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Analysis on Hate Speech

Hate speech was born in the early 1990's through a strange civil union of left and right in America. Tipper gore and Lynne Cheney, in an attempt to outlaw the right to Free Speech of dissenters, began advocating government Censorship of anything that they found offensive. They had common outlaw the other's political ideology. In this patriotic ay, Hate speech was born.[i]

Hate speech was defined as anything that was funny, and the crackdown began right way. Among the first things to go were blond jokes and jokes about gender, sexually oriented, or ethnic groups. In everyday speech, the term "hate speech" is used to refer broadly to objectionable rhetoric that attacks a group or a person based on inherent characteristics, such as race, religion, or gender, endangering societal harmony. There is no unified definition of hate speech under international human rights law since the issue is still hotly contested, particularly in light of how it relates to freedom of speech, non-discrimination, and equality.

Hate speech, in accordance with the UN Strategy and Plan of Action, is " any form of communication, whether it is spoken, written, or behavioural, that disparages or utilises obscene terms or racist language in relation to a person or a group in light of who they are, which is, usually based on their sexuality, race, complexion, genealogy, nationality, faith, or any other aspect of their identity. " with the aim of providing a unified framework for the UN system to address the issue globally.

Three Crucial Characteristics Of Hate Speech:
  1. Hate speech can be distributed offline or online and can be expressed through any form of expression, including pictures, cartoons, memes, items, gestures, and symbols.
  2. Hate speech is described as "discriminatory" biased, bigoted, or intolerable or "pejorative" prejudiced, scornful, or demeaning of a person or group.
  3. Hate speech refers to "identity factors" of an individual or a group that are actual, alleged, or imputed, including "religion, ethnicity, nationality, race, colour, descent, gender," as well as any other characteristics that convey identity, including language, economic or social origin, disability, health status, or sexual orientation, among many others.[1]

Free Speech And Hate Speech Dilemma

Freedom of speech is a principle that supports the freedom of an individual or a society to express their beliefs openly without worrying about reprisals, censure, or the law. The Universal Declaration of Human Rights and international human rights legislation both acknowledge the right to freedom of expression as a fundamental human right. Many nations have constitutional laws that safeguard free expression [2].It is foundational and essential for other freedoms and rights.

Without it we have neither freedom of press, nor any rights to open political debate, nor freedom of manifest religious beliefs, nor freedom of expression in art and music, etc. While advocating freedom of speech, one must recognize the need of limitation. Absolute freedom is anarchy; absolute freedom of speech can have undesirable consequences.

Freedoms and rights need to be defined and operate within a particular framework, which is related to both ethical and legal systems.

Each person's right to self-development and satisfaction includes the freedom of expression as a fundamental component and can be regarded as leading to the development of more reflective and mature individuals and so benefiting society as a whole. So hate speech can be considered as a reasonable restriction on freedom of speech and expression.

International Perspective Of Hate Speech

The idea of hate speech is still hotly contested under international human rights law, especially in light of how it relates to equality, non-discrimination, and freedom of speech. As a result, Under these prohibitions, there is no interpretation of hate speech.[3]

Goals of the UN Strategy and Plan of Action On Hate Speech is to offer a coherent framework for the UN system to tackle the problem internationally. Hate speech is defined as any speech, writing, or behaviour that criticises or uses pejorative terminology to refer to a person or group of people based on who they are, such as based on their faith, origins, country, ethnicity, colour, birth, gender, or other identity characteristic ."[4]

International law, and specifically the right to freedom of expression, imposes constraints on what may be banned as hate speech. Three key aspects of hate speech- namely intent, incitement and what results are prohibited. International human rights law has set standards by which states are supposed to adhere to strong directives against hate speech in their respective jurisdictions.

Even though the essential right to free speech is a fundamental right, it also has certain reasonable restrictions that go with it. In accordance with Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR).

In order to respect the rights of others, the freedom of expression may be limited and when doing so will advance public morals, health, or order. Article 20(2) of the ICCPR further specifies that Any encouragement to prejudice, hostility, or violence that is motivated by national, racial, or religious hatred should be outlawed by law. Similar obligations and limitations are set forth in Article 10(2) of the European Convention on Human Rights while exercising one's basic right to free expression.

Indian Perspective Of Hate Speech

The right to freedom of speech and expression is guaranteed by Article 19(1)(a) of the Indian Constitution. Notwithstanding, the constitution's Article 19(2) enables fair limits on free expression. when those limitations are necessary to protect India's sovereignty, integrity, security, cordial relations with other countries, maintenance of public order, morality, or in instances involving court disrespect, defamation, or solicitation to commit an offence.

The diversity of religions, ethnicities, cultures etc in India makes it essential to ensure that religious, racial and ethnic tolerance prevails. The significance of this can be seen in various sections of IPC, which prohibit and punish hate crimes. Some of the important sections of IPC, which are attracted in response to hate speech, such as S. 153A, S. 153B, S. 295A AND S. 505(2)

The laws listed below, in addition to the Indian Penal Code, contained provisions addressing hate speech:
Under the 1951 Representation of the People Act, a person who has been found guilty of violating their right to free speech and expression is unable to run for office.

It is forbidden to advocate for untouchability by words (spoken or written), signs, or other outward expressions under the Protection of Civil Rights Act of 1955.

The Religious Institutions (Prevention of Misuse) Act of 1988 forbids stirring up animosity or other hostile attitudes between various religious, racial, linguistic, or groups, classes, or tribes.
The Cinematograph Act of 1952 and the Cable Television Network Regulation Act of 1995 both address the prevention and regulation of the online transfer of any data meant to incite hatred.

These laws have often been misused to victimise artists, journalists, and activists by communal forces, on the pretext of causing communal disharmony.

Even in the Indian setting, decisions against hate speech have been made. For instance, the Supreme Court discussed the effects of hate speech on society as a whole in Babu Rao Patel v. State of Delhi (1980). Pravasi Bhalai Sangathan v. Union of India is another recent Supreme Court decision (2014). These are instances where the Supreme Court has not applied Article 19(1 )(a) to hate speech.

In contrast to the position in the United States, where hate speech is partially protected by the First Amendment, there is no basic right to hate speech in India unless there is some form of incitement or the potential to inspire or generate impending unlawful conduct.

Recent decisions on hate speech by the Indian Supreme Court include Tehseen S. Poonawalla against the Union of India (2018), Kodungallur Film Society versus the Union of India (2018), and Amish Devgan versus the Union of India (2018). (2020). Between hate speech and hate crimes, the Amish Devgan decision makes a clear line. It is doctrinally outstanding and jurisprudentially sound. In a nutshell, hate speech is hazardous to democracy, pluralism, and a society built on constitutional principles, especially when it violates principles like equality, dignity, fraternity, and liberty that are found in the Preamble of the Constitution.[5]

The power of word is limitless, no one can imagine how far it can harm the humanity or human being. It goes too far and disrupts the security or stability of the community by inciting members of the of the public to harmful action or deceiving them on an important public matter. An offensive speech has the power to cause the religious riots, communal riots or massacre.

Fair use of free speech is concept which depends on the context it is said. At different points in time, they serve various purposes. Sometimes a speech is just a speech other times it become hate speech. Context is without a doubt of utmost importance in determining whether certain comments are likely to provoke hostility.

As many incidents of hate speech connect to contextual elements, which may have an impact on both intent and causation. The There are additional obligations and responsibilities associated with exercising the right to free expression. These special duties and responsibilities are of particular relevance within a social system.

A speech depends on contextual factor, a speech may have different result in different context. A speech given in sensitive time may affect the public tranquility because in that time it may incite people, it may cause riots in the state. But the speech may not cause any harm in a normal situation. Hence the speech depends upon context in which it is to be said. Moreover, a point is to b taken into consideration is the intention of the speaker.

A speech here does not mean free from ideology there must be an ideology behind a speech; ideology must be one which is accepted generally. Mere ideology cannot be punished, if something is done in respect of that ideology that should be punished. Again the bad or evil ideology must be discouraged by the society because it is against the moral fabric of society.

The government has right to regulate hate speech in certain restricted venue. All highly offensive speech, including hate speech , should be controlled in a society. If there is threat of harm to society from hate speech government must regulate it without going in the discussion of intensity and the gravity of harm.

A HATE SPEECH is an expression which is offensive, insulting, frightening or disturbing and which promotes violence, hatred and discrimination against a sect, caste, racial group, community, nationality, ethnicity or gender.

The Identification Criterion Of Hate Speech Is, If It:
  1. Is meant to disparage or stigmatise a person or a small group of people because of their gender, ethnicity, colour, disability, religion, sexual orientation, or country of national or ethnic origin.; and
  2. Is addressed directly to the individual or individuals whom it insults or stigmatizes; and
  3. Uses derogatory or combative language or nonverbal cues.

But the problem of the hate speech is that its contents are not certain. The concepts of hate speech is keep changing. Again we have to consider that the concept of hate speech is based on hatred emotion against a particular group or community.

The ill will behind the expression is the key to determine the concept of hate speech. So racial hatred, religious hatred, regional hatred, cast hatred and incitement of the other forms of hatred is the base to determine the concept of hate speech.

  1. ibid
  3. Ibid,1
  4. Ibid,1

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