Amish Devgan hosts ‘Aar Paar’ on News18 India and ‘Takkar’ on CNBC Awaaz.

It remains difficult in law to draw the outmost bounds of freedom of speech and expression, the limit beyond which the right would fall foul and can be subordinated to other democratic values and public law considerations, so as to constitute a criminal offence. A universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable. It is necessary to draw a distinction between ‘free speech’, which includes the right to comment, favor or criticize, and ‘hate speech’ creating or spreading hatred against a targeted community or group. The object of criminalizing the latter is to protect dignity and to ensure political and social equality between different identities. In the context of ‘hate speech’, it would certainly require the actual utterance of words or something more than thought which would constitute the content. Without actual utterance, it would be mere thought and thoughts without overt act is not punishable. In a polity committed to pluralism, ‘hate speech’ cannot conceivably contribute in any legitimate way to democracy and, in fact, repudiates the right to equality.

– Hon’ble Justice Sanjiv Khanna, Amish Devgan v. Union of India, [Writ Petition (Criminal) No. 160 of 2020].

Speech crime is punishable under Section 153A, IPC. The intention to cause disorder or incite people to violence is the sine qua non of the offence. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning [Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1].

Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477 had referred to Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 SCR 467. Canadian Supreme Court set out what it considered to be a workable approach in interpreting ‘hatred’ as is used in legislative provisions prohibiting ‘hate speech’. The first test was for Courts to apply the ‘hate speech’ prohibition objectively and in so doing, ask whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to ‘hatred’. The second test was to restrict interpretation of the legislative term ‘hatred’ to those extreme manifestations of the emotion described by the words ‘detestation’ and ‘vilification’. This would filter out and protect speech which might be repugnant and offensive, but does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or injury. The third test was for Courts to focus their analysis on the effect of the expression at issue, namely, whether it is likely to expose the targeted person or group to ‘hatred’ by others. Mere repugnancy of the ideas expressed is insufficient to constitute the crime attracting penalty. We apply the principles laid down by this Court as mentioned above.

– Hon’ble Justice L. Nageswara Rao, Patricia Mukhim v. State of Meghalaya, [Criminal Appeal No. 141 of 2021] decided on 25.04.2021.