Hate speech refers to any speech, gesture, conduct, writing, or display that may incite violence or prejudicial action against or by any individual or group, or because it disparages or intimidates a particular individual or group. In Pravasi Bhalai Sangathan v Union of India[i] the Supreme court outlined the definition of hate speech as “an effort to marginalize individuals based on their membership in a group which seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society.” In India, hate speech is prohibited under the Indian Penal Code under Sections 153(a), 295(a) and 505(2) which provides that anyone who makes any statement, either orally or in writing, that is intended to harm the reputation of any individual or group, is punishable by law. Hate speech laws have been used to target individuals and groups who express views that are perceived as being critical of certain communities or religious groups.
Sedition, on the other hand, refers to an act of speech or writing or other that incites people to rebel against the government. In India, sedition is a criminal offense under section 124A of the Indian Penal Code, which provides that anyone who brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the government of India, shall be punished with life imprisonment or with fine. In case of Kedarnath Singh v State of Bihar[ii] the offence of sedition was held to be applicable only when it is accompanied by an incitement to violence and its constitutional validity was upheld by the apex court. Sedition law is a grave act of dissemination of hatred towards the democratically set-up government and in many cases, it has been associated with as causing violence or incitement to violence. The enforcement of sedition law has always been a matter of confusion and chaos among legal scholars as it may be misused in a country like ours.
EVOLUTION OF HATE SPEECH
In layman terms, ‘hate speech’ refers to statements that are offensive and may incite hatred or disaffection towards a particular individual or group especially based on their inherent characteristics such as race, religion or gender that may bring about public uproar. Hate speech in India has a long history and its evolution can be traced back to colonial times when it was used to divide people on religious and caste lines. In 1994, the Indian government enacted the “Cable Television Networks (Regulation) Act” to regulate hate speech and offensive content on television. This law empowered the government to regulate cable television networks and act against content that was found to be offensive. In case of Pravasi Bhalai Sangathan v Union of India the Court directed the government to take steps to prevent hate speech and to take legal action against those engaged in it. Thus, hate speech has been an evil spreading inequality and discrimination in the social spheres since the inception of UN but it was only after the enforcement of the Indian Constitution in 1950 that Fundamental Rights were declared including the Freedom of Speech and Expression under Article 19(1)(a) that granted certain limitations as well on the free speech. Alas, hate speech is an exception of freedom of speech and expression. In the case of Ramesh v Union of India[iii] the Supreme Court held that ‘hate speech has the potential to disturb public order and is not protected under the freedom of speech and expression. The Court also directed the government to take steps to curb hate speech and take appropriate legal action against those who engage in it’.
Causes of Hate Speech: For decades now, there has been growing number of cases of hate speech and the reasons for such are as follows:
- A sense of superiority exists among individuals relating certain group or communities.
- Stubborn behaviour towards a particular ideology especially such that is orthodox and discriminatory.
- Negative stereotypes that lead us to think of others as inferior and less worthy thereby causing the spread of hate speech and thoughts.
In Amish Devgan v Union of India[iv] the Supreme Court held that hate speech has no valid or redeeming motive other than hostility for a specific group. Those statements that incite hatred or feelings of dislike against a particular ethnic or religious groups leading to violence.
‘Social media provides a global megaphone for hate.’ – António Guterres, United Nations Secretary-General, 2021
In recent years, hate speech has become a major concern in India, with social media platforms being used to spread hateful and divisive messages. Online hate speech is a serious issue and since India has a diverse population with many different ethnic and religious groups therefore tensions between these groups have led to incidents of hate speech online. In 2017, the Indian government introduced new rules under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to regulate hate speech and other forms of offensive content on social media platforms. In Shreya Singhal v Union of India[v] the Supreme court struck down Section 66A of the Information Technology Act that criminalized certain types of online speech.
Hate speech is generally witnessed because of communal tension and political polarization, during the 1990s particularly in the wake of Ram Janmabhoomi-Babri Masjid dispute, the use of hate speech by political leaders and activists fueled communal unrest leading to riots and violence. With the rise in social media, hate speech is easier and widely spread leading to concerns about its impact on communal harmony and social cohesion. The evolution of hate speech in India has been shaped by historical, political and social factors.
EVOLUTION OF SEDITION LAW
The sedition law was introduced in India by the British colonial government in 1800s, with the aim of suppressing dissent and freedom of speech. The Draft Indian Penal Code, 1837 by Thomas Babington Macaulay included a section on Sedition. However, this draft was not included in the IPC, it was finally in 1870 that Sedition in its present form was added as a penal offence. Mahatma Gandhi, the father of the nation, was a vocal critic of the sedition law which he considered to be a tool of colonial oppression. Gandhi himself was charged with sedition for writing articles in his newspaper, Young India which criticized the British government in 1922. In India, the law was used to extensively curb political dissent and Bal Gangadhar Tilak in Queen Empress v Bal Gangadhar Tilak & Keshav Mahadev Bal (1897)[vi], a key activist was charged with sedition twice.
In Niharendu Dutt Majumdar v the King Emperor[vii] the Federal Court observed that ‘sedition is not made an offence to minister to the wounded vanity of Governments, but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow.’ Thus, the aim of the judgment was to explain the gist of the law that the object of the sedition law was to regulate public disorder and disrespect towards the government. In 1947, the sedition law was retained in the Indian Penal Code, however the scope of law was limited to acts that involved incitement to violence or public disorder. Tara Singh Gopi Chand v The State[viii], the first instance where a Court of independent India was adjudicating on the constitutional validity of Section 124A and under which sedition was declared as ultra vires or unconstitutional to the Constitution of India.
The first Constitutional Amendment Act was brought in 1951 after the case of Romesh Thapar v State of Madras[ix] in which Section 124A was struck down as unconstitutional, amended the Fundamental Rights clauses of the Constitution and added limitations in the name of ‘reasonable restrictions’ to them. Sedition was also held as a restriction on grounds of ‘public order’ and ‘security of the State’. In Kedarnath Singh v State of Bihar, the constitutionality was challenged after the first constitutional amendment and the Constitutional Bench upheld the validity. Over the years, there has been growing criticism of the sedition law in India, with many arguing that it is a tool for suppressing dissent and freedom of speech, the apex court gives monumental decisions regarding sedition thereby guaranteeing free speech and expression. Critics argue that the law is often used by the government to silence dissenting opinions of journalists, activists and academics.
Ex-Chief Justice NV Ramana said, “Dispute is it is colonial law very same law was used by the British to silence (Mahatma) Gandhi. Is the law still necessary in our country after 75 years of Independence?“
In recent years there have been several attempts to reform the law and in 2018, a parliamentary committee recommended that the law be amended to ensure that it is not used to suppress legitimate dissent. The statistics by the National Crime Records Bureau’s crime in India, showed that 93 cases were filed under sedition law in 2019 indicating a rise by 160% between 2016 and 2019 while the rate of conviction dropped to 3.3 percent in 2019. In 2021, several petitions challenging the contentious law was filed, and the most recent update remains that the sedition law has been put on hold by the apex court in 2022. There was abeyance placed on the law until the Court further investigates and decided for the same.
In India, hate speech is regulated by several legal provisions, including:
- Indian Penal Code (IPC): The IPC provides for several sections that criminalize hate speech, including Section 153A and 153B (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.), Section 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), Ram Manohar Lohia v State of Bihar & Ors[x] in order to invoke Section 295A of IPC incitement must lead to impending unlawful conduct that will be punishable and Section 505(2) (statements conducive to public mischief).
- Constitution of India: The Constitution of India guarantees the right to freedom of speech and expression under Article 19(1) (a), but this right is subject to certain reasonable restrictions in Article 19(2), including the interests of public order, decency, and morality.
- Representation of People’s Act, 1951 (RPA): Section 8 and 123(3A) and 125 of thee act prohibits promotion of animosity on grounds of race, religion, community, caste or language in reference to elections.
Barring the legal provisions stated above, the 267th Law Commission Report gave recommendations to insert Section 153C and 505A in the Indian Penal Code to deal with Hate Speech. Section 153C stated in brief that ‘whoever on grounds of religion, race, caste, community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe use gravely threatening words will be punishable for imprisonment for a term which may extend to two years and fine up to Rs 5000 or with both’. Whereas Section 505A stated in brief that ‘whoever in public intentionally on the same above stated grounds display any writing, sign or other visible representation which is gravely threatening or derogatory shall be punished with imprisonment for a term which may extend to one year and with fine up to Rs 5000 or with both’.
In India, sedition is defined as an offense under Section 124A of the Indian Penal Code (IPC). This section states that ‘whoever by words, either spoken or written, or by signs or by visible representation, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.’ The offense of sedition is a non-bailable offense, which means that the accused cannot be released on bail as a matter of right. Additionally, the burden of proof lies on the accused to prove that their speech or action was not seditious.
The Constitution of India guarantees the right to freedom of speech and expression under Article 19(1)(a), but this right is subject to certain reasonable restrictions, including the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency, or morality. In S.G. Vombatkere v Union of India[xi] a historic judgment, a three-judge Bench of the Supreme Court effectively suspended the Sedition Law under Section 124A of the IPC.
Hate Speech and Sedition Law are two different legal concepts that deal with different forms of speech. Many countries have hate speech laws that prohibit such speech like in India the definition of ‘Hate Speech’ is expressly not stated and is cryptic, though various sections of the law deal with such kind of speech. Similarly, sedition laws that used to prosecute individuals who engage in acts of political criticism are vague and mostly used to muffle free speech and violate individuals’ rights to express their political opinions. It requires a careful consideration of the specific circumstances of each case and a nuanced understanding of the meaning of the terms. It is crucial that these laws are enforced in a manner that respects individual rights and liberties, and that they are not used to stifle dissent or restrict freedom of expression. Hate speech and sedition laws in India are meant to protect citizens from harmful speech and actions but have also been used to suppress dissent and restrict freedom of expression. There have been cases of abuse, where individuals were arrested or charged with sedition for making critical statements about the government or hate speech laws were used to target those expressing views perceived as critical of certain communities. While both hate speech and sedition laws can be controversial, they serve different purposes and are aimed at addressing different types of speech. It is important for governments to maintain equilibrium in granting free speech and protecting citizens from dangerous speech. Presently, in a glorious decision the apex court stayed the operation of Sedition laws in India till further notice, there has been an issue of over-criminalization of hate speech in the country. There needs to be a lucid definition of hate speech to enforce the laws without arbitrariness and according to the provisions of established law.
 Hate Speech, available at: https://www.clearias.com/hate-speech/#:~:text=The%20Law%20Commission%20of%20India’s,sexual%20orientation%2C%20or%20other%20characteristics. (Visited on February 19, 2023).
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 The Law of Sedition and India: An Evolutionary Overview, available at: https://www.thehinducentre.com/the-arena/current-issues/the-law-of-sedition-and-india-an-evolutionary-overview/article65721149.ece#:~:text=The%20first%20case%20to%20be,v%20Jogendra%20Chunder%20Bose%2C%201891. (Visited on February 24, 2023).
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 An Indian law on hate speech: The contradictions and lack of conversation, available at: https://cjp.org.in/an-indian-law-on-hate-speech-the-contradictions-and-lack-of-conversation/ (Visited on February 25, 2023)
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[i] AIR 2014 SC 1591
[ii] 1962 AIR 955
[iii] Writ Petition (Civil) No. 107 of 1988
[iv] Writ Petition (Criminal) No. 160 of 2020
[v] AIR 2015 SC 1523
[vi] ILR BOM 112
[vii] 1942 FCR 38
[viii] 1951 Cri LJ 449
[ix] AIR 1950 SC 124
[x] 1966 AIR 740, SCR (1) 709
[xi] 2022 7 SCC 433
Author: Angila Verma