Criminal Defamation and Hate Speech
In a world , where words fight deadlier than a sword in a battle against individual or a group and can be used for harming the individuality and reputation of an individual or a group there must be a clear line drawn against freedom of speech and expression as guaranteed by Indian Constitution Under Article 19. It Is evident from many instances in the world where false words may lead to fall of a person reputation or fall of a whole community, so it can be said if freedom speech and expression granted unrestrictedly may result in grave consequences so this is why some very important laws such as Criminal Defamation and Hate speech have a great value in the modern era . So, this assignment will discuss both in detail and along with it the differences between them and how they are interlinked.
Defamation
Under Article 21 of the Constitution, a citizen's right to life includes the right to reputation. A person's reputation, honour, integrity, and character are just as important as his right to enjoy property, health, personal liberty, and a variety of other benefits. A good reputation is an important aspect of personal security, and it is protected by the constitution in the same way as the rights to life, liberty, and poverty are.
Defamation, as the name implies, is harm to a person's reputation that is both a civil and criminal offence. Criminal defamation is covered under sections 499 to 502 of the Indian Penal Code. Defamation is a practise that serves as a check on the right to freedom of expression and communication. It is a method to guarantee that no one hurts a person's reputation or attempts to establish a false public perception of the person who has been defamed.
“Sec 499 defines defamation as: Whoever, by words spoken or intended to be read, or by signs or visible representations, makes or publishes any imputation concerning any person with the intent to harm, or knowing or having reason to believe that such imputation will harm, that person's reputation, is said to defame that person, except in the cases hereinafter expected.
1. Explanation —
Impugning something to a deceased person may be considered defamation if the imputation would impair that person's reputation if he or she were still alive and is meant to hurt the feelings of his family or other close relations.
Explanation 2. — Making an imputation against a corporation, an association, or a group of people as such may be considered defamation.
Explanation 3: Defamation can occur when an imputation is offered as an alternative or sarcastically.
Explanation 4.—No imputation is said to harm a person's reputation unless it directly or indirectly, in the opinion of others, lowers that person's moral or intellectual character, or lowers that person's character in respect of his caste or calling, or lowers that person's credit, or causes it to be believed that that person's body is in some stain.”
Essentials for Criminal Defamation
Making or disseminating an imputation about a person.
Such Imputation must have made by
words either Spoken or
signs or
visible representations;
The offender wants to hurt that person's reputation, or knows or has cause to suspect that such imputation would harm that person's reputation.
Exception for Criminal Defamation
Following are the exceptions for criminal defamation as stated in Section 499 of IPC
• The truth for the greater good
• Public servants' public behaviour
• Appropriate criticism of public officials who are not public servants
• Report of Court Proceedings
• The merits of the witness's behaviour case
• Public Performance's Benefits
• The censure was enacted in good faith.
• Authority Complaint
• Imputation for Interest Protection
• Intended for a person's or a community's benefit
Subramanian Swamy v UOI (Ministry of Law)
The Supreme Court, in upholding the constitutional validity of criminal defamation provisions in sections 499 to 502 of the Penal Code of India, 1860, drafted during the colonial era, said, "Please do not muzzle free speech," and asked politicians Rahul Gandhi, Subramanian Swamy, Arvind Kejriwal, and others for allegedly defamatory statements.
500. Punishment for defamation
“Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both”.
501. Printing or engraving matter known to be defamatory
“Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both”.
502. Sale of printed or engraved substance containing defamatory matter
“Whoever. Sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both”.
Hate Speech
Hate speech, according to Oxford, is defined as expression that is likely to offend or upset other people because of their affiliation with a specific group and/or provocation. In India, there is frequently a contradiction between hate speech and freedom of speech, making the subject of what should be the scope of freedom of speech and expression a hotly debated matter. As a result, constitutional experts from diverse constitutional benches create a line of demarcation over time to identify a point beyond which such freedom is forbidden by law and must be severely examined.
Under Article 19(1) (a) of India's Constitution, which stipulates that "all people shall enjoy the right to freedom of speech and expression," freedom of speech and expression is guaranteed as a basic right.
The Indian constitution, however, has imposed a reasonable restriction under Art 19(2), where the word reasonable should strike a balance between the use and misuse of this right. It also says:
“Nothing in Article 19(1)(a) shall influence the operation of any existing law, or prevent the State from making any law, in thus far intrinsically law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the nation, friendly relations with foreign States, public order, dignity or morality or in Relation to contempt of court, defamation or instigation to an offence.”
When a restriction does not come within the scope of Art 19(2), it must be fair. Because the Supreme Court has determined that no abstract norms are typically made relevant to all or any cases3, the reasonableness test must be applied to each particular legislation challenged.
“Section 153A of the Indian Penal Code, which criminalizes the promotion of enmity between groups of people on grounds such as religion and race, place of birth, residence language, and acts that are prejudicial to maintaining harmony, imposes a penalty of up to five years in prison and a fine in such cases”.
Mens rea plays an important role in commitment of this offence. Although truth can be used as a defence in this case, it is not an absolute defence under Section 153A.
“Section 153B of the Indian Penal Code, which criminalises imputations and statements made by speech aimed at specific members of a group that comes from their membership in such a community and is detrimental to national integration, holds individuals responsible for such speech.
The destruction of places of worship or sacred artefacts is punishable under Section 295 of the Indian Penal Code 1860. In this part, coupled with the damage or injury to the place of worship or sacred item, the purpose or knowledge of the probability of offence is a significant aspect that must be considered”.
“Section 295A of the Indian Penal Code (IPC) 1860, which makes it illegal to disrespect a person's religion or religious beliefs in order to offend their religious emotions. Law should safeguard legitimate criticism done in good faith, which requires a high bar of intentional and malicious purpose for unlawful speech that would offend the religious feelings of any class of people, where truth is no defence. The violation of Section 295A is cognizable, non-bailable, and non-compoundable. A person accused under Section 295A of the IPC can be arrested without a warrant by the police”.
“Section 505 of the Indian Penal Code makes it illegal to publish or circulate certain remarks, rumours, or reports if the goal or impact of the statement is to cause mischief or disturb public order. As a result, the language of IPC Section 505 allows for a broader scope and applicability. While the judiciary has construed Section 502 in a conservative manner, this interpretation fits under Article 19(2) of the Indian Constitution's definition of "reasonable restraint of public order." The intent of Section 505 of the IPC is to prevent and penalise the dissemination of false and deceptive information with the intent to disturb public order”.
“Sedition is defined under Section 124A of the IPC, which states that any statements written or uttered that encourage hate or disaffection against the government constituted by law is charged under Section 124A”.
The Law Commission acknowledges discrimination against groups based on "sex, gender identity, and sexual orientation" in its 267th report, and believes that such persons should be protected under hate speech legislation.
Procedure in case of Hate speech
“Sections 95 and 96 of the CrPC allow the state government to make a lawful order forfeiting any 'book, journal, or document' that contains anything that is criminal under different sections of the IPC, based on the parameters provided by the judiciary following its liberal interpretation. The Indian Penal Code 1860, Section 124A, Section 153A, Section 153B, Section 292, Section 293, and Section 295A. In order to carry out a forfeiture order, a magistrate must first issue a search and seizure order under section 100 of the Criminal Procedure Code. An appeal can be filed under Section 96 of the CrPC to overturn the forfeiture ruling”.
The state government has the authority to censor publications under Section 95. Orders made under this provision are also subject to judicial review under Section 96.
“Section 196 is a procedural safeguard that prohibits frivolous prosecution for "hate speech" offences that might cause public disturbance and are considered serious and unusual in character. A court takes cognizance to decide whether level of the process requires prior approval from authorities”.
“Section 144, which allows for the issuing of interim orders in instances of imminent annoyance or harm. This clause has a long history of being utilised by state governments to stifle free expression through ordering internet shutdowns and film bans. In instances when imminent danger is feared, a written order on the merits under Section 144 allows a quick remedy”.
When the offence is committed across numerous jurisdictions by publishing hate speech in multiple locations, Section 178 kicks in.
In this case, “Section 151 of the CrPC gives the state the authority to arrest someone without a warrant in order to suppress hate speech, which is a criminal offence. A magistrate has the authority under Section 107 of the CrPC to carry out the preservation of peace with the assistance of individuals who would be necessary to carry out such bonds. The state has preventative powers under Sections 151 and 107”.
Preventive arrests are more common than major criminal arrests in the actual world.
Both criminal Defamation and Hate speech are interlinked
Hate speech is defined as any speech, gesture, behaviour, writing, or exhibition that is prohibited because it may instigate violence, harm religious feelings, or create hostility between different groups on the basis of religion, race, and place of birth, residency, language, or other factors.
Defamation, on the other hand, is the act of harming another's reputation by false publication (communication to a third party) with the intent of bringing the person into disgrace.
Both defamation and hate speech can be considered processes for checking and balancing the right to freedom of speech and expression (Article 19). It is a method to guarantee that no one hurts the reputation of any individual or group, or attempts to establish a false public perception of the person or group who has been defamed.
A good reputation is a component of personal security, and it is protected by the constitution in the same way that the right to enjoy life, liberty, and poverty is. Both Defamation and hate speech criminalise the offence of allegedly publishing of false claim or statement harming the reputation of a group or individual and promoting tensions between individuals and groups.
Difference between criminal defamation and hate speech
Defamation, as the term implies, is an injury to a person's reputation, whereas hate speech is any speech, gesture or conduct, writing or display that is prohibited because it may incite violence or hurt religious feelings or promote enmity between different groups on the basis of religion, race, place of birth, residence, language, and so on.
Defamation is an injury to person ‘s reputation whereas hate speech is related to injury to religious feeling of groups or spreading hatred for a group .Sec 499 to 502 of IPC deals with criminal defamation Whereas various section of IPC talks about Hate Speech such as Sec.153A,153B,295,295A,505,124A
Truth can be taken as a defence in Hate speech but it may not serve as an absolute defence under Section 153A. Whereas even truth is not a complete defence in case of criminal defamation .It is imperative to prove that the alleged defamatory statement was made for public good.
“Section 500, which deals with defamation, states: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both”, “whereas Section 259A, which deals with hate speech, states: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [by words, either spoken or written], shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both”.]
Conclusion
A person's or a group's reputation, honour, integrity, and character are just as important as the right to enjoy property, health, personal liberty, and a variety of other benefits. There is a tremendous need to keep a check and balance on the right to freedom of speech and expression in this modern day, where the media has a bigger role to play and act. The interconnection between criminal defamation and hate speech is established in this assignment, as well as the distinctions between the two. It is important to remember that while the rules for hate speech and criminal defamation may differ, they both act as a check and balance on the right to freedom of expression.
References
1 Mehmood Azam v State, AIR 2012 SC 2573 [LNIND 2012 SC 456] : (2012) 8 SCC 1 [LNIND2012 SC 456] ; Vishwanath S/o
Sitaram Agrawal v Sarla Vishwanath Agrawal, AIR 2010 SC 1974[LNINDORD 2010 SC 207] : 2010 (7) SCC 263 [LNIND 2010 SC
438] .
2 Smt. Kiran Bedi v Committee of Inquiry, AIR 1995 SC 117 [LNIND 1994 SC 929] : 1994 (6) SCC565 [LNIND 1994 SC 952] :
1995 SCC (Cr) 29, quoted from D F Marion v Davis, 1989 (1) SCC 494[LNIND 1989 SC 10] : AIR 1989 SC 714 [LNIND 1989 SC
833] .
3 Virendra v. State of Punjab, AIR 1957 SC 836)
Written BY – Puneet Munjal
BA.LLB (2ND Year )
Maharaja Agrasen Institute of Management Studies, New Delhi