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Hate speech must be punished to preserve peace, harmony: Centre to SC -Amit Anand Choudhary
-The Times of India

NEW DELHI: At a time when the Centre is being cornered for not being able to rein in its ministers and leaders of the ruling party who are making provocative speeches, the government has justified before the Supreme Court the retention of penal provision for hate speeches and has even supported the prosecution of BJP leader Subramanian Swamy for promoting hatred between Hindus and Muslims.

According to the law, a hate speech is any speech, gesture or conduct, writing or display which is forbidden because it may incite violence or hurt religious feelings or promote enmity between different groups on grounds of religion, race, place of birth, residence or language.

In an affidavit filed in the court, ministry of home affairs said that people can not be allowed to spread hatred towards any community or class in the name of freedom of speech and expression as it would result in public disorder and riots.

The government's response came on Swamy's plea challenging constitutional validity of Sections 153, 153A,153B, 295, 295A, 298 and 505 of the IPC regarding hate speech. It said that penal provisions are meant to preserve unity of the country and to prevent divisive forces not to prosper.

"If people were permitted to freely attempt to commit acts promoting feelings of enmity or hatred between different classes of the citizens of India, the result would be public disorder. There may be riots or commission of offences. There may be disharmony and ill will between various classes, affecting the peace and order of the society," the affidavit said.

The Centre said the validity of the penal provisions cannot be questioned as the Constitution allows reasonable restriction on citizen's right to freedom of speech and the provisions are meant to maintain peace and harmony in the society.

"It is respectfully submitted that our country is inhabited by persons belonging to different religions, castes and classes. Our Constitution is based upon the principle that persons of all castes, creeds and religions must live together in harmony and that in the long run, prosperity and salvation are in union and not in division," the centre told the court.

Swamy is facing various criminal proceedings Delhi, Mumbai, Assam, Mohali and Kerala for expressing views on terrorism which were termed as hate speech under the IPC provisions. He alleged that the provisions dealing with offences of 'hate speech' were violative of the fundamental right to freedom of speech and were being were used to penalize people for expressing their views even within the bounds of reasonable restrictions and they should be set aside.

Opposing Swamy's plea, the Centre said "the provisions are very clear and neither too widely worded nor is indefinite and intended to punish those who either attempt to promote class hatred or class enmity,"

It also justified criminal proceedings against Swamy, saying "he made hate speech against a community" in his book. "The book is to be considered in all its aspects as it contains matter which promotes feeling of enmity and hatred between Hindus and Muslims in India. Therefore the petitioner has violated Sections of IPC," the affidavit said.

Section 153 deals with provoking people with the intent to cause riot and Section 153A talks about promoting enmity between different groups on grounds of religion, race, place of birth, residence and language. Section 295 makes injuring or defiling places of worship with the intent to insult the religion of any class an offence. Section 298 covers cases of hurting religious sentiments deliberately.

Agreeing to decide on the constitutional validity of penal provision in respect of hate speeches, the Supreme Court in July had issued a notice to the Centre and sought its response.

Swamy, in his petition, contended that under the present law, a person couldn't attempt to initiate a public debate to modify people's perception as the person was "chilled or gagged" under the present law.

"By these laws, therefore, not only are such persons harassed by a criminal prosecution which could continue unendingly, but also on that pretext, a vibrant and vigorous public discourse essential in a democracy is gagged. There is also thereby violation of the citizens' fundamental right to freedom of speech and expression," he said.

"It is submitted herein that in all these impugned sections, there is a presumption that such utterances, whether honest or not, do actually and invariably result in the commission of the offences per se. It is submitted that this is not correct," he said.