Former civil servants seek to intervene in “UPSC Jihad” case, raise need for authoritative ruling on hate speech

A group of former civil servants have sought an audience from the Supreme Court in a matter of the right to free speech and the need for a debate on the standards of self-regulation by the media, following Sudarshan TV's show on the 'infiltration' of Muslims in the civil services.

To this effect, the applicants have moved an intervention application in the matter of Firoz Iqbal Khan v. Union of India in which the Supreme Court on August 28 while refusing to grant a stay on the TV show had observed that the petition raised significant issues bearing on the protection of constitutional rights.

"Consistent with the fundamental right to free speech and expression, the Court will need to foster a considered a debate on the setting up of standards of self- regulation. Together with free speech, there are other constitutional values which need to be balanced and preserved including the fundamental right to equality and fair treatment for every segment of citizens", the court had said.

Khan had sought a ban on the Sudarshan TV show because, in his opinion, it was derogatory to a particular community and had the potential to be divisive. He added that the clip contained statements, which were derogatory of the entry of Muslims in the civil services.

Also Read: Centre green signals Sudarshan TV show on Muslim "infiltration" of Civil Services; warns against violating programme code

The seven retired civil servants through Advocate-on-Record Anas Tanwir have now sought to intervene in Firoz Khan's matter in order to assist the Court in arriving at a just balance between the freedom of speech and the right of all citizens to equal concern and respect under the Indian Constitution.

In their plea, the applicants state that it is important that the Court gives an authoritative ruling as was done in the case of Section 124A of the IPC, to set out the scope and meaning of "hate speech", so citizens, implementing authorities, and courts of the first instance receive clarity on speech that is protected, and speech that falls outside the scope of protection.

"Penal provisions such as Articles 153A and B of the Indian Penal Code address the issue of hate speech. However, their application has been uneven, and in many cases, these provisions are applied in a manner that is inconsistent with the guarantees under Article 19(1)(a)", the application states.

The interpretive task, the applicants say, before the Court, is to distinguish between speech that is merely offensive, indecorous, or in bad taste (and therefore covered by Article 19(1)(a)), and hate speech, that is rightly penalized by Articles 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) and 153B (Imputations, assertions prejudicial to national-integration.) and the other provisions.

They have framed the following propositions for the consideration of the Court:

1. Offensive speech is distinct from hate speech.
2. The Constitution protects offensive speech, but does not protect hate speech. Penal provisions such as Sections 153A and 153B of the IPC must be interpreted in a manner that keeps the distinction between the two intact.
3. Offensive speech is, simply, speech that causes (subjective) feelings of offence, or outrage, and nothing more. Such speech may be ill-considered, unwise, and improper, but it is not illegal.
4. Hate speech goes beyond subjective feelings of offence, and objectively has the effect of undermining constitutional equality, sending a message that a person or a group of people are not worthy of equal concern of respect, are not equal members of society, or are fair game for discrimination, hostility, or violence.
5. Determining hate speech, therefore, requires a contextual enquiry by judicial and other State bodies, looking into (a) the actual words used, (b) the meanings that they carry for their intended recipients, (c) any history of similar language, (d) and the likely consequences.
6. Hate speech can be direct (calls to violence and discrimination), but it can also be indirect, through implication, insinuation, and what is popularly known as dog-whistling. This, therefore, requires judicial bodies to be sensitive to the nuances and specific histories of the speech in question.

In order to parse the distinction between offensive speech and hate speech, the applicants have urged the Court to take into consideration the following examples-

• Criticism, mockery, and ridicule of respected and revered religious or cultural figures may be offensive, but it is not hate speech. Calling for a boycott of the members of a religious or cultural community, or implying that they are "violent by nature", or "unpatriotic" by virtue of their community affiliation, is hate speech.
• Mockery of religious beliefs or traditions may be offensive, but it is not hate speech (this application does not address the question of whether it may or may not be punishable under Section 295A of the IPC). Accusations of dual loyalties towards members of any faith – and suggestions of treachery by virtue of belonging to that faith – constitutes hate speech.
• Speech that has historically been inseparable from practices of oppression and subordination is hate speech (see, e.g., this Hon'ble Court's examination of the use of the word "chamar", under the Prevention of Atrocities Act, in Swaran Singh vs State, 2008 8 SCC 435.).

The applicants are retired IAS officers Amitabha Pande, Sundar Burra, Meena Gupta, Pradeep K. Deb, Ardhendu Sen, and former IFS officers Navrekha Sharma and Deb Mukharji.

The application has been drawn by advocate Gautam Bhatia.