Hate Speech, Fake News and Broadcasting

Why the distinction is under pressure online. The proximity test was developed for a speaker addressing a crowd, where the connection between words and consequence is observable. Speech circulated to millions, resurfacing months later, reaching an audience the speaker cannot see, does not fit the model. That is a genuine problem and an answer should say so rather than pretend the old test transfers cleanly.

The public order requirement

Because most hate speech prosecutions rest on the public order ground, the limits of that ground do the work.

The three concentric circles. Law and order is the widest; public order a smaller circle within it; security of the State the smallest. An act that disturbs an individual or a few people disturbs law and order; to reach public order it must affect the community at large or the even tempo of the life of the community.

Consequence, not content. The ground is public order, so the State must show a connection between the speech and a disturbance of public order, and the connection must be proximate. The mere fact that a statement is about a community, or is intemperate, does not establish it.

Facts. Sakal Papers (P) Ltd v. Union of India, AIR 1962 SC 305, (1962) 3 SCR 842, decided 25 September 1961. An Act and Order fixed the pages and price of newspapers and the space for advertisements, to prevent unfair competition and help smaller papers.

Held. Void as violating article 19(1)(a) and not saved by article 19(2). The right extends to the volume of circulation, and article 19(2) does not permit the State to abridge the right in the interests of the general public.

Why it is cited here. It supplies the discipline that decides hate speech cases at the threshold: a restriction must be brought within one of the eight grounds. A measure defended as promoting harmony, social cohesion or communal amity, without more, is defended on a ground that does not exist in article 19(2).

The heckler's veto

Worth a paragraph because it recurs and because the answer is settled in principle.

Where speech provokes a hostile audience, the State sometimes prevents the speech rather than controlling the audience, on the footing that public order is threatened. That is the heckler's veto, and it inverts the guarantee: it makes the right to speak depend on the willingness of opponents to tolerate it, so the most objectionable listeners decide what may be said.

The principled answer is that the State's duty is to protect the speaker and maintain order, and that suppression of the speech is permissible only where the disturbance is imminent and cannot be prevented by any other means. That is the least intrusive measure requirement from Anuradha Bhasin v. Union of India, decided 10 January 2020, in which the Court directed that a Magistrate acting under section 144 must balance rights and restrictions on the principles of proportionality and thereafter apply the least intrusive measure, that the power cannot be used to suppress legitimate expression of opinion or grievance, that the order must state material facts, and that repetitive orders are an abuse of power.

Fake news

The problem. False information circulated at scale can cause real harm: panic, violence, damage to health, distortion of elections.

The constitutional difficulty. Falsity is not a ground in article 19(2). There is no ground of untruth. So a restriction on false statements must be brought under public order, decency, defamation, or incitement to an offence, and must satisfy proportionality.

Why a general power to determine truth is dangerous. A body empowered to declare what is false, and to require its removal, is a censor whose jurisdiction is defined by its own conclusions. The objection is not that falsehoods are harmless but that the remedy places the determination of truth in the hands of an authority that is frequently an interested party, particularly where the statement concerns the government. A fact-checking power vested in the executive, with intermediaries obliged to act on its findings, is the sharpest current example, and it has been litigated on exactly this ground.

The framework that survives scrutiny. A restriction confined to a defined harm, imposed by law, with an independent determination, a hearing, reasons and a remedy, and limited to what is necessary. Anything wider fails on the second or third requirement.

Broadcasting

Why it was treated differently. Broadcasting was regulated more heavily than print for two reasons: spectrum is a finite public resource requiring allocation, and broadcast reaches an undifferentiated audience including those who have not chosen it.

The constitutional position. Airwaves are public property and must be controlled and regulated by a public authority in the interests of the public, to prevent monopoly and to secure a diversity of views. That proposition, from the litigation about the telecast of sporting events, is the foundation of Indian broadcasting law, and it cuts both ways: it justifies regulation, and it forbids a government monopoly, because the reason for regulation is diversity and a State monopoly defeats it.

Where it stands now. Spectrum scarcity is a diminishing rationale as distribution moves to the internet, and the case for treating broadcast under a lower standard than print weakens with it. The current regulatory questions are about the classification of streaming services, the extent to which self-regulation satisfies the constitutional requirements, and whether rules made under the Information Technology Act can validly govern content that is not an intermediary function at all.

A worked example

A speaker at a public meeting says that a named religious community is responsible for the country's economic problems and that its members should be excluded from employment. Videos circulate online. Three days later a riot occurs in a nearby town. The State prosecutes the speaker for promoting enmity, and separately orders internet suspension in the district and a takedown of the videos.

Is the speech protected? Advocacy of an idea, however repellent, is protected. Urging exclusion from employment is closer to a call for unlawful action, and if the statute makes such discrimination unlawful, it may be incitement to an offence.

The proximity question. Three days and a different town. The State must show a direct and immediate connection, and a gap of days with an intervening geography makes that difficult. It is not impossible, since circulation online can sustain the connection, but it must be proved rather than assumed.

The public order question. The State must show an effect on the community at large, not merely on individuals, and must connect the speech to that effect.

The prosecution. Sustainable if incitement is established; not sustainable on the footing that the speech was hateful or offensive, because neither is a ground.

The internet suspension. Test it against Anuradha Bhasin: published, temporary, proportionate, least intrusive, reviewed within seven working days, stating material facts. A district-wide suspension three days after the speech, where the videos can be taken down individually, fails on necessity.

The takedown. Lawful if by a court order or a government notification under section 69A following its procedure, on the reading down in Shreya Singhal. Not lawful as an informal request producing removal without any reviewable order.

Quick revision

• There is no offence of hate speech and no constitutional category; restrictions are justified by GROUND, and hate and offence are not grounds.
• Discussion and advocacy are protected; only incitement is not, and the test is PROXIMITY: direct and immediate, not remote or conjectural.
• Public order is the middle of three concentric circles and requires an effect on the community, not on individuals.
• Sakal Papers: a restriction cannot rest on the interests of the general public; the grounds are exhaustive.
• The heckler's veto inverts the guarantee; the answer is the least intrusive measure, from Anuradha Bhasin.
• Falsity is not a ground in article 19(2), so fake news must be brought under an existing ground; a State power to determine truth is a censor by another name.
• Broadcasting: airwaves are public property to be regulated for diversity, which justifies regulation and forbids a government monopoly. Spectrum scarcity is a fading rationale.

Test yourself

1. Why is "hate speech" not a legal category in India, and what must a restriction show instead?

2. Distinguish discussion, advocacy and incitement, and state the test that separates the last two.

3. Why does the proximity test fit online circulation poorly?

4. Explain the three concentric circles and what the State must prove to reach the middle one.

5. What is the heckler's veto and what is the answer to it?

6. Why is fake news constitutionally difficult to restrict, and what framework would survive scrutiny?