Context: Recently, the News Broadcasters Association (NBA) has asked the Supreme Court (SC) to include its ethical code in the Programme Code of the Cable Television Networks Rules, 1994.

• The ethical code is against airing malicious, biased and regressive content.
• NBA represents the collective voice of the news and current affairs broadcasters in India. It is an organisation funded entirely by its members.

Background

• A plea was made to stop the telecast of a programme 'Bindas Bol' on Sudarshan TV containing objectionable content against the Muslim entries into the civil services.
• The SC held that the content was prima facie “plainly hurtful” to the community and asked the NBA to suggest measures to strengthen the self-regulatory mechanism to prevent or penalise airing of communal or derogatory content in the electronic media.

The NBA suggested that

• The News Broadcasters Services Authority (NBSA) should be granted recognition as an “independent self-regulatory mechanism” to receive and deal with complaints.
• The orders passed by the NBSA should be made binding and enforceable on the channels.
• The penalties mentioned therein could be made more stringent.
• NBSA is an independent body set up by the NBA. Its task is to consider and adjudicate upon complaints about broadcasts.
• Submission to the NBSA regulatory mechanism should be made mandatory for granting/renewal of uplinking/downlinking permissions by the government.
• The orders passed by the NBSA should be made binding and enforceable on the channels and the penalties should be made stringent.

Challenges

• Indian laws present several complications when an attempt is made to distinguish permissible speech from hate speech.
• There is no international legal definition of hate speech, and the characterisation of what is ‘hateful’ is controversial and disputed.
• Generally, hate speech refers to utterances that incite violence, hatred, or discrimination against people on the basis of their collective identity, be it race, ethnicity, religion, gender or sexuality.
• It attacks two key tenets of a democratic republic: the guarantee of equal dignity to all and the public good of inclusiveness.
• It is the speech which has reached a level of incitement and is beyond advocacy.
• Section 153A and Section 295A of the Indian Penal Code (IPC), which criminalise, respectively, speech that seeks to promote enmity between different groups and speech/acts that outrage/s religious feelings.

Both of these are vaguely worded and are frequently invoked to suppress speech.

• They militate against the permissible grounds for limiting free speech enumerated in Article 19(2) of the Constitution, and, in particular, the restrictions allowed on considerations of public order and morality.
• Just like the substantive hate speech provisions in the IPC, the Programme Code is also much too vague and is also not applied uniformly.

Solutions

• There is a need to infuse clarity in legislation by identifying the distinction between merely offensive speech and hate speech, and by making clearer still those categories of exceptional cases where the Constitution permits prior restraint.
• Speech that merely causes offence and is no more than disparaging or unpleasant, should continue to remain shielded.
• However, the speech that treats communities with disparate concern, by creating in them a sense of dread, a sense of exclusion from civic life, should go unprotected.
• Limitation in cases involving the issue of speech should be restricted to those categories of minorities who are vulnerable and a merely offensive statement should not qualify as hate speech.
• The SC should not be afraid of delineating the ambiguities and has to handle the exercise delicately. A working definition of hate speech will have to be discovered by interpreting laws in conjunction with the constitutional right to free speech.

Road Ahead

• When it becomes evident that the basic objective of a broadcast is to evoke hatred and to vilify a vulnerable minority the law must find a way to foil the harm. A lot depends on how the Court strikes this balance because hate speech, once uttered, not only leaves little room for restitution but can also ramify to serve all manners of undemocratic ends.