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Hate Speech in India

When for the first time the right to Freedom of speech and expression was tabled in the Constituent Assembly, from then to now, there have been demands for putting limitations on this freedom that led to the Constitution (First Amendment) Act, 1951 and the Constitution (Sixteenth Amendment) Act, 1963 that added various ground of imposing restrictions under Article 19(2)[2] of the Constitution.

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.
- J.S. Mill in his work On Liberty

Is it time yet? Is it? To stop playing with the words? Lest we start repeating ourselves if we have not already, 73 years of the vocation of racist remarks, intolerant views, aiding malady of violent misogyny idealisms and other subjects of hatred in India; the questions about existence as an individual in the society; the words that are being publicly used for undermining each other just for ones profit. Because we keep repeating mistakes, YOU for I and I for YOU, the stories are all the same now. Hatred has reached to a level that it had to reconcile with the constitutional right under Article 19(1) (a)[1]. The thoughts expressed orally or in writing have been subjected to restrictions.

The appalling state of affairs are that Hate Speech has not been defined in any of the laws of the country, only prohibitions for using certain forms of speeches and expressions are stated. In the 267th Report of the Law Commission of India, hate speech is stated as "an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.

In other words, it means that hate speech is "any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence." And the Blacks Law Dictionary identifies hate speech as the speech that carries no meaning other than expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.

In a civil society like ours, man is regarded as a doer of rational things but when it comes to his expressions, he has to be controlled, modulated, monitored and balanced with the expression and thoughts of another man who inculcates the similar desires. With the baggage of a population of diverse caste, creed, religion the importance of delivering a responsible speech becomes a mandate for backing the principles of liberty and democracy enshrined in the Constitution.

One of the greatest challenges is not to exercise the principle of autonomy and free speech principle that are detrimental to any section of society. Free speech is necessary to promote a plurality of opinions where hate speech becomes an exception to Article 19(1) (a).

Thus, even if a speech that is vehement, caustic, and sometimes unpleasantly sharp[3] is protected from State intervention. It acts as palisade against the States power to regulate speech. The value accorded to the expression is greater in the lists of the rights that become the reason of the reluctance of the lawmakers and judiciary in creating exceptions to it that might curtail the spirit of this freedom provided. Perhaps, this could be one of the important reasons behind the reluctance in defining hate speech.[4] Whether the provisions as prescribed in the Constitution allow them to do so?

Legal Aspect
Apart from the Constitution, there are various other legislation and self-regulatory mechanisms under which hate speech is negated, like:
1. The Indian Penal Code, 1860: Section 124A; Section 153A[5]; Section 153B[6]; Section 153 C[7]; Section 295A[8]; Section 298[9]; Section 505(1) and (2)[10].
2. The Representation of the People Act, 1951: Section 8[11] ; Section 324; Section 123(3); 123(3A) and Section 125[12].
3. The Protection of Civil Rights Act, 1955: Section 7[13]
4. The Religious Institutions (Prevention of Misuse) Act, 1988: Section 3(g)[14]
5. The Cable Television Network Regulation Act, 1995: Sections 5 and 6 of the Act prohibits transmission or retransmission of a program through cable network in contravention to the prescribed program code or advertisement code. These codes have been defined in rule 6 and 7 respectively of the Cable Television Network Rules, 1994.
6. The Cinematograph Act, 1952: Sections 4, 5B and 7 empower the Board of Film Certification to prohibit and regulate the screening of a film.
7. The Code of Criminal Procedure, 1973: Section 95[15]; Section 107[16]; Section 144.[17]

The above-mentioned laws may not directly deal with the issues of hate speech but the Constitution has been interpreted elaborately by the Supreme Court to confine these provisions under the reasonable restrictions of Article 19(2). Hence, the notion of hate speech has been made wider in our country to maintain peace and public order. Despite such enumerate provisions in our laws, contradictory questions have been raised about them, first, it is inadequate and second, it restricts the freedom to express. This perplexing confutation is depicted by two different cases of the Honble Supreme Court-

1. Pravasi Bhalai Sangathan v. Union of India: [18]Where the petitioners found the existing laws related to hate speech inadequate and prayed that the State should enact stricter regulation and take peremptory action against people promoting hate speech. But the Court observed that the implementation of existing laws would solve the problem of hate speech to a great extent. The matter of hate speech deserved deeper consideration by the Law Commission of India. Therefore, the Commission after taking into view the laws and various pronouncements on hate speech had submitted its Report No.267 before the Government of India in March 2017 for consideration.

2. Subramaniam Swamy v. Union of India:[19] In this case arguments were raised on the reasonableness of the restrictions imposed by Sections 499-500 IPC on free speech in light of settled law that restrictions should be narrowly tailored and should not be excessive, arbitrary or disproportionate. Subramanian Swamy argued that half a dozen sections of the Indian Penal Code, 1860 should be declared unconstitutional for violating Article 19(1) (a).

Therefore, it can be observed that there are mixed feelings regarding the concept of hate speech in our country where because of no concrete platform about it makes its implementation ineffective. The doers escape challenging the laws to be restrictive in nature while some who are the victims of this hatred, demands for stricter provisions for their safety and prosperity.

There are many judicial interpretations on this subject, like-
1. Shreya Singhal v. Union of India:[20] Issues were raised about Section 66A of the Information Technology Act, 2000 relating to the fundamental right of free speech and expression guaranteed by Article 19(1) (a) of the Constitution, where the Court differentiated between discussion, advocacy, and incitement and held that the first two were the essence of Article 19(1).

2. Arup Bhuyan vs State of Assam:[21] The Court held that a mere act cannot be punished unless an individual resorted to violence or inciting any other person to violence.

3. S. Rangarajan Etc vs P. Jagjivan Ram:[22] In this case, the Court held that freedom of expression cannot be suppressed unless the situation so created are dangerous to the community/ public interest wherein this danger should not be remote, conjectural or far-fetched. There should be a proximate and direct nexus with the expression so used.

The Judicial decisions depict that India follows a speech protective regime, meaning the words that are used by the people to express themselves are critically heard and then reacted on them if the words go against public morality. Although the Courts are extremely cautious about putting restrictions on Article 19 because of the sole reason for it to be misused by the State negatively. Despite numerous precedents on this subject, it remains a challenging task to identify a a particular type of words or expressions that may have the capability to wake violence in the country.

Recent Cases
There have been many instances of hate speech not only in India but worldwide where Facebook, the social media giant, in its Transparency Report disclosed alarming statistics wherein it ended up taking down 3 million hateful posts from its platform[23], YouTube, which allows free sharing of video content on its site, removed 25,000 videos in a single month alone.[24]

In 2017, #notinmyname or Not In My Name a campaign was launched on social media where prominent public figures supported the response to several incidents of mob-lynching, violence based on religion. In 2018, the Supreme Court sought a response from the Uttar Pradesh government about the hate speech case against Yogi Adityanath in 2007 where he gave a speech at the time of BJP parliamentarian from Gorakhpur that caused riots.

Again in 2018, When JNU student leader Umar Khalid was attacked the former Jammu and Kashmir Chief Minister Omar Abdullah condemned the attack as a hate campaign using social and mainstream media. In 2018, the police in Tamil Nadu arrested a folk singer for singing a song at a protest meeting that criticized Prime Minister Narendra Modi.

In 2019, the Supreme Court gave the Election Commission of India (ECI) exactly 24 hours to explain its lawyers submissions that the poll body is largely powerless and toothless to act against religious and hate speeches by candidates during the on-going Lok Sabha election campaigning.[25] The government (MeitY) has drafted The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 where it explicitly states about the diligences that the intermediaries shall have to observe while discharging their duties. Likewise, there have been several incidents of hate speech where some have received justice while others still hang in the mid-way.

Way Forward
As victims of hate speech they fear and are indeed nervous to enter public spaces or participate in the discourse. This brings a change in their behavior, such intangible effects of hate speech on people are the most insidious and damaging to their right to live with dignity.

Therefore, steps should be taken to tackle such problems that could be-
1. The most efficient way to dilute hatred is by the means of Education. Our education system has a prominent role to play in promoting and understanding compassion with others.
2. Awareness programs and initiatives about maintaining cordial relationship must be taken by not only the government but also by private people.
3. Although there are many laws regarding hate speeches but stricter penalizing is required as religious sentiments and beliefs are a precious thing for an individual.
4. Fight against hate speech cannot be isolated. It should be discussed on a wider platform such as the United Nations. Every responsible government, regional bodies, and other international and regional actors should respond to this threat.[26]
5. Cases of hate speech can be addressed through Alternative dispute resolution as 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/or conciliation.

For a country like India with a massive population of diverse backgrounds and culture, subjects like Hate Speech become a complex issue to deal with as it is difficult to differentiate between free and hate speech. Several factors are to be considered while restraining speeches like the number of strong opinions, offensive to certain communities, the effect on the values of dignity, liberty, and equality. Certainly, there are laws for such atrocities but a major part of work is still left. For a prosperous India, we all have to work together and communicate efficiently to make our country a healthy place to live in.

Communication is a foundational human right – we use it to advocate for other human rights. - Dixie Hawtin, Global Partners and Associates, UK.

End-Notes
[1]All citizens shall have the right to freedom of speech and expression.
[2]Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such 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 State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.
[3]New York Times v. Sullivan, 376, 254 (U.S: 1964).
[4] Report of Law Commission of India 2017. http://lawcommissionofindia.nic.in/reports/Report267.pdf.
[5] Penalises promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
[6] Penalises imputations, assertions prejudicial to national-integration.
[7] Prohibiting incitement to hatred: imprisonment for a term which may extend to two years, and fine up to ₹5000, or with both.
[8] Penalises deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
[9] Penalises uttering, words, etc., with deliberate intent to wound the religious feelings of any person.
[10] Penalises publication or circulation of any statement, rumor or report causing public mischief and enmity, hatred or ill-will between classes.
[11] Disqualifies a person from contesting the election if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression.
[12] prohibits promotion of enmity on grounds of religion, race, caste, community or language in connection with election as a corrupt electoral practice and prohibits it.
[13] Penalises incitement to, and encouragement of untouchability through words, either spoken or written, or by signs or by visible representations or otherwise.
[14] 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 disharmony, feelings of enmity, hatred, ill-will between different religious, racial, language or regional groups or castes or communities.
[15] Empowers the State Government, to forfeit publications that are punishable under sections 124A, 153A, 153B, 292, 293 or 295A of the IPC.
[16] Empowers the Executive Magistrate to prevent a person from committing a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably cause breach of the peace or disturb the public tranquillity.
[17]Empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf to issue an order in urgent cases of nuisance or apprehended danger.
[18] AIR 2014 SC 1591.
[19] W.P. (Crl) 184 of 2014.
[20]W.P. (CRL.) NO.167 OF 2012.
[21] CRL. APPEAL NO(s). 889 OF 2007
[22] 1989 SCR (2) 204, 1989 SCC (2) 574.
[23]Facebook, Community Standards Enforcement Report (November 2018) available at: https://transparency.facebook.com/community-standards-enforcement#hate-speech.
[24] Geoffrey A. Fowler, Drew Harwell ET. Al, 2018 was the year of online hate. Meet the people whose lives it changed, The Washington Post, Dec. 28, 2018.
[25] The Hindu. Available at https://www.thehindu.com/news/national/sc-to-test-eci-claim-of-toothlessness-against-hate-speech/article26841877.ece.
[26] 7Jakarta Recommendations on Freedom of Expression in the Context of Religion (June 17, 2015) available at: https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2015/06/JakartaRecommendations-FINAL.pdf.

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