According to D J Galligan (2008) while reviewing an Article in the Oxford University Press has opined: “Modern Constitutionalism has at its centre a paradox between the people as sovereign or constituent power and the constitution; constitutions are the creation of the people yet, once created, impose restraints on them.”
According to authors Martin Loughlin and Neil Walker in their book entitled: “The Paradox of Constitutionalism” (2008) published with the Oxford University Press: “Modern constitutionalism is underpinned by two fundamental though antagonistic imperatives: that governmental power ultimately is generated from the ‘consent of the people’ and that, to be sustained and effective, such power must be divided, constrained, and exercised through distinctive institutional forms. The people, in Maistre’s words, ‘are a sovereign that cannot exercise sovereignty’: the power they possess, it would appear, can only be exercised through constitutional forms already established… This indicates what, in its most elementary formulation, might be called the paradox of constitutionalism.”
According to Loughlin and Walker (2008): Central to virtually all formulations of the paradox of constitutionalism is that of the…question of priority between – constituent power and constitutional form, politics and law.
“Modern constitutional texts aspire not only to establish the forms of governmental authority (legally constituted power) but also to reconstitute the people in a particular way. The notion of a constitutional identity of a people, and particularly its relation to the constituent power possessed by the people, is perplexing.” (Loughlin and Walker, 2008, page: 1)
A very similar paradox of constitutionalism can be inferred from the recent Orders of the Supreme Court while hearing the Writ Petition (Civil) which according to the Petitioner Shaheen Abdulla relates to the growing climate of hate in the country and this is attributable according to the petitioner to an unending flow of what is described as hate speeches being made by various persons against the Muslim community.
The two-Judge bench of the Apex Court while hearing Kapil Sibal, Senior Counsel for the petitioner on October 21, 2022, on page 2 observed: “The Constitution of India envisages Bharat as a secular nation and fraternity assuring the dignity of the individual, and unity and the integrity of the country is the guiding principle enshrined in the Preamble. There cannot be fraternity unless members of community drawn from different religions or castes of the country are able to live in harmony.”
The Apex Court in the same Order dated: October 21, 2022, further expressed: “We feel that this court is charged with the duty to protect the fundamental rights and also preserve the constitutional values and the secular democratic character of the nation and in particular, the rule of law.”
But at the same time, the latest Order dated: April 28, 2023, passed by Justices KM Joseph and BV Nagarathna observed that the court’s order would apply to all hate-speech makers irrespective of their religion. The secular nature of the nation has to be protected, the two-judge bench has stressed.
Interestingly, Advocate Kaleeswaram Raj, appearing for senior journalist Sashi Kumar, however, pointed out that free speech should not be snuffed out in the guise of tackling hate speech.
It was argued by Adv K Raj: “The possibility to curtail even free speech cannot be lost sight of. New draconian laws or preventive measures could create more problems than they resolve... We have enough jurisprudence on hate speech. What is required is rule of law on the ground,”
This could be the point of inflexion where the paradox of the Constitution could arise.
On the one hand, Article 19(1)(a) in the Indian Constitution guarantees freedom of speech and expression to all its citizens save except for the reasonable restrictions envisaged under Article 19(2).
And even though “Secularism” is an ideal enshrined in the Preamble of our constitution, Article 14 permits reasonable classification upon the basis of intelligible differentia.
Relatedly, it would be apt to reiterate the special provisions inserted in Article 15 i.e. Clause (6) was inserted by the 103rd Constitutional Amendment in 2019. The provision allows for the State to provide for affirmative action including reservations for economically weaker sections (EWS). Various States have introduced schemes to implement reservations for EWS based on Clause (6).
Here it would be rationalized that Article 15, in Clauses (3-6), allows for positive discrimination in favour of disadvantaged groups. These clauses exist to allow the Indian state's expansive programme of affirmative action.
Then, from the intent of the legislature in formulating the penal provisions pertaining to hate speech i.e. Sections 153A (promoting enmity between different groups on the ground of religion), 153B (imputations, assertions prejudicial to national integration), 505 (public mischief), 295A (deliberate and malicious acts intended to outrage religious feelings) of the Indian Penal Code (IPC)...could it surmised that hate speech was just another indirect political remedy which could be misused by religious groups and political factions to defend their interpretation of religion which is guided by their personal prejudices and biased belief systems.
Or, can it be deemed that the Apex Court’s directives to the States to register a First Information Report (FIR) against offenders for instances of suspected hate speech is a certain guarantee of conviction?
It needs to be appreciated that the Police Authorities are not seasoned judicial minds and even though an investigation may be initiated against the suspected offence of hate speech, the ultimate mens rea of definitively judging that the suspected accused actually harboured a deliberate and malicious intention in the dissemination of their speech needs to be proved beyond reasonable doubt to secure a conviction.
