The right to express oneself has always been an integral part of individual liberty. It’s essential for a democratic society to ensure that its people’s freedom of speech and expression is not curtailed and that individual liberty is protected. However, as much as it is important to promote free speech, it is also equally important to keep a check on the unbridled power that it possesses. More often than not the expression of one’s views can be used to promote hatred in the society. Generally speaking, the words (spoken or written) which are derogatory to an individual or group of individuals and are expressed with an intention to incite hate, cause violence or disrupt peace constitutes Hate Speech. These might be based on one’s religion, race, gender, language, nationality etc. Black’s Law Dictionary defines hate speech as- “Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.” In an era where a large sum of the world’s population has access to internet people are free to express their views on anything and anyone. Online mediums have made it easier to amass attention and manifest hostile opinions which are absolutely unwarranted and uncalled for. More often than not social media platforms are used to shape narratives, propagate thoughts and ideologies which threaten the security, peace and harmony of the society.
This article attempts to study the laws relating to hate speech in India while analyzing the existing and proposed regulations. It argues that what needs to be restricted or prevented is the “irresponsible” exercise of free speech and not merely those risky actions that might be considered potentially harmful.
LAWS DEALING WITH HATE SPEECH IN INDIA
In India, there does not exist a separate law that exclusively deals with hate speech. However, few other statutes provide provisions relating to it. Section153(A) of the Indian Penal Code (IPC) provides for imprisonment up to 3 years or fine or both to anyone who disturbs public tranquility by promoting animosity between people by means of any hateful expression (spoken or written) based on religion, caste, racial origin, language, place of birth or place of residence etc. This provision’s constitutional legitimacy was questioned when it was claimed to be in violation of Article 19(1)(a) of the Constitution. In Tara Singh v. The State, the East Punjab High Court ruled it unconstitutional for enforcing arbitrary restrictions. The provision was considered to be valid in subsequent situations after the first amendment to the Constitution in 1951.
Section 295A of the IPC provides a similar punishment to anyone who spreads hatred against any religion with an intention to disrupt public harmony. The Supreme Court affirmed the statutory validity of Section 295A IPC in Ramji Lal Modi v. State of Uttar Pradesh, it was also held that the term “in the interest of public order” specified under Article 19(2) is far broader than maintaining public order. As a result, even if an act does not necessarily cause a violation of public order, its prohibition in the public interest would be considered fair. Furthermore, Section 505(1)(b) and (c) of the Indian Penal Code penalizes circulation of any statement or rumor which causes enmity or violence between two classes of people or different communities.
Though there is no precise definition for hate speech, it is generally seen as an exception to free speech. For instance, Section 124A and Section 505 of the Indian Penal Code Renders Sedition and remarks of “public mischief” unlawful. The Representation of the People Act, 1951, the Code of Criminal Procedure, 1973, the Religious Institutions (Prevention of Misuse) Act, 1988, and the Scheduled Caste and Scheduled Tribe (Prevention of Misuse) Act, 1988 are all exceptions of the right to freedom of speech and expression in India.
Apart from these provisions Article 19(2) of the Constitution imposes reasonable restrictions on the Freedom of Speech and Expression. Article 19 of the Constitution guarantees all people the right to freedom of speech and expression, subject to reasonable restrictions to protect public order, decency, and morality, among other things. So, if such expression injures public order, is against public decency and morality, is capable of inciting offenses or which poses harm to the security of the state then it may fall under the realm of hate speech.
One of the crucial decisions by the Apex Court in this regard is the case of Pravasi Bhalai Sangathan v. Union of India, the petitioners here considered the prevailing hate speech regulations to be insufficient and pleaded that the state enforce stricter rules and take immediate action against those who promote hate speech. However, the Court stated that implementing existing regulations would significantly reduce the issue of hate speech. The Law Commission of India took a closer look at the issue and as a result, in March 2017, the Commission, after considering the laws and numerous judicial decisions on hate speech, submitted its 267th Report to the Government of India for consideration.
One might think if there are so many provisions which can be used curb hate speech in the country and are broad enough to include every such instance, why is then there a need for enacting a separate law? This can be understood in the section ahead.
THE NEED FOR A COMPREHENSIVE LAW
Any state’s interests should include protecting its people’s freedom of speech as well as combating hate speech. Hate speech occupies a middle ground of the two; whereas a harsh approach undermines free speech and expression, unrestricted (free) speech may lead to the dissemination of hostile/hateful narratives. In such a scenario, the fine line between preserving the citizen’s fundamental right of freedom of speech and expression and at the same time countering hate speech is often blurred. India is a country filled with diversity. People belong to different religions, caste, geographic region and speak different languages. It is fundamental for a country with such diverse demography to have a unified law which can curb the menace of hate speech.
In the digital era it is even more important since the internet has given unbridled power in the hands of individuals. The internet possesses numerous offensive statements, extreme and polarized views. Social media platforms often become breeding ground for toxic views and hateful ideas. Since it’s not happening in person, many people think they can get away with any kind abusive or discriminatory views that they post on social media. However, such views are often not about a person every time. It might be targeted towards a group of people or even an entire community. Hate speech can now circulate almost instantly across the globe thanks to faster modes of communication and social media, and as countries become more geographically, racially, spiritually, and socially complex, the need for effective regulation becomes even more crucial. Many instances of violence in India can be traced to have been initiated through something which was shared on social media. This is because the way in which the hateful views or narratives are presented seems appealing to many people and easily influences them. In many instances it is found that people posting these extreme narratives argue that they should not be punished for exercising their right to free speech. However, it must be kept in mind that the larger interest of maintaining law and order and peace in the society outweighs the individual’s right of free speech. Spreading any kind of false or hateful information, trying to incite violence or disrupting public order is, by no means, a right.
The court in the case of Shreya Singhal v. Union of India found Section 66 A of the Information Technology Act unconstitutional. It was observed by the bench that it failed to create a proximate link between the restriction and the act. It was noted that – “the nexus between the message and action that may be taken based on the message is conspicuously absent – there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility.” The bench in its decision in this case distinguished between incitement and advocacy and discussion. It was observed that the while discussion and advocacy were the essence of Article 19(1), incitement was not. An expression could only be restricted when discussion and advocacy amounted to incitement.
The current set of provisions in the penal code might not be sufficient and thus the Law Commission of India felt there is a need to amend the existing laws and hence in its 267th report, the commission recommended the Criminal Law (Amendment) Bill 2017, suggesting insertion of new section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases). This standard of “incitement to violence” can be seen as a more specific ground for legislating against the right to speech. In contrast to other types of hate speech (mentioned earlier), incitement to violence here, necessitates a higher degree of damage to be shown, and hence can be subject to criminal law sanctions. It is understood that the standard applied for restricting Article 19(1)(a) should be the highest when imposed in the interest in the security of the state. However, it is essential to acknowledge that while curbing hate speech is important, the State must refrain from over-criminalization of free speech. Over-criminalization of speech is a result of prosecutorial overreach as well as loosely worded offences related to speech. Prohibiting the mere potential for future harm enables the criminalization of a multitude of risky conducts that arguably do not warrant criminal sanctions, thus accounting for the over-criminalization of speech.
What is at issue is the criminalization of hate speech and how the existing laws look at it. Since it is entrenched in the constitutional right of freedom of speech and expression, hate speech has been manipulated by many in different ways to achieve their ulterior motive under the garb of such right and the law courts in absence of clear provisions in IPC, are not able to prosecute hate speech charges brought before them with success. The freedom of speech and expression is hampered by hate speech. The constitutional remedy to these issues has been varied, as the lines between unacceptable hate dissemination and free expression differ across jurisdictions. Thus, there is a need to enact a comprehensive law which can tackle these challenges. At present, the various laws are scattered around different statutes. Further, these provisions are too broad which gives them a character of vagueness. Hence, they might be used to suppress the voices of dissent in the country and unreasonably restrict the freedom of speech and expression of the people.
As can be seen, the provisions discussed in this article too, are offences that are quite broadly worded. The number of offences relating to hate speech at this point are many, nevertheless, the instances of hate crimes do not seem to decrease. This evidently points out that it is not the enactment of new laws that can help decrease hate speech/crimes in India, it is the ‘effective implementation’ of those laws that can help the country and its people better. Though some required changes can be made but it should be kept in mind that the laws relating to hate speech are framed in a manner that it is comprehensive enough to include every instance of ‘irresponsible’ exercise of the fundamental right of speech and expression and at the same time, does not suppress dissent.
Second Year, BA.LL.B. (Hons.)
National Law Institute University, Bhopal