Professional Documents
Culture Documents
Hate Speech
Hate Speech
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
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
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.
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
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-
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
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
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
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
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.
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
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
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
Pulitze
M a h a t n a
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
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
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
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
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
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
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
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
"
or
communication
re libera
more
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