Hate Speech not Free Speech, outside the purview of Article 19: Uttarakhand HC Court balances individual liberty with community’s right to live with security and dignity
19, Mar 2022 | CJP Team
On March 8, 2022, Justice Ravindra Maithani, of the Uttarakhand High Court, rejecting the bail application of serial hate offender, Jitendra Tyagi, held that Hate Speech didn’t fall under the purview of the fundamental Right to Freedom of Speech and Expression granted under Article 19(1(a) of the Indian Constitution.
Insisting, moreover, that “a balance has to be struck between the right to individual liberty and the interest of society,” the Uttarakhand High Court overturned an earlier order by a sessions court. Examining closely the balancing rights available under the Indian Constitution, the Court further held, “No right can be absolute, and reasonable restrictions can be placed on them.”
(Jitendra Narayan Tyagi alias Waseem Rizvi vs State of Uttarakhand)
The underlying basis as to why the court does not consider this to be a fit case for bail is the societal impact of such hate speeches and acts. The impact of the alleged offence outweighs the individual liberty of the person, and hence the seriousness of offence is such that the bail is deemed to be rejected by the Court.
The two fundamental rights in picture i.e. the Right to Freedom of Speech and Expression and the Right to Life and Liberty are overshadowed by the gravity of the offence, the position and intent of the accused and hence, do not fall within the ambit of reasonable restrictions under Article 19(2) of the Constitution.
To elucidate this further, the Court has cited Dr. BR Ambedkar’s interpretation of fundamental rights given in the Constituent Assembly debate (04.11.1948). Dr. Ambedkar’s differentiation between fundamental and non-fundamental rights narrows down to one aspect i.e. fundamental rights are a gift of law whereas non-fundamental rights are created by the agreement of parties. It is this differentiation which shows that fundamental rights are paramount but are not absolute. This draws the case of exception of the axiom “Bail is a rule, jail is an exception”.
The present case is an exception to the general norm of granting bail for the welfare of the individual under ‘Protection of Life and Personal Liberty’ (Article 21). The court further gauged all impacts that such hate speeches can have on the democratic functioning of the country as they reduce the social standing of the minority and silences their opinions, ideas and debates, thereby creating a barrier to their full participation in the democracy. Relying on the Supreme Court order in the case of Pravasi Bhali Sangathan vs Union of India and others, the Uttarakhand high court also held that “hate speech sets the groundwork for broader attacks on the vulnerable groups, generally arising out of discrimination, segregation and hate, ending in violence, and in extreme cases genocide.”
Tyagi’s highly publicised and incendiary remarks on video were not made in isolation. Previously, there have been instances of hate comments and derogatory remarks by YatiNarsinghanandSaraswati, the chief priest of Dasna Temple and a spiritual guide to Tyagi. Saraswati was granted bail by the Haridwar Sessions Court in a case registered against him for his alleged offensive and derogatory remarks about Muslim women. He also made calls for genocide at the Haridwar Dharam Sansad in December 2021. Besides, he faces charges in a case where he allegedly made derogatory remarks against former President of India,APJ Abdul Kalam. Narsinghanand had attacked President Kalam for his Muslim identity, and levied ridiculous and dangerous charges against him. The Attorney General, KK Venugopal has deemed that the remarks made by Narsinghanand as a fit case of contempt as it is direct attempt to lower the authority of the Supreme Court.
Assessing all these instances coupled with the current case at hand, the Court, after hearing both sides was of the view that such hate speeches and condemning utterances about the prophets of a particular religion incite violence and can also wage war, disruption the democratic ecosystem of the nation. Its impact on the larger society is more than the accused’s right to life and liberty, hence it is an exception to the phrase “Bail is a rule, jail is an exception”. It is a case of necessity, as it protects the larger good in order to create peace and harmony among the majority and minority community groups in the country. The rejection of bail is well considered and is backed by legitimate reasons and a sound evidence of the repeated nature of the offence. The decision was taken to keep antisocial elements at bay and to maintain peace and order.
In the present case titled Jitendra Narayan Tyagi alias Waseem Rizvi vs State of Uttarakhand, the accused, who has been in judicial custody is also a serial hate offender, who recently gave up Islam and converted to Hinduism. An FIR was lodged against him under Section 153A (attacks upon religion or upon the founders or prophets of a religion) and Section 298 (Uttering words with the deliberate intent to wound the religious feelings of any person) of IPC after he used objectionable and derogatory words against the Prophet, the most revered figure of Islam in his hate speech at the Hindutva conclave Dharam Sansad held in December 2021. The FIR also states that the accused provoked the masses to take up arms against a particular religion, and has a criminal history of 34 cases.
The Court has also held that the derogatory remarks made by the accused intentionally wounds the feelings of a particular religious group, and further incites violence and wages war. It promotes enmity and would in turn create communal violence. The court has further concurred with earlier judicial pronouncements that have held that the impact of such hate speeches can also lead to genocides in extreme cases
In addition to the present incident at Haridwar, Tyagi had previously published video messages defaming and condemning the Muslim religion, and also published his Islamophobic ideologies in a book titled “Muhammad”. In the court’s opinion, all of these repeated instances clearly depict the intention of the accused.
The entire order may be read here:
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