Hate speech versus fair criticism

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According to DJ Galligan (2008) when reviewing an article in the Oxford University Press opined: Modern constitutionalism has at its center a paradox between the people as sovereign or constituent power and the constitution ; constitutions are the creation of the people but, once created, impose constraints on them.

According to authors Martin Loughlin and Neil Walker in their book titled: The Paradox of Constitutionalism (2008) published with Oxford University Press: Modern constitutionalism is underpinned by two fundamental though conflicting imperatives: that governmental power is ultimately generated from the consent of the people and that, to be sustained and effective, this power must be divided, limited and exercised through distinct institutional forms. The people, to use the words of Maistres, are sovereigns who cannot exercise their sovereignty: the power they possess, it seems, can only be exercised through already established constitutional forms. This indicates what, in its most elementary formulation, one might call the paradox of constitutionalism. .

According to Loughlin and Walker (2008): Central to virtually all formulations of the paradox of constitutionalism is the question of the priority between constituent power and constitutional form, politics and law.

Modern constitutional texts aspire not only to establish the forms of governmental authority (legally constituted power) but also to reconstitute the people in a particular way. The notion of a people’s constitutional identity, and in particular its relationship to the constituent power possessed by the people, is perplexing. (Loughlin and Walker, 2008, page: 1)

A very similar paradox of constitutionalism can be inferred from the recent orders of the Supreme Court during the hearing of the (civil) written petition which according to petitioner Shaheen Abdulla relates to the growing climate of hatred in the country and this is attributable according to the applicant. to a relentless stream of what is described as hate speech by various people against the Muslim community.

The bench of two judges of the Supreme Court during the hearing of Kapil Sibal, lead counsel for the petitioner on October 21, 2022, at page 2, observed: The Constitution of India envisages Bharat as a secular nation and brotherhood guaranteeing the dignity of the individual, and the unity and integrity of the country is the guiding principle enshrined in the preamble. There can only be fraternity if members of the community from different religions or castes in the country are able to live in harmony.

The Supreme Court, in the same order dated: October 21, 2022, further stated: We believe that this Court is charged with the duty to protect fundamental rights and also to preserve the constitutional values ​​and the secular democratic character of the nation and in particular, the rule of law.

But at the same time, the latest order dated April 28, 2023, passed by Justices KM Joseph and BV Nagarathna, observed that the court order would apply to all perpetrators of hate speech, regardless of their religion. . The secular nature of the nation must be protected, the bench of two judges stressed.

Interestingly, Barrister Kaleeswaram Raj, appearing for veteran journalist Sashi Kumar, however, stressed that freedom of speech should not be stifled on the pretext of combating hate speech.

It was argued by Adv K Raj: The possibility of restricting even freedom of expression cannot be overlooked. Draconian new laws or preventative measures could create more problems than they solve… We have enough case law on hate speech. What is needed is the rule of law on the ground,

This could be the inflection point where the paradox of the Constitution could arise.

On the one hand, Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression to all its citizens, except for the reasonable restrictions provided for in Article 19(2).

And even if secularism is an ideal enshrined in the preamble of our constitution, article 14 allows a reasonable classification on the basis of intelligible differences.

In the same vein, it would be appropriate to reiterate the special provisions inserted in Article 15, i.e. clause (6) was inserted by the 103rd Constitutional Amendment in 2019. The provision allows the state to provide for affirmative action, including reservations for economically weaker sections (EWS) . Various states have programs in place to implement SAP reservations based on clause (6).

Here, it would be rationalized that Article 15, in clauses (3-6), allows positive discrimination in favor of disadvantaged groups. These clauses exist to enable the broad affirmative action agenda of the Indian state.

Secondly, from the intention of the legislator in the formulation of the criminal provisions relating to hate speech, namely Articles 153A (promotion of enmity between different groups on the basis of religion), 153B (imputations, assertions prejudicial to national integration), 505 (public mischief), 295A (deliberate and malicious acts intended to outrage religious feelings) of the Indian Penal Code (IPC)…can we assume that hate speech is just another remedy political indirectness that could be misused by religious groups and political factions to defend their interpretation of religion guided by their personal prejudices and skewed belief systems.

Or, can Apex court directives to states to file a first information report (FIR) against suspected hate speech perpetrators be considered some guarantee of conviction?

It must be understood that law enforcement authorities are not seasoned forensic minds and while an investigation may be initiated against the alleged offense of hate speech, the ultimate mens rea to definitively judge that the alleged accused actually harbored a deliberate intent and malicious in the broadcasting of their speech must be proven beyond reasonable doubt to secure a conviction.

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