This article has been written by Shohom Roy, from Symbiosis Law School, Noida. This article analyses a recent case about the vilification of a religious minority and the concept of hate speech in India.
Democratic societies with an inclination towards individual autonomy have gifted us with rights. The makers of the Constitution of India ensured that undue interference with the rights of the people is averted by a system of checks and balances. The right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution is not an absolute right and can be restricted by the government under Article 19(2). In light of the derogable right of freedom of speech and expression, a writ petition was filed by Mr Firoz Iqbal Khan before the Supreme Court seeking a pre-broadcast interlocutory injunction against the telecast of a program on Sudarshan news named “Bindas Bol ”. Although initially the Apex Court had refused to grant a pre-telecast interlocutory injunction, the news channel was stopped from telecasting the remaining episodes by the Court. This raises some serious concerns about the consequences of restricting journalistic freedom and the need for a strong self-regulatory mechanism in the media.
Facts of the case
In the case of Firoz Iqbal Khan vs Union of India (2020), a writ petition was filed before the Supreme Court under Article 32 of the Constitution on August 28, 2020, by Mr. Firoz Iqbal Khan seeking a pre-broadcast ad-interim injunction on the telecast of the ‘ Bindas Bol’ program at 8 P.M. by Sudarshan news. On the same day, the High Court of Delhi while hearing a plea by students from the Jamia Millia Islamia against the program, restrained the news channel from broadcasting the program and ordered the Ministry of Information and Broadcasting to investigate whether there was a breach of the Programme Code under the Cable Television Network (Regulation) Act, 1995. The Apex Court had dismissed the petition initially and had refused to grant a ban on the airing of the program based on an unverified transcript of a forty-nine-second clip. The Court opined that the contentions of the petitioner that the content of the program was derogatory about the Muslim community and created an environment of hostility towards a specific community on religious grounds are not maintainable. It was held that statutory authorities responsible for regulating the content of news channels should examine the content of the program before its scheduled telecast. The episodes of the program were aired on the 11th, 12th,13th, and 14th of September 2020 after the permission of the Ministry of Information and Broadcasting.
In light of these contentions, the Apex Court deliberated on the questions of:
- Reasonable limitations on the constitutional right to freedom of speech and expression
- Regulatory mechanisms for broadcasting of television programs
- Violation of the provisions of the Cable and Television (Network Regulation) Act, 1955
- The mechanism of pre-broadcast interlocutory injunction and the promotion of hate speech against a specific religion
- Article 14 of the Indian Constitution provides equality before the law and equal protection under the law.
- Article 19 deals with the protection of rights to freedom of speech and expression, religion, etc. These rights may be abrogated by the State by abiding by the due procedure of law.
- Article 32 provides remedies in the form of writs for the enforcement of fundamental rights through the Supreme Court of India
- Article 51A lays down the Fundamental Duties of every citizen of India
- Section 19 of the Cable Television networks (Regulation) Act, 1995 seeks to prohibit the broadcasting of certain programs in the public interest.
- Section 20 of the Cable Television Networks ( Regulation) Act, 1995 allows the central government to prohibit the operation of a cable television network if it appears to be a threat to public order, national integrity, or sovereignty of the nation.
The petitioners asserted that the Sudarshan TV channel was maligning the Muslim community and making false allegations about the alumni of Jamia Milia Islamia by calling them “Jamia ke Jihadi”. The program was intended to disseminate false information about the infiltration of the members of the Muslim community in the civil services to carry out terrorist activities. Although the Apex Court had previously denied a pre-broadcast interlocutory injunction on the program, the petitioners had placed screenshots and transcripts of the episodes aired from September 11 till September 14, 2020, in order to prove that the program was indulging in hate speech.
The government contended that it was the Fundamental Duty of a journalist to produce unbiased facts to the public under the right to freedom of speech and expression. The respondents claimed that the contents of the program were focused on national security issues and the involvement of foreign terrorist funding in India. Such programs raise awareness on several important issues and encourage active citizenry. Citing the Supreme Court’s earlier refusal to issue a pre-broadcast injunction on August 28, 2020, the respondents sought dismissal of the Delhi High Court’s order stating the breach of Programme Code and an injunction on the airing of the program from 9th September, 2020.
Judgment of the Court
After hearing the arguments advanced by both parties, the Supreme Court realized that since the dismissal of the petition for pre-broadcast injunction there has been a change in the circumstances. In light of the evidence placed before the Court, it has emerged that the content, tenor, and object of the episodes of “Bindas Bol” broadcasted between 11th and 14th September 2020 are an attempt to vilify a specific community. Since the rest of the episodes will resemble the ones already aired, it is imperative to inject any further telecast of the program either under the same or any other caption or title. The Court held that the edifice of the Indian democratic society is dedicated to the adherence of the rule of law along with the constitutional rights, values, and duties associated with it. The Supreme Court as the custodian of fundamental rights and constitutional values must thwart any attempts to vilify a community within the socialist, secular, democratic republic of India.
The editor-in-chief, Suresh Chavnakhe’s claims about the “UPSC jihad” after the success of students of Jamia Millia Islamia in the UPSC exam and infiltration of Muslims into the civil services to propagate terrorism within the country were held to be palpably false statements by the Apex Court. The Court observed that false and derogatory statements had been made about the Muslim community and held that it was a planned attempt to vilify a particular community. Linking organizations that offered help to students of the Muslim community with terrorist groups like ISIS and claiming that Muslim candidates were entitled to nine attempts to clear the civil examination compared to the six attempts given to their Hindu counterparts, is a clear instance of hate speech.
The Court observed that under Rule 6(1)(c) of the Cable and Television Networks (Regulation) Rules no program should attack the religious or communal sentiments of a particular community or promote communal hatred. Under Rule 6(1)(d) of the Programme Code, the law prohibits the broadcasting channels from publishing defamatory, false, half-truth statements or suggestive innuendos. Any contravention with the aforementioned rules entails penalties under Section 19 and Section 20 of the Cable and Television Networks (Regulation) Act, 1995.
The Supreme Court established that the defense of ‘fact-based investigation’ into organizations like the Zakat Foundation cannot be upheld under the garb of journalistic privilege established through cases like Romesh Thapar vs State of Madras (1950) and Brij Bushan vs the State of Delhi, (1950) as the program seeks to make derogatory comments about the entire Muslim community. While dismissing the role of media regulatory bodies such as the News Broadcasters’ Association and the News Broadcasters Federation as ‘toothless’, the Supreme Court directed the government to instill a strong media self-regulatory mechanism. Organizations like the News Broadcasters Association, News Broadcasters Federation are voluntary organizations and therefore cannot be held to be good regulatory mechanisms. Organizations like the Indian Broadcasting Federation and the Advertising Standard of India which deal with grievances related to contents in broadcasts and advertisements respectively should be strengthened.
Legislative action against hate speech
The legislative wing of our government has enacted the following laws to punish the evil of hate speech:
Indian Penal Code, 1860
- Section 124A of the Indian Penal Code, 1860 deals with the charge of sedition
- Section 153A of the IPC criminalizes the fostering of animosity between different groups on the basis of religion, race, place of birth, residence, language, etc
- Section 153B of the IPC punishes statements that are against national integration. Section 295A penalizes actions that might hurt religious feelings or create hostility between different groups of people.
- Section 505(1) and (2) punishes all kinds of publications that cause public mischief, enmity, or hatred between any class of individuals.
Representation of the People Act, 1951
Under Section 8 of this Act, a candidate may be barred from participating in the election process if he is found to be guilty of breaching the reasonable restrictions imposed on the right to freedom of speech and expression. Similarly, Section 123(3A) and Section 125 mandates that there should be no use of propaganda to create feelings of enmity on religious, racial, communal, or lingual grounds in connection with the election.
Protection of Civil Rights Act, 1955
Religious Institutions (Prevention of Misuse) Act, 1988
Section 3(g) of this Act, prohibits the use of any religious institution and the people associated with it from promoting or attempting to promote discord between the people on religious, racial, lingual, or communal lines.
Cable Television Network (Regulation) Act, 1955
Section 5 and Section 6 of the said Act regulates the transmission and retransmission of cable television broadcasts and advertisements. It seeks to prohibit any program that breaches the prescribed program or advertisement code.
Cinematograph Act, 1952
Code of Criminal Procedure, 1973
The menace of hate speech
The law gives great importance to the diversity of opinions in society. Our legislators have been reluctant in curbing the freedom of speech by imposing restrictions that might ultimately seem undemocratic. Due to this, there has been no definition of hate speech. The doctrine of freedom of expression and speech may even shelter speech that appears to be offensive. However, the state must intervene where statements are likely to arouse distress among individuals and incite hostility between groups. Thus, State intervention in cases where an offensive speech is likely to cause injury to certain groups of people may be described as hate speech. The issue of hate speech is of considerable concern especially in the age of digital media and anonymity. The Human Rights Council’s ‘Report of the Special Rapporteur’ advocates the need to protect the doctrine of freedom of speech while establishing the grounds on which such freedom may be suppressed. A country like India has been built on the concept of ‘Unity in Diversity. Therefore, in such a plural and complex society, conflict of opinions and different interpretations of the same object is bound to happen all the time. Such public discourse and disagreements should never go beyond the boundaries of civility. However, there are instances in which offensive statements have injured the dignity of individuals and tarnished the very spirit of our Constitution. The state must create mechanisms to deal with the menace of hate speech which usually targets minorities and the vulnerable sections of the society. Article 21 of the Indian Constitution guarantees the right to live with dignity and the state must prioritize the protection of this fundamental right.
Jurisprudence on hate speech
The Supreme Court had exercised its power under Article 19(2) in the case of Brij Bhushan vs State of Delhi (1950), to establish that the right to freedom of speech and expression may be curtailed on the grounds of public order. The Court had held that public order was a part of public safety and security of the state which was later inserted as a legitimate ground for dismissal of the rights guaranteed under Article 19 by the First Constitutional Amendment. The Courts had elaborated on this concept in the case of Ram Manohar Lohia vs State of Bihar (1965), to conclude that law and order was a broader concept that encompassed the concept of public safety. The security of the State cannot be interpreted to be a part of public safety. Therefore the Court might only curb the right to freedom of speech and expression under Article 19(1)(a) when there is a direct and proximate connection between the restriction and public order. The Apex Court has also verified the constitutional validity of the penal provisions dealing with the concept of hate speech in the case of Ramji Lal Modi vs State of Uttar Pradesh (1967) and Bilal Ahmed Kaloo vs State of Andhra Pradesh (1997). This has not always been the case as Section 66A of the Information Technology Act, 2000 was declared unconstitutional by the Supreme Court in the case of Shreya Singhal vs the Union of India (2015), due to the lack of reasonable connection between the restriction imposed by the Section and the freedom of speech.
In the case of Pravasi Bhalai Sangathan v Union of India (2014), the Supreme Court had refused to grant a peremptory injunction against hate speech makers and clarified that penalizing hate speech by going beyond the threshold of existing laws would set a dangerous precedent of ‘judicial overview’. A similar stance was taken by the Apex Court while hearing a plea for a pre-broadcast interlocutory injunction against the program titled ‘Bindas Bol’.
The Court held that a pre-telecast ban is a tool that must be used rarely and only in a certain narrow range of issues. A preliminary or ad-interim injunction is usually a mechanism by which the Courts preserve the status quo before the final judgment in a trial. The courts usually grant an ad-interim injunction depending on the facts and circumstances of the case and require that some essential criteria be fulfilled before passing such an injunction. There is an imminent need for a single statutory umbrella mechanism of grievance redressal that carefully balances the importance of journalistic freedom while curbing the menace of hate speech. The Court stressed the need to establish standards to be followed by the electronic media and the importance of stringent regulation on television news channels as compared to newspapers. Since the television news channels cater to a larger audience there must be strict adherence to the standards of broadcasting.
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