
a
rder is maintained. The court prevented pre-censorship
of Screening
ing contains a truthful account of past events or is
otherw that Section permit suspension
ported by good authority. Adherence to the strict patn CL of the U.P. Act couldpublicly exhibited, notone whien
tÅA which was already being
screened,
S not by itself complete defence to a charge under Sectio
a was ye
exhibited. Where the film
had not been publicly that
IPC. there could opine
n0 material based on which the government
7. Section 95(1) of the code postulates that the ingredients of the there was a
OTfences stated in the
notification should "appear" tobtn
likelihood of breach of peace.
ment to be e "proved"
S.
present. t does not require that it shouu lbid, 414,
0gharaj Damodar
2.2011)8 SCCpara.372.37
3- (2001) SCC
Rupawate v. Nitin Gadre, (2007) 57 AJC 289D 582: AIR 2000 SC 678.
 MEDIA LAW
FACETS OF
418 HATE SPEEC 419
Kamal Haasan's thriller Vishuae
Vishwaroopo ould not not against entifiable individuals
In January 2013,
in Tamil Nadu
as Auslim
groups protested that Coula commurmunity
and
exception. would fall outside
be released of this the
tained scenes that BoardMuslms
showed in a poor light, Tthe fmo con
view
the UN
Human Rights
Council
and was being screened m had been
in In s008,
20rhe defamation of religion" as adopted resolution
a
con
obvioustheatres across
Censor
cleared by the inciden In Og Te text of the resolution,
a
human rights
country
without an untoward

supported the evt attempt

an
too nurse ccordingt o t h e
his resolution
defamation is a seriousviolation.
vote bank, the
State Government
extra constitutio dignity. ned at
was affront
a

ban and proceeded

to temporary an from
secure a
the
man

such as
of the Prophet
cartoons

published checking
by a Danishderogatory
Eventually, the State
Government negotiated settleme High Co ks
But it was opposed by Germany on behalf newspa-
producer and the religious groups and allowed thetlement
film between of the newspa-
a
2
defamation Eu
religion is not valid inEuropean
peri n that
the ground of
on the
nionfext because human rights belo to individuals not to human
a
only after several
excisions.
leased
Manishi Jani State of Gujarat concerned challennge to
v. a ghts
religions.
57
institu-
or

fication of the State Government of Gujarat forfeiting

a noti tions
ba and
book by former Cabinet Minister Jaswant Singh, titled,
Jinnah:nning a Reporting hate speech
Partition, Independence. A full Bench of the
Gujarat High Court India,
down the notification issued under Section 95 of the code on the struck More than ver before, the Indian media came into
sharp
that it failed to even examine the contents of the publication and ground of communal violen in Gujarat in 2002. Onscrutiny with
ge the morning
in its view, the book was "highly objectionable and how f 27 February 2002, the dabarmati Express that had just arrived in
against the ational
interest, against public tranquillity and against the interests of the State Codhra, Gujarat, is alleged to have been torched, burning alive s8 pilerims
The notifcation failed to how the book would
explain promore enmity their return from Ayodhya, the legendary birthplace of Lord Rama.
on

between different groups of people on the grounds of race, religious, The needle of suspicion was on the Muslim community that dominated
guage and the like and result in ill feeling amongst them.
lan. Godhra. As the news spread, the state ot Gujarat saw the most macabre
Magbool Fida Husain v. Raj Kumar Pandey, arose out of criminal bloodbath against Muslims in independent India. The press came in for
complaints against celebrated artist M.F. Hussain for having depicted some sharp criticism for its provOcative reporting in an already incensed
Bharatmata in the form of a nude woman with dishevelled hair. and communally charged atmosphere. The Editors' Guild Report indicts
from the contention that the painting amounted to an obscene
Apart
work sections of the vernacular press, notably the Sandesh and the Gujarat
under Section 292 IPC, it was also
argued that the artist had engendered Samachar for its depiction of grisly coloured photos of Godhra victims
hatred and hurt nationalist sentiments by so and slanted reports, which were said to have played a role in the violent
erland. The offence under Section
depicting the revered moth-
298 IPC could not be made out as it atermath of Godhra. Methods stated to have been used by some ver
was found that there
was no deliberate intention on the nacular papers to sensationalise the incident were:
to hurt
part of the artist
religious feelings. Use of headlines to provoke and communalise, for instance, the
Group defamation ront page in the Sandesh 28 February 2002 carried the head-
on

line, "Avenge Blood with Blood". This was apparently a quore trom
Detamation is another of the astatement issued by a VHP leader. On I March 2002,
a
head
exceptions under Article 19(2) within tne in existence in a
Muslim
parameters of which hate speech could fall. However, the Supreme ne claimed that a "mini Pakistan" was
interpreted Section 499, Explanation 2 of the IPC at it uminated area of the city. On 6 March 2002, a headline read,
(whichanstates
may amount to defamation to make an imputation against association
nus Beware: Haj Pilgrims Return with a Deadly Conspiracy"
column comme
or collection of persons) as applicable provided it is
directed ag
s ta n
ne local paper, Madhvantar carried an eight have to prove
identifiable group of n the front page headlined Muslims
will iney
of the particular persons distinguishable from thelarge
as
community.56 The result of such an are
fully Indian" 58
number of cases of hate speech, interpretation at is
particular
Photographs
of burnt, mangled bodies
a common
feature
were

54. AIR
more generally directed a
Pa on the front page of several papers. Also, front pages.
photographs of trishul
2010 Guj 3o. Both
55. 2008 Cri LJ 4107 (Del). wieldin
wielding akar sevaks were splashed the across

S6.G. Narasimban v. T.V. Chokkappa, SC 2609;

Sahub
57.U.N. Human Apratim Mukarji, The Black Combating ofreligions.
defamation

Singh Mehra v. State of U.P., AIR (T972) 2 SCC 680: Alk T972 8. M.L Sondhi and.
Rights Council, Resolution7/19, Book ofGujarat (2002).
1965 SC 1451: (1965) 823.
 MEDIA LAw
OF
420
FACETS
IATE SPEECH 421
and
instilled terror and anim. ures, strongadjectives
d
provocative disp
kinds of photographs mosity between the or
edit or
censure
instantaneous play. Since here is a little
.
communities involved.59

Local TV channels
telecast inflammatory speecho
ousDat
urden in
no
or
time

on doing
the
to
e reporter
s0, he does
to use
nothis
fueldiscretioBe,
or ncite further
to report coverage, there is:
therethei truth
ner
but
oner-
were local.
local lead-
ers. The icences of some
after they showed
cable operators

live coverage of efo pended ensure

ult and
doinsc undesirab
undesirable
perhaps to
lay down violence. Whi
couple days
of
rioting Strait-iare While
sitive Macchipith area.
Cable channels telecast an. in the
the s during communal incidents, C strait-jacketed
rules on
alistic, anti-Pakistan films, such as Gadar, gressively
essively Sen-
Border and Ma tation
reportn nd self regulation in the media.
was a
grim wake up call
Salaam.
.This was the first time that the electronic media was nsed.
Tuiho
to
and social media
fire. Rioters and looters were given directions on to fue
fuel the speech
with the rumour thatmobil
Hate
the
dangers of social media in the
SMS messages were sent out

Email used to
milk ss phones. ecent
times have witnessed
ember 2012, the trailer of an hate speech
had been poisoned. was
threaten, intimidate ies context. I n S e p t e m

Muslims went viral on YouTube,

offensive anti-Islamic film,
send out hate mail.60 fe
mocence o fMu
nce of
On April 2002, the Chairman of the Press Council of ayhem across the Muslim world. So unleashing
much so that the US outrage and
Jayachandra Reddy J noted with anguish; "[A] large number of nelia, KK.
wspa-
a lled in violent protests in Benghazi. In ambassador
channels in the country and, in
to Libya
Buddhist temples were set on fire and Bangladesh, cen-
pers and news
a particular,
large sec
turies-old

destroyed in response to
of the print and electronic media in Gujarat has, instead of allevia allegedly derogatory image of the
Quran posted on Facebook.
in
to home, in November
2O12, a Muslim student who Closer
communal unrest, played an ignoble role in inciting communal made
passion
leading to large scale rioting, arson, and pillage in the State concerned 6 n Facebook following the death of Shiv Sena harmless
A complaint of the State Government of Gujarat and
leader, Bal
keray found herselt and a triend who liked her post, arrested
of public was that there was inadequate media
indeed, sections Cection 66-A of the Information lechnology Act, 2000 and her fam-
under
coverage in the English
press over the Godhra carnage and of other incidents
where Hindus ilv's property vandalised by mobsters. Indeed, the very attributes of the
had been victimised: the anger and social media that catalysed the Arab Spring in the Middle East in 2011,
indignation that was later expressed
over the aftermath all over have made it a deadly instrument in the hands of hate
Gujarat was missing from the mongers. The
Godhra.52 There were suggestions that the Godhra victims reports on social media is an easy tool at the disposal of those who want to
had invited whip
the situation upon themselves up passions and there is little that can do more damage or spread more
by their conduct which included forc
ing Muslims to chant "Jai Sri Ram." Interestingly, a local hate than live and graphic
pictures that provoke and travel faster than
paper with a
large Muslims readership, the Gujarat Today seemed to have altogether a wild fire.
Equally, the posting of information in a widely access1ble
avoided the Godhra incident. The editorial of 28
any report on SOCial domain tends to
2002 focused
February amplify and exacerbate matters which may have
exclusively on the
Railway Budget announced the previous emained innocuous in a more
private domain.
day and made no reference to the Godhra In
India, the social media is regulated by the Information Technology
here is no doubt that the media playedcarnage.
an invaluable role in Act, 2000. Section 66-A reads thus:
to
the citizen, the true state of affairs in Gujarat. Having saidbringng
that, u
an already surcharged atmosphere, even the best from the o6-A Punishment for sending offensive messages through commntCAL
to Or a
have done little to calm
or alleviate the
pressSEe e,etc.-Any person who sends, by means ofa computer resource
While there is a tensions. communication device,
duty cast upon the media to report and (a)
honestly and keep the citizen informed of what the accuracy may ( nrormation that is grossly offensive or has menacing character, or
of
any information which he knows to be false, but for the purpu
choose to hide, there
is a
corresponding duty to avoid sensa governmhic *
noyance, inconvenience, danger,
obstruction, insult, inury
D Crim Dy
59. n a l intimidation, enmity., hatred or will, persistently mas
ill
Siddharth Varadarajan, Gujarat: The use of such computer resource or a communication devic
60. M.L. Sondhi and Apratim Making of a Tragedy
61. Ibid. Mukarji, The Black Book of (2002 any electronic mail or electronic mail message for the purpose
r to mislead the
62. S.K. Gujarat sing annoyance or inconvenience or o
Modi, Godhra: The
Missing Rage (2004).
63. Siddharth Varadarajan, The Media shall addressee
be or ipient about the origin
of such messages,
extend to
three
Gujarat: The Making of a Truth Hurts, Gujarat and the
no
e ofthe Years andpunishable with imp for a term which
mprisonment
may
Tragedy
"

(2002). with fine.

 MEDIA
LAW HATE SPEEC 423
FACETS
OF
though President Obama condemn the film
422
the purpose of this section, tt \CHAD. hat country. Yet the filmn was regarded could not be
Explanation.-For
"electronic
mail message"
mear
s
"electronio mail Soeven

red in ehe world and in Egypt, the filmmakeras emous

o fth
blasphem in
American of
in
and
transmitted
received
or
on a computer, Computer svste
ding attachmen
device includin
stem, computer res
in text
created or censor
p a r t s

was tried by in absentia

a court
and even
othn or1g
other

or
communication

which may be transmitted adio, evideo

udio. Esyptian ords. what is lawful in one sentenced
sent to
ny other electronic record,
the message. death. l n
death in another. country is
Ditterent countries unlawful and
rather loosely worded and is on the with
and
The provision is
trary and excessive. The ishment, merely for very face of it
insulting, intimb
hable
adopt their
own laws and
choose the core jurisdictions
art puni
itled t o values
matter
how globalised
the that gov-
annoyingor inconveniencing a thre
another is
ear jail term. areeir laws. No
mogenise. world, value systems
or even

It is also doubtful whether the permiss1ble exceptions ca unlikelyto

But in a
world where information m are
Article 19(2) contemplate
such
excessive restrictions as the under orders and
lesslyacross bo continents, how does one solve the moves seam-
constitutional validity of the provie covered echnologY presentsE Does it mean
that legal conun-
liberal and robust freedom of expressic jurisdictions which
Section 66-A. The
under has been
challenged in the Supreme Court n Shreya Singhal v. Unio
drum

re libera
more

Slon will hav to curtail

In April 20II, the government notified the Intermediary joy a

r freedom
deference
in deference to the sensihil:
sensibilities ot those in
under the Information Technology Act, 2000 uidelines that unfairly restrict the right to free other jurisdic
imposing
Facebook and obligations on
tions? Or
intermediaries (such as online website like 1risdictions? If the latter is correct and speech available
Google)eto d
v in some citizens are entitled
out information that is "harassing", "disparaging, "hateful
cnjoy rights available to them under their Constitution to the fullest.,to
mous" or "otherwise unlawful in any manner". These guidelinesim does it make a case for some measure ot Internet regulation?
on intermediaries the onerous task of removing content on
the net al
atter
independently judging whether or not it is offensive and thus compellina
them to play the role of a "content police". elling
The social media with its instant global reach
presents interesting legal
challenges by blurring distinctions between jurisdictions. Technology
has torn down the traditional barriers that hitherto
restricted free speech
and kept it largely confined to the
jurisdiction in which it originated.
However, with technology and social media that is no
and one can no longèr possible
longer take one's audience for granted. It was once
famously said by Oliver Wendell Holmes J that you cannot falsely shout
fire in a crowded theatre. The
reason is
a crowded theatre can obvious-falsely shouting fire in
generate needless panic and have dangerous conse
quences. With the advent of
world becomes one's technology and the social media, the whole
theatre. One no longer has control over how or
Wide
information may travel. The consequences of what one says orfardoes
may have ramifications
which are far wider and more serious
may have anticipated. Quite apart from than one
ful that, what may be pertectly l
and permissible in a jurisdiction where
tO tree one seeks to exercise
speech may be sheer
heresy in another t
ance may travel by virtue of ijurisdiction where tne
technology. Take the
By all accounts, the film was example
lnnocence of Muslims. of tne
one. offensive
c
Nevertheless, given the robustness of First
a crass
au
ht nder
Lonstitution, the film could not be Amendment
outlawed in the Unitea oStates.
64. WP (C) No.
167 of2012
ns regard, the judgment(SC)of the
Jee
(Pending) ding before the Supreme Court.
wHC 2157 on what amounts Queen'spending Bench in Paul Chambers ers v
DPP, 2012

Twitter. u S to
to
sending a message of aa "menacing Cna
on

"mena