Imagine an India where the mouth of citizens is running at a fast pace without any restriction. Freedom handed over to their hands devoid of checks to balance. The situation would be such, chaos everywhere and bloodshed would not be a joke. People will display their hatred and hateful speeches in every possible manner. To curb a situation like this to occur, there are various laws and provisions in our system to keep control of their tongue and hands. Hate words, lines, sentences, paragraphs and speeches could be oral or written.
Hate speech has been an issue which India is still dealing with almost every day or week. The newspapers, televisions and social media for that matter are full of hatred. Even after various provisions and laws, people are finding it tough to distinguish between hate speech and their expressions as well as opinions.
What is Hate Speech?
One huge problem with the same could be that hate speech has not yet been defined in Indian law. However, a committee has been constituted by the Home Ministry to put forward reforms to the British-era Indian Penal Code (IPC), 1860. Also, the committee for law reforms in Criminal law is attempting for the first time to define “hate speech” as there is no clear definition.
The plain definition of hate speech as per Oxford is an expression that is likely to cause offence or distress to other individuals on the basis of their association with a particular group and/ or incitement.
Council of Europe’s Committee of Ministers to the Member States on Hate Speech has defined ‘Hate Speech’ as: the term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.[1]
Hate speech contains the word speech in it which means the expression of or the ability to express thoughts and feelings by articulate sounds according to the oxford dictionary.
The word speech has a wider meaning when mingled with law. It turns out to be one of the most necessary rights available to the citizens of India that is the fundamental right.
Hate Speech and Freedom of Speech
Article 19(1) (a) of the Indian constitution guarantees its entire citizen’s freedom of speech and expression.[2] This right is recognized as one of the most vital features that a free democratic country must provide. Nevertheless, it comes parceled with reasonable restrictions as well.
The restrictions do not restrict freedom but make it complete. It is necessary as complete and unrestricted freedom would perpetrate the crime of hate speech and misuse. Any freedom given to an individual would implode cause harm, hurt and hate. Just as power comes with responsibility, the certain right which gives immense freedom comes with restrictions.
Even with the restrictions, the citizens do not tend to restrict themselves. Those who do not restrict themselves face the consequences as well.
Freedom of speech is the core of a democratic society, and limitations of the same are subject to scrutiny. The Supreme Court of India in the case of Shreya Singhal v. Union of India[3] had differentiated between three forms of speech that is discussion, advocacy and incitement. It was held by the Supreme Court that a speech can only be limited on grounds of exceptions given article 19(2) when it reaches the threshold of incitement. All the other forms of speech, that is discussion and advocacy even if offensive or unpopular have to be protected under Article 19(1) (a). ‘Incitement’ is the answer to determining the constitutionality of restrictions on free speech.
Freedom of speech can be curtailed under article 19(2) on the grounds of public order, incitement to offence and security of the State. The Supreme Court in the case of Brij Bhushan v. State of Delhi[4] opined that public order was allied to public safety and considered equivalent to State’s security. This judgment was validated by the First Constitution Amendment when public order was inserted as a ground of restriction under Article 19(2).[5]
Legal Provisions related to Hate Speech:
Under IPC
There are various sections under the Indian Penal Code that are applicable to hate speech. These sections criminalize the same and prescribe punishment for the offence.
Section 153A of the IPC criminalizes the promotion of enmity between groups of people on grounds such as religion and race, place of birth, residence language, etc. and acts that are prejudicial to maintain harmony prescribing the punishment in such cases as imprisonment up to five years and fine.
In the case of Balwant Singh V. State of Punjab[6], it was held that intention has been a crucial and important factor in this offence. Mens Rea needs to be proved for proving the commission of the said offence.
Imputations and assertions by speech directed towards certain members of a group which arises by virtue of them being a member of such a community prejudicial to national integration are a criminal offence under Section 153B, holding them liable for such speech.
The destruction of places of worship or sacred places is a criminal offence under Section 295 of the IPC, 1860. The prerequisite is the intention or knowledge of likelihood to insult is an important factor that must be done along with the destruction or injury to the place of worship or sacred object.
Section 295A of the IPC, 1860 criminalizes deliberate and malicious acts that outrage the religious feelings of any class of people by insulting their religion or religious beliefs. The state of mind is necessary that is critique done in good faith should be by law which needs a high threshold of deliberate and malicious intention for unlawful speech that would outrage the religious feelings of any class of people where truth is no defence. This offence is a cognizable and non-bailable and non-compoundable offence. The police are authorized to arrest any person charged under Section 295A of IPC with a warrant.
Any speech that would hurt the religious sentiments of a person is criminalized under Section 298 of IPC. The essential component that is ‘Deliberate Intention’ needs to be proved by the victim or the community whose religious feelings have been hurt or insulted by the accused. When compared with Section 295A, Section 298 applies only to speech against ‘any’ person, as opposed to a section of people, whereas, Section 295A is applicable to much graver instances of hate speech.
Section 298 of IPC penalizes ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’.
Section 505 of the IPC, which criminalizes the publication or circulation of certain statements, rumors or reports, the intention of such statement or the effect of such a statement is to create mischief and to upset the public tranquility. Therefore, this section provides for a wider scope and application.
Where Section 502 of the IPC interpreted conservatively by the judiciary, such interpretation falls under the ambit of reasonable restriction of public order as stated in Article 19 (2) of the Indian constitution. And section 505 is direct to check and punish the spreading of false and mischievous news intended to upset the public tranquility.
Sedition is mentioned under Section 124A of the IPC, penalizes it stating that if any words written or spoken promote hatred or contempt disaffection against the government established by law is said to imprisonment for life, to which fine maybe added, or with imprisonment which may extend to three years or fine.
The discrimination faced by groups based on ‘sex, gender identity and sexual orientation’ was recognized by the Law Commission in its 267th report. They said that such persons facing discrimination should also be provided protection under hate speech laws.
Out of many landmark cases of Hate speech, the case of Arundhati Roy, Hurriyat leader Syed Ali Shah Geelani and others were booked under Sections 124A, 153A, 153B, 504 and 505 of IPC by Delhi Police for their “anti-India” speech at a seminar in 2010.
Another landmark case that took place in 2003 was in which Praveen Togadia was charged with Sedition by the Rajasthan government. The charges imposed on him impose an attempt “to wage a war against the nation.”
Under Code of Criminal Procedure (CrPC)
The procedure to be followed for the administration of criminal law is provided under CrPC. Few of the sections of CrPC provides procedures to be followed in cases when hate speech is criminalized.
Under CrPC, Sections 95 and 96 authorize the state government to issues valid order to forfeit any ‘book, newspaper or document’ as per the guidelines given by the judiciary after its liberal interpretation, such publication should contain matter, the publication of which is punishable under sections of IPC. (Sections 124A, 153B, 292, 293 and 295A)
Once the order of forfeiture is issued, a search and seizure order under section 100 of CrPC should be obtained from the magistrate in order to execute a forfeiture order. An appeal can be filed to challenge the forfeiture order under Section 96 of CrPC.
Section 95 of CrPC authorizes the state government to censor the publications.
A procedural safeguard that prevents frivolous prosecution for ‘hate speech’ offences that can disturb public peace and tranquility, considered serious and exceptional in nature is given under Section 196 of CrPC.
Section 144 has been famous to suppress speech by being used repeatedly by various state governments to order internet shutdown and band films. This section permits the issuance of temporary orders in urgent cases of nuisance or apprehended damage. When a written order on merit under Section 144 is provided a speedy remedy is available under imminent danger suspected.
Section 151 of CrPC provides immense power to the state to arrest a person without a warrant in order to prevent hate speech in this case which is a cognizable offence. Section 107 of CrPC offers power to a magistrate to execute the maintenance of peace with the help of people that will be required for implementing such bonds. Both the sections together provide preventive power to the state.
Under The Representation of the People Act, 1951
Section 8 (1) (a):
Disqualification on conviction for certain offences.—1[
(1) A person convicted of an offence punishable under—
(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub-section (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by a husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860);[7]
Section 324, Section 123 (3), Section 123 (3A) and Section 125 of the Representation of the People Act, 1955.
Under The Protection of Civil Rights Act, 1955
Section 7 of this act penalizes incitement to, and encouragement of untouchability through words, either spoken or written or by signs or by visible representations or otherwise
Under The Religious Institutions (Prevention of Misuse) Act, 1988
Section 3(g)[8] of the above act prohibits religious institution or its manager to allow the use of any premises belonging to or under the control of, the institution for promoting or attempting to promote any disharmony, feelings of enmity, hatred, ill-will between different religious, racial, language or regional groups or castes or communities.
Under The Cable Television Network Regulation Act, 1995
Sections 5 and 6 of the Cable Television Network Regulation Act prohibit transmission or retransmission of a programme through a cable network in contravention to the prescribed programme code or advertisement code. The codes for the same have been defined in rule 6 and 7 respectively of the Cable Television Network Rules, 1994.
Under The Cinematograph Act, 1952
Sections 4, 5B and 7 of the said act empower the Board of Film Certification to prohibit and regulate the screening of a film.
Landmark Cases of Hate Speech in India
In the case of Pravasi Bhalai Sangathan v. Union of India[9], the petitioner prayed to the Supreme Court that the state should take peremptory action against makers of hate speech. Here, the court did not go beyond the purview of existing laws to penalize hate speech as that would lead to ‘judicial overreach.’
In Jafar Imam Naqvi v. Election Commission of India[10], a writ petition was filed challenging the vitriolic speeches made by candidates in the election and prayed for a writ of mandamus to the Election Commission for taking appropriate steps against such speeches. However, the petition was dismissed by the court on the ground that the petition under Article 32 of the constitution in accordance to speeches delivered during the election campaign does not qualify as public interest litigation and the Court cannot legislate on matters where the legislative intent is visible.
In the case of Ramji Lal Modi v. State of U.P.[11] the constitutional validity of the section 295A of IPC was upheld by the Supreme Court and ruled that this section does not penalize every act of insult to or attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalizes only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the ‘deliberate and malicious intention’ of outraging the religious feelings of that class.’ The Court also held that the expression in the ‘interest of public order’ mentioned in article 19(2) is much wider than ‘maintenance of public order’. Hence, even if an act does not essentially cause a breach of public order, its restriction ‘in the interest of public order’ will be deemed reasonable.
In the cases where restrictions do not fall into the territory of Article 19 (2), it must be reasonable. In Virendra v. State of Punjab[12], the Supreme Court held that the test of reasonableness must be applied to every statute impugned and that no abstract standards are often made applicable to all or any cases. And exceptional circumstances can be viewed within the range of reasonability but they cannot be reviewed in each circumstance as a general pattern.
In the case of Subramaniam Swamy v. Union of India[13], arguments were raised on the reasonableness of the restrictions imposed by Sections 499-500 of IPC on free speech in the light of settled law. It was said that restrictions should be narrowly tailored and should not be excessive, arbitrary or disproportionate. He challenged the constitutional validity of half a dozen sections. However, the Supreme Court dismissed the challenges to the constitutionality of the criminal offence of defamation, upholding that it was a reasonable restriction on the right of freedom of expression.
Suggestions for Curbing
One of the most efficient ways to dilute any sort of evil from society is education. Education can play a prominent role in promoting and understanding compassion towards others. Another important factor could be awareness amongst individuals. Government and the public should encourage awareness programs about maintaining cordial relationships. Lastly, one major step taken could be that cases of hate speech can be addressed through Alternate Dispute Resolution. It proposes a shift from the long procedures of the court to the settlement of the dispute between parties by way of negotiation, mediation, arbitration and conciliation.
Conclusion
Hate speech is an expression that is likely to cause anguish, insult or demean other individuals on the basis of their association with a particular group or incite hostility towards them. There is no legal definition of hate speech, perhaps for the fear that setting a standard for determining unwarranted speech may lead to suppression of this liberty and freedom.
Hate speech has disrupted the freedom of speech and expression much in recent times. It gives rise to social unrest and public disturbance at large. This latest addition of the LGBTI+ community indeed urges us to think that we surely cannot limit the extent of Freedom of speech and expression and also gives a future outlook to broaden our thinking towards a more liberal viewpoint.
The recent Court judgments show that India follows a speech protective regime and the Courts are extremely cautious in restricting article 19 of the Constitution. The reason could be that it is important to a allow diversity of opinion to guide the principles of free speech. Hence, even when a speech is ‘intense, caustic, and sometimes unpleasantly sharp’ is protected from state intervention.
There is a long way to curb hate speech as people tend to believe their mouths speak louder than their actions. India certainly is on the right path to establish laws and penalize the wrongdoers as well. We should not put all the hopes on the law system rather be vigilant and stop the self.
[1]Summary report of the Secretary General. prepared by the Directorate of Human Rights on the 4th European Ministerial Conference on Mass Media Policy (Prague, Dec. 7-8, 1994) , available at : https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=41 1463&SecMode=1&DocId=517420&Usage=2 (last visited on June 08, 2021)., Appendix III Para 7.
[2] https://indiankanoon.org/doc/1218090/ (last visited on June 09, 2021).
[3] W.P. (CRL.) NO.167 OF 2012.
[4] AIR 1950 SC 129.
[5] The Constitution (First Amendment) Act, 1951.
[6] (1995) 3 SCC 214
[7] https://indiankanoon.org/doc/1662686/ (Last visited on June 09, 2021).
[8] https://indiankanoon.org/doc/98132018/ (last visited June 09, 2021)
[9] AIR 2014 SC 1591.
[10] AIR 2014 SC 2537.
[11] AIR 1957 SC 620.
[12] AIR 1957 SC 836.
[13] W.P. (Crl) 184 of 2014.
Author: Yashita Rastogi from ICFAI University, Dehradun.
Juris Centre 