MOOT COURT-1
FACTS OF THE CASE
The petition was filed by an unregistered organization called campaign
against Hate speech(CAHS) which was stated to be a group of highly
accomplished academics,lawyers and concerned citizens working to combat
hate speech emanating from sections of media,public personalities and on
social media. The second petition was a former professor at the national
institute of advanced studies at Bengaluru. The third Petitioner was a
researcher engaged in human rights work and social justice.
The petitioners sought action against the media houses for violating
provisions of Cable Television Networks (Regulation) act 1955 by indulging in
hate speech along with other political leaders.
Calling the instant petition “Public Interest Litigation” the respondents
contended that if any compliant had been filed under the provisions of the
code of criminal procedure 1973 and the same had not been acted upon ,
then the complainant had a remedy under the provisions of Cr.P.C itself. The
respondents placed reliance on Sudhir Bhaskarrao Tambe vs Hemant
Yashwant Dhage to assert that the instant writ petition should not be
entertained and the same be dismissed summarily. The court accepted the
contentions of the respondents and stated that if a person has a grievance
that his first information report has not been registered or having been
registered, proper investigation has not been done, the the remedy of an
aggrieved person is not to file a writ petition under article 226 of the
constitution of India, but to approach the magistrate under section 156(3) of
Cr.P.C.
The petitioners aggrieved by the High Courts decision have filed PIL in the
supreme court. The case is before the Apex Court for the final decision.
1. Whether the petitioner had exercised all the rights guaranteed by the
criminal law against hate speech?
2. Whether the court could give a precise definition of ‘hate speech’ or
direct the government to legislate the on this issue?
INTRODUCTION
Hate speech is a complex issue in India, and the Indian Constitution
addresses it through various provisions. Freedom of Speech and Expression,
guaranteed under Article 19(1)(a), is a fundamental right, but it's not
absolute. Article 19(2) imposes reasonable restrictions on this right, including
exceptions for sovereignty and integrity of India, security of the state,
friendly relations with foreign states, public order, decency, or morality .
The Indian Constitution doesn't explicitly define hate speech, but it's
understood as any communication that incites hatred or violence against
individuals or groups based on their identity, religion, race, or other
characteristics.
Legal Provisions Governing Hate Speech
- Indian Penal Code (IPC): Sections 153A, 153B, 295A, and 505 criminalize
hate speech and prescribe punishments .
- Code of Criminal Procedure (CrPC): Sections 95, 96, 144, 151, and 196
provide procedures for dealing with hate speech cases.
- Representation of the People Act, 1951: Section 123 prohibits corrupt
electoral practices, including hate speech.
- Prevention of Atrocities Act, 1989: Protects Scheduled Castes and
Scheduled Tribes from hate speech and other forms of harassment.
The Indian judiciary has also played a crucial role in shaping the country's
hate speech laws. In various judgments, the courts have emphasized the
importance of balancing freedom of speech with the need to protect
vulnerable groups from hate speech.
Overall, while the Indian Constitution doesn't provide a specific definition of
hate speech, it's clear that the government and judiciary are committed to
addressing this complex issue through various legal provisions and judicial
interpretations.
Whether the petitioner had exercised all the rights guaranteed by
the criminal law against hate speech?
Arguments for the Petitioner:
It is humbly submitted that
1. Freedom of Speech and Expression, guaranteed under Article 19(1)(a),
is a fundamental right, but it's not absolute.
2. We have filed this writ petition in public interest seeking the aforesaid
prayers, as the representation made is with regard to initiation of
action against hate speech has not been taken into consideration by
the respondents as there is no registration of complaint filed by the
first petitioner before the respondents.
3. It is submitted that the said acts of inciteful speech and utterances in
media, social media as well as by the political personalities amounts to
hate speech.
4. They have relied on the judgment of the Hon'ble Supreme Court in the
case of Pravasi Bhalai Sangathan Vs. Union of India (UOI) and Ors.
reported in AIR 2014 SC 1591, wherein, the Hon'ble Supreme Court has
elucidated on the impact of hate speech.
5. There is no response been given by respondents to the representation
made by petitioners regarding hate speech against a section of society
which has been broadcast on television channels as well as speeches
made by certain political personalities though the petitioners filed a
complaint under the Cable Television Networks (Regulation) Act, 1955,
6. The petitioners had also sought action against media houses for
violating provisions of the Act by indulging in hate speech, which
suggests they had exhausted their remedies under the Act.
7. The petitioners' decision to file a PIL in the Supreme Court after the
High Court's decision suggests they are seeking to exercise their rights
under Article 32 of the Constitution.
We rely on the case
1. Narnedra Yadav vs. State of Uttar Pradesh (2014)
The Supreme Court held that a PIL can be filed for non-registration of an FIR,
but only if there is a clear violation of fundamental rights or public interest is
involved.
Here , it is submitted that there is clear violation of public interest and the
FIR is not considered,
Further the respondents have relied on the case of Sudhir Bhaskarrao Tambe
vs Hemant Yashwant Dhage wherein the Hon’ble Supreme Court stated that
“aggrieved complainant cannot file a petition under Article 226 of the
Constitution of India but has to approach the Magistrate under Section
156(3) of Cr.P.C..”
But in the instant case, as we have already noted that petitioners (except
petitioner No.1) are not the complainants, but in the capacity of the
petitioners who have filed this writ petition in public interest litigation.
Filing a PIL for Non-Registration of FIR
If a person has a grievance that their FIR has not been registered, they can
consider filing a PIL, but only if:
1. The issue has significant public implications, such as a pattern of police
inaction or corruption.
2. The individual has exhausted all other available remedies, including filing
complaints with the police, the Superintendent of Police, and the Magistrate.
3. There is a clear violation of fundamental rights, such as the right to justice
or the right to equality.
In such cases, the PIL should be filed in the High Court or the Supreme Court,
highlighting the public interest aspect and the failure of institutional
mechanisms.
Hence we request the Hon’ble court to consider the petition submitted.
Arguments for the Respondent:
1. we contend that the petitioners had not exhausted their remedies
under the Code of Criminal Procedure (CrPC), 1973, specifically Section
156(3), which allows a magistrate to direct an investigation
2. we argue that the petitioners should have approached the magistrate
under Section 156(3) instead of filing a writ petition under Article 226
of the Constitution.
3. We rely on the case of Sudhir Bhaskarrao Tambe vs Hemant Yashwant
Dhage to support their contention that the writ petition should not be
entertained.
Whether the court could give a precise definition of ‘hate speech’ or
direct the government to legislate on this issue?
Arguments for the Petitioner:
1. The petitioners argue that the court has the power to interpret the law and
provide guidance on what constitutes hate speech.
2. The petitioners also argue that the court can direct the government to
legislate on the issue of hate speech, given the increasing prevalence of hate
speech in the media and online platforms.
Arguments for the Respondent:
1. The respondents may argue that the court cannot provide a precise
definition of hate speech, as it is a complex and context-dependent issue.
2. The respondents may also argue that directing the government to
legislate on hate speech would be an overreach of the court's powers, as
legislation is the domain of the executive and legislative branches of
government.
3. The respondents may rely on the principle of separation of powers to
support their contention that the court cannot direct the government to
legislate on hate speech.
The Bharatiya Nyaya Sanhita, 2023 (BNS) and the Indian Penal Code
(IPC) have provisions related to hate speech.
Hate Speech Provisions in BNS, 2023
- Section 196: Makes any act that disturbs public tranquility or harms
harmony between different groups punishable. This includes organizing or
participating in activities that train people to use violence against such
groups ¹.
- Section 197: Prohibits making or publishing imputations that members of
any religious, racial, linguistic, regional group, caste, or community cannot
bear true faith to India's Constitution or uphold India's sovereignty ¹.
Hate Speech Provisions in IPC
- Sections 153A, 153B, 295A, and 506: Deal with hate speech crimes,
including promoting enmity between different groups, imputations, and
statements conducing to public mischief ¹.
Code of Criminal Procedure (CrPC)
- Section 41: Police can arrest without warrant for hate speech offenses.
- Section 156(3): Magistrate can direct police to investigate hate speech
cases.
- Section 190: Magistrate can take cognizance of hate speech offenses.
- Section 200: Magistrate can examine complainants and witnesses in hate
speech cases.
- Section 202: Magistrate can direct police investigation into hate speech
cases.
Here are some notable case laws related to hate speech in India:
1. S. Rangarajan vs P. Jagjivan Ram (1989): The Supreme Court held
that freedom of speech and expression under Article 19(1)(a) of the
Constitution is not absolute and can be restricted on grounds of public order,
decency, and morality.
2. Pravasi Bhalai Sangathan vs Union of India (2014): The Supreme
Court directed the Central Government to take steps to curb hate speech
and to frame guidelines to regulate the content of media.
3. Shreya Singhal vs Union of India (2015): The Supreme Court struck
down Section 66A of the Information Technology Act, 2000, which penalized
sending offensive messages through computer resources, as
unconstitutional.
4. Amish Devgan vs Union of India (2020): The Supreme Court issued
guidelines to regulate hate speech and directed the Central Government to
take steps to curb hate speech.
5. Firoz Iqbal Khan vs State of Maharashtra (2020): The Bombay High
Court held that hate speech can be punished under Section 153B of the
Indian Penal Code, which penalizes imputations prejudicial to national
integration.
6. Kishore Namit Kumar vs Union of India (2020): The Delhi High Court
directed the Central Government to take steps to curb hate speech on social
media platforms.
7. Ameer Javed vs State of Maharashtra (2020): The Bombay High
Court held that hate speech can be punished under Section 505 of the Indian
Penal Code, which penalizes statements conducing to public mischief.
8. Alok Kumar versus Mandir and another( 2023) : In this case, Alok
Kumar, the International Working President of Vishwa Hindu Parishad, was
accused of delivering a hate speech that violated Sections 153, 153A, 153B,
and 503 of the IPC . The court ultimately decided that there was no evidence
to suggest that Alok Kumar had delivered the hate speech or had asked
Swami Ji to deliver it . Therefore, the court held that merely being the
International Working President of Vishwa Hindu Parishad was not sufficient
to attract the offenses under the mentioned IPC sections .
9: Shamit sanyal versus state of West Bengal and others(2014)
The court held that the police's failure to register an FIR and investigate the
matter was a violation of the petitioner's right to life and liberty under Article
21 of the Constitution. The court also emphasized the importance of judicial
discretion in exercising writ powers under Article 226.
The judgement further stated that the law on the subject of entertaining writ
petitions alleging police inaction despite remedy available under the Cr.P.C.
has been extensively dealt with by the court in previous decisions .
10. K Annamalai versus V. Piyush( 2022) : The complaint alleged that
Annamalai had made hate speeches that promoted enmity between different
religious groups. Annamalai argued that his speeches were expressions of
anguish and did not promote hatred .However, the court refused to quash
the complaint, observing that Annamalai's words had the potential to cause
silent harm in the psyche of the targeted group, which could lead to violence
or even genocide at a later point .The court emphasized that the impact of a
popular leader's speech should not be confined to testing for immediate
physical harm. Instead, the court must consider whether the speech has
caused psychological harm to the targeted group
11. Shaheen Abdullah versus Union of India( 2022): The judgement is a
significant ruling that addresses the issue of hate speech in India. The
Supreme Court instructed the government to take swift action against hate
speech offenses, regardless of whether formal complaints are made or the
religion of the offender .This judgement emphasizes the importance of
maintaining harmony among different religious and caste groups in India.
The court noted that true fraternity can only exist when people from different
backgrounds live together in harmony, as envisioned by the Constitution of
India .
