1. http://shodhganga.inflibnet.ac.

in/bitstream/10603/36776/11/11_chepter
%202.pdf(last visited on September 18,2016

Freedom Of Speech And Expression

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Public order as a ground of imposing restrictions was added by the Constitution
(First Amendment) Act, 1951. Public order is something more than ordinary
maintenance of law and order. Public order in the present context is synonymous
with public peace, safety and tranquility.
Meaning And Scope
Article 19(1)(a) of Indian Constitution says that all citizens have the right to
freedom of speech and expression. Freedom of Speech and expression means
the right to express one's own convictions and opinions freely by words of
mouth, writing, printing, pictures or any other mode. It thus includes the
expression of one's idea through any communicable medium or visible
representation, such as gesture, signs, and the like. This expression connotes
also publication and thus the freedom of press is included in this category. Free
propagation of ideas is the necessary objective and this may be done on the
platform or through the press. This propagation of ideas is secured by freedom of
circulation. Liberty of circulation is essential to that freedom as the liberty of
publication. Indeed, without circulation the publication would be of little value.
The freedom of speech and expression includes liberty to propagate not one's
views only. It also includes the right to propagate or publish the views of other
people; otherwise this freedom would not include the freedom of press.
Freedom of expression has four broad special purposes to serve:
1) It helps an individual to attain self-fulfillment.
2) It assists in the discovery of truth.

3) It strengthens the capacity of an individual in participating in decisionmaking.

4) It provides a mechanism by which it would be possible to establish a
reasonable balance between stability and social change.
5) All members of society would be able to form their own beliefs and
communicate them freely to others
In sum, the fundamental principle involved here is the people's right to know.
Freedom of speech and expression should, therefore, receive generous support
from all those who believe in the participation of people in the administration. It
is on account of this special interest which society has in the freedom of speech
and expression that the approach of the Government should be more cautious
while levying taxes on matters of concerning newspaper industry than while
levying taxes on other matters.
Explaining The Scope Of Freedom Of Speech And Expression Supreme Court Has
Said That The Words "Freedom Of Speech And Expression" Must Be Broadly
Constructed To Include The Freedom To Circulate One's Views By Words Of Mouth
Or In Writing Or Through Audiovisual Instrumentalities. It Therefore Includes The
Right To Propagate One's Views Through The Print Media Or Through Any Other
Communication Channel E.G. The Radio And The Television. Every Citizen Of This
Country Therefore Has The Right To Air His Or Their Views Through The Printing
And Or The Electronic Media Subject Of Course To Permissible Restrictions
Imposed Under Article 19(2) Of The Constitution.
Freedom to air one's view is the lifeline of any democratic institution and any
attempt to stifle, suffocate or gag this right would sound a death knell to
democracy and would help usher in autocracy or dictatorship. The modern
communication mediums advance public interest by informing the public of the
events and development that have taken place and thereby educating the
voters, a role considered significant for the vivacious functioning of a democracy.
Therefore, in any setup more so in a democratic setup like ours, broadcasting of
news and views for popular consumption is a must and any attempt to deny the
same must be frowned upon unless it falls within the mischief of Article 19(2) of
the Constitution.
The various communication channels are great spreaders of news and views and
make considerable impact on the minds of readers and viewers and our known to
mould public opinion on vitals issues of national importance. The freedom of
speech and expression includes freedom of circulation and propagation of ideas
and therefore the right extends to the citizen to use the media to answer the
criticism leveled against the views propagated by him. Every free citizen has
undoubted right to lay what sentiments he pleases. This freedom must, however,
be exercised with circumspection and care must be taken not to trench on the
rights of other citizens or to jeopardise public interest.
New Dimensions Of Freedom Of Speech And Expression

Government has no monopoly on electronic media: The Supreme Court widened

the scope and extent of the right to freedom of speech and expression and held
that the government has no monopoly on electronic media and a citizen has
under Art. 19(1)(a) a right to telecast and broadcast to the viewers/listeners
through electronic media television and radio any important event. The
government can impose restrictions on such a right only on grounds specified in
clause (2) of Art. 19 and not on any other ground. A citizen has fundamental right
to use the best means of imparting and receiving communication and as such
have an access to telecasting for the purpose.
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Commercial Advertisements: The court held that commercial speech
(advertisement) is a part of the freedom of speech and expression. The court
however made it clear that the government could regulate the commercial
advertisements, which are deceptive, unfair, misleading and untruthful.
Examined from another angle the Court said that the public at large has a right
to receive the "Commercial Speech". Art. 19(1)(a) of the constitution not only
guaranteed freedom of speech and expression, it also protects the right of an
individual to listen, read, and receive the said speech.
Telephone Tapping: Invasion on right to privacy : Telephone tapping violates Art.
19(1)(a) unless it comes within grounds of restriction under Art. 19(2). Under the
guidelines laid down by the Court, the Home Secretary of the center and state
governments can only issue an order for telephone tapping. The order is subject
to review by a higher power review committee and the period for telephone
tapping cannot exceed two months unless approved by the review authority.
Freedom Of Press
The fundamental right of the freedom of press implicit in the right the freedom of
speech and expression, is essential for the political liberty and proper functioning
of democracy. The Indian Press Commission says that "Democracy can thrive not
only under the vigilant eye of legislature, but also under the care and guidance
of public opinion and the press is par excellence, the vehicle through which
opinion can become articulate." Unlike the American Constitution, Art. 19(1)(a) of
the Indian Constitution does not expressly mention the liberty of the press but it
has been held that liberty of the press is included in the freedom of speech and
expression. The editor of a press for the manager is merely exercising the right of
the expression, and therefore, no special mention is necessary of the freedom of
the press. Freedom of press is the heart of social and political intercourse. It is
the primary duty of the courts to uphold the freedom of press and invalidate all

laws or administrative actions, which interfere with it contrary to the

constitutional mandate.
Right To Information
The right to know, 'receive and impart information has been recognized within
the right to freedom of speech and expression. A citizen has a fundamental right
to use the best means of imparting and receiving information and as such to
have an access to telecasting for the purpose. The right to know has, however,
not yet extended to the extent of invalidating Section 5 of the Official Secrets
Act, 1923 which prohibits disclosure of certain official documents. One can
conclude that 'right to information is nothing but one small limb of right of
speech and expression.
Grounds Of Restrictions
Clause (2) of Article 19 contains the grounds on which restrictions on the
freedom of speech and expression can be imposed1) Security of State: Under Article 19(2) reasonable restrictions can be imposed
on freedom of speech and expression in the interest of security of State. The
term "security of state" refers only to serious and aggravated forms of public
order e.g. rebellion, waging war against the State, insurrection and not ordinary
breaches of public order and public safety, e.g. unlawful assembly, riot, affray.
Thus speeches or expression on the part of an individual, which incite to or
encourage the commission of violent crimes, such as, murder are matters, which
would undermine the security of State.
2) Friendly relations with foreign states: This ground was added by the
constitution (First Amendment) Act, 1951. The object behind the provision is to
prohibit unrestrained malicious propaganda against a foreign friendly state,
which may jeopardise the maintainance of good relations between India, and
that state. No similar provision is present in any other Constitution of the world.
In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by
Indian citizens against foreign dignitaries. Interest of friendly relations with
foreign States, would not justify the suppression of fair criticism of foreign policy
of the Government.
It is to be noted that member of the commonwealth including Pakistan is not a
"foreign state" for the purposes of this Constitution. The result is that freedom of
speech and expression cannot be restricted on the ground that the matter is
adverse to Pakistan.
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3) Public Order: This ground was added by the Constitution (First Amendment)
Act. 'Public order' is an expression of wide connotation and signifies "that state of
tranquility which prevails among the members of political society as a result of
internal regulations enforced by the Government which they have established."
Public order is something more than ordinary maintenance of law and order.
'Public order' is synonymous with public peace, safety and tranquility. The test
for determining whether an act affects law

http://jmi.ac.in/upload/menuupload/11_ccmg_hatespeech.
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(name of the

Introduction Michel Rosenfeld defines hate speech as speech designed to

promote hatred on the basis of race, religion, ethnicity or national origin. As he
notes, the issue of hate speech poses vexing and complex problems for
contemporary constitutional rights to freedom of expression.1 In the Indian
context, the contemporary meaning of the term hate speech is inextricable
from its origins (as a form of legal action) in colonial attempts to assume the role

of the rational and neutral arbiter of supposedly endemic and inevitable religious
conflicts.2 Given this historical context, hate speech has primarily been
understood in India as referring to speech intended to promote hatred or
violence between Indias religious communities. Macaulay, in his commentary
upon the Indian Penal Code, explicitly endorsed this interpretation of hate
speech under Indian law, observing that the principle underlying Chapter XV
(prohibiting offences relating to religion and caste) is that every man should be
suffered to profess his own religion, and no man should be suffered to insult
the religion of another.3 This module provides an overview of legal, historical
and philosophical perspectives on hate speech in India. To this end, it provides
guidelines for discussion of the following: constitutional aspects of hate speech
in India; legal provisions prohibiting or restricting hate speech in India; the
historical background of prohibitions on hate speech in India; a discussion of
critiques of dominant understandings of hate speech, presented as an
introduction to philosophical debates regarding hate speech; a comparative
constitutional analysis of hate speech, noting the constitutional and legal
provisions regarding hate speech in the United States and Canada; two case
studies of hate speech controversies in India and internationally. Each module is
accompanied by prescribed readings and questions for further discussion. 1
Michel Rosenfeld, Hate Speech in Constitutional Jurisprudence: A Comparative
Analysis (2002-2003) 24 CARDOZO LAW REVIEW 1523, 1523. 2 Asad Ali Ahmed,
Specters of Macaulay: Blasphemy, the Indian Penal Code, and Pakistans
Postcolonial Predicament in Raminder Kaur and William Mazzarella (eds),
CENSORSHIP IN SOUTH ASIA: CULTURAL REGULATION FROM SEDITION TO
SEDUCTION, Indiana University Press, 2009, 173. 3 Thomas Macaulay, INDIAN
PENAL CODE, 1838, 2002 reprinting, 101. 3 1. Constitutional and International
Aspects of Hate Speech Readings: Chandmal Chopra v State of West Bengal
and ors (1988 Cri. L. J 739) (Calcutta High Court). Ramji Lal Modi v State of
Uttar Pradesh (AIR 1957 SC 620) (Supreme Court of India). Gopal Vinayak
Godse v Union of India and ors (AIR 1971 Bom 56) (Bombay High Court).
Human Rights Council Resolution 13/16, Combating Defamation of Religions, UN
Doc. A/HRC/RES/13/16 (Apr. 15, 2010). Govind Nihalani (director), Tamas
(1987). Article 19(1)(a) guarantees the right of all citizens to freedom of speech
and expression. This right, however, is not expressed in absolute terms (as in
the American Constitution). Rather, it is subject to article 19(2), which allows the
State to make laws imposing reasonable restrictions upon freedom of speech
and expression in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or
incitement to an offence. It is under the ground of public order that India has
prohibited and penalized hate speech. The Supreme Court have justified the
restrictions on free speech imposed by article 19(2) on utilitarian grounds: some
restrictions on freedom may be necessary so that others may also enjoy their
liberties. As noted by Sastri J in A. K. Gopalan (1950): Man, as a rational being,
desires to do many things, but in civil society his desires have to be controlled,
regulated and reconciled with the exercise of similar desires by other
individuals Liberty has, therefore, to be limited in order to be effectively

possessed. 4 As defined in Ram Manohar Lohia (1960), such public order is

necessary for citizens to peacefully pursue their normal avocations of life.5 As
the Supreme Court put it in Praveen Bhai Thogadia (Dr) (2004), the right to
freedom of expression may at times have to be subjected to reasonable
subordination to social interests, needs and necessities to preserve the very core
of democratic life preservation of public order and rule of law.6 In stark
contrast to the United States,7 public order restrictions upon free speech in
India may include content based restrictions, penalising speech 4 A. K. Gopalan
v. State of Madras AIR 1950 SC 27, 69. 5 Superintendent, Central Prison v. Ram
Manohar Lohia AIR 1960 SC 633. 6 Baragur Ramachandrappa and ors v State of
Karnataka (2007) 3 SCC 11. 7 Police Department of Chicago v Mosley, 408 US 92
(1972); Boos v Barry, 485 US 312 (1988); R. A. V. v City of St Paul, 505 US 377
(1992). 4 based upon the opinions or ideologies expressed within in the interests
of public order.8 Hate speech may hence be lawfully prohibited or restricted.
Whereas the prohibition of certain (racist) forms of speech inciting violence
have been found invalid in the United States in R. A. V. v City of St Paul (on the
grounds that, by specifically targeting certain forms of vilifying speech, the State
unlawfully engaged in viewpoint discrimination), 9 equivalent restrictions upon
racial and religious vilification have been upheld in India. Such measures have
been adjudged necessary for the maintenance of communal harmony, 10
irrespective of the truth or untruth of such statements.11 Nazi demonstrations,
though constitutionally-protected in the United States12 (on the ground that
speech causing offence cannot be restricted on that basis alone13), may hence
be prohibited in India on the grounds of public order. As noted by John H.
Mansfield, speech with deliberate and malicious intention of outraging religious
feelings has a tendency to disrupt public order and hence falls within the scope
of article 19(2).14 Indias departure from the US approach may reflect its
Constitutions unique emphasis upon the preservation of the rights of
minorities15 and the States duty to ensure a social order for the promotion of
the welfare of the people.16 To this end, the Supreme Court has concluded that
the public interest must without a doubt have preeminence over any individual
interest.17 The approach of the Indian judiciary towards issues of hate speech
(as they intersect with questions of public order) has been exemplified, and in
many senses established, by the cases of Ramji Lal Modi v State of Uttar Pradesh
(1957) and Gopal Vinayak Godse v Union of India and ors (1969). In Ramji Lal
Modi, the Supreme Court of India upheld the constitutionality of section 295A of
the Indian Penal Code as a reasonable restriction upon free speech in the
interests of public order. The Court rejected the need for any 8 Ramji Lal Modi v
State of Uttar Pradesh AIR 1957 SC 620 (Ramji Lal Modi); Virendra v State of
Punjab AIR 1957 SC 896; V. Vengan and ors, In re (1951) 2 MLJ 241. 9 R. A. V v
City of St Paul, 505 US 377 (1992). 10 Virendra v State of Punjab AIR 1957 SC
896. 11 Rajagopal v. Province of Madras AIR 1948 Mad 326. There is, however,
conflicting authority upon this point: see Lalai Singh Yadav v State of Uttar
Pradesh (1971) Cri L J 1773; Shalibhadra Shah v Swami Krishna Bharati (1981)
Cri L J 113. 12 Collin v. Smith, 578 F.2d 1197 (7th C) (1978). 13 Street v. New
York, 394 US 576, 592 (1969); Cohen v. California, 403 US 15, 21 (1970). 14 J. H.
Mansfield, Religious Speech under Indian Law in M. P. Singh (ed), COMPARATIVE

CONSTITUTIONAL LAW: FESTSCHRIFT IN HONOUR OF PROFESSOR P. K. TRIPATHI,

Eastern Book Co, 1989. 15 Articles 29 and 30, Constitution of India. 16 Article 38,
Constitution of India. 17 Baragur Ramachandrappa v State of Karnataka and ors
Appeal (crl) 1228 of 1998 (2 May 2007). 5 nexus between acts possessing a
tendency to cause public disorder and the actual occurrence of such public
disorder.18 Furthermore, the Court noted the relatively limited scope of section
295A: [Section] 295A does not penalize any and every insult to or attempt to
insult the religiou or the religious beliefs of a class of citizens but it penalizes
only those acts [or] insults to or those varieties of attempts to insult the religion
or the religious beliefs of a class of citizens, which are perpetuated with the
deliberate and malicious intention of outraging the religious feelings of the class
(emphasis added).19 Such intentional insults, as distinct from insults to religion
offered unwittingly or carelessly or without any deliberate or malicious intention,
possess a clear calculated tendency to disrupt the public order. 20 In Gopal
Vinayak Godse, a book (Gandhi-hatya Ani Mee) was confiscated by the Judicial
Magistrate (First Class) of Poona, on the ground that the book contained matter
which promoted feelings of enmity and hatred between Hindus and Muslims.21
Gopal Godse, author of Gandhi-hatya Ani Mee, was the brother of Nathuram
Godse, and was convicted for taking part in the conspiracy to assassinate
Mahatma Gandhi. His book directly concerned the assassination of Gandhi and,
more broadly, controversies surrounding Partition. The Bombay High Court noted
the limited extent to which courts may read down statutory provisions which,
on their face, confer very broad power upon the legislature to restrict hate
speech: It may be good policy to balance the width of a power by the width of a
remedy afforded to prevent the abuse of that power. But that is for the
Legislature to consider. A Court called upon to construe the nature and content of
a remedy is bound by the language of the Section which prescribes the remedy.
What is sound policy may not be a safeguard to the true construction of a
section.22 The Court rejected the petitioners contention that section 99A of the
Code of Criminal Procedure (under which copies of his book were confiscated) is
violative of the freedoms of speech, property and profession. To this end, the
Court (in declaring the use of national, rather than regional or sectional,
restrictions, to be non-arbitrary) placed significant weight upon then-recent
Indian history: Promotion of hatred between different classes of citizens, as for
example, Hindus and Muslims or deliberate, malicious acts intended to outrage
the religious feelings of any class by insulting its religion or 18 Ramji Lal Modi,
867 (Das CJ). 19 Ibid. 20 Ibid. 21 Gopal Vinayak Godse v Union of India and ors
(AIR 1971 Bom 56) (Gopal Vinayak Godse). 22 Gopal Vinayak Godse, at [27]. 6
religious beliefs are not purely local problems. Recent history shows that these
tendencies constitute a serious danger to the very way of life to which we are
pledged under the Constitution.23 In upholding such national restrictions, the
Court similarly turned its mind towards practical considerations, in order to afford
the relevant provisions their due substance. To ban objectionable literature in
one State, and not another, would merely allow such copies as were legally
printed to trickle into the neighbouring State, as well as potentially allowing
communal disturbances in one state to flow over into other states (despite the
prohibition upon objectionable material in such other states).24 In deciding the

actual merits of the matter (whether Gandhi-hatya Ani Mee actually amounted to
material likely to disrupt public order), the Court adopted a similarly broad
approach, explicitly endorsing the notion that adherence to the strict path of
history is not by itself a complete defence to a charge under section 153A.25
Indeed, rather than a mitigating factor, this was presented as a possible
exacerbation of the harmful effects of the text: greater the truth, greater the
impact of the writing on the minds of its readers, if the writing is otherwise
calculated to produce mischief.26 Despite such, however, the Court ultimately
rejected the prohibition of the book, turning in large part upon the intention of
the writer although hastening to add that the intention of the writer is not
relevant if the writing is otherwise of a nature described in section 153A. 27
Again, the immediate public consequences of hate speech were stressed: that
the book does not purport to deal with any contemporary problem of
communal significance to Hindus or Muslims in India,28 with hence limited
potential to provoke public disorder. It is significant that, even in Gopal Vinayak
Godse, the judiciary adopted a very broad view of what may amount to hate
speech. There are, however, limits to the Indian judiciarys broad interpretation
of hate speech. Article 19(1)(a) must be read in light of other constitutional
provisions, such as article 25 (freedom of conscience and free profession,
practice and propagation of religion). This demand for holistic interpretation was
highlighted in Chandmal Chopra v State of West Bengal and ors 1988 Cri. L. J 739
(Calcutta High Court), in which an attempt to ban the Quran (on the grounds that
it incited violence, disturbed public tranquility, promoted feelings of enmity,
hatred and ill-will between different religious communities and insulted the
religion or religious beliefs of other communities in India) was rejected based
upon, among other reasons, the Courts duty to protect religious freedom: Any
attempt to impugn [the] Koran in the manner as has been sought to be done
would infringe the right to freedom of religion 23 Gopal Vinayak Godse, at [43].
24 Gopal Vinayak Godse, at [44]. 25 Gopal Vinayak Godse, at [64]. 26 Ibid. 27
Gopal Vinayak Godse, at [244]. 28 Gopal Vinayak Godse, at [250]. 7 including the
right to profess, practice and propagate religion.29 The Courts duty to respect
religious feelings similarly led it to deny its capacity to decide such a case: Such
adjudication of the religion [of Islam] itself is not permissible. Similarly, the
Courts cannot and will not adjudicate on theories of philosophy or of science or
scientific principles.30 Though the Indian Constitution, unlike the American
Constitution, prescribes explicit grounds upon which speech may be restricted,
one should not therefore assume that the Indian judiciary have universally
treated freedom of speech with any less reverence than American judges. The
judgment of Krishna Iyer J in Raj Kapoor v State AIR 1980 SC 258, written with
regard to a film accused of moral depravity, is illustrative in this respect: The
worlds greatest paintings, sculptures, songs and dances, Indias lustrous
heritage, the Konarks and Khajurahos, lofty epics, luscious in patches, may be
asphyxiated by law, if prudes and prigs and State moralists [proscribe]
heterodoxies.31 Similarly, in Ramesh s/o Chotalal Dalal v Union of India and ors
(1988), the Supreme Court rejected an appeal against the Bombay High Courts
decision to allow broadcast of Tamas, a serial covering the events of Partition. In
contrast to the Courts approach in Gopal Vinayak Godse (noted above), where

truth was regarded as a potential exacerbation, the Court in Ramesh s/o

Chatalal Datal placed a far higher emphasis upon the beneficial effects of even
unpleasant truths: Tamas takes us to a historical past-unpleasant at times, but
revealing and instructive. In those years which Tamas depicts a human tragedy
of great dimension took place in this sub-continent though 40 years ago it has
left a lasting damage to the Indian psyche32 The Court continued to take an
equivocal approach to truth: It is true that in certain circumstances truth has to
be avoided All schools alike are forced to admit the necessity of a measure of
accommodation in the very interests of truth itself.33 Despite such, the Court
noted that, [j]udged by all standards of a common mans point of view of
presenting history with a lesson in this film, these boundaries appear to us [to]
have been kept in mind.34 As such, even though perhaps less absolutist in its
approach to free speech than courts under the United States Constitution, the
jurisprudence of Indian courts with regard to free speech cannot be easily
caricatured as unduly submissive to state interests. 29 Chandmal Chopra v State
of West Bengal and ors (1988 Cri. L. J 739) at [35] (Chandmal Chopra). 30
Chandmal Chopra, at [34]. 31 Raj Kapoor v State (AIR 1980 SC 258). 32 Ramesh
s/o Chotalal Dalal v Union of India (1988) SCR (2) 1011, 1022-1023 (Ramesh s/o
Chotalal Dalal). 33 Ramesh s/o Chotalal Dalal, 1022-1023. 34 Ramesh s/o
Chotalal Dalal, 1023. 8 Under article 51 of the Indian Constitution (a Directive
Principle, requiring that the state foster respect for international law and treaty
obligations in the dealings of organised peoples with one another), international
human rights instruments and conventions may be used in the interpretation of
the Indian Constitution.35 To this extent, the following aspects of international
human rights law are relevant: article 4(a) of the International Convention on
the Elimination of All Forms of Racial Discrimination, whereby States Parties shall
declare an offence punishable by law all dissemination of ideas based on racial
superiority or hatred, incitement to racial discrimination, as well as all acts of
violence or incitement to such acts against any racial or group of persons of
another colour or ethnic origin; article 7 of the Universal Declaration on
Human Rights, whereby all people are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination. These provisions must be read in the context of resolutions by
international bodies regarding defamation of religion. The first such resolution
was articulated by the UN Commission on Human Rights in 1999, with similar
resolutions passed by the Commission every year until 2005; the UN Human
Rights Council enacted equivalent resolutions from 2007 to 2010. The most
recent such resolution, that of the 13th Session of the Human Rights
Commission, is illustrative. We note the following relevant declarations: The
Human Rights Council Stressing that defamation of religions is a serious affront
to human dignity leading to a restriction on the freedom of religion of their
adherents and incitement to religious hatred and violence Noting with concern
that defamation of religions and incitement to religious hatred in general could
lead to social disharmony and violations of human rights, and alarmed at the
inaction of some States in combatting this burgeoning trend and the resulting
discriminatory practices against adherents of certain religions and, in this
context, stressing the need to effectively combat defamation of all religions and

incitement to religious hatred in general and against Islam and Muslims in

particular 3. Strongly deplores all acts of psychological and physical violence
and assaults, and incitement thereto, against persons on the basis of their
religion or belief 35 Vishaka and ors v State of Rajasthan and ors (AIR 1997 SC
3011). 9 5. Notes with deep concern the intensification of the overall campaign
of defamation of religions and incitement to religious hatred in general 10.
Deplores the use of the print, audio-visual and electronic media, including the
Internet, and any other means to incite acts of violence, xenophobia or related
intolerance and discrimination against any religion 14. Urges all states to
provide adequate protection against acts of hatred, discrimination, intimidation
and coercion resulting from the defamation of religions and incitement to
religious hatred in general, and to take all possible measures to promote
tolerance and respect for all religions and beliefs. Though this resolution lacks
the significance of a Convention ratified by India, it is indicative of the evolution
of international legal thought (towards the recognition of defamation of religions
and hate speech as a significant form of harm). Given the extent, as noted
above, to which international legal norms may be used in the interpretation of
the Indian Constitution, the reiterated condemnation of hate speech by the
Human Rights Council may similarly foreshadow similarly shifting interpretations
of the Constitution by the Indian judiciary. Questions: 1. Do you believe that the
Indian Supreme Court has been justified in adopting a broad construction of the
interests of public order, as it relates to hate speech? 2. Do you agree that free
speech should be protected to different degrees in different nations? 3. Some
restrictions upon freedom are necessary so that we may all enjoy those same
freedoms. Discuss. 4. Do you believe that the Human Rights Council Resolution
13/16, Combating Defamation of Religions, appropriately addresses the need for
a balance between freedom of speech and religious freedom? 5. The Human
Rights Council resolutions on defamation of religion are responses to immediate
political and religious controversies, not substantial contributions to international
human rights jurisprudence. Discuss. 10 2. Statutory Provisions and Hate Speech
Section 153A of the Indian Penal Code criminalises the promotion of enmity
between different groups on grounds of religion, race, place of birth, residence,
language etc, or doing acts prejudicial to maintenance of harmony. The section
prohibits, inter alia: the promotion of disharmony or feelings of enmity, hatred
or ill-will between different communities through words, either spoken or
written, or by signs or by visible representations or otherwise (section 153A(1)
(a)); acts which are prejudicial to the maintenance of harmony between
communities, or which distur[b] or [are] likely to disturb the public tranquility
(section 153A(1)(b)). The broad scope of section 153A is further buttressed by
section 153B, which prohibits imputations and assertions prejudicial to nationalintegration. The section criminalises the use of words either spoken or written,
signs, or by visible representations or otherwise which, inter alia: impute to
any class of persons (by reason of their membership of a particular community)
an inability to bear true faith and allegiance to the Constitution of India or
uphold the sovereignty and integrity of India (section 153B(1)(a)); assert,
counsel, advise, propagate or publish that any class of persons, by reason of
their membership in any community, shall be denied or deprived of their rights

as citizens of India (section 153B(1)(b)); assert, counsel, advice, plead or

appeal concerning the obligations possessed by any class of persons (by reason
of their membership in any community), where such assertion, counsel, plea or
appeal causes or is likely to cause disharmony or feelings of enmity or hatred or
illwill between such members and other persons (section 153B(1)(c)). These
provisions co-exist with other, broader provisions of the Indian Penal Code, with
significant implications for hate speech. These provisions include the following:
section 295, which prohibits injuring or defiling [any] place of worship with
intent to insult the religion of any class; section 295A, which prohibits
deliberate and malicious acts, intended to outrage religious feelings or any class
by insulting its religion or religious beliefs; section 298, which prohibits
uttering words, etc, with deliberate intent to wound religious feelings; section
505(1), which prohibits statements conducive to public mischief; section
505(2), which prohibits statements creating or promoting enmity, hatred or illwill between classes. These provisions are supplemented by the Information
Technology Act 2000 and its Rules, which govern the electronic dissemination of
hate speech. 11 Under section 66A of the Act, publication of material which is
grossly offensive or has menacing character, or which is broadcast, despite
being known to be false, for the purpose of causing annoyance, inconvenience,
danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will,
is prohibited. The Information Technology (Intermediaries Guidelines) Rules 2011,
functioning in addition to the Act, further expand the capacity of the government
of India to prohibit hate speech. Significantly, unlike prior hate speech
provisions, they explicitly prohibit the host[ing], display, upload[ing],
modif[ication], publi[cation], trans[mission], updat[ing], or shar[ing] of any
information which, as per clause 3(2)(b) of the Rules, is blasphemous; such
explicit reference to blasphemy is unprecedented. In addition, clause 3(2)(b) of
the Rules prohibit the dissemination of material which is racially [or] racially
objectionable, or otherwise unlawful in any manner whatsoever, while clause
3(2)(i) prohibits material which threatens the unity, integrity, defence, security
or sovereignty of India, friendly relations with foreign states, or public order or
causes incitement to the commission of any cognisable offence or is insulting to
any other nation. These provisions, though broad, clearly permit the prohibition
of forms of hate speech within their wide ambit. 12 3. The History and Purpose of
Hate Speech Laws Readings: Asad Ali Ahmed, Specters of Macaulay:
Blasphemy, the Indian Penal Code, and Pakistans Postcolonial Predicament in
Raminder Kaur and William Mazzarella (eds), CENSORSHIP IN SOUTH ASIA:
CULTURAL REGULATION FROM SEDITION TO SEDUCTION, Indiana University
Press, 2009. Lawrence Liang, Love Language or Hate Speech (2012) 9(3)
TEHELKA, 3 March. Joseph Bain DSouza and anor v State of Maharashtra and
ors 1995 (2) BomCR 317 (Bombay High Court). As Rajeev Dhavan notes, Indias
hate speech offences are largely a legacy of the British.36 These provisions
were viewed, by the British, as a necessary expedient to maintaining security
and stability in their colonial territories: From the point of view of the British, the
purpose of the hate speech provisions was to avoid communal tension,
irrespective of who was right or wrong.37 Asad Ali Ahmed further highlights the
importance of hate speech laws in legitimating British presence in India,

reshaping their role from alien colonial occupiers to neutral arbiters of culture
and conflict. In Ahmeds analysis, colonial blasphemy laws enabled the colonial
state to assume the role of the rational and neutral arbiter of supposedly
endemic and inevitable conflicts between what it presumed were its religiously
and emotionally excitable subjects. 38 While this image of Indian colonial
subjects as possessing especially sensitive religious sensibilities, as Ahmed puts
it, was cited by the British to justify the existence of such laws, such laws
ironically led to the creation of the state of affairs which supposedly pre-existed
and justified their existence: that is to say, rather than reflecting primordial
religious attachments, the cases before the colonial courts were not only enabled
by the law but largely constituted by it.39 The importance of hate speech laws
in the British project of maintaining stability in India (necessary for the
perpetuation of colonial rule), and the extent to which the British perceived
Indian colonial subjects as uniquely vulnerable to religious insults, are made
clear by Macaulays commentary on Offences Relating to Religion and Caste
within the Indian Penal Code: The question[,] whether insults offered to a
religion ought to be visited with punishment, does not appear to us at all to
depend on the question whether that religion be true or false The religion may
be 36 Rajeev Dhavan, HARASSING HUSSAIN: USES AND ABUSES OF THE LAW OF
HATE SPEECH, Safdar Hashmi Memorial Trust, 2007, 27. 37 Ibid, 31. 38 Ahmed,
above at n.2, 173. 39 Ibid. 13 false but the pain which such insults give to the
professors of that religion40 Macaulays notion of words that wound is
surprisingly prescient. Similar notions emerge in the work of Judith Butler and
Kathleen E. Mahoney, considered in the next section. However, the motives and
objects of Macaulays code, as it related to offences relating to religion and
caste, were by no means pure. As he himself admits in his commentary, the
principal concern of such offences was ensuring basic social stability and
security, in the absence of which British rule could not effectively function: We
have provided a punishment of great severity for the intentional destroying of or
defiling of places of worship, or of objects held sacred by any class of persons.
No offence in the whole Code is so likely to lead to tumult, to sanguinary outrage,
and even to armed insurrection (emphasis added).41 The sentiments expressed
in the above extract the notion of Indians as subject to a unique range of
prejudices, sensitivities and particularities,42 to which they were uniquely
vulnerable, and incapable of agency beyond an ancient and immutable cultural
framework dictating their responses indicate, as Ahmed puts it, that Macaulay
shared James Mills scathing assessment of Indian civilization as despotic,
hierarchical, stultifying and mired in superstition.43 What Liang terms the notion
of emotionally excitable subjects, prone to emotional injury and physical
violence and requiring a rational and neutral arbiter (the colonial State) to
govern their relationships, 44 both served to justify the continued presence of
the British (as having brought peace to, and secured order in, primordial,
fractious and antagonistic religious communities through the adjudication of
religious disputes45) and amounted to a selffulfilling prophecy. As Liang puts it,
once you have a law that allows for the making of legal claims on the basis of
charged emotional states, you begin to see the emergence of cases that steadily
cultivate a legal vocabulary of hurt sentiments.46 It is in this sense that Ahmed

notes that attempts to regulate wounded attachments and religious passions

through law may conversely constitute them47 the creation of a legal
category of hatred, its boundaries and content delineated and defined by the
law. Such creation of a legal category of hatred is not solely restricted to the
capacity of hate speech litigation to allow social groups in organize in order 40
Macaulay, above at n.3, 101-102. 41 Ibid, 102. 42 Ahmed, above at n.2, 178. 43
Ibid. 44 Lawrence Liang, Love Language or Hate Speech (2012) 9(3) TEHELKA, 3
March. 45 Ahmed, above at n.2, 177. 46 Liang, above at n.44. 47 Ahmed, above
at n.2, 177. 14 to ensure the state takes cognizance of blasphemous events and
practices,48 as Ahmed puts it. To ascribe such a neutral role to the judiciary,
above and outside society, ignores the very real roots of legal discourse and the
judicial approach to particular matters in contemporary controversies and the
social context of the judiciary. As Liang puts it, the judiciary itself is not outside
the politics of communal hatred.49 Given such, adjudication of cases concerning
hate speech may serve not merely to inspire hate speech amongst the public,
but may itself become the site for the production of hate speech.50 The judicial
attitudes on display in Joseph Bain DSouza v Bal Thackeray (1995) are
illustrative in this respect. The Court, rather than serving as a neutral arbiter of
the meaning and potential consequences of hate speech, align themselves with
its perpetrators. The rhetoric of the Court frequently mirrors that of the
respondent: The Pakistani infiltrators and the anti-national Muslims and Moulvis
and Mullahs poured poison in Bhendi Bazar locality. It is pertinent to note that in
the said article criticism is only against Pakistani infiltrators and anti-national
Muslims and not Muslims as a whole51 In this manner, the Court endorses the
conspiracy theories of the respondent, abjuring judicial neutrality in order to
criticise the anti-national or traitors section of Muslims and their selfish leaders
who are creating rift between Hindus and Muslims. 52 The Court further
endorsed the notion that [t]he readers of the editorial are not likely to develop
hatred, spite or ill-will against Muslims as a whole but may develop hatred
towards those Muslims indulging in anti-national activities.53 In doing so, the
Court served to legitimize (rather than prohibit) hatred: the extraordinarily broad
definition of Muslims indulging in anti-national activities within the impugned
materials allows its authors, painting in such broad brushstrokes and
encouraging the broader prejudices of the intended audience, to condemn and
incite hatred against an entire community. Fortunately, as Liang notes, the
Indian judiciary, at least at the appellate levels, have generally been more
careful about how to interpret hate speech provisions.54 However, the
cautionary example of Joseph Bain DSouza v Bal Thackeray serves to discredit
the traditional British perspective upon the role of courts in hate speech cases
a conception of the courts as pervasive, prohibitory and omniscient,55 with the
state (and its courts) taking the form 48 Ahmed, above at n.2, 177. 49 Liang,
above at n.44. 50 Ibid. 51 Joseph Bain DSouza v Bal Thackeray 1995 (2) BomCR
317 (Joseph Bain DSouza) at [16]. 52 Joseph Bain DSouza, at [18]. 53 Ibid. 54
Liang, above at n.44. 55 Ahmed, above at n.2, 176. 15 of an exterior sovereign
that stands above and outside society. 56 This discourse of state power, in
Ahmeds view, enabled (in traditional British jurisprudence) a hard and fast
distinction to be drawn between state and society. 57 The clear partisanship of

the bench in Joseph Bain DSouza on behalf of one community and one side of a
broader debate indicates that the courts, far from acting as neutral arbiters of
communal harmony, may be appropriated to serve the interests of a dominant
discourse through the mechanism of hate speech laws. Questions: 1.
Prohibitions on free speech were introduced as tools of colonial control by the
British. They have no relevance in modern India. Discuss. 2. Do you believe the
language of s153A is too broad? 3. Should truth be a defence to hate speech?
56 Ahmed, above at n.2, 175. 57 Ibid. 16 4. Two Critiques of Hate Speech
Readings: Judith Butler, The Sensibility of Critique: Response to Asad and
Mahmood in IS CRITIQUE SECULAR? BLASPHEMY, INJURY AND FREE SPEECH,
Townsend Center for the Humanities, 2009. Kathleen E. Mahoney, Hate Speech:
Affirmation or Contradiction of Freedom of Expression, UNIVERSITY OF ILLINOIS
LAW REVIEW 789 (1996). Both Judith Butler and Kathleen E. Mahoney challenge
the traditional view of restrictions upon hate speech as contradictions or
restraints upon freedom of expression. While Mahoney argues that hate speech
is not legitimate speech (comprising instead a form of harassment and
discrimination that should be deterred and punished just like any other behaviour
that harms people58), Butler argues that the secular/liberal juridical framework
regarding hate speech fails to adequately explain the impact and nature of hate
speech in alternate cultural contexts. 4a. Judith Butler Judith Butler criticises
analysis of hate speech purely through the lens of free speech a secular,
liberal framework which asks only whether impugned conduct is free speech,
and, if so, whether it deserves protection. (Butler also dubs this framework the
liberal legal imaginary. 59 The term secular/liberal framework will be used here
for clarity.) She argues that this framework remains indifferent to questions of
social history and cultural complexity that reframe the very character of the
phenomenon in question.60 Butler suggests that the secular/liberal framework is
potentially inapplicable outside a very narrow cultural and historical context,
given the extent to which this moral framework and discourse draws upon
Christian discourse and social history and the historical circumstances
surrounding the emergence of [the] free speech doctrine in the West
(particularly in its approach to blasphemy).61 Blasphemy is understood within
the secular/liberal framework as a constraint on free speech. However, Butler
challenges the basic assumption that this is a certain and settled
conceptualisation of blasphemy, arguing that the normative question of
whether or not we will censor is driven to an unacknowledged extent not by the
content of the material concerned, or of how it could potentially affect certain
audiences, but merely how we 58 Kathleen E. Mahoney, Hate Speech:
Affirmation or Contradiction of Freedom of Expression (1996) UNIVERSITY OF
ILLINOIS LAW REVIEW 789, 793. 59 Judith Butler, The Sensibility of Critique:
Response to Asad and Mahmood in T. Asad, W. Brown, J. Butler and S. Mahmood,
IS CRITIQUE SECULAR? BLASPHEMY, INJURY AND FREE SPEECH, Townsend Center
for the Humanities, 2009, 118. 60 Ibid, 102. 61 Ibid, 103. 17 conceptualise the
phenomenon. 62 The framework of understanding hence limits the range of
potential conclusions (as to whether to censor or not censor) which may be
drawn. Butler notes the ensuing problem of translation: that, within the context
of the Mohammad cartoons controversy, whether the moral framework and

discourse within which the outrage took place was at odds in some key ways
with Western discourses surrounding blasphemy and free speech.63 This
fundamental disconnection prevented Western discourses from properly
appreciating why outrage against the cartoons was of a certain kind, and of
what specific meaning that injury had and has.64 The Western understanding of
the offence caused by the Mohammad cartoons, preconditioned by certain free
speech-oriented interpretations of blasphemy, assumed that the offence felt by
many Muslims similarly stemmed from outrage against the blasphemy (tajdif)
committed in light of equivalent historical controversies in the West which have
shaped the outlook of the secular/liberal framework. Butler, by contrast,
suggests that the actual form of offence falls outside the capacity of the Western
secular/liberal framework to interpret. She observes that the cartoons were
charged with isaah, insult, harm, injury, and were viewed as an attempt to
coerce disbelief.65 Butler argues that the particular horror of attempts to
coerce disbelief must themselves be understood in terms of unique Islamic
conceptions of faith: Belief itself is [understood] not [as] a cognitive act, not
even the property of a person, but part of an ongoing and embodied relation to
God [Attempts to coerce disbelief are not], in these terms, a quarrel between
beliefs or an attack on an idea, but an effort to coerce the break of a bond
without which life is untenable.66 It is worth noting that Kathleen E. Mahoney,
discussed below, concurs with this critique of the secular/liberal framework as
inappropriate to emerging controversies and debates regarding free speech in a
multicultural context. As she notes, speech issues raised by hate propaganda
today are entirely different than speech issues that faced fledgling democracies
in the seventeenth and eighteenth centuries.67 Butlers notions of blasphemy
provide additional substance to our understanding of sections 295 (injuring or
defiling place of worship with intent to insult the religion of any class), 295A
(deliberate and malicious acts, intended to outrage religious feelings or any
class by insulting its religion or religious beliefs) and 298 (uttering words, etc,
with deliberate intent to 62 Butler, above at n.59, 116. 63 Ibid, 103. 64 Ibid, 101.
65 Ibid, 117-118. 66 Ibid, 118. 67 Mahoney, above at n.58, 796. 18 wound
religious feelings) of the Indian Penal Code, particularly in light of the history of
such provisions (rooted in Macaulays notion of wounding words). Ahmed
challenges the notion that the wounding nature of words necessarily predates
the legal constitution of hate speech. As Ahmed puts it, the laws required the
plaintiffs to prove that their sensibilities had been wounded.68 In this manner,
the laws attempts to regulate wounded attachments and religious passions can
conversely constitute them.69 Liang, by contrast, while noting that the overuse
of hate speech laws [may] overdetermin[e] the power of words and images,
adopts Saba Mahmoods compelling case for tak[ing] the idea of moral injury
seriously. Like Butler (who wrote in response to Mahmood), Liang notes that the
hate speech inherent in the Muhammad cartoons controversy was directed (or
believed to be directed) against a mode of habitation and being that feels
wounded.70 This conception of hate speech may, however, be antithetical to the
legal prohibition of such; Mahmood notes that the language of isaah, coercion
of disbelief as a wound, is neither juridical nor that of street protest.71 To this
end, Mahmood notes that the immediate resort to juridical language by

participants on both sides of the Muhammad cartoons controversy was an

unfortunate consequence of the prevailing secular/liberal framework,72 given
that the performative character of the law may be entirely at odds with the
form of injury experienced by Muslims offended by the Muhammad cartoons.73
Questions: 1. Do you agree that the Western secular/liberal framework for
understanding free speech is inapplicable to nations with different cultural
traditions? 2. Secularism functions tacitly to structure and organize our moral
responses within a dominant Euro-Atlantic context. Discuss. 3. Subjecting [the
sense of injury felt by many Muslims from the Muhammad cartoons] to the
language of legal claims and criminal liability entails a risky translation since
mechanisms of law are not neutral but are encoded with their own cultural and
epistemological presuppositions.74 Discuss. 4b. Kathleen E. Mahoney 68 Ahmed,
above at n.2, 173. 69 Ibid, 177. 70 Liang, above at n.44. 71 Saba Mahmood,
Religious Reason and Secular Affect: An Incommensurable Divide? in T. Asad, W.
Brown, J. Butler and S. Mahmood, IS CRITIQUE SECULAR? BLASPHEMY, INJURY
AND FREE SPEECH, Townsend Center for the Humanities, 2009, 78. 72 Mahmood,
above at n.71, 79. 73 Ibid, 88. 74 Liang, above at n.44. 19 Kathleen E. Mahoney
makes her views on hate speech very clear from the outset of her piece: My
lecture today can be summed up in one sentence: The harm of hate speech
matters. It matters to individuals, it matters to the groups they belong to, it
matters to society generally, and it matters to democracy Hate propaganda is
not legitimate speech. It is a form of harassment and discrimination that should
be deterred and punished just like any other behaviour that harms people. Free
speech cannot be degraded to the extent that it becomes a license to harm.75
Mahoney challenges the dominant paradigm for discussions of free speech in the
United States: Oliver Wendell Holmes ideal of the marketplace of ideas. As
expressed by Justice Holmes in his dissenting opinion in Abrams v United States
(1919): But when men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very foundations of
their own conduct that the ultimate good desired is better reached by free trade
in ideas-that the best test of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the only ground
upon which their wishes safely can be carried out.76 Mahoney identifies this as a
result oriented approach to free speech: Practical, concrete benefits are said to
flow to the community from the protection of speech. 77 However, she observes
serious flaws with the practical application of Holmes nostrums: [i]n the case of
highly emotive hate speech directed against minorities and women, where the
speech seeks to subvert the truth-seeking process itself, a forceful argument can
be made that the interests of seeking truth work against, rather than in favour
of, speech.78 Similarly, the marketplace of ideas requires, for its proper
functioning, reasonable parity of voices (so that all ideas may be evaluated upon
their merits, rather than merely conceded owing to their volume). As Mahoney
notes, in a world of media conglomerates and significant economic and social
inequality, untruths can certainly prevail if powerful agencies with strong
motives gain a hold in the market.79 Such inequalities of access to speech, and
of capacities to promote ones views, are particularly virulent in light of the
pervasive effects of discrimination: [T]o assume that native people have the

same access to speech as oil companies or that women and children have the
same access as pornographers or that blacks have the same access as whites is
to create false equivalences which perpetuate and ensure 75 Mahoney, above at
n.58, 793. 76 Abrams v United States, 250 US 616, 630 (1919). 77 Mahoney,
above at n.58, 795. 78 Ibid, 799. 79 Ibid, 800. 20 inequality and an unfair
distribution of speech rights on the basis of race, sex, class and age.80 Mahoney
makes two significant conceptual contributions. Her first conceptual argument is
that an individualistic, autonomy-focused conception of hate speech ignores the
significant role of hate speech as a group-based activity. If hate speech is
understood as primarily social, rather than the mere expression of individual
views, the exercise of the police powers of the state may hence be justified:
Those who promote hatred, violence or degradation of a group are aggressors in
a social conflict between groups. It is a well-established principle that where
groups conflict, governments must draw a line between their claims, marking
where one set of claims legitimately begins and the other fades away.81
Mahoneys second argument concerns the power of hate speech to act as an
injury or a wound in itself, entirely distinct from its potential to incite further
violence. (This is equivalent to Butlers analysis of coercive disbelief as isaah in
Muslim discourses.) As she puts it, hate propaganda serves to cause its victims
to [become] fearful and withdra[w] from full participation in society: They are
humiliated and degraded, and their self-worth is undermined. They are silenced
as their credibility is eroded. The more they are silenced, the deeper their
inequality grows.82 Debates over free speech have long assumed that speech,
in itself, has no detrimental effect. Mahoney challenges this assumption, and
hence whether the traditional sanctification of free speech as a virtue to be
protected above all else can be applied to hate speech. Butler agrees: It is
possible to say that [films promoting hate speech through negative portrayals of
Muslims] depict violence, but also that they do violence, and, most peculiarly,
they do both in the name of freedom.83 Questions: 1. Hate speech should be
understood as part of a social conflict between groups, not as an individual
expression of ideas. Discuss. 2. Hate speech is not a contribution to the public
debate; it is purely a tool for marginalizing and vilifying other groups. Discuss. 3.
Do you agree that words that wound should be considered akin to any other
form of injurious conduct? 4. Do you agree with Mahoneys critique of the
operation in practice of the marketplace of ideas? In particular, do you believe
that it operates significantly better or significantly worse than at any other time
in history? 80 Ibid, 800-801. 81 Ibid, 797. 82 Mahoney, above at n.58, 792. 83
Butler, above at n.59, 126. 21 5. Other Nations and Hate Speech Readings: M.
Rosenfeld, Hate Speech in Constitutional Jurisprudence: A Comparative
Analysis, 24 Cardozo Law Review 1523 (2002). 5a. Hate Speech in the United
States As mentioned previously, the American judiciary, in interpreting the First
Amendment to the United States Constitution, have been exceedingly reluctant
to limit free speech on grounds of its content that is to say, the ideas
expressed within. As observed by Jackson J in American Communications
Association v Douds: Thought control is a copyright of totalitarianism, and we
have no claim to it. It is not the function of our Government to keep the citizen
from falling into error; it is the function of the citizen to keep the Government

from falling into error.84 This absolutist approach to free speech allowing for
suppression purely on the grounds of clear social disruption or narrowly-defined
obscenity, rather than the merit or nature of the speech itself has not arisen by
historical accident. Rather, it reflects the United States Supreme Courts
longstanding acceptance of the notion of a free market in ideas that the best
test of truth is the power of [a] thought to get itself accepted in the competition
of the market,85 with Governments power to suppress speech on grounds of
falsity or abhorrence inferior, in the long run, to the inevitable victory of truth.
Although article 19(1)(a) of the Indian Constitution drew inspiration from the
American experience of constitutionalism,86 the US Supreme Courts general
unwillingness to prohibit content due solely to the sentiments expressed within
has led to a divergence between the United States and India as to when speech
may permissibly be restrained. In part, this has been textual: while the Indian
Constitution allows for reasonable regulation of the press, the US Constitution
does not. As noted by Douglas J in Kingsley Corp v. Regents of the University of
New York, [i]f we had a provision in our Constitution for reasonable regulation
of the press such as India has included in hers there would be room for argument
that censorship in the interest of [communal harmony or] morality would be
permissible. 87 The clear and present danger test prevailing in the US,
stipulating the only circumstances under which free speech may be restricted in
the interests of 84 American Communications Association v Douds, 339 US 382,
442-443. 85 Abrams v United States, 250 US 616 (1919). 86 Statement of Dr
Ambedkar, CONSTITUENT ASSEMBLY DEBATES, vol.VII, 40 (4 November 1948). 87
Kingsley Corp v. Regents of the University of New York, 360 US 684 (1959). 22
public order,88 has hence been found by Indian jurists to be inapplicable to India,
based upon fundamental differences between the US and Indian Constitutions.89
The clear and present danger test is a far more stringent test than the
reasonableness test applicable under article 19(2). 90 As per Bridges v
California (1941), it requires that the substantive evil must be extremely serious
and the degree of imminence extremely high before utterances can be
punished.91 Furthermore, the American approach is unique in what Weinstein
terms the strong protection it affords to some of the most noxious forms of
speech imaginable.92 As noted above, the intense hostility of American free
speech doctrine to content-based regulation of public discourse prevents the
prohibition of speech merely due to its objectionable, vilifying, racist or
communal content. 93 As noted in Police Department of Chicago v Mosley
(1972), [a]bove all else, the First Amendment means that the government has
no power to restrict expression because of its message, its ideas, its subject
matter or its content.94 In Brandenburg v Ohio (1969), the United States
Supreme Court distinguished between incitement towards, and advocacy of,
violence on racial grounds prohibiting the former while permitting the latter. 95
This definition was expanded upon in R. A. V. v City of St Paul (1992), where the
Brandenburg test formed the first ground upon which the Supreme Court struck
down St Pauls hate-speech ordinance (which prohibited the placement on public
or private property symbols known to arou[se] anger, alarm or resentment in
others on the basis of race, colour, creed, religion or gender, explicitly including
burning crosses or Nazi swastikas).96 The Courts second ground for striking

down the ordinance impugned in R. A. V., however, may be regarded as far more
controversial. The Supreme Court found that the criminalization of some forms of
incitement (accepting, hypothetically, the placement of a burning cross as
incitement) based on race and religion, while not criminalising incitement on
other bases (such as 88 Terminiello v. Chicago, 337 US 1 (1949). 89 Babulal
Parate v. State of Maharashtra (AIR 1961 SC 884); Santokh Singh v. Delhi Admin
(1973) 1 SCC 659; Collector of Customs v. Nathella Sampathu Chetty (AIR 1962
SC 316); Ramji Lal Modi. 90 Ramji Lal Modi. 91 Bridges v. California, 314 US 252
(1941). 92 J. Weinstein, An Overview of American Free Speech Doctrine and its
Application to Extreme Speech in I. Hare and J. Weinsten (eds), EXTREME SPEECH
AND DEMOCRACY, Oxford University Press, 2009, 81. 93 Ibid. 94 Police
Department of Chicago v. Mosley, 408 US 92 (1972). 95 Brandenburg v Ohio, 395
US 444 (1969). 96 R. A. V. v City of St Paul, 505 US 377 (1992). 23
homosexuality), the City of St. Paul engaged in viewpoint discrimination. As
observed in Scalia Js majority opinion: Displays containing some words--odious
racial epithets, for example-- would be prohibited to proponents of all views. But
"fighting words" that do not themselves invoke race, color, creed, religion, or
gender-- aspersions upon a person's mother, for example--would seemingly be
usable ad libitum in the placards of those arguing in favor of racial, color, etc.
tolerance and equality, but could not be used by that speaker's opponents. One
could hold up a sign saying, for example, that all "anti Catholic bigots" are
misbegotten; but not that all "papists" are, for that would insult and provoke
violence "on the basis of religion." St. Paul has no such authority to license one
side of a debate to fight freestyle, while requiring the other to follow Marquis of
Queensbury Rules.97 This approach may be criticised in light of Mahoneys
rejection of absolutist approaches to free speech (necessarily encompassing
protection of hate speech). The notion of a free and frank exchange of ideas
(the marketplace of ideas approach to freedom of speech) as socially beneficial
in all cases presumes a far greater degree of dialogue and inter-communication
than may in fact be the case: [A] problem with the market analogy is that more
speech is quite unrealistic or even impossible in the face of much hate
propaganda. A dozen heterosexual males pursuing one gay male screaming
epithets at him, an anonymous death threat slipped under a door, burning a
cross on anothers lawn, or a dead dog left in a lesbians mailbox do not
constitute situations where talking back is a viable option Speech in these
examples is nothing more than a weapon, used to silence and terrorize victims
and deepen their inequality.98 Mahoneys conception of hate speech as
bearing no truth value, or contribution to reasoned debates, has long
antecedents. Macaulay, in his commentary upon the offences relating to religion
and caste in the Indian Penal Code, noted that while [d]iscussion, indeed, tends
to elicit truth, insults have no such tendency. 99 Indeed, he outright rejects the
notion, dominant in American free speech jurisprudence) that the best test of
truth is the power of the thought to get itself accepted in the competition of the
market.100 Instead, Macaulay cynically concludes that [i]t is as easy to pull
down and defile the temples of truth as those of falsehood. 101 Religious insults,
rather than eliciting truth, merely tend to inflame fanaticism.102 Questions:
97 Ibid. 98 Mahoney, above at n.58, 800. 99 Macaulay, above at n.3, 102. 100

Abrams v United States, 250 US 616, 630 (1919). 101 Macaulay, above at n.3,
102. 102 Ibid. 24 1. Do you agree with the Courts reasoning in R. A. V. v City of
St Paul? 2. The incitement/advocacy distinction ignores the very real sense in
which advocacy can prove just as harmful to groups affected by hate speech as
the infliction of actual violence. Discuss. 3. The American absolutist approach
to free speech should be adopted in India; arguments that India is too culturally
different reflect the legacy of Orientalism and colonial perspectives. Discuss. 5b.
Hate Speech in Canada Michel Rosenfeld observes that there is a big divide
between the United States and other Western democracies in their approaches
to the restriction and prohibition of hate speech.103 The Supreme Court of
Canada, rejecting the American approach, has condemned hate speech as not
merely offensive, but as a serious attack on psychological and emotional
health.104 The primary Canadian case upon the constitutional legitimacy of hate
speech is that of R v Keegstra (1990). James Keegstra was a Canadian high
school teacher, who repeatedly declared to his students that Jewish people were:
treacherous; subversive; sadistic; money loving; public hungry; child
killers; and that they had created the Holocaust to gain sympathy. 105 There
was no evidence, however, that Keegstra intended to incite his pupils into antiSemitic violence. Nonetheless, he was prosecuted under section 319 of the
Canadian Criminal Code, which prohibits the public willful expression of ideas
intended to promote hatred against an identifiable group. The Supreme Court
concluded that Keegstras speech was unworthy of constitutional protection
under the Canadian Charter of Rights and Freedoms, given that it did more to
undermine mutual respect among diverse racial, religious and cultural groups in
Canada than to promote any genuine expression of needs or values.106 The
Court rejected the clear and present danger test, on the basis that it was
incapable of addressing the harms hate propaganda causes and hence
inapplicable to Canadian constitutional and cultural norms.107 Hate propaganda
was found to have only marginal truth value, outweighed by the significant
harm inflicted by hate speech on the constitutional value of equality. As noted
in the majority judgment (of Dickson CJ, Wilson, LHeureux-Dube and Gonthier JJ):
[T]he international commitment to eradicate hate propaganda and, most
importantly, the special role given equality and multiculturalism in the Canadian
Constitution necessitate a departure from the view, reasonably prevalent in
America at present, that the suppression of 103 Rosenfeld, above at n.1, 1523.
104 R v Keegstra [1990] S SCR 697, 744-749. 105 Rosenfeld, above at n.1, 1542.
106 Ibid, 1543. 107 Mahoney, above at n.58, 804. 25 hate propaganda is
incompatible with the guarantee of free expression.108 This judgment, it may
be observed, would be well beyond the pale of American jurisprudence, perhaps
reflecting the greater concern for multiculturalism and group-regarding equality
than with libertarianism, as a value in itself, in the interpretation of legitimate
free speech.109 To some extent, this divergence between the United States and
Canada may be attributed to the distinct justifications for free speech prevailing
in both nations. In R v Keegstra, the Supreme Court of Canada noted the
following justifications for free speech as predominant in the Canadian context:
(1) seeking and attaining truth is an inherently good activity; (2) participation
in social and political decision-making is to be fostered and encouraged; and

(3) diversity in forms of individual self-fulfillment and human flourishing ought to

be cultivated in a tolerant and welcoming environment for the sake of both those
who convey a meaning and those to whom meaning is conveyed.110 Rosenfeld
observes that the Canadian conception of autonomy, as expressed above, is
less individualistic than its American counterpart, as it seemingly places equal
emphasis on the autonomy of listeners and speakers.111 In the United States,
by contrast, justifications of free speech from autonomy (that is to say, the
notion that [a]ll kinds of utterances arguably linked to an individuals felt need
for self-expression ought to be afforded constitutional protection)112 have
traditionally prioritised the self-expression needs of the speaker over those of the
victims of such speech. (As Mahoney puts it more negatively, reflexive
invocation of principles of liberty and free speech in the United States tend to
foreclose discussion [of free speech] and close peoples minds to new ways of
thinking.113) This set of priorities may potentially allow self-expression of the
powerful to threate[n] the autonomy of those whose voices are being drowned.
114 By contrast, the Canadian approach with particular reference to (3) above,
the cultivation of diversity has viewed autonomy in a significantly different
light, allowing for suppression of certain noxious forms of free speech in order to
protect the self-expression of others. Questions: 1. What role should other values,
such as the promotion of equality and the maintenance of cultural diversity, play
in the interpretation of free speech? 108 R v Keegstra [1990] 3 SCR 687. 109
Rosenfeld, above at n.1, 1541. 110 R v Keegstra [1990] 3 SCR 687, 728. 111
Rosenfeld, above at n.1, 1543. 112 Ibid, 1535. 113 Mahoney, above at n.58, 804.
114 Ibid. 26 2. Do you agree with the Courts ruling in R v. Keegstra? Explain why
or why not. 3. The Courts ruling in R v. Keegstra allows the State to condemn
particular viewpoints that it disagrees with, potentially endangering individual
liberty. Discuss. 4. By suppressing particular viewpoints, the State merely
prevents debate and discussion of such views, allowing them to survive without
open challenge and ultimately proving detrimental to social harmony. Discuss.
27 6. Hate Speech Case Study: M. F. Husain Readings: Rajeev Dhavan,
Harassing Husain: Uses and Abuses of the Law of Hate Speech (2008). The late
artist M. F. Husain was subjected to a prolonged campaign of legal action and
allegations of hate speech owing to his depictions of Hindu religious figures and
iconography. To present the controversy surrounding his case in such anodyne
terms, however, is to ignore the complexities of hate speech controversies in
practice. Rajeev Dhavan, writing in defence of Husain, notes significant aspects
to the case beyond its mere legal trappings: the incitement of public
controversy, beginning around 1996, by conservative Hindutva ideologues,
despite the fact that many of Husains paintings had existed without controversy
since 1970. 115 Dhavan terms this the manufacturing of hate speech by
Husains opponents;116 the political context of the controversy (which began
in 1996, coinciding with the increasing national power of conservative Hindu
parties): What was being set up by the forces of Hindutva was a general system
of censorship to dramatise their hegemony or, at least, assertions of it;117
the inescapable role of Husains religion: The sacrilege was that Husain was a
Muslim! Muslims were being warned off Hindu subjects. Art in India was to be
compartmentalized Hindu art for Hindus and Muslim art for Muslims.118

Ironically, many of the conceptions of hate speech as a form of injury discussed

above (by Butler and Mahoney) have been used to discuss the actions of
Husains opponents (those who accused him of hate speech), rather than Husain
himself. As Dhavan puts it: [Husains] Hindutva detractors want to do all that
can be done to [him]. They want him to suffer the punishment of the process,
force him into apology, make him feel shame, ensure that he feels ashamed and
expresses regret, and publicly shame him with the maximum punishment
possible in such a way as would help the image of Hindutva but not inspire
general sympathy for Husain.119 The controversy, initially provoked in 1996 by
Husains paintings of Hindu goddesses, was re-ignited in 2006 upon allegations
that Husain had painted a nude depiction of Bharat Mata. (Husain had not
named the painting Mother India, and the painting was subsequently withdrawn
from bidding by the Apparao Galleries of Chennai). This new controversy led,
unlike prior 115 Dhavan, above at n.36, 12-13. 116 Ibid, 15. 117 Ibid, 12. 118
ibid, 14. 119 Ibid, 20. 28 iterations of the Hindutva campaign against Husain, to
legal action against the painter. In response to a complaint filed in Madhya
Pradesh, a bailable warrant was issued against Husain for offences under s153A.
Alternate complaints were issued across India; as a result, Husain sought to have
all proceedings transferred to a single court, the High Court of Delhi. The High
Court decided in Husains favour, in the case of Maqbool Fida Husain v Raj Kumar
Pandey and ors (2007). Sanjay Kishan Kaul J, in his judgment, stressed the role of
analysing the intentions of the artist in determining what is offensive or
wounding to the religious feelings of complainants: looking at a piece of art from
the painters perspective becomes very important especially in the context of
nudes.120 In light of this, he concluded that the ingredients of section 298 IPC
as alleged are not met since there seems to be no deliberate intention on the
part of the petitioner to hurt feelings of Indians.
ther to this, Sanjay Kishan Kaul J concluded that mere knowledge of the
likelihood that the religious feelings of another person may be wounded would
not be sufficient.121 In his analysis of s298 of the Indian Penal Code, Sanjay
Kishan Kaul J stressed the importance of interpreting the statute in light of Indias
long history of pluralism and tolerance: From the dawn of civilization, India has
been home to a variety of faiths and philosophies, all of which have coexisted
harmoniously.122 His conclusions reflect the influence of American ideals of the
marketplace of ideas: A liberal tolerance of a different point of view causes no
damage. It means only a greater self restraint. Diversity in expression of views
whether in writings, paintings or visual media encourages debate. A debate
should never [be] shut out. I am right does not necessarily imply You are
wrong.123 Questions: 1. Do you agree with the test of hate speech under s295
(intent is required; knowledge is not sufficient) applied by Sanjay Kishan Kaul J?
2. Prohibitions on hate speech can prove just as damaging to minority
viewpoints as hate speech itself. Discuss. 3. M. F. Husain, as a Muslim, should
have displayed greater sensitivity in depicting Indian goddesses and Bharat
Mata. Discuss. 4. What role should cultural and social factors, such as Indias
long history of tolerance (as cited by Sanjay Kishan Kaul J), play in the
interpretation of guarantees of free speech? 120 Maqbool Fida Husain v Raj

Kumar Pandey and ors, CRL Revision Petition No 114/2007 (Maqbool Fida
Husain) at [7]. 121 Maqbool Fida Husain, at [107]. 122 Maqbool Fida Husain, at
[109]. 123 Maqbool Fida Husain, at [130]. 29 7. Hate Speech Case Study: Salman
Rushdie in Jaipur Readings: Sandip Roy, Between Bigg Boss and Un-banning:
the Rushdie affair continues, Firstpost, 24 January 2012, accessed at
http://www.firstpost.com/living/between-bigg-boss-and-un-banningthe-rushdieaffair-continues-191747.html. William Dalrymple, Why Salman Rushdies voice
was silenced in Jaipur, The Guardian, 26 January 2012, accessed at
http://www.guardian.co.uk/books/2012/jan/26/salman-rushdie-jaipurliteraryfestival. Hari Kunzru, Why I quoted from The Satanic Verses, The Guardian, 22
January 2012, accessed at
http://www.guardian.co.uk/commentisfree/2012/jan/22/i-quotedsatanic-versessuport-rushdie. On 9 January 2012, Maulana Abdul Qasimi Nomani, vicechancellor of Darul Uloom Deoband, called upon the central government and the
Indian Muslim community to oppose Salman Rushdies impending visit to India,
and his planned appearance at the Jaipur Literary Festival.124 The controversy
which followed this announcement culminated in the cancellation of Salman
Rushdies appearance at the Festival (originally scheduled for 20 January)125
and the cancellation of a subsequent planned interview via video link on 24
January.126 This controversy cannot solely be understood in terms of outrage
against Rushdies allegedly blasphemous sentiments; rather, this controversy
illustrates that hate speech cannot be understood as a matter of individual acts
and individual hurt sentiments, but draws upon the broader political and social
context of such utterances and prevailing competition between social groups.
Indeed, as Hari Kunzru notes, the actual content of Rushdies work was in many
respects irrelevant, with Rushdie instead frequently misrepresented and
caricatured as a sort of folkdevil by people who know little or nothing about his
attack.127 124 Dipanjan Roy Chaudhury and Naziya Alvi, Salman Rushdie holds
PIO card, doesnt need a visa to visit India, THE TIMES OF INDIA, 11 January
2012, accessed at http://indiatoday.intoday.in/story/salman-rushdie-darul-uloomdeoband-maulana-abul-qasimnomani/1/168237.html. 125 Andrew Anthony,
Salman Rushdie: a literary giant still beset by bigots, THE OBSERVER, 22 January
2012, accessed at
http://www.guardian.co.uk/theobserver/2012/jan/22/observerprofile-salmanrushdie; Vikas Bajaj and Sruthi Gottipati, A Macabre Start to the Sprawling Jaipur
Lit Fest, THE NEW YORK TIMES INDIA INK, 20 January 2012, accessed at
http://india.blogs.nytimes.com/2012/01/20/a-macabre-start-to-the-sprawlingjaipur-lit-fest/. 126 William Dalrymple, Why Salman Rushdies voice was silenced
in Jaipur, THE GUARDIAN, 26 January 2012, accessed at
http://www.guardian.co.uk/books/2012/jan/26/salmanrushdie-jaipur-literaryfestival. 127 Hari Kunzru, Why I quoted from The Satanic Verses, THE GUARDIAN,
22 January 2012, accessed at
http://www.guardian.co.uk/commentisfree/2012/jan/22/i-quoted-satanicversessuport-rushdie. 30 Numerous analyses of the Jaipur festival controversy
have pinpointed the seemingly incongruous interplay of key philosophical issues
free speech, religious freedom, and communal harmony with prosaic conflicts
for political advantage in advance of the Uttar Pradesh state elections. Abhishek

Gaur notes the confusion of delegates and organisers as to the sudden surge in
controversy, given that Rushdie has come to [the Jaipur Literary Festival] in the
past. 128 William Dalrymple resolves this seeming contradiction by reference to
the fact that the Festival coincided with a razor-edge election in the allimportant north Indian state of Uttar Pradesh, a poll in which the vote of the
Muslim community was deemed to be crucial.129 (The actual results of the
election are less important, for present purposes, than the belief at the time that
they would be close.) Andrew Anthony drily notes that, under such
circumstances, the governing Congress party clearly decided that it was no time
to demonstrate spinal fortitude.130 Anant Rangaswami puts it most bluntly:
Those who protest the loudest against Rushdies proposed visit to Jaipur
wouldnt have heard this phrase wouldnt have heard of Voltaire indeed, they
wouldnt even have heard of Rushdie All they know is that Rushdies visit offers
them an opportunity to affect votes in the upcoming assembly elections, notably
the Uttar Pradesh elections, where a swing in the Hindu and Muslim votes could
be a deciding factor Its not about Rushdie and his writing, its about politics
and politicians raising a bogey about law and order.131 Other writers have
sought to place the controversy within a perceived trend towards repressiveness
and intolerance for dissenting voices in India. Vikas Bajaj and Sruthi Gottipati, for
The New York Times, situate the cancellation of Rushdies appearance as the
latest in a string of setbacks for free speech in India.132 Dalrymple observes
that, since 2007, [t]he commitment of Indian politicians to maintaining artistic
and intellectual freedom seem[s] to be becoming ever weaker.133 As Kunzru
puts it, [t]his situation has arisen in India at a time when free speech is under
attack [T]hese are not good times for those who wish to say unpopular things
in the worlds largest democracy.134 In light of this framing of the controversy
(as a free speech issue, within a continuum of equivalent controversies of free
speech in Indian history), the 128 Abhishek Gaur, At Jaipur, Salman Rushdie is
already the talking point, DAILY NEWS AND ANALYSIS, 20 January 2012, accessed
at http://www.dnaindia.com/india/report_at-jaipursalman-rushdie-is-already-thetalking-point_1639890. 129 Dalrymple, above at n.126. 130 Anthony, above at
n.125. 131 Anant Rangaswami, Why Salman Rushdie should not go to Jaipur,
FIRSTPOST, 18 January 2012, accessed at http://www.firstpost.com/india/whysalman-rushdie-should-not-go-tojaipur-186116.html. 132 Bajaj and Gottipati,
above at n.125. 133 Dalrymple, above at n.126. 134 Kunzru, above at n.127. 31
conflict was frequently framed by Rushdies defenders in absolutist terms,
equivalent to Ahmeds notion of the blasphemy discourses cultural work of
essentializing difference and perpetuating seemingly immutable oppositions.135
The controversy was depicted as one of free speech versus violence; 136
tolerance versus intolerance; 137 modernity versus medievalism; and those with
an interest in promoting truth and cross-cultural harmony versus its opponents.
With regard to this final discourse, Hari Kunzrus rhetoric echoes that of Justice
Holmes and other advocates of the truthfinding function of free speech: Just as I
reach out my hand to Salman Rushdie, I do so to [Hyderabad MP Asaduddin
Owaisi], and to Maulana Abul Qasim Nomani in the hope that, as fellow
believers in the vital importance of words, we can resolve our differences or at
least come to understand them correctly through speech and writing, instead of

violence and intimidation.138 William Dalrymple, intriguingly, adds another

dichotomy: of Indias aspirations towards democracy ([o]nly when freedom of
expression can be taken for granted can India really call itself the democracy it
claims so proudly to be) versus the deadening weight of Indias colonial heritage
(politicians, rather than protecting writers and artists, have utilised draconian
colonial legislation intended to stop religious riots to silence the creative
voice.139) This contrast of outdated laws, versus the bright and implicitly
liberal and secular future of India, might be considered a modern take on
traditional discourses of blasphemy, whereby accusations of blasphemy are
understood as an irruption of medieval irrationality and religiosity that threatens
political modernity.140 In place of the medieval, irretrievably backward and
repressive other, Dalrymple substitutes the colonial state as arbitrary and
dictatorial. In both cases, the demonized past is characterized in terms of
cultural difference. Kunzris ringing paean to the healing and uniting power of
words must be placed in the context of debates over the real truth value of
alleged hate speech. (In this respect, it must be stressed that both Rushdie, and
Rushdies critics, must be considered co-accused of hate speech in this analysis;
as Nilanjana Roys petition calling for the revocation of the ban on The Satanic
Verses notes, The Satanic Verses has not incited violence anywhere; others have
used the novels existence to incite violence to suit their political 135 Ahmed,
above at n.2, 173. 136 Dalrymple, above at n.126: If you give in to the
intimidation, you put at risk all the principles upon which literary life is based:
what is the point of having a literary festival, a celebration of words and ideas, if
you censor yourself and suppress an author's voice? 137 Anthony, above at
n.125: Political cynicism still wears the clothes of multicultural sensitivity and
the posture of tolerance continues to genuflect to intolerance. 138 Kunzru,
above at n.127. 139 Dalrymple, above at n.126. 140 Ahmed, above at n.2, 172.
32 ends.141 As Butler notes, the fact that freedom in certain European contexts
[has] come to define itself as the freedom to hate, entirely distinct of questions
as to whether hateful speech is part of free speech, is not a productive
development,142 particularly given that hate speech, even where done in the
name of freedom, may be said to do violence. 143 Kunzris willingness to
reach out my hand to both Rushdie and his critics (including those who have
criticized Kunzri himself) arguably affords to those who have been accused of
hate speech a far higher status than those who have otherwise, as Mahoney
argues, engaged in forms of harassment and discrimination, equivalent to any
other behaviour that harms people.144 The civil libertarian orthodoxy
espoused by Kunzri is, in Mahoneys analysis, increasingly outdated, as it
ignores harm to target groups 145 including Kunzri himself, and Rushdies
other defenders. Before concluding, the actual role played by Rushdie at the
Jaipur Literary Festival must similarly be assessed in light of hate speechs
historical antecedents in India. As Sandip Roy notes, Salman Rushdie would have
been the biggest literary celebrity at Jaipur. But in his absence, he became even
bigger, hovering over the festival like Banquos ghost. It was hard to find a
session that didnt mention the man.146 This monumental presence, though
depicted as a surprising development by Roy, is nothing new. As Ahmed notes,
late-nineteenth and early-twentieth-century cases regarding hate speech

frequently emerged as causes celebres, allowing for the constitution of publics

oriented around highly symbolic issues. 147 In this manner, a community of
believers (in the secular/liberal ideal of free speech) may be regarded as having
been constituted by the persecution of Rushdie, just as his opponents may be
regarded to have gained impetus and unity through their shared opposition to his
writings. By establishing such communities of thought and pitting both against
one another, Ahmeds dictum that rather than reflecting primordial religious
attachments, [cases of hate speech] were not only enabled by the law but
largely constituted by it148 accrues further contemporary relevance. Indeed,
this latest controversy adds further fuel to Ahmeds remark (prior to the 2012
Jaipur controversy) that [t]here is a peculiarly South Asian history to the Salman
Rushdie affair.149 Questions: 141 Sandip Roy, Between Bigg Boss and Unbanning: the Rushdie affair continues, FIRSTPOST, 24 January 2012, accessed at
http://www.firstpost.com/living/between-biggboss-and-un-banning-the-rushdieaffair-continues-191747.html. 142 Butler, above at n.59, 130. 143 Ibid, 126. 144
Mahoney, above at n.58, 793. 145 Ibid, 796. 146 Roy, above at n.141. 147
Ahmed, above at n.2, 173. 148 Ibid. 149 Ibid. 33 1. Analyze Dalrymples
comments (on the dichotomy between Indian democracy and repressive colonial
laws) in light of the traditional use of the IPC by colonial authorities. 2. The
actual content of Rushdies alleged blasphemous remarks was meaningless; the
controversy was purely whipped up for political advantage. Discuss. 3. Did the
Rushdie controversy reflect a growing

FREEDOM OF SPEECH AND EXRESSION

COMRASION
WITH HATE SPEECH IN INDIA

SYNOPSIS SUBMITTED TO THE CENTRAL UNIVERSITY OF

SOUTH BIHAR, GAYA, IN PARTIAL FULFILMENT FOR THE
AWARD OF THE
DEGREE OF
LL.M

IN
LAW

SUBMITTED BY
SURYA PRAKASH SINGH

UNDER THE GUIDANCE OF

ASSISTANT PROFESSOR (DR.) GANGOTRI CHAKRABORTY
GUJARAT NATIONAL LAW UNIVERSITY, GANDHINAGAR 2015

INTRODUCTION

EVOLUTION OF PROBLEM
STATEMENT OF PROBLEM
HYPOTHESIS
RESEARCH FOCUS AND AIM
OBJECTIVES
RESEARCH QUESTIONS
RESEARCH METHODOLOGY
LITERATURE REVIEW
SCOPE AND LIMITATION
SIGNIFICANCE
CONTRIBUTIONS MADE
DEFINITION OF KEY CONCEPTS
CHAPTER SUMMARY

EVOLUTION OF PROBLEM
Speech is God's gift to mankind. Through speech a human
being conveys his thoughts, sentiments and feeling to others.
Freedom of speech and expression is thus a natural right, which
a human being acquires on birth. It is, therefore, a basic right.
"Everyone has the right to freedom of opinion and expression;
the right includes freedom to hold opinions without interference
and to seek and receive and impart information and ideas
through any media and regardless of frontiers" proclaims the
Universal Declaration Of Human Rights (1948). The people of
India declared in the Preamble of the Constitution, which they
gave unto themselves their resolve to secure to all the citizens
liberty of thought and expression. This resolve is reflected in
Article 19(1) (a) which is one of the Articles found in Part III of
the Constitution, which enumerates the Fundamental Rights.

Man as rational being desires to do many things, but in a civil

society his desires have to be controlled, regulated and
reconciled with the exercise of similar desires by other
individuals. The guarantee of each of the above right is,
therefore, restricted by the Constitution in the larger interest of
the community. The right to freedom of speech and expression
is subject to limitations imposed under Article 19(2). In the
recent time this right remains in controversy and thus created
lots of hue and cry across the nation such in parliament of
India, educational institution, media, social network site etc.,
therefore there is needs to study law regards these right and
restriction in the current scenario .

STATEMENT OF PROBLEM
The present study is intended to focus upon the issue of laws on the freedom
of speech and expression which is most valuable right for any person in the
democratic society because this right give right to citizen to interact with the
society through different mode of communication for constructive development
of the country and society in the welfare society because through this right
citizen in the democratic nation freely express their idea in the nation but such
right subject to the limitation in the interest of the nation main objective of this
restriction is to avoid chaos in the society. But in the recent time this right is
subject to lots of controversies because this right exercise in such a manner that
intention of the speech to disturb peace India and divided India into piece a
country without post office post free nation means to dissolve the integrity of
nation in such a manner that it has no name and territory or to break peace in
the society this expression in the renonded socity and any unreasonable
restriction on this right in resricion o

The ever escalating importance of trademark in international and domestic

commerce is remarkable. Most obvious are the impact of electronic commerce
and the growth of internet as a selling medium, a forum that transcends national
boundaries and bears no physical location on Main Street.1 It is an axiomatic
principle of Law that Trade Marks and the rules governing trademark cannot be
detached from territoriality. However, commercialization and infringement of
Intellectual Property in true sense have become multi-territorial. The impact of
jurisdictional problems is not limited to a particular branch of Law. It affects the
very foundation of the framework of substantive and procedural laws.
Consequently the jurisdictional challenges in todays age of fast communication,
have invited various view points for their resolution including significant changes
in the existing legal framework. Internet being one of the most significant
changes in the field of information technology requires more than mere
adjustment in the law governing it. One cannot overlook the requirement of
appropriate changes in the law. Failure to do so would lead to new complex legal
issues. Complex legal issues like jurisdictional issues that call for appropriate
solutions require right approach of academicians, judiciary and legislators for
suggesting the potential range of solutions. The solutions should not prove to be
counterproductive opening path for further conflicts and confusions. To arrive at
such a conclusion one has to go beyond the formal legal reasoning that requires
inductive and deductive reasoning by relying on precedents, legal principles and
statutes. This may not be appropriate to keep pace with technological changes
that are taking place rapidly.
HYPOTHESIS With the onset of globalization and rising multiplicity of
stakeholders in the International Commercial field ,the jurisdictional issues in
trademark is reaching beyond municipal law and is becoming more complex and
a specific guidelines on jurisdiction operable within municipal laws and beyond is
the need of the hour.
1Marshall A. Leaffer, The New World of International
Trademark Law, (1998) 2(1) Intellectual Property L. Rev. 1

4
RESEARCH FOCUS AND AIM
This research will focus on the discussion of Jurisdictional issues in the post TRIPs
IP regime in India with particular reference to Trade Mark. In addition to looking
into the legal nature of Intellectual Property Rights with particular reference to
Trademark under the Indian regulatory system, particular but not exclusive focus
will be on the interface between the Intellectual Property Rights and the
challenges of the digital world. Major references will be made to the national and
international legal considerations that this topic may raise. The proposed study
aims, based on a comprehensive examination of the jurisdictional issues, legal
background and present regulatory systems in India, at studying the need,
feasibility and appropriation of incorporating international IP standards regarding

jurisdiction in cases of violation of Trade Marks. The researcher aims to introduce

the core jurisdictional issues explored in more specific context and the type of
concerns the judiciary and the legislators try to take into account to resolve
them.
OBJECTIVES
The objectives of the study are to: Analyze the conceptual understanding of
jurisdiction and the impact of technological development on conventional
understanding of the concept. Examine the trends of harmonizatio n of
national law protecting Trade Marks. Examine the issues of private
international law in multi-territorial trademark disputes. Compile and
understand the private ordering regime in resolving the intellectual property
disputes. Evaluate the impact of ubiquitous infringement on the issue of
jurisdiction as prescribed in domestic and international law. Undertake the
comparative analysis of legal framework and judicial trends in Japan, UK, US and
India in case of trademark disputes.

5
Propose a possible solution in case of jurisdictional issues in trademark
disputes arising in physical as well as virtual world.
RESEARCH QUESTIONS
The main purpose of this study is to attempt to find a solution to the problems of
trademark violations in the post-TRIPs era in India, focusing on the rules of
jurisdiction. Following are the main research questions:- 1. How to resolve the
question regarding jurisdiction in cross-border trademark issues from a
perspective of traditional private international law? 2. What is the role played by
the emerging judicial trends in settling jurisdictional issues both at national and
international levels? 3. Is it necessary to tailor international principles of
jurisdiction, choice of law and enforcement of judgments making it suitable
dealing with the Intellectual Property disputes, more particularly trademark
violations?
RESEARCH METHODOLOGY
The entire research is purely doctrinal. It is descriptive and analytical by nature.
The research is based on primary and secondary sources. Relevant material from
primary sources is collected from statutory provisions of the relevant legislation
and court decisions. In case of secondary sources, material is collected from
scholarly commentaries, articles, research reports, policy papers, government
documents etc. The first stage of this research involved critical and theoretical
examination of the literature that has emerged over a period of time years on
the issues of jurisdiction in Intellectual Property Rights violations. Much of this
literature is collected from a combination of primary as well as secondary
sources. This stage of research is focused predominantly on secondary legal

sources. The critical examination of this literature was undertaken in the second
stage of research which was followed by the third and final stage of writing of
this thesis.

6
LITERATURE REVIEW
The complexities of the issues on the jurisdiction are made out by the
multifarious topics in which the available literature discussed below deal with. A
few significant literatures reviewed concerning the Law of Trade Marks, Civil
Procedure, Elements of Private International Law and International aspects of
protection and enforcement of Trade Marks are mentioned below. Others are
reflected in the Bibliography.
BOOKS Atul M Setalvad, Conflict of Laws, (2nd edn, Lexis Nexis Butterworth
2011) Conflict of Laws is gaining importance in India as there is increasing
international trade, more cross border investments and with increasingly more
Indians living and settling outside India. With this backdrop the book covers the
subject extensively. It considers international conventions regarding private
international law, the law in England, the law in some other common law
countries and in India. The fundamental issues of private international law like
jurisdiction, choice of law and enforcement of judgments are discussed clearly.
C. K. Takwani, Commentaries on Code of Civil Procedure, 1908 (Eastern Book
Company 2014) Commentary on the Code of Civil Procedure under this title is in
6 enlarged volumes. All the provisions under the Code of Civil Procedure are
dealt with in a most comprehensive manner. The recent Amendment of 1999 and
2002 are elaborately discussed. This book highlights all essential aspects of
jurisdiction and the same are discussed exhaustively with case laws.
David Lindsay, International Domain Name Law, ICANN and the UDRP (Hart
Publishing 2007) This book addresses the essential aspects of internet and
domain name system with specific reference to ICANN and UDRP. The main areas
of discussion are divided into 3 categories. Firstly it explains the historical
account of the development of domain names and the domain name system
(DNS). Secondly it highlights the history of the institutional

7
arrangements for making decisions regarding domain names and the DNS.
Thirdly it deals with the sui generis international system for resolving disputes
between Trade Marks owners and domain names holders, known as the Uniform
Domain Names Dispute Resolution Policy (UDRP). Further the decisions made
under the UDRP are also highlighted with the well explained UDRP procedural

rules. Elaborate discussion is also found on origins of internet, ICANN, its

structure and process.
Irene Calboli and Edward Lee, Trademark Protection and Territoriality Challenges
in a Global Economy (Edward Elgar Publishing Limited 2014) This book is a
compilation of essays by distinguished scholars. It deals with the global
territoriality challenges being faced by the countries regarding trademark
protection. This book with specific focus on trademark as a form of Intellectual
Property Rights explores how the rise of international trade and globalization has
changed the way trademark law functions. A well explained history of Trade
Marks and territoriality makes the work a comprehensive piece of reference
regarding current issues of protection and enforcement of Trade Marks globally.
The challenges created by the apparent dichotomy between trade without
borders and trademark laws with borders are the subject matter of this work.
James J. Fawcett and Paul Torremans, Intellectual Property and Private
International Law (2nd edn, Oxford University Press 2011) This book analyses the
private international law of Intellectual Property Rights. The discussions and
deliberations on the subject are classified in three parts: a. jurisdiction, b.
applicable law and c. recognition and enforcement of foreign judgements. In part
one various aspects regarding creation and validity of Intellectual Property,
entitlement and ownership, contracts in relation to the exploitation of IP,
infringement, traditional rules of jurisdiction and jurisdiction under the European
Community/ European Free Trade Association Rules, jurisdiction over internet
infringement and reforms of jurisdiction are extensively discussed. Choice of law
elements in international conventions, in creation and termination of Intellectual
Property, infringement, and choice of law and the internet are elucidated upon by
combining reforms on choice of law as well. The discussions in the first

8
two parts are logically referred in part three on recognition and enforcement of
foreign judgements.
Jayashree Watal, Intellectual Property Rights in the WTO and Developing
Countries (Oxford University Press 2001) This book elaborately discusses the
entire gamut of Intellectual Property issues in the context of developing
countries, particularly India. It explores the background and context of the
negotiations on the Trade Related Intellectual Property Rights and post-TRIPS
issues to the way forward for the developing countries in adapting legislation in
the area.
K. C Kailasam and Ramu Vedaraman, Law of Trade Marks (3rd edn, Lexis Nexis
Butterworth 2013) The authors have endeavoured to deal with all the provisions
of the Trade Marks Act, 1999 in as much details as possible, giving the relevant
case laws in India. All the significant changes that new Act brought about like
protection to service marks collective marks and establishment of Intellectual

Property Board have been elaborately discussed. This book also covers all the
new aspects of international registration of Trade Marks under the Madrid
Protocol. Fundamental principles of law of Trade Marks in India are explained with
clarity with reference to international conventions and case laws.
Massimo Sterpi, Jacobacci Sterpi and others (eds), Trade Mark Litigation (2nd
edition, European Law reference Series, Sweet & Maxwell 2013) This book is an
excellent compilation of law of Trademark in various thirty countries. A uniform
structure in question-answer format is followed for providing information about
sources of law, courts and administrative system, substantive law, parties to
litigation, enforcement options, procedure in civil courts, preliminary remedies,
final remedies, appeal procedure, litigation cost and forth coming legislation
regarding trademark protection and enforcement mechanism in a given country.
This book provides for legislation as well as precedents concerning all these
aspects and latest developments.

9
Paul Lange, International Trade Mark and Signs Protection (Verlag C.H. Beck oHG,
Germany 2010) International protection of marks and signs has become
mandatory in the process of globalization. This book provides for a panoramic
view of the legal situation in different countries and possibility of making a quick
comparison of the various applicable laws. This book is divided into three
sections: Law, marketing and appraisal. It deals with types of Trade Marks and
signs, requirements of protection, statutory regulations, scope of protection,
claims in case of infringement, infringement proceedings etc. Uniform structure
is identified to provide information of fourteen countries. Material aspects of
creation, protection and enforcement of Trade Marks in various countries are
discussed elaborately. Such information provides the legal basis for a meaningful
international trademark strategy in the states concerned.
Shaun McVeigh (ed), Jurisprudence of Jurisdiction, (Routledge. Cavendish 2007)
This book is a collection of essays on the questions of jurisdiction. The focal point
of this book is a question as to what might be understood in jurisprudence by
way of a return to questions of jurisdiction. The approaches taken to jurisdiction
in this book have not generally been limited to attempt either in justifying
accounts of jurisdiction or in reconciling the exercise of jurisdiction with State
policy or party interests. The essays consider afresh the ways in which
philosophies of law and jurisprudence respond to the question of jurisdiction.
There are three contributions in this book that considered jurisdiction as exercise
of a technology of law. State, sovereignty and territoriality from the point of view
of the jurisdiction have also been elucidated upon.
ARTICLES: Abichandani R. K., Role of Judiciary in the Effective Protection of
Intellectual Property Rights, as available on
http://gujarathighcourt.nic.in/Articles/roleofjudicary.htm This article highlights the
role of judiciary in effective enforcement of IPRs. Starting with the constitutional

mechanism and Indian Legal system the writer traces the evolution of IP laws in
India in order to prove that recognition of IPRs is not a new phenomenon. Courts

10
power under the existing legal framework as well as under TRIPs also forms the
subject matter of this Article. The article is concluded by stating that the Courts
while considering the question of grant of reliefs where parameters are not laid
down in the statutory provisions will be guided by the norms accepted by the
international community and would be justified in seeking guidance from the
treaties and conventions on the subject so long they are not inconsistent with
the municipal laws.
Benedetta Ubertazzi, Infringement and Exclusive Jurisdiction in Intellectual
Property: a Comparison for the International Law Association (2012) 3 JIPITEC
227 This Article presents a comparison which was written for the first meeting of
the International Law Association (ILA) newly established (2010) Committee on
Intellectual Property and Private International Law which was hosted at the
Faculty of Law of the University of Lisbon in March 16-17, 2012. The comparison
at stake concerns the rules on infringement and exclusive subject-matter
jurisdiction posed or rejected, in case of exclusive jurisdiction by four sets of
academic principles. Notwithstanding the fact that the rules in question present
several differences, those differences in the majority of cases could be overcome
by further studies and work of the ILA Committee, as the following comparison
explains.
David W. Maher, Trademark Law on the Internet - Will It Scale? The Challenge to
Develop International Trademark Law (1997) 16 Journal of Computer &
Information Law 3 In this article the writer highlights that the rapid growth of the
Internet has caused a serious collision between the efficient functioning of
Domain Name Systems and the claims of trademark owners. U.S. Courts have
recognized that domain names can have trademark implications. Trade Marks are
important because organizations responsible for allocation and registration of
domain names must take Trade Marks and trademark law into account. The
International Trademark Association (INTA) sets forth principles that should apply
to the use of Trade Marks in the Domain Name System. The writers comment
focuses on how to accommodate the interests and rights of trademark owners in
the DNS and in the overall administration of the Internet. Under the present
domain system there can only be

11
one acme.com, putting the "ACME" owner who got there first and registered
acme.com in an advantageous position. The DNS as it is presently structured
allows no accommodations for different owners of the same mark. Network
Solutions, Inc. is the best known example of an attempt to resolve the conflicts

addressed in the article. All of these collisions of trademark law and the DNS
have resulted in litigation. The article also addresses legal issues in addition to
the technical trademark questions in the international arena. The major
differences in national treatment of Trade Marks are in the areas of dilution,
geographical terms, famous marks, rights of publicity, religious and social issues.
Graeme B. Dinwoodie, The International Intellectual Property Law System: New
Actors, New Institutions, New Sources (2006) 10 (2) Marquette Intellectual
Property Law Review 205 This article highlights that the international intellectual
property norms are now being developed by a wide range of institutions - some
national, some international, and some that do not fit neatly into either category;
by bodies designed to address intellectual property; by trade and other bodies;
and by actors public, private, and indeterminate. It is further stated that this new
wave of international norm creation not only augments a growing body of
substantive norms but also raises difficult structural questions about the future
development of the international Intellectual Property system.
Dinwoodie, Graeme B., Trade Marks and Territory: Detaching Trademark Law
from the Nation-State (2004) 41(3) Houston Law Review 886 This article
essentially focuses on the principle of territoriality. It highlights as to how the
principle of territoriality is undergoing a change in the global world detaching
Trade Marks from nation-state boundaries. This article critiques the principle of
territoriality in four ways. First, it is suggested that statements about trademark
territoriality mask a variety of related propositions. In disaggregating the
principle of territoriality into its component parts, it becomes apparent that
different rules of trademark law possess a territorial character for different
reasons. Second, it is argued that although the principle of trademark
territoriality has nominally remained constant since the conclusion of the Paris
Convention, recent developments at both the national and international level
suggest that the principle

12
may have a different intensity today. Third, the article begins an investigation of
the ways in which the principle of territoriality should be revisited in light of the
globalization of markets and concomitant changes in modern marketing
practices. Finally, the article briefly highlights the extent to which there is, or
should be, an assimilation of the territorial and the national. Analysis of the
choices facing trademark law might be better achieved by consciously
separating nationality and territoriality. Recognition of the territoriality of
goodwill is linked to the basic purposes of trademark law, while nationalitygrounded doctrines are more likely driven by economic policy and by institutional
issues such as the practical demands of current political structures. Recognizing
this distinction would assist in highlighting where reform is likely to be
evolutionary and where modification of political structures whether judicial or
administrative must first occur.
Graeme B. Dinwoodie, The Architecture of the
International Intellectual Property System (2002) 77 Chicago-Kent Law Review

993 In this article a sketch of the contemporary international Intellectual Property

system that accommodates and actively seeks to incorporate national judicial
activity is prepared. This article is divided into three parts. Part one describes the
classical architecture of the international Intellectual Property system and the
basic conceptual and institutional pillars on which the system was built. The
ways in which this system is changing and how the national courts are becoming
more involved in the construction of international system is the subject matter of
the second part. Part three makes suggestions regarding the mechanism that
underline the Draft Hague Convention and how the Dryfuss-Ginsburg proposal
might alter and enhance the emerging role of national courts in the development
of the system of international IP law.
Hank M. Goldberg, A General Theory of Jurisdiction in Trademark cases (1986) 8
Loyola of Los Angeles International and Comparative Law Review 611 This article
focuses on jurisdiction as a precondition for a court to adjudicate a controversy
highlights the situation when a trademark registrants product has been
counterfeited abroad and an action is to be initiated. In the first part jurisdiction
as a major issue in such cases is discussed. Part two of the Article deals with the
analysis courts employ in

13
exercising jurisdiction in cases involving foreign conduct in US. Part three
illustrates as to how and why courts will only exercise jurisdiction when the entire
infringement or at least part of it occurs in the US. In the last part the Act of
State Doctrine which prohibits courts from exercising jurisdiction in certain
trademark cases to avoid questioning a foreign nations acts performed within its
own territory or under its own law is elaborately discussed.
Joanna Schmidt-Szalewski, International Protection of Trade Marks after the
TRIPS Agreement (1998) 9 Duke Journal of Comparative and International Law
189 This Article examines the new rules of trademark protection under TRIPS and
compares them with existing Paris Convention rules as well as the rules of
international agreements based on the Paris Convention. This article clearly
states that the Paris Convention has stood the test of time. Its principles are now
incorporated into TRIPS, defining the basic rules of protection of industrial
property rights in international trade.
Murlidhar S, Jurisdictional Issues in Cyberspace (2010) 6 Indian Journal of Law
and Technology 1 This article deals with jurisdiction of court to deal with
Intellectual Property Rights disputes arising out of commercial transaction on
internet. Within the fairly broad field of IPR the focus is on trademark as this area
is witnessing major development at present. The article traces the difficult and
different paths that common law courts traversed in trying to formulate a
definitive test that would lend legal certainty in tackling the complex problem of

courts exercising jurisdiction in disputes arising out of activities on the internet.

The article further highlights the fact that the technology which is rapidly
changing is at least two steps if not more, ahead of the law. The article very
clearly states that a catch-up at present appears to be unachievable.
Paul Edward Geller, International Intellectual Property, Conflict of Laws and
Internet Remedies (2005) 8 Journal of Intellectual Property Rights 133 In this
article, it is argued that the notion of territoriality as applied within classical
framework of conflicts analysis is ambiguous. This ambiguity is not always
troublesome

14
in the physical world. However, as acknowledged by the writer it leads to
problematic situations in the cyberspace where transactions cross borders
worldwide almost instantaneously. The writer has highlighted these to be
strategic points at which legal theories are put to test. Territorial framework and
the ambiguity of territoriality are the main issues of discussion in the article. The
article is concluded with an argument that, in Intellectual Property, cross-border
acts may best be localized for the purpose of resolving conflicts of laws, by
considering consequences of judicial remedies.
Paul Schiff Berman, Globalization of Jurisdiction, (2002) 151 (2) University of
Pennsylvania Law Review 311 Jurisdiction is also the locus for debates about
community definition, sovereignty, and legitimacy. Moreover, the idea of legal
jurisdiction both reflects and reinforces social conceptions of space, distance,
and identity. Too often, contemporary frameworks for thinking about jurisdictional
authority unreflectively accept the assumption that nation- states defined by
fixed territorial borders are the only relevant jurisdictional entities, without
examining how people actually experience allegiance to community or
understand their relationship to geographical distance and territorial borders. In
this backdrop the article exhaustively discusses the challenges that have arisen
in the past few years concerning the extraterritorial assertion of legal norms or
adjudicatory authority to activity that, in one way or another, creates effects
across borders. The author has embraced the opportunity to interrogate the
dominant assumptions underlying legal jurisdiction. Instead of focusing on
doctrinal questions regarding how best to solve the specific jurisdictional
dilemmas that have been raised to date, a step back is taken and a series of
foundational questions are asked: What does it mean in social terms to assert
jurisdiction? How are conceptions of jurisdiction related to the ways people
experience physical space, territorial borders, distance, and community? Why
should the nation-state be the only player on the field of legal jurisdiction? Are
there other forms of community affiliations that the law might recognize? In the
most elaborate and effective way these questions are answered with the final
observation that whatever the answers to these imponderables, they will be
reflected and constructed in the domain of legal jurisdiction.

15
Taj Kunwar Paul and Jitheesh Thilak, Reincarnation of Trademark Law in India
[2004] Journal of Patent and Trade Mark Office 237 The focus of this Article is the
Trade Marks Act, 1999. The Article further highlights the important changes that
are brought about by the new Act of 1999. It also clearly states as to how under
the new Trade Marks Act, various new forms of Trade Marks are recognised.
Further, scope of improvement in the existing legal framework is also pointed out
as the Act still, does not recognise the marks of the new era as movements
marks, smell marks, sound marks etc. Tushar Kanti Saha, CyberspaceConflicting Jurisdictional Sphere of Litigating IPR Claims (2010) 15 Journal of
Intellectual Property Rights 364 Jurisdictional sphere of cyberspace is the central
point of this article. The article highlights as to how a single transaction may
involves laws of at least three jurisdiction, viz., the laws of the state in which the
user resides, the laws of the state where the server hosting the transaction is
located and the laws of the state which apply to the person or business with
whom the transaction takes place. The writer elaborately discussed the definition
of internet, origin of such disputes, international jurisdiction over internet,
infringement of Trade Marks and domain names on internet, exemplary decision
of the courts in this regard.
Uche U. Ewelukwa, Comparative Trademark Law: Fair Use Defense in the United
States and Europe The Changing Landscape of Trademark Law (2006) 13
Widener Law Review 97 The article focuses on how the face of trade mark law in
US has undergone a major change in the recent past. This article is an attempt to
make sense of the Supreme Courts decision in KP Permanent Make-Up. It also
examined whether the decision of the Supreme Court of US is consistent with the
decisions of courts in other jurisdictions on the issue of the applicability of the
fair use defence. Attempt is made in this article to examine whether the decision
is consistent with the obligation of the United States under two major multilateral
Trade Mark treaties: the Paris Convention for the Protection of Industrial Property
(Paris Convention) and the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement) of the World Trade Organization (WTO). The
article in great detail

16
discusses the Law of Trade Mark in US. It also compares the jurisdiction of courts
in UK and European Court of Justice.
Yoko Maeda, New Law on International Civil Jurisdiction in Japan and Its Impact
on Foreign Corporations (2012) 19 (1) Asia Pacific Regional Forum News This
article revolves around the Law to Amend Certain Parts of the Code of Civil
Procedure and the Civil Provisional Remedies Act of Japan. It discusses how prior
to the new law there was no law to regulate international jurisdiction. In absence

of any specific legislation the judicial perspective which was followed is also the
subject matter of discussion in the Article. The article concludes that the New
Law has created several new grounds based on which foreign parties can be
sued in Japan.
SCOPE AND LIMITATION OF RESEARCH
The central point of the research is the concept of jurisdiction. The research is
confined to the issues relating to the civil jurisdiction and excludes criminal
jurisdiction. The researcher undertakes to study only the jurisdictional issues that
may arise in the trademark violations. Jurisdiction conceptually is a single issue.
However, to deal with this there are only three referral points i.e. national laws,
international instruments and the specific specialised statutes. In this context,
this thesis deals with only these referral points. The research will further assess
the effectiveness of the traditional norms of jurisdiction in the era of internet and
examine the current state of legal framework concerning the protection of
Intellectual Property Rights with particular reference to trade marks. The dispute
settlement mechanism under the WTO cannot be invoked in these cases as the
IP issues relating to trademarks are of distinct nature and are not covered under
the general dispute settlement mechanism of the same.
The research is conservative as it largely relies on the past decisions, concepts,
legal structure, traditions and practices to evaluate the present problem. This
thesis attempts to study the questions/issues of jurisdiction in the area of
trademark violations. The scope of the research is kept limited to an extent of
trademark violations in

17
post TRIPS era in India. There are many issues which have already come to
surface and there are many which will come to surface over a period of time. It is
noteworthy that all these issues are touching the globalization of trade and
commerce. The relation between the globalization and the principle of
territoriality is full of complexity to understand. The researcher has put in
maximum effort to overcome this limitation by referring to as much relevant
literature as available on the subject matter.
SIGNIFICANCE OF RESEARCH
Many areas of Law are affected by qualitative and quantitative problems. The
qualitative problems have an immediate bearing upon the law; they give rise to
new problems and novel disputes that require relatively immediate adjustment
and accommodation in the existing legal framework. This is inevitable by nature.
On the other hand the quantitative problems have a more distant and diffuse
impact upon the Law, in the sense they do not lead to a dispute which are in any
way novel. Paradoxically, while their long term impact upon the Law is potentially
more fundamental because they attack the very root of certain legal regimes,
ostensibly no legal changes are required. In such cases the burden is on the

judiciary to resolve the situation through appropriate interpretation of the

existing legal principles. The issue of jurisdiction in the area of Intellectual
Property are such a quantitative problem which has distant impacts. This study
will not only contribute to the existing knowledge bank but also make certain
suggestions for future framework to understand certain theoretical and doctrinal
aspects of the problem. Since such a study will be conducted from Indian
perspective considering national and international regulations including
international conventions and treaties, it is hoped that the study will be able to
provide a reference for adapting Indian system to the norms of International
Jurisprudence in IPR cases. It is worthy to mention that the suggestion here is not
to adopt the international policy for jurisdiction that will evolve through
experience over a period of time but to adapt the Indian legal system as per the
international norms that are necessary to be taken into consideration.

18
CONTRIBUTION MADE The study will contribute to the knowledge bank available
on jurisdictional issues in post- TRIPS IP regime, especially in Trade Mark disputes
in India The gap in the existing literature will be filled through this research as
the researcher at the end has made certain suggestions on the
compartmentalised format of the jurisdictional issues. It is hoped that the
proposed suggestions and recommendations will help make out a scheme that
will lead to a unified policy on the same in future.
DEFINITION OF KEY CONCEPTS
INTELLECTUAL PROPERTY: Intellectual property (IP) refers to creations of the
mind, such as inventions; literary and artistic works; designs; and symbols,
names and images used in commerce.2 WIPO has classified intellectual property
into two groups, i.e. Industrial property consisting of patents, Trade Marks,
designs, geographical indications etc. and Copyrights and related rights. For the
researcher, IP is a product of human intellect, skill and labour. TRADEMARK:
trade mark means a mark capable of being represented graphically and which
is capable of distinguishing the goods or services of one person from those of
others and may include shape of goods, their packaging and combination of
colours.3 JURISDICTION: Jurisdiction, as per Blacks law dictionary4 is courts
power to decide a case or issue a decree can be termed as jurisdiction. As
provided in the Hallsburys Law of England5By jurisdiction is meant the
authority by which a court has to decide matters that are litigated before it or to
or to take cognizance of matters presented to it in a formal way for its decision.
2 About IP WIPO <http://www.wipo.int/about-ip/en/>
accessed 9 April 2015. 3 Section 2 (zb), Trade Marks Act, 1999. 4 Blacks Law
Dictionary (9th edn, 2009) 927. 5Halsburys Laws of England (4th edn 2009) vol
10, para 715.

19
RENVOI: Its a French term, ren-voy. The doctrine under which the court is
resorting to foreign law adopts as well the foreign laws conflict-of-laws
principles; which may in turn refer the court back to the law of the forum.6
CHOICE OF LAW: Designation of the jurisdiction whose law will govern the
interpretation of the dispute. RIGHT: The term right, in a civil society is defined
to mean that a man is entitled to have or to do, or to receive from others, within
the limits prescribed by law. 7 CYBERSPACE: The term cyberspace originated by
author William Gibson in 1982 in his novel Neuromancer. The term cyberspace is
currently used to describe the whole range of information resources available
through computer networks which is known as internet.8 VIRTUAL WORLD: A
virtual world is a computer-based online community environment that is
designed and shared by individuals so that they can interact in a custom-built,
stimulated world. INTERNET: "Internet" refers to the global information system
that (i) is logically linked together by a globally unique address space based on
the Internet Protocol (IP) or its subsequent extensions/follow-ons; (ii) is able to
support communications using the Transmission Control Protocol/Internet
Protocol (TCP/IP) suite or its subsequent extensions/follow-ons, and/or other IPcompatible protocols; and (iii) provides, uses or makes accessible, either publicly
or privately, high level services layered on the communications and related
infrastructure described herein."9 META TAG: A meta tag or meta data is a
keyword or phrase embedded in a websites HTML(hypertext mark-up language)
code as a means for Internet search engines to identify and categorize the
contents of the website. Meta tags are not visible to normal users on the website
itself (although they can be made visible together with the source code of the
page), however, a search engine seeking particular keywords will find and list
that particular site. Meta tags can be compared to sign posts or indices, which
lead one to what he is looking for, along with what he is also not looking for. It is
a combination of two
6 ibid (n 4) 1412. 7 Law Lexicon (4th edn, 2010) vol 5,
5985. 8 ibid (n 4) 1709. 9 What is internet,
http://worldnformation.org/wio/infostructure/> accessed 18 April 2015.

20
ordinary words meta and tag, meaning respectively "denoting position" and
"label". Meta tags as embedded in the HTML code remain invisible to the internet
user.10 Hyperlink: It is a link from a hypertext document to another location,
activated by clicking on a highlighted word or image. CYBERSQUATTING: It is an
act of reserving a domain name on the internet, especially a name that would be
associated with a companys Trade Mark, and then seeking to profit by selling or
licensing the name to the company that has an interest in being identified with
it.11 DOMAIN NAME: Domain names are the human-friendly forms of Internet
addresses, and are commonly used to find web sites.12 A domain name also
forms the basis of other methods or applications on the Internet, such as file

transfer or email addresses. CAUSE OF ACTION: Cause of action generally means

bundle of facts which the plaintiff must prove in support of his right to the
judgement. It has dual meaning, one relevant to jurisdiction and other to the
basis of claim.13 DOMICILE: It refers to the place where one has permanent
residence to which, if absent, he has the intention to returning.14 Domicile is the
legal relationship between an individual and a territory with a distinctive legal
system which invokes that system as his personal law. 15
CHAPTER SUMMARY
The thesis is structured in seven chapters.
CHAPTER 1: JURISDICTION: A CONCEPTUAL ANALYSIS
10 Consim Info Pvt. Ltd. v. Google India Pvt. Ltd. and
Ors, 2011 (45) PTC 575 (Mad). 11 ibid (n 4) 444. 12 Frequently asked questions:
domain names <http://www.wipo.int/amc/en/center/faq/domains.html#1>
accessed April 2015. 13 Jay Jee Service Station, Bangalore v. Syndicate Bank, AIR
1998 Kant 249, 253, para 10. 14 Article 5 Constitution of India. 15 Halsburys
Laws (4th edn, 2010) vol 8 para 421, 318.

21
First chapter deals with the conceptual analysis of the notion of jurisdiction as it
exist. It analyses the concept of jurisdiction by going through various aspects of
jurisdiction such as meaning, nature, importance, and classification. The
distinction between jurisdiction and place of suing as well as exercise and
existence of jurisdiction are also briefly highlighted. Jurisdiction as an aspect of
state sovereignty and from the perspective of the rules of private international
law is also analysed. Further the chapter deals with the scope of jurisdictional
powers of various courts and tribunals under the Code of Civil Procedure, 1908
and the Trade Mark Act, 1999. Elaborate discussion on the Law of Trademark in
India especially in the post TRIPs regime is undertaken by providing comparative
analysis between the Trade and Merchandise Marks Act, 1958 and the Trade
Marks Act, 1999, in order to set the discussion in right perspective.
CHAPTER 2: INTERNATIONAL SYSTEM OF TRADEMARK PROTECTION: AN ANALYSIS
This chapter elaborates upon the international system of trademark protection. It
deals with various international instruments related to trademark protection.
Special emphasis is given to the Paris convention and the TRIPs. Apart from
these two multilateral treaties the chapter discusses Madrid system for the
International Registration of Marks, Nice Agreement Concerning the International
Classification of Goods and Services for the Purposes of the Registration of Marks
(1957), Vienna Agreement Establishing an International Classification of the
Figurative Elements of Marks (1973), The Trademark Law Treaty (1994) and the
Singapore Treaty on the Law of Trade Marks (2006). The chapter deals with the
main purposes of these international instruments affecting trademark which is to

grant better protection of rights for various types of marks, harmonization of

laws and efficient system for multilateral filing for global protection.
CHAPTER 3: JURISDICTIONAL ISSUES IN TRADEMARK VIOLATIONS: ASPECTS OF
PRIVATE INTERNATIONAL LAW
In this chapter the researcher has tried to analyse the interface between
Intellectual Property Rights and the rules of private international law. The mutual
relation between these two important branches of law has been recognized. The
large number of Trade Mark disputes

22
implicating the issues of private international law is limitless. Private
International Law at times seems to be more complex compared to the simpler
rules of jurisdiction and choice of law. The researcher has not only tried to
understand the interface between these two branches but has also tried to study
the need of statutory regulation of the two. The chapter discusses three key
issues in private international law which requires serious consideration in order
to understand the complex relation between these two interesting branches of
law. These issues are about jurisdiction, choice of law and enforcement of
judgments. The current chapter also deals with the Jurisdictional solution
provided by the Hague Convention of Choice of Court Agreement, 2005. The rule
making activities that has occurred outside legislatures in form of reports by
American Law Institutes proposed draft on Intellectual Property: on Principles
Governing Jurisdiction, Choice of law and Judgments in Transnational Disputes;
WIPO sponsored Prof. Dreyfuss & Prof. Ginsburgs draft on Convention on
Jurisdiction and Recognition of Judgments in Intellectual Property Matters; The
European Max Planck Group on conflict of laws in IP (LLIP) Japanese Transparency
Proposal and Waseda Proposal is also the subject-matter of this chapter.
CHAPTER 4: JURISDICTIONAL ISSUES IN VIRTUAL WORLD: FACTS AND CONCERNS
Preoccupation of Law and technology has compelled the researcher to analyze
the technology underling the legal phenomenon as this technology has paved
way for the existing legal problems, which is also the subject matter of research.
Internet has affected Law in many ways. In this chapter the impact of internet
and technology on law and regulatory framework is discussed. The chapter has
a wide canvas where evolution of internet, various uses of trademark over
internet, interface between trademark and domain name are discussed at length.
The researcher has made an attempt to identify the issues of jurisdiction while
discussing remedial recourse in case of disputes in the virtual world. How the
doctrine of territoriality is being confused in the cyberspace is also highlighted.
CHAPTER 5: COMPARATIVE ANALYSIS OF LEGAL FRAMEWORK ON JURISDICTIONAL
ISSUES IN TRADEMARK DISPUTES IN JAPAN, UNITED KINGDOM AND UNITED
STATES

23
Globalisation can progress if there is minimum conflict in laws between countries
and there exists a more or less similarity or parity between them. It, therefore,
becomes important to get a comparative perspective on law not only for
minimizing conflict but also for adopting the best practices upon a given subject
matter. The present chapter deals with the comparative analysis of the
trademark protection in Japan, UK and US. The researcher in this chapter is
making a specific attempt to study the legislative and the judicial approaches in
these countries in dealing with the issues of jurisdiction that may arise in the
trans-border trademark issue in physical as well as virtual world. It is worthy to
mention that while drawing comparison the entire scheme of the trademark
legislation of Japan, UK and US is not minutely analyzed. Relevant aspects of the
legislation of respective countries that are corresponding to the scheme of the
research are only considered. The researcher would like to explain the rationale
for the specific preference for these three countries for comparative analysis.
Firstly, the US has one of the most comprehensive systems consisting of
numerous special statutes for protection and enforcement of Trade Marks.
Secondly, India being a colony of the UK shares many similarities with regard to
overall legal system and its functioning. It is noteworthy that the Indian
Trademark legislation has many provisions that are influenced by the Trade Mark
Act, 1994 of the UK. Lastly, in order to get a comprehensive analysis on the
subject matter analysis of both the legal system i.e., common and civil law was a
sine qua non. Therefore the researcher opted to look at the legal system and
legislative and judicial framework of Japan which follows the principles of civil law
system. The researcher is well aware of the fact that Germany and France have
one of the oldest and developed legal systems based on the same principles of
civil law system. However, preference is given to Japan as it is an Asian country.
CHAPTER 6: EMERGING JUDICIAL TRENDS IN INDIA The objective of this chapter is
to analyse the judicial approach on jurisdictional issues relating to trademark
violations in India. The creative and progressive intervention of the judiciary in
the matters involving more than one state is also referred in this chapter. An
attempt in made here to analyze judicial decisions on applicability of rules of
jurisdiction in case of trademark violations in India. A specific endeavour is made
to understand the Indian judicial approach in actual cases of trademark
violations. The legislative framework provides for the black letter of law on
trademark protection, which cannot be understood

24
in proper perspective without judicial interpretation of the same. It is worthy to
mention that it is neither practical nor necessary to narrate all the reported cases
on the issue. Selected cases are taken as they convey the main principles that
are relevant to the research framework. Further to ensure that the focus of the
research is not lost the researcher has tried her best to explain only the relevant
aspect of the judgment leaving the ancillary issues aside. The chapter further

tries to address the question of judiciary lagging behind in meeting the demands
of technocratic society.
CHAPTER 7: CONCLUSIONS AND SUGGESTIONS The findings in the concluding
chapter are that the prerequisites of protecting Trade Marks in various
jurisdictions are more or less harmonized but the enforcement of the same in
those states still remains diverse. In almost all countries rules of jurisdiction
whether substantial or procedural as applicable to trademark disputes
significantly differ. The Trade Mark rights are territorial by nature which leads to
complex issues of jurisdiction once the same is used outside the territorial limits.
Jurisdictional issues in enforcing trademark rights have become inevitable as
there exists an international trademark system that grants rights over a
particular trademark in more than one country concurrently. Efforts to develop
private international law of Intellectual Property Rights are much recent due to
globalization and advent of internet. The rules of private international law differ
from country to country. This discrepancy is the main source of uncertainty in
addressing and resolving multi territorial trademark disputes. In Indian legal
system for determining an appropriate court of jurisdiction the rules are laid
down in the Code of Civil Procedure, 1908 section 16 to 21. Trade Marks Act,
1999 being a special statute prescribes for special provisions with regard to
jurisdiction of court under section 134. This provision is a deliberate departure
from the traditional rules of jurisdiction under the Code of Civil Procedure, 1908.
There have been cases in the beginning where there was confusion regarding
applicability of special provisions and the traditional rules as provided under the
Code of Civil Procedure, 1908. However, this confusion is very well removed by
the appropriate judicial interpretation of the relevant provisions under the Trade
Marks Act, 1999 as well as under the Code of Civil Procedure, 1908. The special
provisions under Section 134 of the Trade Marks Act, 1999 are in addition to the
general rules under section 20 of the Code of Civil Procedure, 1908. However, it
is considered that the provisions

25
under the Code of Civil Procedure, 1908 constitutes a grundnorm the ethos and
essence of which percolates through all other statutes. On the issue of
jurisdiction in the virtual world the courts around the globe are facing a common
question as to whether to develop a novel legal framework to address such
complex issues or to look for an adequate answer by identifying analogous legal
rules and judicial pronouncements that are available in the most pertinent
fashion. In absence of any specific legal framework applicable to cyberspace,
traditional principles of domestic and international jurisdiction are developed and
adopted. Considering the non-availability of specific legislation and prescribed
procedural norms, much reliance is placed on the judicial pronouncements. From
the Indian perspective, it is concluded that our current territorially based rules
for jurisdiction and conflict of laws were developed in an era when physical
geography was more meaningful than it is today. Restriction of territorial

jurisdiction being placed by codified laws, further expansion of personal

jurisdiction beyond those lines require appropriate amendments in Section 19
and 20 of the Code of Civil Procedure to incorporate the Objective territoriality
principle, i.e. the Effects test. This is so because judicial precedents of lower
courts and foreign courts do not have binding authority on the Indian Courts.
Considering the growing involvement of non-residents in cases of Trade Mark
infringement, passing off and domain names owed to the ever-increasing horizon
of globalization of businesses and internet connectivity, we need definitive law in
this matter. At the end of this chapter the researcher has made a few
suggestions through which a better legal framework for protection and
enforcement of trademark rights in the physical as well as virtual world in India
may be created.
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