The right to freely express is a right given to the Indian citizen by the constitution of India. We will not acknowledge the value of this right until it is taken away from us. The freedom of speech under article 19(1) (a) given the Indian citizen right to express views and opinion on any Issue which can be made through any medium it can be in form of an article, or a movie, though this right comes with some restrictions which are outlined under article 19(2). Freedom of speech is regarded as the basic right when the question of liberty is concern. The fundamental principle of a free society is the unrestricted flow of words and opinions. Free expression of words and opinions plays a significant role in the development of society. The increasing cases of hate speech in the nation have triggered a warning for society. The concept of hate speech is new; it is not defined in any law framed in India the only expression for a definition was mention in the 267th report of the Law Commission. This state’s “incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief. Hate speech was not mentioned in the English common law since its inception, like blasphemy and sedition. The colonial government framed laws in India with the basis being laws in Britain these laws were later incorporated in the Indian Penal Code after independence. The age of digitalization and access to the internet and social media have bought together with the whole globe and act as a single forum, but it has also been misused.
Globalization has aided in the spread of hate speech, also the internet aided in the spread of hate speech around the world. With access to social media and internet connectivity in every corner of the globe, this has now become one of the main side effects. The role of a social media user is more responsive than ever, the platforms are flooded with fake news and hate comments.
The fast spread of fake news plays a vital role in turning a speech into a hate speech in the virtual model. It the user who has to be aware, nowadays every one of us has a mobile phone with an internet connection but we never take the responsibility of checking the news which is being sent into our feed and what is the credibility of it. Lack of fact-checking before saying in a large gathering or posting on social media and propagating the news which can later turn into hate speech is a general scenario in India. The role and responsibility of politicians are also of much concern which we talk of hate speech in India politician with their influencing powers and by the way of their speech can a convert a peaceful gathering into an angry mob and which can harm anyone and destroy anything which comes into its way The role of mainstream media I also decisive when we, because many a time the situation arises when the digital media have a critical role to play. When the COVID pandemic first arrived and the case of Tablighi jamaat first came into the picture. The way Indian media handled it was miserable. The supreme court said that the freedom of speech and expression was the most abused fundamental right in these times, keeping in mind the fake news and hate speech which was propagated by the news media outlets was concerning.
HOW TO DETERMINE WETHER A SPEECH IS A HATE SPEECH
The newly developed concept of hate has gained much attention around the world in a very short period. With no clear definition to define hate speech, identification is a tough task. First, we need to understand that not every offensive speech is hate speech; in the Sherya shingal V. Union of India case the Supreme Court held that a speech must amount to incitement to be restricted. Discrimination is also a key factor in identifying hate speech. Inflicting harm or causing injury to the image of any person is also a valid classification. The potential harm or anger which the speech can cause acts as a critical element in determining the nature of speech. The speaker of the person posting hate speech should also be scrutinized as a popular name publishing hate or propagating speech will have a relatively more adverse effect than a common man doing the same. The situation can also be taken into consideration if a speech is being given just after a riot or any other situation it can have different consequences. The other demarcation which can be looked upon is the status of the victim; criticizing someone is not hate speech but cursing someone might fall under the purview of hate speech. The potentiality of the speech can also be examined, what are the possible consequences of the speech delivered can help in putting the speech in a different category. The context in which the speech is being made is also another factor determining the nature of the speech
WHAT DOES THE INDIAN LAW SAYS ON THIS?
After some of the incidents, the concept of hate speech is widely accepted and recognized in the world. Section 153A of the IPC states that it a criminal offense to promote enmity between groups of different religions, races, caste, and sex. This can invite imprisonment of up to 5 years though mens rea which means the guilty mind has to be proven. Section 295 of the IPC, criminalizes the destruction of a place of worship. Deliberate and malicious act intending to outrage the religious feeling of a class or religion or their religious beliefs is a criminal offense in Section 295A of the IPC and several other laws. Apart from the Indian Penal Code the Cable Television Network Rules, 1994 which shows the effect of the prohibition of Hate Speech, it prohibits Television channels to telecast shows, advertisements, and taglines which might hurt the religious sentiments or feeling of people belonging to different casts, sex, languages, etc.
Hate speech gains more importance during the election season. It is quite evident from several incidents that some representatives are indulged in hate speech to incite people. The representative of people needs to be especially careful about what they say and what can be the consequences of their speech. Section 8 Representation of People’s Act 1951 bars a person to contest an election if there has been a case of conviction for unlawful use of freedom of speech. Section 123(3A) and Section 125 of this act prohibit the encouragements of hatred on the grounds of religion, race, caste, sex.
The Scheduled Caste and Schedule Tribe (Prevention of atrocities) Act, 1989 was enforced to stop the cases of verbal speeches aimed at the marginalized people and with an intention to increase the involvement of this section of people into the more mainstream thing. The constitution of India also has some provision, which limits or put a restriction on freedom of speech. These limits can be put up when there is a question of, friendly relation with other states, decency and morality, public order and sovereignty, and integrity of the nation. Most of the hate speeches are challenged before the court of law, under the restriction of ‘decency and morality or ‘Public order’. The nexus between a speech and these restrictions is a tricky one. The restriction imposed must be reasonable and cannot be arbitrary
ROLE OF SOCIAL MEDIA
With the rapid development in the field of technology, the ease of accessibility across borders, the all-time low internet charge has created an ocean of internet users. The boom has flooded Social Media platforms. With this, each internet user has an opinion and has a comfortable and open medium of making it heard. They can now sit in their homes, where they feel safe and can communicate with the world.
Social media consists of Twitter, Instagram, Facebook, WhatsApp, and several other platforms with these platforms people can raise their voice and make others hear their opinion. But with every great power come great responsibility, every internet user in India is not a sound internet using the internet does not give the intellect to use it. As the number of social media users increases the influx of Hateful comments and hate speech has also increased rapidly. The lack of regulation on these platforms is the primary reason behind this. The hateful comment/ speech has now a broader audience to reach and sometimes with anonymity. Social Media was designed to make connection easy and most importantly to save our time. The number of hate comments has flooded these social media platforms. A huge number of objectionable content can now easily flow over these platforms without any restriction. Social media is now a blessing and a challenge. To regulate such events the government of India enacted Information Technology Act 2000, which was later amended to include cybercrimes. Section 66A was added to regulate cybercrime and frauds committed over the internet. This Section penalizes a person indulged in activities like posting something which is highly offensive or is false and is meant to cause insult, injury, harm to anyone.
Any content which is meant to deceive or mislead can land imprisonment upto3 years with a fine. In the year 2015, the IT Act was in news again, because of the Shreya Sighal V. Union of India, the act prohibits people from posting anything obscene, offensive seditious from a computer or another electronic device the perpetrator of any such material would be liable to a punishment of 3 years maximum. The offense being cognizable, the police used it arbitrarily to imprison any person against whom a complaint is filed. In Shreya Sighal V. Union of India, the Supreme Court held that Section 66A was arbitrary and unreasonable. This case was in the spotlight because many such arrests were being made, which was heavily criticized by activists. The arrest was made because the woman posted and criticizing the Mumbai band in the honor of a famous personality.
CAN WE OVERCOME HATE SPEECH?
With the growing internet, the social media which acts a platform to raise voice to democracy activists and even empowers a common man to share opinion. These social media platforms are now being used by hate groups to spread hate, incite violence. Social media is just a reflection of our Society. The events which used to occur offline are now happening online, the hate which is being spread has now a better place. With the rapid increase in cyberspace, the cases of hate speech have also risen and prompt response has not come from the social media platforms and the government. The primary problem faced to identify hate speech is its nature and the vague definition. With no proper definition, several interpretations are propounded by different people. Harming one’s dignity is the criterion that helps in framing a clearer definition, but there is already a proposed definition that includes some vague definitions. Several social media platforms have framed guidelines to restrict the propagation but because the definition is not clear this sometimes results in a restriction on free speech. However, a universally accepted definition will is highly unlikely to come and adopted by the countries, defining hate speech is still a challenge. With social media and platforms being the place where people voice their opinion it is difficult for the government to frame laws and making social media platforms abide by them. Though the social media platforms have become responsive with regards to containing the spread of hate speech online but both the government and the platforms reaching a common definition to tackle this, is still what we need. The anonymity of the user is a major cause that accelerates this issue; people commit crimes online without facing repercussions because they have the facility of keeping their identity to themselves. This anonymity feature poses a greater threat to cyberspace and makes it difficult for the authorities to catch the culprit. Making the platform accountable can also be a viable solution to stop the spread of hate speech online, this will fix the accountability on the platform, which might result in their Anonymity makes things easier for people to commit such crimes which they generally won’t if they were to do offline. Circulation of positive which gives the message of tolerance can also be a good method of tackling hate speech.
We need to treat every hate speech incident as any other malicious activity, we need to deal with the same gravity and same seriousness, that’s the only reason we can overcome the problem of hate speech. The distinction and should be made and curtailing hate speech should not result in limiting free speech. The lack of a proper can be sensed, a clear definition is needed to curtain hate speech. It is impossible to identify offensive, hateful comments with a vague definition. The involvement of the judiciary can be a good step as far as decision making is a concern, concerns of the internet need to be addressed as there should be a balance between the interest of people and infringement of rights. The basis of hate speech is often fake news; a properly designated fact-checking authority can also help drastically help in reducing cases of fake news which will eventually result in a fewer number of hate speech incidents. A transparent approach should be adopted by the social media platforms and by the government to censor content; by the way of transparency, people will know that kind of content is harmful, offensive and thus should not be used. Things won’t work out unless we don’t do our bit, hate speech is an international issue and can only be addressed and tackled with our collective efforts.
267th Law Commission Report
Indian Penal Code Section 153A
Indian Penal Code Section 259
Representation of people’s Act 1951
The Scheduled Caste and Schedule Tribe (Prevention of atrocities) Act, 1989
Information technology Act, 2000 Section 66A
Sherya Singhal v. Union of India AIR 2015 SC 1523