Below is the written response by Dr. Subramanian Swamy on the filings of Ministry of Home Affairs to the Supreme Court…
“The counter affidavit filed by an Under Secretary of the Home Ministry in reply to the Notice issued to the Government by the Supreme Court on my Writ Petition challenging the constitutionality of the Hate Speech sections of the Indian Penal Code, contains in paragraph to a book written by me 10 years ago about how to deter terrorists from attacking India.
This paragraph is wholly irrelevant since the Notice was issued to Government to know its views on my challenge to constitutionality of the Hate Speech Sections of IPC and not whether I had broken any law by writing a book ten years ago.
Hence it is a total lack of application of mind by the Government and speaks poorly about the Law Officers of the Government who have already brought disgrace to the BJP government by their failure in dealing with the Section 66A of Information Technology Act and in the NJAC fiasco.
I will speak to the Union Home Minister tomorrow and check if the counter affidavit had his approval or not. I shall also file a Reply Affidavit in the case in Supreme Court.”
– Dr. Subramanian Swamy
This response was due to the submissions by the Modi Government to the Supreme Court in the form of an affidavit in response to Dr. Swamy’s plea challenging the constitutional validity of ections 153, 153A,153B, 295, 295A, 298 and 505 of the IPC dealing with `hate’ speech According to legal provisions, hate speech is any speech, gesture or conduct, writing or display which is forbidden because it may incite violence or hurt religious feeling or promote enmity between different groups on grounds of religion, race, place of birth, residence, language etc.
The affidavit comes in response to a Supreme Court’s notice to the Centre on a plea by Dr.Swamys to decide the Constitutional validity of penal provision about hate speech. In July, the court had issued notice to Centre and sought its response.
In his petition, Swamy had contended that under the present law, a person could not attempt to initiate a public debate to modify people’s perception as the person was “chilled or gagged” under the present law.
“By these laws, therefore, not only are such persons harassed by a criminal prosecution which could continue unendingly, but also on that pretext, a vibrant and vigorous public discourse essential in a democracy is gagged. There is also thereby violation of the citizens’ fundamental right to freedom of speech and expression,” he said.
“It is submitted herein that in all these impugned sections, there is a presumption that such utterances, whether honest or not, do actually and invariably result in the commission of the offences per se. It is submitted that this is not correct,” he said.
In its response, the Ministry of Home Affairs stated that that people could not be allowed to spread hatred towards any community or class in the name of freedom of speech and expression as it would result in public disorder and riots.
“I’ll continue with my fight and give a fitting reply in the court,”
– Dr. Swamy
“If people were permitted to freely attempt to commit acts promoting feelings of enmity or hatred between different classes of the citizens of India, the result would be public disorder. There may be riots or commission of offences. There may be disharmony and ill will between various classes, affecting the peace and order of the society,” the affidavit said.
Reacting to the affidavit, Swamy told the media that the matter will be settled in the court and he will give a fitting reply to the Government’s affidavit.
“I’ll continue with my fight and give a fitting reply in the court,” said Dr. Swamy.
The affidavit contended that the penal provisions against ‘hate speech” cannot be done away with as Constitution allowed reasonable restriction on citizen’s right to freedom of speech. The provisions are meant to maintain peace and harmony in the society, it said..
“It is respectfully submitted that our country is inhabited by persons belonging to different religions, castes and classes. Our Constitution is based upon the principle that persons of all castes, creed and religion must live together in harmony and that in the long run prosperity and salvation are in union and not in division,” the affidavit said.
In response the Centre said, “The provisions are very clear and neither too widely worded nor is indefinite and intended to punish those who either attempt to promote class hatred or class enmity,”
Referring to a controversial book by Swamy, the centre virtually justified criminal proceedings against him saying he made hate speech against a community in his book. “The book is to be considered in all its aspects as it contains matter which promotes feeling of enmity and hatred between Hindus and Muslims in India. Therefore the petitioner has violated Sections of IPC,” the affidavit said.
However, the Centre’s decision to go out of the way to drag a book written by Swamy way back in 2005, which had nothing to do with the present case, will come as a surprise to many. It also hints of creating the impression that that all may not be well between Dr. Swamy and the Modi government.
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It is a bad idea to criminalize free speech. It can lead to totalitarianism as in Stalin’s Russia or Mao’s China, with governments free to punish critics.