Campaign Against Hate Speech vs State Of Karnataka

note, since the writ petition is filed through e-mail, keeping

open the office objections, we have heard the learned Counsel

for petitioners.

5

2. This writ petition is stated to be filed in a public

interest. The first petitioner is an unregistered organization

called 'Campaign against Hate Speech', (CAHS) which is

stated to be a group with highly accomplished academics,

lawyers and concerned citizens from different professional

backgrounds who work to combat hate speech emanating

from sections of media, public personalities and on social

media; the second petitioner is stated to be a social

anthropologist, a former Professor at the National Institute of

Advanced Studies, Bengaluru while the third petitioner is

stated to be an accomplished researcher based in Bengaluru

who is engaged in the work and analysis of issues pertaining

to human rights and social justice.

3. The petitioners have filed this writ petition styling

it as a public interest petition and seeking the following

prayers and interim prayer:

PRAYER "WHEREFORE, it is humbly prayed that this Hon'ble Court may be pleased to:

a) Call for records from the respondents with respect to any action they may have taken in 6

connection with the offences and violations specified in this petition;

b) Issue a writ of mandamus directing the respondents to take action in accordance with law against media houses and political leaders who have done, and continue to, violate the law with impunity;

c) Issue a writ of mandamus directing the respondent No.1 to initiate steps to take down inflammatory videos and reports targeting specific communities;

d) Issue a writ of mandamus directing the respondent No.3 to initiate action against media houses and political leaders who have violated provisions of the IPC and other applicable penal laws;

e) Issue a writ of mandamus directing the respondent No.4 to issue appropriate orders against the media houses who have violated the provisions of the Cable Television Networks (Regulation) Act, 1995 read with the Cable Television Networks (Regulation) Rules, 1994 as well as the Advisories issued by respondent No.4;

f) Call for records from respondent No.4 with respect to the constitution and functioning of the State Level Monitoring Committee for Private 7

Television Channels as well as the District Level Monitoring Committee for Private Television Channels;

g) Issue a writ of mandamus directing respondent No.8 to register the complaint filed by the Campaign against Hate Speech and co-

ordinate the said resolution of the said complaint with the appropriate authorities under the terms of the National Commission for Minorities Act, 1992;

h) Issue a writ of mandamus directing respondent No.9 to register the complaint filed by the Campaign against Hate Speech and co- ordinate the said resolution of the said complaint with the appropriate authorities under the terms of the Karnataka State Minorities Commission Act, 1994;

i) Issue a writ of mandamus directing respondent Nos.10 and 11 to register the complaint filed by the Campaign against Hate Speech and initiate inquiries in accordance with the provisions of the Protection of Human Rights Act, 1993;

j) Pass any other necessary writ, order or direction as may be deemed necessary in the facts and circumstances of the case.

8

INTERIM PRAYER

WHEREFORE, it is humbly prayed that this Hon'ble Court may be pleased to pass an order:

Directing the respondent No.3 to act on the emails and complaints filed by the petitioners, registering First Information Reports in respect of the media reports produced at Annexures-E, F and G, that are in violation of Section 153A, 153B, 295-A, 298 and 505(2) of the Indian Penal Code, 1860."

4. We have heard Sri.Harish B Narasappa, learned

Counsel for petitioners and learned Additional Advocate

General for respondent Nos.1 to 3 and 7 who has appeared on

advance notice and learned Additional Solicitor General for

India for respondent No.4 who has also appeared on advance

notice and perused the material on record.

5. Learned Counsel for the petitioners submitted that

the petitioners have filed this writ petition in public interest

seeking the aforesaid prayers, as the representation made by

petitioner No.1 with regard to initiation of action against hate

speech has not been taken into consideration by the 9

respondents as there is no registration of complaint filed by

the first petitioner before the respondents. He contended that

the complaints have been made in the background of Corono

Virus COVID-19 which has engulfed the world including India

and in the context of outbreak of COVID-19 pandemic there

has been inciteful and irresponsible speeches and reports

made by certain political personalities and also in media

accusing certain sections of the society. He 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. That the impact of hate speech is

overwhelming. In this regard, he placed reliance 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.

He contended that the respondents herein have been inactive

and no response has been given by them to the

representation made by petitioner No.1 regarding hate speech

against a section of society which has been broadcast on

television channels as well as speeches made by certain 10

political personalities. He contended that the writ petition

raises important questions regarding hate speech and its

impact on society in general and on certain sections of society

which are targeted in particular. Hence, the same may be

entertained and directions may be issued to the respondents.

In this regard, he pointed to the Annexures to the Writ

Petition.

6. Learned Additional Advocate General, who has

appeared before this Court on advance notice countered the

aforesaid arguments by stating that the writ petition is not in

public interest at all. That if any of the complainants have

filed complaints by following the provisions of Criminal

Procedure Code, 1973 (Cr.P.C,) and the same have not been

acted upon, they have a remedy under the provisions of

Cr.P.C. itself. Further, this Court cannot, in a public interest

litigation, entertain the prayers sought for by the petitioners,

when the complainants, if any, are not before this Court. In

this regard, he placed reliance on the judgment of the Hon'ble

Supreme Court in the case of Sudhir Bhaskarrao Tambe

Vs. Hemant Yashwant Dhage and Others reported in

(2016) 6 SCC 277. He submitted that the writ petition may 11

not be entertained and the same may be dismissed

summarily.

7. Learned Senior Counsel and Additional Solicitor

General for India, who appeared on advance notice for

respondent No.4, at the outset, submitted, this is not a public

interest litigation, but, it is a "publicity interest litigation".

That the complainants are not before this Court. The

petitioners cannot seek the aforesaid prayers by filing a writ

petition in the manner that have been done so. Hence, the

same may be summarily dismissed.

8. We have perused the memorandum of writ

petition and particularly, the prayers and interim prayer

sought for by the petitioners, which are extracted above.

9. On perusal of the same, at the outset, we observe

that some of the prayers are vague and the interim prayers

which have been sought cannot be sought by filing a writ

petition invoking Article 226 of the Constitution. The

petitioners herein have not filed complaints under the

provisions of Cr.P.C. In fact, the Hon'ble Supreme Court in

the case of Sudhir Bhaskarrao Tambe, has categorically stated 12

that if a person has grievance that his FIR has not been

registered by the police, or having been registered, proper

investigation has not been done, then the remedy of an

aggrieved person is not to file a writ petition under Article 226

of the Constitution of India, but, he has to approach the

Magistrate under Section 156(3) of Cr.P.C. If such an

application is made under the said provision before the

Magistrate, prima facie, if the Magistrate is satisfied, he can

direct to register the FIR, or if the FIR has been registered, he

can direct for a proper investigation to be done and in his

discretion, if he deems it necessary, can recommend the

change of Investigation Officer also, so that proper

investigation is done in the matter. Therefore, in such cases,

the Hon'ble Supreme Court has stated that the aggrieved

complainant cannot file a petition under Article 226 of the

Constitution of India. But in the instant case, as we have

already noted that petitioners (except petitioner No.1) are not

the complainants, but the petitioners have stated that they

have filed this writ petition in public interest. Hence, it is

understood that these petitioners are not the complainants.

But, if these petitioners contend that they have filed the 13

complaints themselves, they could not have filed the writ

petition in public interest. At any rate, no writ petition under

Article 226 is maintainable under the aforesaid circumstances

in view of the aforesaid judgment of the Hon'ble Supreme

Court.

10. In the aforesaid judgment, reliance is placed on

Sakiri Vasu vs. State of U.P. reported in (2008)2 SCC

409, wherein it has been stated that if a person has a

grievance that his FIR has not been registered by the police,

then the remedy of the aggrieved person is not to go to the

High Court under Article 226 of the Constitution of India, but

to approach the Magistrate concerned under Section 156(3) of

the Code of Civil Procedure.

11. Further, the petitioners themselves have produced

directives issued by the Government of India, Ministry of

Information and Broadcasting 'A' Wing, Shastri Bhavan, New

Delhi dated 11.12.2019, 20.12.2019 as well as 25.02.2020

issued to all Private Satellite TV channels. The same read as

under:

No.N-4101 5/1/2019-BC-III GOVERNMENT OF INDIA MINISTRY OF INFORMATION AND BROADCASTING 'A' WING, SHASTRI BHAVAN, NEW DELHI- 110 001 14

Dated 11th December 2019, To,

All Private Satellite TV Channels,

On various occasions in the past, this Ministry has issued advisories for private satellite TV channels to broadcast content strictly in adherence to the Programme and Advertising Codes as prescribed in the Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder.

2. It is hereby reiterated that all TV channels are advised to be particularly cautious with regard to any content which:

(i) is likely to encourage or incite violence or contains anything against

maintenance of law and order or which promotes anti-national attitudes; and or

(ii) contains anything affecting the integrity of the nation; and ensure that no such content is telecast which is violative of these codes.

All private satellite TV channels are requested to ensure strict compliance of the above."

xxxxx 15

NO.41015/1/2019-BC.III GOVERNMENT OF INDIA MINISTRY OF INFORMATION & BROADCASTING Shastri Bhawan, Rajendra Prasad Road New Delhi - 110 001 December 20, 2019 To All Private Satellite TV Channels All DTH/HITS Operators/MSOs/Cable Operators Reference is invited to the Advisory dated 11.12.2019 issued by the Ministry of Information and Broadcasting for ensuring strict compliance to the specific programmes Codes under the Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder mentioned in the Advisory.

2. It is observed that notwithstanding the above Advisory, some TV channels are telecasting content which do not appear to be in the spirit of the Programme Codes specified therein. It is, accordingly, reiterated that all TV channels may abstain from showing any content which

(a) is likely to instigate violence or contains anything against maintenance of law and order or which promotes anti-national attitudes; 16

(b) contains anything affecting the integrity of the nation;

(c) criticizes, maligns or slanders any individual in person or certain groups, segments of social public and moral life of the country.

Strict compliance to the above is advised."

xxxxx

NO.N-4101 5/1/2019-BC-III GOVERNMENT OF INDIA MINISTRY OF INFORMATION AND BRAODCASTING 'A' WING, SHASTRI BHAWAN, NEW DELHI - 110 001 February 25th 2020 To, All Private Satellite TV Channels "On various occasions in the past, this Ministry has issued advisories for private satellite TV Channels to broadcast content strictly in adherence to the Programme and Advertising Codes as prescribed in the Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder.

2. It is hereby reiterated that all TV channels are advised to be particularly cautious with regard to any content which:

17

(i) is likely to encourage or incite violence or contains anything against

maintenance of law and order or which promotes anti national attitudes;

(ii) contains attack on religious or communities or visuals or words contemptuous of religious groups or which promote communal attitudes;

(iii) contains anything defamatory, deliberate, false and suggestive innuendos and half-truths.

3. It may kindly be ensured that no content is telecast which is violative of the afore- mentioned programme codes.

All private satellite TV challens are requested to ensure strict compliance of the above."

Therefore, the above are presently the guidelines in

operation as far as television channels are concerned.

12. That apart, the provisions of Indian Penal Code,

1860; The Representation of People Act, 1951; Information

Technology Act, 2000; Unlawful Activities (Prevention) Act, 18

1967; Protection of Civil Rights Act, 1955; Religious

Institutions (Prevention of Misuse) Act, 1980; The Cable

Television Networks (Regulation) Act, 1995 and The Cable

Television Network (Rules), 1994; The Cinematographers Act,

1952 as well as Code of Criminal Procedure, 1973, amongst

other legislation, provide substantive and procedural law to

the aggrieved persons who think or consider certain speech to

be hate speech to seek their respective remedies. Therefore,

there is already a voluminous bundle of rights and remedies

created in various enactments for aggrieved persons to

complain against what they consider to be hate speech.

Moreover, the Central Government has formed the aforesaid

guidelines which have been issued to the Private Satellites TV

Channels and these are also guidelines on Communal

Harmony and other such guidelines to promote Communal

Harmony in the States and Union territories of India. Thus, it

is evident that the Parliament has already provided

substantial and effective remedies for protection of persons

from hate speech and any aggrieved person can set in motion

the criminal law if he is so aggrieved.

19

13. In the instant case, as already noted, the

complainants who have complained against hate speech are

not before this Court. If petitioner No.1 is a complainant or

has made representations to various authorities including the

respondents herein, it could not filed this writ petition in

public interest. If petitioner Nos.2 and 3 are also aggrieved

persons, they could avail the remedies under various

provisions of law.

14. That apart, it is also to be borne in mind that,

there is no precise legislative definition of what 'hate speech'

is. It is for the Parliament to legislate on that aspect of the

matter. In the absence of there being any specific legislation,

it would not be proper for this Court to make a substantive

analysis or give a concrete definition about 'hate speech' and

on that basis to issue directions as per the prayers sought for

by the petitioners in the writ petition.

15. It is also significant to note that Article 19(1)(a) of

the Constitution of India has recognized 'Freedom of speech

and expression' which also includes 'Freedom of the press'.

The said freedom is subject to reasonable restrictions as 20

stated in Article 19(2)of the Constitution of India, which reads

as under:

"Article 19(2) - Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence."

Thus, if the State or Union Government feels that there

ought to be reasonable restrictions against the Right to

Speech and Expression, it would have to be justified on the

basis of what has been stated under Article 19(2) of the

Constitution of India. Any action to be initiated by the Union

or State Government on the exercise of right to freedom of

speech and expression, that would be justified within the

parameters of Article 19(2) of the Constitution of India, is

permitted.

21

16. In the present scenario, since the Parliament has

not yet thought it appropriate to legislate on the concept of

'hate speech', in this writ petition, in the absence of there

being any definition of 'hate speech' as such, this Court in

exercise of its jurisdiction under Article 226 of the Constitution

of India cannot issue directions merely on the basis of impact

of hate speech on the society in general or certain sections of

the society in particular.

17. Further, it is also not appropriate for the Court to

exercise its jurisdiction under Article 226 of the Constitution of

India to direct either the Parliament or the State Legislature.

In that regard, we may respectfully rely on the dictum of the

Hon'ble Supreme Court in the case of A K Roy Vs. Union Of

India reported in AIR 1982 SC 710.

18. Having looked into the tenor of the prayers sought

for by the petitioners in this writ petition, we do not think that

the writ petition which is filed as Public Interest Litigation

could be entertained as the prayers sought for by the

petitioners cannot be granted. Further, this Court does not 22

think it appropriate to grant the said reliefs in exercise of its

jurisdiction under Article 226 of the constitution.

In the circumstances, the writ petition is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

*bgn/-