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Public Order and Communal Harmony (Citizens, Society and the Media)

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Curator: Manish, Research Fellow, Centre for Communication Governance at National Law University, Delhi
Contributor: Divya Srinivasan, Student, B.A., LL.B. (Hons.), National Law University, Delhi

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Primary Sources

Legislative Material

Article 20(2) of the International Covenant on Civil and Political Rights

This provision of the ICCPR provides that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Article 19(2) of the Constitution of India, 1950 (as amended in 1951)

This provision of the Indian Constitution describes the grounds under which restrictions may be imposed on the freedom of speech and expression. The Article as it originally stood at the commencement of the Constitution did not contain “public order” as a ground; this was added by the First Amendment in 1951.

Section 153A of the Indian Penal Code

This section punishes anyone who by words or expression promotes enmity between different groups of the country on the grounds of religion, race, place of birth, residence, language, or any such grounds or commits an act which is prejudicial to the harmony of the public.

Section 295A of the Indian Penal Code

This section punishes deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs by words, either spoken or written, or by signs or by visible representations or otherwise.

Section 11 of the Customs Act, 1962

This section authorises the Central Government to prohibit or restrict the import or export of goods of any specified description on the grounds, inter alia, of the maintenance of public order.

Section 95 of the Code of Criminal Procedure, 1973

This section authorises the State Government to seize copies of books and newspapers containing matter, the publication of which is punishable, inter alia, under sections 153A and 295A of the IPC.

Parliamentary Debates on the Constitution (1st Amendment) Act, May 1951

Constituent Assembly Debates, Volume VII (02.12.1948)

These are the debates in the Indian Constituent Assembly where “public order” was discussed as a ground for restriction of the right to freedom of speech and expression.

Relevant Case Law

Malcolm Ross v. Canada,CCPR/C/70/D/736/1997 (Human Rights Committee)[Open Access]

The case involved a schoolteacher who was suspended by the School Board and transferred to a non–teaching position for expressing radical religious and anti-Semitic views in public, on the ground that his writings created a “poisoned atmosphere” in the classroom. The Committee dismissed the complaint, finding that the actions of the School Board were in conformity with Article 20 of the ICCPR and as such, no violation of Article 19 of the ICCPR was made out.

RomeshThapar v. State of Madras, AIR 1950 SC 124 (Supreme Court of India)[Open Access]

The case involved a challenge to the Madras Maintenance of Public Order Act under Article 19(1)(a) of the Constitution. Striking down the law, the Court held that unless a law restricting freedom of speech and expression was directed solely against the undermining of the security of the State or the over throw of it, such law could not fall within the restrictions of “security of the state” under Article 19(2) of the Constitution, although the restrictions which it seeks to impose might have been conceived generally in the interests of public order. This case prompted the First Amendment to the Indian Constitution in 1951, where the words “public order” were introduced into Article 19(2).

Superintendent, Central Prison v. Ram ManoharLohia, AIR 1960 SC 633 (Supreme Court of India)[Open Access]

The case involved the interpretation of the term “public order” in the restrictions to free speech enumerated under Article 19(2) of the Constitution. The Court held that even though in a comprehensive sense all the grounds specified in Art. 19(2) of the Constitution could be brought under the general head “public order”, the expression must be demarcated from the other grounds and ordinarily read in an exclusive sense to mean public peace, safety and tranquillity in contradistinction to national upheavals, such as revolution, civil strife and war, affecting the security of the State.

MadhuLimaye v. Sub-Divisional Magistrate, Monghyr, AIR 1971 SC 2486 (Supreme Court of India)[Open Access]

The case involved a challenge to section 144 of the Code of Criminal Procedure, 1898 under Article 19(1)(a) of the Constitution. Upholding the legislation as a reasonable restriction under Article 19(2), the court held that the expression in the interest of public order, in Art. 19(2) of the Constitution is wider than ’maintenance of public order’, because, a law may not have been designed to directly maintain public order and yet it may have been enacted in the interest of, public order; and ’public order, is capable of taking within itself not only the absence of those acts which disturb the security of the State or the absence of insurrection, riot, turbulence or crimes of violence, but also absence of certain acts, which disturb public tranquility or are breaches of peace.

S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 (Supreme Court of India) [Open Access]

The case was an appeal from a decision of the Madras High Court cancelling the censor certificate granted to the appellant’s film on the ground that its release would create law and order problems. Allowing the appeal, the Court observed, “our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have proximate and direct nexus with the expression.

Brandenburg v. Ohio, (1969) 395 US 444 (U.S. Supreme Court)[Open Access]

The case was brought by the appellant, a member of the Ku Klux Klan, who had been convicted under the Ohio Criminal Syndicalism statute, challenging the legislation as being in violation of his First Amendment rights. Allowing the appeal, the Court held that “freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Theory

Indian material

Second Administrative Reforms Commission, Fifth Report on Public Order, (Government of India, 2007)[Open Access]

The Report explores the possibility of reform for the principal agencies responsible for enforcing the rule of law and maintaining public order, in the context of the maintenance of public order and the rule of law being a key sovereign function of the State. It provides a general perspective of public order in India and discusses the role of each of the agencies responsible for the maintenance of public order.

International and comparative material

General Comment No. 34, Human Rights Committee (102nd Session, 2011) [Open Access]

This is a Comment on Article 19 of the ICCPR, where the Human Rights Committee examines the extent of the freedom under the Article, as well as the restrictions that may lawfully be imposed by the State, and observes, inter alia, that “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant.

TalalAsadet al, Is Critique Secular? Blasphemy, Injury and Free Speech (UC Berkeley: Townsend Center for the Humanities, 2009) [Open Access]

In this volume, TalalAsad, Wendy Brown, Judith Butler, and SabaMahmood confront the paradoxes and dilemmas attending the supposed stand-off between Islam and liberal democratic values in the context of the controversial Danish cartoons of Mohammad. The authors inquire into the evaluative frameworks at stake in understanding the conflicts between blasphemy and free speech, between religious taboos and freedoms of thought and expression, and between secular and religious world views. They examine whether the language of the law is an adequate mechanism for the adjudication of such conflicts, and inquire as to the other modes of discourse available for the navigation of such differences in multicultural and multi-religious societies.

The Law Commission, Report No. 145: Offences against Religion and Public Worship (1985) [Open Access]

This report contains the Law Commission’s final recommendations for abolishing or repealing certain common law and old statutory offences in the field of offences relating to religion and public worship. The recommendations relate, in the first place, to offences against religion. The Report contains a summary of the various offences against religion in the U.K. at the time and a discussion on each, along with the rationale for their abolition.

Stephanie Farrior, Molding the Matrix: The Historical and Theoretical Foundations of International Law concerning Hate Speech, 14(1) Berkley Journal of International Law 1 (1996) [Open Access]

This article explores the history of the prohibition of hate speech in international human rights law and practice, and analyzes the theories that emerge from that history. It compares positions under the UN treaty bodies with those under the European and Inter-American systems.

Clive Unsworth, Blasphemy, Cultural Divergence and Legal Relativism, 58 Modern Law Review 658 (September 1995) [Open Access]

The article explores the social and cultural significance of the offence of blasphemy and of the legal strategies which are in question. The article contains a detailed account of its parameters and a critical analysis of its relationship to laws dealing with the adjacent areas of sedition, obscenity, outrage to public decency and offences against public order.

Sandra Coliver (ed.), Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination, Article 19 (1992)

This book is a collection of papers compiled by Article 19 on the struggle of balancing liberty and community; and freedom of expression and non-discrimination. It analyses the hate speech laws present in 15 countries across the world, and discusses the international standards regarding the same. It concludes that hate speech and other similar laws can serve a useful function, and the problems lie in selective or indifferent enforcement.

HannesCannie and Dirk Voorhoof, The Abuse clause and Freedom of Expression in the European Human Rights Convention: An Added value for Democracy and Human Rights Protection? 29(1) Netherlands Quarterly of Human Rights 54 (2011) [Open Access]

The article examines the application of Article 17 (popularly known as the abuse clause) of the European Human Rights Convention in cases of hate speech by the European Court of Human Rights. It argues that that the abuse clause’s application is undesirable, since it tends, even in its indirect variant, to set aside substantial principles and safeguards that are characteristic of the European speech-protective framework. Thus, it concludes that the Court ought not exclude any type of speech from the free speech protection provided in Article 10.

Katharine Gelber, Free Speech, Hate Speech and an Australian Bill of Rights, 2(3) The Drawing Board 107 (2002) [Open Access]

This article attempts to address the question of how a potential Australian Bill of Rights would protect free speech and respond to hate speech. It provides an outline of statutory provisions adopted in Australia to respond to hate speech. It examines the hate speech clause in the South African Bill of Rights to provide a comparative perspective, and concludes that a qualified free speech clause should be included in the Australian Bill of Rights.

Mindy Kristin Longanecker, No Room for Dissent: China’s Laws against Disturbing Social Order undermine its commitments to Free Speech and hamper the Rule of Law, 18(2) Pacific Rim Law & Policy Journal 373 (2009) [Open Access]

The term “disturbing social order” appears in several Chinese civil and riminal laws. The author argues that the vagueness of these three words, combined with the national culture of censorship, undermines various legal provisions that guarantee freedom of speech in China. As a result, laws against disturbing social order suppress nonviolent political speech. It recommends that Chinese lawmakers define the term to prevent misuse of the law.

Mark Hill & Russell Sandberg, Blasphemy and Human Rights: An English Experience in a European context, 4 Derecho y Religion 145 (2009) [Open Access]

This article examines the nature of the crimes of blasphemy and blasphemous libel as they have been understood and applied over centuries, but gives particular emphasis to certain recent events which led to their abolition of blasphemy in England and Wales at precisely the time they had been given a clean bill of health under the European Convention on Human Rights.

Puja Kapai and Anne Cheung, Hanging in the Balance: Freedom of Expression and Religion, 15 Buffalo Human Rights Law Review (2009) [Open Access]

This paper examines the content of the right to freedom of religion and whether it entails a right to protection from ridicule, scurrility, vilification and insults directed at one’s religious teachings, symbols or beliefs from the perspective of international human rights law. It also review the approach of regional and national ‘models of regulation’ (the United States, Germany, the European Court of Human Rights, and Australia) to examine the unique experiences of these systems. It argues that a contextualized approach should be adopted in individual cases to carefully examine the value of the speech concerned, the ‘harm’ caused by it, and the position of the targeted individuals, group or community in that particular society and generally.

Steven Heyman, Hate Speech, Public Discourse and the First Amendment, in Ivan Hare & James Weinstein, Extreme Speech and Democracy (2009) [Open Access]

This paper argues that hate speech invades its targets’ rights to personal security, personality, citizenship, and equality and hence, this form of speech should not receive constitutional protection.

Joshua Spector, Spreading Angst or Promoting Free Expression: Regulating Hate Speech on the Internet, 10 Miami International & Comparative Law Review 155 (2001) [Paid Database]

This note first contrasts the constitutional jurisprudence of free speech of Germany against the United States. The contrasting practices and doctrines are framed by a survey of international agreements on speech and a brief discussion of hate speech in the United States. The discussion then complicates the problems of speech by projecting it onto the Internet.

David Keane, Cartoon Violence and Freedom of Expression, 30 Human Rights Quarterly 845 (2008) [Paid Database]

The article examines the history of cartoon satire, invoking past examples of racial and religious discrimination in cartoons while emphasizing the important role cartoonists have played in criticizing and checking the exercise of power. The legal implications of the “Danish cartoons” is analyzed through the lens of international human rights law, in particular the concepts of hate speech, racial discrimination and religious defamation. Finally the present movement in the UN towards “cartooning for peace” is promoted.

Commentary

Kalyani Ramnath, Terror/Tranquillity: RomeshThapar and its Precedents Speak on the Subject of ‘Public Safety’ (Law and its Publics: S. P. Sathe Memorial Panel LASSnet 2010) [Open Access]

Ronald Dworkin, The Right to Ridicule, The New York Review of Books (March 2006) [Paywall]

R.C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 California Law Review 297 (1988) [Paid database]

In this article, the author compares the English and American laws against blasphemy. Drawing from the profoundly individualist character of American First amendment doctrine that is revealed by this comparison, he argues that the feminist challenge against pornography is controversial because it represents a pluralist challenge to our first amendment individualism.

Lawrence Liang, Hate Speech: The Fault line that divides advocates of Free Speech, The Hoot (June 2010) [Open Access]

This blog post discusses the significant provisions on hate speech in Indian law, and analyses their application. It argues that rather than protecting minorities from the vitriolic outbursts, the law on hate speech has been consistently used by an intolerant majority whose sentiments are easily hurt. Thus, it is in urgent need of reform.

ChinmayiArun, Freedom of Opinion Gagged, The Hindu BusinessLine (February 2013) [Open Access]

ChinmayiArun, SMS Block as a threat to free speech, The Hindu BusinessLine (September 2012) [Open Access]

Prasad Krishna, Facebook, Google face censorship in India, Centre for Internet and Society (January 2012) [Open Access]

SamanthSubramaniam, From Tamil Film, a Landmark Case on Free Speech, New York Times India Ink (February 2012) [Open Access]

This article discusses the case of Rangarajan v. Jagjivan Ram (see above) in the context of the ban imposed on Salman Rushdie attending the Jaipur Literary Festival in January 2012.

Bibliography

D.D. Basu, Commentary on the Constitution of India, 8thedn., pp. 2448–2461 (Wadhwa Nagpur, 2007).

Eric Barendt, Freedom of Speech, 2ndedn.,pp. 170–192 (OUP, 2006).

David Waddington, Contemporary issues in Public Disorder: a comparative and historical approach (Routledge, 1992).

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