The Supreme Court yesterday remarked that it is complex to assess hate speech, which could meet the criteria of the fundamental right to speech.
The remark came while the Court was dealing with a batch of pleas concerning hate speech matters, while the Court was considering the plea filed against the rallies organized by the Vishwa Hindu Parishad in the Delhi NCT region, in protest against the communal violence that occurred in Nuh, Haryana. The Bench had earlier refused to stop the rallies proposed to be organized by the Vishwa Hindu Parishad.
A Bench of Justice Sanjiv Khanna and Justice S.V.N. Bhatti remarked during the hearing, "One difficulty is this, the definition of hate speech itself is fairly complex, is really difficult and how to understand difference between hate speech which may meet the parameters of free speech". The bench listed the matter for further hearing after two weeks.
While saying that, Justice Khanna also said that there are enough definitions, including his own judgment in Amish Devgn v. Union of India and Others (2020), and that yet it remains complex. "I think there are many definitions, the real problem is not the definition part, definition is obviously a complex issue. The implementation and the execution part, that you will have to think about something", he added further.
At the outset, Justice Khanna asked Senior Advocate C.U. Singh about the VHP rallies, "I hope that things were okay Mr. C.U.Singh...Why don't you all sit down together and find a solution for this?". Singh then suggested that the Attorney General's assistance be sought in the matter.
Solicitor General Tushar Mehta appearing for the Union then submitted, "Your lordships have clarified the law on hate speech in Tehseen Poonawala. Nobody can justify hate speech by A community or B community, I am not. If there is any violation of law, the remedy would be to file an FIR. If FIR is not registered, the remedy would be to approach the competent court. What is the practice that has now developed is, first to come here seek contempt, and thereafter see that the Supreme Court directs something to be done. Now a step ahead, before any organization or any person organizes a function they come by way of an advance ruling and seek a direction that so as to ensure no offence is committed...".
The Court intervened saying that in the interest of everybody, "there has to be an element of sensitization which has to be done in the Police Force itself, because that will help resolve a lot of matters and take (adequate steps)".
Mehta alleging selective outrage, argued, "The difficulty is this petitioner, staying in Delhi, hailing from Kerala files petition only for Maharashtra for one community".
The Bench said that it is not inclined to go into that aspect, to which Mehta responded that the Court must go into that aspect.
"It is not hate speech, this is almost like inviting Genocide...", argued Senior Advocate C.U. Singh representing the applicant. Then Mehta submitted that some lawyers sent him some hate speech clips which are very serious (presumably by the minority community). He said that he would suggest those lawyers to send them to Advocate Nizam Pasha. Mehta said that he wants to see if he produces them, to see the bonafides of Advocate Pasha (advocate for the petitioners). The Court then said that the problem has to be dealt with and everybody should not come to the Court directly.
"Selective people come to the court with selected prayers, that is the objection", said Mehta in response.
Earlier, the Special Bench in its order noted, "This application has been listed pursuant to mentioning before Hon'ble the Chief Justice. Attention has been drawn to the order dated 21.10.20222. SV Raju learned Additional Solicitor General has entered an appearance on behalf of the Union of India. He says he requires some time to obtain instructions. However, during the course of the hearing, it is accepted and admitted that directions here in the order dated 21.10.2022 as extended by order dated 20.01.2023 have to be complied with".
The Bench in its order further observed, "We hope and trust that the authorities including the police authorities will ensure that there are no hate speeches against any community and there is no violence or damage to properties and wherever required adequate police force or paramilitary force will be deployed. Further, the authorities including the police force will make use of the CCTV camera where installed or make video recording in all sensitive areas wherever required. The CCTV footage and the video will be preserved. Re-list this on Friday. This order will be communicated by the registry to the standing counsel state of Uttar Pradesh, Haryana and the State of N.C.T. of Delhi."