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Plea in Supreme Court seeks govt action against pre-announced hate speeches

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A petition has been filed in the Supreme Court seeking prevention of pre-announced hate speeches in public places since the apex court has recognised ‘hate speech’ as being violative of constitutional guarantees under Articles 14, 15 and 21.

The petition has been filed by Syeda Hameed, an Indian social and women’s rights activist, educationist, writer , a former member of the Planning Commission of India and Professor Alok Rai, a faculty member at the Department of English, University of Delhi and also at the IIT Delhi and a former Rhodes scholar and a writer, translator and columnist. Sumita Hazarika is the Advocate for the petitioners.

According to the plea, the constitutional guarantee of protection from ‘hate speech’ is not supposed to protect people from being offended. This guarantee protects the dignity of an individual and a group. As stated by Jeremy Waldron in his book The Harm in Hate Speech (Harvard University Press: 2014), dignity refers to a person’s basic entitlement to be regarded as a member of society in good standing, as someone whose membership of a minority group does not disqualify her from ordinary social interaction. That is what hate speech attacks and that is what laws suppressing hate speech aim to protect.

The petitioners are personally affected by the stigmatising and the push towards social and political exclusion that is the result of a concerted and organized series of events aimed at targeting Muslims and their ‘sympathizers’.

In recent months, there have been rallies replete with speeches that directly and hatefully target a religious community, use pejoratives to describe them, identify them falsely as predators of land, resources and of Hindu women and advocate their social, economic and political boycott, said the plea.

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It is submitted that in some cases, speeches have advocated direct violence as the final solution. There is a close proximity of such events that are made in communally charged atmospheres, to incidents of ‘hate crimes’ that range from lynching, and threats of sexual violence to more structural discrimination. The latest episode of August 8, 2021 was only one amongst a series of such events.

The petitioners have mentioned that the Supreme Court has recognised that ‘hate speech, ’ quite apart from being a criminal offence in that it causes disharmony and public disorder, is also a breach of constitutional guarantees to equal citizenship and a life with dignity. In Pravasi Bhalai Sangathan vs Union of India, the Supreme Court has stated that it is the idea of discrimination that lies at the heart of hate speech principles. The Amish Devgan Union of India [2020 SCC Online SC 994], links hate speech to violation of unity and fraternity, and ultimately to breach of human dignity, which is an essential component of Article 21.

Widespread vilification of certain groups bars them from the “pluralists’ bazaar” such that these groups are not able to protect themselves. Thus, constitutional courts should protect those who are not able to protect themselves politically. Thus, there is a strong case made for judicial scrutiny of widespread ‘hate speech’ tendencies as a continuing constitutional breach. Hate speech is not the same as anti-majoritarian speech or dissenting speech. Hate speech feeds into a system of political/social discrimination and has a cumulative effect on the dignity ofa group/community and its members, the Petitioner sates.

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It is further submitted that at its least harmful, ‘hate speech’ is a discursive process of pushing marginalized groups outside of social, economic and political spheres of society by disseminating hate propaganda and encouraging discrimination. At its most harmful it is widely recognized as a precursor to ethnic cleansing.

The Petition cited that the Apex Court in Pravasi Bhalai Sangathan v. Union of India, [(2014) 11 SCC 477] treats hate speech as systemic. Hate speech has a cumulative effect as it feeds into an already existing context of social and political marginalization of a community. Since hate speech has ‘cumulative effect’, there is a constitutional duty to prevent organized and concerted efforts to create discourses that lead to stigmatizing of a community, which in turn leads to the targeted community being pushed out of social and public spaces. This constitutional duty accrues upon all public authorities and is in addition to punishment for ‘hate speech’.

In Tehseen Poonawalla v. Union of India [(2018) 9 SCC 501 Supreme Court has recognized a ‘duty of care’ and a duty to not be negligent in causing harm to citizens who are targets of hate speech: “42. We may emphatically note that it is axiomatic that it is the duty of the State To ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law. In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become “the new normal”.”

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It is stated that each transgression by way of hateful speech causes harm to the targeted group. In that sense, there is a constitutional tort that has already been committed, for the audience at these rallies already carries home a certain stigmatized impression about Muslims and an encouragement to not interact with them socially and economically. In terms of the harm caused by ‘hate speech’ a special duty of care is owed to vulnerable groups as has been laid down in Amish Devgan et. al. Amish Devgan’s case makes a pertinent distinction in Paragraph 75 between the causes for restricting ‘hate speech’- that it has the tendency towards both structural and overt violence; and the causes for restricting dissenting speech [direct, proximate incitement to violence]. Thus the former is harmful even when it is not directly inciting violence.

Public authorities often tend to confuse this distinction and restrict dissenting speech even when it is entirely peaceful, while on the other hand giving more leeway to ‘hate speech’ that targets a particular group for stigmatization and exclusion. The Petitioners pray that this Hon’ble Court define the contours of the liability of public authorities when they willfully let such public speeches be made in contravention of constitutional and statutory laws, and also when such speeches are widely circulated on social media.

The Petitioners reiterated that in the facts of the present series of cases, the lapse by public authorities is much more stark. The speeches were made in a charged atmosphere akin to “spark in a powder keg”; at least two of the events were held in the centre of the national capital; the speeches explicitly and overtly invoked violence against Muslims. It is reported that the Police authorities had intelligence about the proposed gathering of radical elements on 08.08.2021 at Jantar Mantar, New Delhi, in defiance of Covid-protocols and also in defiance of applicable orders. Thus, police inaction in these cases is also in breach of the guidelines set out in Tehseen Poonawalla’s case.

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It is reported that with respect to the August 8 rally, police have registered an FIR and also detained certain individuals. While this has been done with respect to the latest rally alone, this petition seeks to make a broader case for the breach of duty of care by public authorities as a constitutional tort, since harm has already occurred.

“That it is humbly submitted that public authorities must be held accountable for dereliction of the duty of care and also for non-compliance with this Court’s orders by not taking action to prevent vigilante groups from inciting communal disharmony and spreading hate against citizens of the country and taking the laws into their own hands”, read the petition.

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