September 9, 2019
On 21st December 1965, the United Nations General Assembly (hereinafter referred to as ‘UNGA’) adopted theInternational Convention on the Elimination of all Forms of Racial Discrimination (hereinafter abbreviated as ‘ICERD’) as a response to the stark increase in racially aggravated crimes – also sometimes referred to as ‘hate crimes’ – in the 1960s. Although, prior to the enactment of the ICERD, other frameworks such as the International Covenant on Civil and Political Rights (hereinafter abbreviated as ‘ICCPR’) had somewhat rhetorically situated ‘racist hate speech’ as under Articles 19 and 20,[1] within the ‘freedom of expression and opinion’ and ‘incitement’, the ICERD was the first framework to address the concept of “hate speech” at an international level – and subsequently set-forth measures to outlaw such racial discrimination and promote racial sensitisation and tolerance worldwide.
However, it is imperative to note that the ICERD in itself lacks the term ‘hate speech’. In fact, the term in itself was first mentioned only as late as the General Recommendation XXIX in 2002. Therefore, it is important to define the term at the outset before dwelling further into the topic. ‘Hate speech’ may be defined as speech that carries no meaning other than an expression of hatred attacking an individual or a group on the basis of protected attributes such as race, religion, ethnicity, nationality, sex, disability or gender orientation and is likely to incite or produce violence.[2][3]
Despite the apparent lack of a definition, it may be interpreted that the ICERD under Article 4(a) conceptualises ‘hate speech’ as having four distinguishable variants: (i) the dissemination of ideas promoting racial superiority; (ii) the dissemination of ideas fostering the hatred for a race; (iii) inciting others to indulge in racially aggravated acts of discrimination and (iv) violent acts motivated by racial hatred. The signatory member States by virtue of Article 4 are to condemn all propaganda and organisations that are rooted in the fundamentalist belief or theory that there exists one supreme race, among other discriminatory beliefs that might be justified by those propounding such theories and are to take precautionary steps and other preventive measures in ensuring that racial discrimination in all its forms are eliminated, as elucidated under Article 2. The member States are expected to do so whilst keeping in mind the non-exhaustive list of rights postulated under Article 5 and must act in consonance with the principles embodied in the Universal Declaration of Human Rights (hereinafter abbreviated as ‘UDHR’).
The ICERD also sets-forth certain ‘precautionary measures’ under Article 7 that seek to curb specific instances where ‘hate speech’ might be used against commonplace social, economic and cultural rights in what might be termed as a ‘preventive capacity’ in ensuring that the member States adopt “immediate and effective measures” in the field of education and information to foster an atmosphere of understanding and tolerance among different racial, national and national groups.
In addition to the prescribed precautionary and preventive measures, the ICERD stipulates certain ‘administrative and supervisory measures.’ It is under these that a Committee on Elimination of Racial Discrimination (hereinafter abbreviated as ‘CERD’) is envisaged under Article 8. The CERD comprises of eighteen experts of ‘high moral standards’ who are elected on an equitable geographical basis, thus fostering a globally inclusive approach towards curving such hate speech. The supervisory duties and obligations of the CERD as described under Article 9 mandates that member States submit reports to the CERD – confirming that successful “implementation of legislative, judicial, administrative or other measures which member States have adopted, giving effect to the provisions of this convention.” This mechanism serves as a check on member States in ensuring that their domestic legislations and policies and their subsequent implementation are in consonance with the convention. In addition to this, the drafting of certain ‘General Recommendations’ – that may be perceived as augmenting the pre-existing framework in bringing the Convention up to date with the dynamic requirement of ending all forms of discrimination – is delegated to the CERD.
General Recommendation XXXV is widely regarded as one of the most relevant and important comments on interpreting the provisions pertaining to ‘hate speech’. The recommendation dealt with ‘hate speech’ in as much as maturing its understanding as under Article 4(a) and more importantly investigating its subsequent ramifications by elucidating the factors in determining what acts fall under the ambit of ‘hate speech’, making it simpler for the adjudicatory authorities to impose criminal sanctions against the offenders. The aforementioned factors included (i) the content and form of speech, including the mode of delivery; (ii) socio-economic and political factors; (iii) the social standing of the offender and the victim and its subsequent ramifications and (iv) the impact and extent of such speech.
It may be noted that despite the ICERD’s requirements on member States to effectuate sanctions under its domestic criminal law for the use of ‘hate speech’, in non-severe cases – keeping in due consideration its impact and nature – the CERD compel that member States look beyond criminal sanctions in order to fix the problem at its very roots in what might be termed as a reformative approach.
Furthermore, General Recommendations XXX and XXXI which had in the past discussed the optimal utilization of ICERD resources to combat discrimination, with special emphasis on non-citizens facing discrimination[4] and preventing in the criminal justice system – racial discrimination.[5]
Shifting our focus towards the subcontinent, the Indian Constitution – akin to perhaps almost every democracy in the world – envisages the fundamental right to freedom of speech and expression under Article 19(2).[6] The right is however, not absolute and is subject to certain limitations viz. the sovereignty and integrity of the State and public order, among other statutorily barred exceptions. In such a situation it is imperative that a balance is struck between the ‘freedom of speech and expression’ and restrictions on enjoyment of such freedom.
As an admirer of the libertarian philosophy, I personally give high regard to individual autonomy. However, it is crucial to note the differences in oriental and occidental cultures in understanding the societal constructs and the incredibly co-dependant relationship between a person and the society the belong to. Culturally, the Indian society gives immense importance to a system of collective living so much so that excommunication and banishment were considered as fit punishment for the gravest of offences. Greek philosopher Aristotle’s theory that “Man is by nature, a social animal” holds true in this regard.[7] Therefore, it is vital that he live socially, work socially and interact socially. The freedom of speech to dissent, even insult others is a right as important as any other. However, it is imperative to ensure that the two adversaries are at least in a socio-cultural position to behave as if they are in a level-playing field with each other. In cases, wherein even the aforementioned position is not being satisfied, it is important that the tools of oppression disturbing the level playing field or even a farcical variant of it from becoming a reality, the State must intervene.
India, home to around 1.3 billion people, is supremely famous for its diversity in languages, cultures and religious communities whose people have co-existed for over thousands of years. However, such diversity in beliefs has also led to communal riots and bloodshed historically. Therefore, it may be said that the country’s diversity might be regarded as a ‘double-edged sword’ – making it even more necessary to effectuate precautionary measures.
With regards to ‘hate speech’, somewhat akin to a ‘CERD General Recommendation’-less ICERD framework, no legislation or statute defines the term ‘hate speech’. Rather, as stated above, there exist certain legislations that prohibit specific forms of speech and/or expression such as (i) the Indian Penal Code, 1860; (ii) The Code of Criminal Procedure, 1973; (iii) The Representation of The People Act, 1951; (iv) The Protection of Civil Rights Act, 1955; (v) The Religious Institutions Act, 1988; (vi) The Cable Television Network Regulation Act, 1995; (vii) The Cinematograph Act, 1952; as enumerated in the Law Commission Report on ‘Hate speech’.[8] Also, in the Indian context, it must be noted that ‘hate speech’ is more along the lines of ‘religious hate speech’ and ‘caste-based hate speech’.
However, despite being discussed in multiple statutes explicitly barring certain actions or words deemed to constitute ‘hate speech’, neither an express definition nor a standard of evaluating ‘hate speech’ is to be found in them. Therefore, it is imperative to refer to the interpretations of the Courts on the matter in order to get a comprehensive understanding of the same.
The debate between the ‘absolute freedom of speech and expression’ and ‘restraint on certain forms of speech’ has been addressed by the Supreme Court in the two cases of Pravasi Bhalai Sangathan v. Union of India[9] and State of Maharasthra v. Sangharaj Damodar Rupawate.[10] Pravasai Bhalai Sangathan had requested the Court to take impose sanctions against the offenders charged with making ‘hate speech’. The Court however, desisted from passing any orders since they opined that the same would amount to ‘judicial overreach’. Moreover, the defining of a standard could restrict the ‘freedom of speech and expression’[11] – a fundamental principle of ours or any other democracy and intrinsic to individualism and individual autonomy. In Sangharaj Damodar Rupawate, the Court ruled that dissenting opinions in the form of a public speech must not be automatically perceived as “hostile”, therefore deducing the commission of ‘hate speech’ must go hand-in-hand with ‘standards of reasonability’.[12]
The Apex Court in the case of Arumugam Seervai v. State of Tamil Nadu,[13] held the usage of certain words coupled with the apparent intention to insult an individual would warrant charges of ‘hate speech’ irrespective of its usage in a public place. The Court delved into the historical usage of the terminologies used as ‘hate speech’ and prosecuted the offenders under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. However, in the case of Swaran Singh v. State,[14] the Court drew a clear distinction between “public” and “private” places, with regard to the intentional utterance of the term ‘chamar’ – which is a highly offensive word, directed to an individual who belonged to a certain Dalit community. The charges under Section 3(1)(r) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989[15] were however dropped despite there being no contentions with regard to the making of such ‘hate speech’ in the “public realm”.
In comparison to the provisions of the ICERD, the question of “where” the words were uttered after the adjudicatory authorities had deemed the words uttered to have constituted ‘hate speech’ is an issue that would not have arisen had the ICERD been followed. However, the Indian judiciary’s understanding is indicative towards the fact that sanctions may not be imposed under law for directing ‘hate speech’ at an individual if there are no others to bear witness. This perhaps stems from the conceptualisation of ‘hate speech’ as something akin to a defamatory statement, wherein for there to be any injury or damage of sort, the words must be made in the presence or be communicated to another.
It is therefore a fair statement to make that the judgement in Swaran Singh lies in stark contravention to the principles established in ICERD and is egregious to the interests of justice. The ICERD is a consolidated framework that encompasses ‘hate speech’ amongst other forms of discrimination. However, due to the lack of an all-encompassing framework and different legislations tacking ‘hate speech’ differently, there is a ‘chink in the armour’ of the legislative framework that facilitates circumvention of law.
[1] Article 19 of the International Covenant on Civil and Political Rights, 1954.
[2] Nockleby, John T. (2000), “Hate Speech” in Encyclopaedia of the American Constitution, ed. Leonard W. Levy and Kenneth L. Karst, vol. 3. (2nd ed.), Detroit: Macmillan Reference US, pp. 1277–79.
[3] Black’s Law Dictionary, ‘The Legalities of hate speech’, <https://thelawdictionary.org/article/the-legalities-of-hate-speech/> accessed 8 September, 2019.
[4] UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation XXX.
[5] UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation XXXI.
[6] Article 19(2) of the Constitution of India, 1950.
[7] Aqa Raza, “Capital Punishment – ‘Retention’ versus ‘Abolition’ Debate and Indian Judiciary: A Socio-Jurisprudential Reappraisal” accessed on 7 September 2019.
[8] ‘Law Commission of India Report No. 267 Hate Speech’ (March 2017) <http://lawcommissionofindia.nic.in/reports/Report267.pdf> accessed on 8 September 2019.
[9] Pravasi Bhalai Sangathan v. Union of India AIR 2014 SC 1591.
[10] State of Maharasthra v. Sangharaj Damodar Rupawate (2010) 7 SCC 398.
[11] Pravasi Bhalai Sangathan v. Union of India AIR 2014 SC 1591.
[12] State of Maharasthra v. Sangharaj Damodar Rupawate (2010) 7 SCC 398.
[13] Arumugam Seervai v. State of Tamil Nadu (2011) 6 SCC 405.
[14] Swaran Singh v. State (2008) 8 SCC 435.
[15] Section 3(1)(r) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989.
Bhrigu A. Pamidighantam 
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