HATE-SPEECH: JUDICIAL REGULATION OVER THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

By virtue of this right vested on the Supreme Court by the Interim Constitution, the Court should realize that the freedom to speech and expression ends with the incitement of groups of people towards any violent act against anyone

Aug. 22, 2011, 5:45 p.m. Published in Magazine Issue: Vol. : 05 No.-05 Aug. 19-2011 (Bhadra 02,2068)<br>

It was during the first week of March 2009, that Feroze Varun Gandhi of the Gandhi-Nehru family, son of late Sanjaya Gandhi and Menaka Gandhi delivered a speech which was termed as a ‘hate- speech’ during the Lok Sabha election campaign in Philibit. His statement “If any anti-social person lifts a hand against Hindus; or thinks they are weak; there is nobody behind them; then I swear on the Bhagavad Gita that I will cut off that hand”. This statement was directed against the Muslim population, and on March 17, 2009 a case was registered against him on the direction of the Election Commission under the provisions of the Indian Penal Code and Representation of People’s Act. This led to his arrest and later, his release on parole (for two weeks) from Etha jail on orders from the Supreme Court only after reassuring the Court that he would not make such “provocative” speeches during the campaign. This goes down as one of the most remembered controversies of the Indian Lok Sabha campaign held two years back, and the promptness of the judiciary in dealing with the issue was truly commendable.

In any democratic nation, the right to freedom of speech and expression should necessarily accompany restrictions against the incitement of masses towards violent conclusions. It is the responsibility of the State to ensure safety and welfare of the masses over the right to expression of a single person, or groups of persons, for that matter. The drafters of Interim Constitution of Nepal (2007) had realized this and had placed reasonable restrictions on the right to freedom of opinion and expression as enshrined under Article 12 (3) (a); through its proviso-

(Proviso) Article 12 (3) (1) Provided that, Nothing in sub clause (a) shall be deemed to prevent the making of laws to impose reasonable restrictions on any act which may undermine the sovereignty and integrity of Nepal, or which may jeopardize the harmonious relations subsisting among the people of various castes, tribes, religions or communities, or on any defamation, contempt of court or incitement to an offence, or any act which may be contrary to decent public behaviour or morality.

However, the proviso has become one of the redundant provisions of the Interim Constitution- devoid of life. Speeches nothing short of threats especially aiming professional groups and institutions have become the norm, and it seems that anyone with a microphone can say anything they want to, while addressing a crowd. Of late, this seems to have taken centre-stage in the media and for obvious reasons. Threats from political party carders in the form of open speeches have time and again gone on to portray the rotten side of current Nepali politics. This coupled with the culture of impunity has resulted in a lethal cocktail against the right to freedom of speech and expression of citizens. Yet, the attempt towards silencing voices has been offered a blind eye and a deaf ear, by the State.

Lack of any clear legislation criminalizing hate-speech has been a clear short-coming of the State. Given the biggest transition in the history of the nation in moving towards federalism and  the recent experience with conflict, the damage that can be caused by incitement of the masses seems to have had little importance in the ‘to do’ list of the legislators. As the chances of ethnic tension resulting in conflict appears to be a possibility more than ever before, it becomes the primary duty of the State to be watchful towards preventing of any untoward incidents in the future. Open hate-speeches are probably the most damaging medium by which extreme fundamentalist views are spread in the society for instigating violence. By being passive observers to this, the State will be promoting such instigation by not punishing the perpetrators. 

As far as the judiciary is concerned, it should be the larger responsibility of the Supreme Court to be committed to the provisions of the constitution and realize the true spirit of democracy and aspirations of the people, as the guardian of the Constitution. This has been envisaged under Article 100 (2) of the Interim Constitution of Nepal. By virtue of this right vested on the Supreme Court by the Interim Constitution, the Court should realize that the freedom to speech and expression ends with the incitement of groups of people towards any violent act against anyone. The language of threat and violence cannot be tolerated at any cost, if the citizens are to be expected to speak their free mind. No struggle and transformation of any kind will lead the nation anywhere until basic aspects such as incitement through hate-speeches are sternly dealt with by the State.

There is a real need to reasonably restrict the right to freedom of speech and expression so that politics of violence and conflict are not perpetuated through the practice of ‘hate-speech’. The State must come of age and own up the responsibility of securing the rights of its citizens as promised by the Constitution- to express their views without any threat or fear; as this is probably the most important right known to the whole of mankind.

               

Ankit Dhakal

Ankit Dhakal

Ankit Dhakal writes on legal and constitutional issues

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