Hate speech: A disappointing ruling

The Supreme Court’s ruling on hate speech in the public domain has belied the hopes that were roused when the matter was taken up by the court and heard thoroughly in the last few weeks. The arguments during the hearing and the court’s observations had led to expectations that there would be a positive judicial outcome that would help to curb hate speech, which has become rampant. It was appropriate that the court took up the matter urgently as the public arena is now being increasingly vitiated by hate speech.

The court, however, rejected the petitions calling for an institutional framework to deal with hate speech made by lawmakers or politicians. The majority judgement, authored by Justice V Ramasubramanian, held that a statement made by a minister cannot be attributed vicariously to the government by invoking the principle of collective responsibility. It also held that no additional restrictions, other than the ones already mentioned in Article 19(2), can be imposed on their speech.

Read | Hate speech strikes at values of equality, liberty & fraternity: Justice Nagarathna

The ruling would actually give licence to those who have made it a point to indulge in hate speech and dog whistle politics. Hate speech is consequential and dangerous when it is made by those who are in power or are close to those in power.

The speeches made by Union Minister Anurag Thakur and his party colleague Kapil Mishra are considered to have contributed to the 2020 Delhi communal violence. If the government cannot be held responsible for the hate speech of ministers, one important aspect of collective responsibility would be undermined.

A minister represents the government in the eyes of the public, and what the minister says and does in public are seen to be the thinking and policy of the government and thus have great impact. It is wrong to separate a minister of the government from the government and treat his speech as that of a private person. It also should not matter whether a Chief Minister or a Prime Minister is heading a single-party government or a coalition government.

That is only a political distinction and cannot be an excuse for a head of government to remain silent over a minister’s breach of propriety.

The dissenting judgement of Justice B V Nagarathna went some way towards recognising the need for additional restrictions on ministers’ and politicians’ free speech but said that it was for parliament to put them in place. Dealing with free speech is difficult because it is a basic constitutional right. But the law should not be seen to have failed in curbing its misuse or its selective application. The law and courts have their limitations in this, but unfortunately, the top court’s ruling has not helped to move the needle even a bit.