The Case of Sheikh Ali Salman [Bahrain]
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The High Court of Karnataka refused to pass any order directing the government to frame guidelines in relation to hate speech. The public interest litigation was filed by the Campaign for Hate Speech, an unregistered organization in India, arguing that the government had failed to take appropriate action against the media houses and political leaders indulging in targeting a particular religious community for the outbreak of Covid-19. The judges held that the Indian parliament had not yet thought it appropriate to legislate on the concept of hate speech and a decision in this regard would be outside the purview of judiciary. Furthermore, the judges opined that that there were already substantial and effective remedies in existence for the protection of persons from hate speech in the Indian criminal law.
The petition was filed by an unregistered organization called Campaign against Hate Speech (CAHS) which was stated to be a group with highly accomplished academics, lawyers and concerned citizens working to combat hate speech emanating from sections of media, public personalities and on social media. The second petitioner was a former Professor at the National Institute of Advanced Studies, Bengaluru and the third petitioner was a researcher engaged in human rights work and social justice.
The petitioners sought action against the media houses for violating provisions of the Cable Television Networks (Regulation) Act, 1995 by indulging in hate speech along with other political leaders. They further requested registration of their criminal complaint and removal of inflammatory videos/reports targeting specific communities for the outbreak of Covid-19. They also sought constitution of the State Level Monitoring Committee for Private Television Channels and District Level Monitoring Committee for Private Television Channels.
The case was presided over by Justices B.V. Nagarathna and M.G. Uma of High Court of Karnataka. The main issues were: first, whether the petitioner had exercised all the rights guaranteed by the criminal law against ‘hate speech’; second, whether the Court could give a precise definition of ‘hate speech’ or direct the government to legislate on this issue.
In relation to the first issue, the petitioners placed reliance on Pravasi Bhalai Sangathan v. Union of India where the Supreme Court of India had elucidated on the impact of hate speech. In doing so, the petitioners claimed that the present writ petition raised important questions regarding hate speech and its impact on society in general and on certain sections of society which were targeted in particular [p. 5]. The petitioners contended that the complaint filed by them regarding hate speech had not been registered by the respondent government authorities. The complaint was made against the inciteful and irresponsible speeches made by political personalities in the media accusing certain sections of society for the outbreak of Covid-19 and, according to the petitioners, these inciteful speeches in the media amounted to hate speech. The petitioners contended that by non-registration of their complaint, the government authorities had been inactive in dealing with the hate speech [p.5].
Calling the instant petition “publicity interest litigation”, the respondents contended that if any complaint had been filed under the provisions of the Code of Criminal Procedure, 1973 (Cr.P.C.) and the same had not been acted upon, then the complainants had a remedy under the provisions of Cr.P.C itself. The respondents placed their reliance on Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage to assert that the instant writ petition should not be entertained and the same be dismissed summarily [p. 9]. The Court accepted the contentions of the respondents and stated that if a person has a grievance that his first information report (FIR) has not been registered by the police, or having been registered, proper investigation has not been done, then the remedy of an aggrieved person is not to file a writ petition under article 226 of the Constitution of India, but to approach the magistrate under Section 156(3) of Cr.P.C [p. 9].
Furthermore, while discussing whether the Court could give a substantive analysis or concrete definition of ‘hate speech’ as per the directions sought by the petitioners, the judges stated that it would improper to do so due to the absence of any specific legislation and precise legislative definition given by parliament [p. 14]. The judges further opined that article 19(1)(a) of the Constitution of India recognises ‘freedom of speech and expression’ which includes ‘freedom of the press’ and that it was for parliament to decide what reasonable restrictions could be placed against this right in accordance with article 19(2) of the Constitution [p. 15]. The judges held that “in the present scenario, since parliament had not yet thought it appropriate to legislate on the concept of ‘hate speech’ and had not defined ‘hate speech’, the Court could not issue directions in exercise of its jurisdiction under article 226 of the Constitution on the basis of the impact of hate speech.” Further, the Court did not think it appropriate to direct parliament to legislate on this issue [p. 16].
The Court also noted that the provisions of Indian Penal Code, 1860; Representation of People Act, 1951; Information Technology Act, 2000; Unlawful Activities (Prevention) Act, 1967; Protection of Civil Rights Act, 1955; Religious Institutions (Prevention of Misuse) Act, 1980; Cable Television Networks (Regulation) Act, 1995 and The Cable Television Network (Rules), 1994; Cinematographers Act, 1952 as well as Code of Criminal Procedure, 1973, amongst other statutes, provided substantive and procedural law to enable the petitioners to seek their respective remedies [p. 12]. Therefore, the Court dismissed the present petition.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While banning hate speech which causes imminent danger to the life and liberty of a community has been considered as a reasonable restriction on the freedom of expression, the provisions regarding hate speech have often been misused to muzzle dissenters, protestors, artists, activists, journalists etc. In India, cases of hate speech have risen against the minority community during the Covid-19 pandemic.
Despite this, the Court correctly refrained from ordering the government to legislate on ‘hate speech’. The decision is appropriate not only from the perspective of principles of separation of powers but also because there are already enough legislative safeguards to curb hate speech, and any additional law would have been a tool to curb freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.