All you need to know about Hate Speech

    Pravasi Bhalai Sangathan v. Union of India & Others[1], in this case, the issue related to “Hate Speech” was raised for the first time. It is said that the term ‘hate speech’ should be properly defined. Proper action must be taken to curb the issues related to hate speech.

    Introduction

    The Supreme Court clearly stated that courts can make law only when there is a vacuum in law that means the law is completely absent. Cases where the executive doesn’t function properly, then also the court can discharge its constitutional functions. If it is felt that a vacuum is present in place of a legal regime then in that case courts fill the vacuum by issuing guidelines till proper legislation is passed related to it.

    As a result, amendments were made in the IPC, 1860 and CrPC. Sections 153B of IPC ‘Prohibiting incitement to hatred’ and 505 ‘causing fear, alarm or provocation of violation in certain cases’ in IPC were inserted.

    Background

    Rights are the keystone of an individual. These rights put limitations on the powers of the state or central government authorities otherwise they would exploit common people by misusing their power.[2] Article 19 which is mentioned in the Universal Declaration of Human Rights provides autonomy to an individual to express his desires and live his life freely.[3]

    The Constituent Assembly gave utmost importance to the ‘freedom of speech and expression’ because new democracy gets this right after facing many challenges. Therefore, discussions regarding the limiting of power are whether proviso under this right should include speech which supports hatred.[4]

    Initially suggested proviso was –

    1. a) “the right of every citizen to freedom of speech and expression:

    Provision may be made by law to make the publication or utterance of seditious, obscene, blasphemous, slanderous, libellous or defamatory matter actionable or punishable …

    Provision may be made by law to impose such reasonable restrictions as may be necessary in the public interest including the protection of minority groups and tribes.”

    But this proviso faced opposition because some said that it did not provide absolute nature of fundamental rights. Dr. Ambedkar said that we can not say that America’s Fundamental Rights are absolute. The only difference between our and their FRs is of the form not of substance. He said that we can refer to the American SC case behind every exception mentioned in the rights. An example was taken off the case of Gitlow Vs. New York where the court said that “It is a fundamental principle, long-established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”

    Under plural democracy definition of public interest varies according to the individual or authority. For the betterment or growth of the society oppositions and disagreements are necessary but it should be in a limit.

    The Constitution makes some provisions which ensure that liberty is not an absolute right, it is subjected to some of the restrictions. Like clauses 2 to 6 of Article 19 authorises the state to impose restrictions on the freedom given under this article.[5]

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    Legal Provisions Of Hate Speech In India

    The main motive behind providing liberty under Article 21 is to ensure responsible speech. The main problem which this free speech principal faces is that while exercising this principle no one rights should be a detriment because India is a country in which people of different caste, creed and religion live together. Article 19 is also subjected to some of the restrictions on account of security of the state, sovereignty of India, etc. In India, specifically, no provision is mentioned related to hate speech but under some of the legislations, some type of speech is forbidden.

    Legislation around Hate speech

    In the present time following are the legislation related to hate speech:

    The Indian Penal Code, 1860 [ sec 124A penalises sedition].

    • Sec 153A IPC carried out acts which were detrimental to the preservation of harmony and punished those people or groups which created enmity on the basis of colour, caste, place of birth etc.
    • Section 153B IPC penalises ‘imputations, assertions prejudicial to national-integration’.
    • Section 295A IPC punishes’ intentional and abusive actions aimed at outraging every class’s religious feelings by insulting their faith or religious convictions.’
    • Section 298 of IPC is used to punish uttering words, etc., with an intent to damage another person’s religious feelings.
    • Under Sections 505(1) & (2) of IPC if any mischief, enmity and public ill-will caused due to publication or circulation of any report, rumour and statement he/she would be penalized under this section.

    The Representation of the People Act, 1951

    • Under Section 8, a person is disqualified from contesting election if he/she is found indulging in misuse of power related to freedom of speech and expression.
    • Section 123(3A) and section 125 forbid enmity which fosters on grounds of race, religion, caste, language and community in connection with the fraudulent electoral practice and to restrict it.

    The Protection of Civil Rights Act, 1955

    • Section 7 penalized any form of inducement of untouchability either it is verbal or written or it can be any form of gesture.

    The Religious Institutions (Prevention of Misuse) Act, 1988

    • Section 3(g) forbids the use of any premises belonging to or under the supervision of an organization by a religious institution or its management for the purpose of promoting or seeking to promote disharmony, feelings of enmity, hostility, ill-will between various faiths, races, languages or groups or castes or peoples.

    The Cable Television Network Regulation Act, 1995

    •  Under Sections 5 and 6 of the Act transmission or re-transmission of a programme through the cable network is forbidden if it violates the prescribed programme code or advertisement code. These two are defined under the rules 6 and 7, respectively, of the Cable Television Network Rules, 1994.

    The Cinematograph Act, 1952

    • The Board of Film Certification is authorized by Sections 4, 5B and 7 to restrict and control film screening.

    The Code of Criminal Procedure, 1973

    • The State Government is allowed by Section 95 to forfeit publications punishable under IPC Sections 124A, 153A, 153B, 292, 293 or 295A.’
    • Section 107 allows the Executive Magistrate to prohibit a citizen from committing a breach of the peace or disrupting public tranquillity or doing any unlawful act that is likely to trigger a breach of peace or threaten public tranquillity.
    • Section 144 authorizes the District Magistrate, the Sub-Divisional Magistrate or any other Executive Magistrate expressly allowed to issue directions on behalf of the State Government in immediate cases of annoyance or risk apprehension. The crimes above are cognizable. Therefore, they have a significant effect on citizens’ freedoms and allow a police officer to be detained without a magistrate’s order and without a warrant, as defined in section 155 of the CrPC.

    Examination Of The Issues By The Commission

    In India, hate speech always remains a debatable issue. The questions related to hate speech always remain in question before the legislature and the court.

    In Pravasi Bhalai Sangathan v. Union of India[6] case, a petition was filed before the SC that appropriate action should be taken against the maker of the hate speech. But the court did not go beyond the purview of the existing laws because that would be ‘judicial overreach’ and the court said that implementation of the existing laws would solve the problem to a great extent. After this matter was presented before the Law Commission of India to investigate whether it is necessary to define hate speech or is it right to make recommendations before the Parliament to boost the Election Commission to curb the danger of ‘hate speeches’ once they are made.

    In Jafar Imam Naqvi v. Election Commission of India[7] in this case, petitioner filed a writ petition before the SC to challenge the hate speech which was made by a candidate in the election and made request issue writ of mandamus to the Election Commission of India to take appropriate action the person who made such speech.

    But his petition was dismissed on the ground that petitions regarding hate speech during the election do not come under public interest and courts do not litigate on the matters of legislative intent.

    Cases In Which Hate Speech Is Analysed In India

    In India hate speech could be curtailed under Art. 19(2) on the following grounds like the security of the state, public order, incitement of offence, etc.

    Brij Bhushan v. State of Delhi[8] – In this case, the court said that public order and public safety go hand in hand and public safety is considered as the safety of the state. In the First Amendment, this proposition was validated by adding public order to the ground of restriction under Art19(2).[9]

    Ram Manohar Lohiya v. State of Bihar[10] – In this case court put the Law and Order, Public Order, and Security of the state in three different circles, where law and order represent the outer circle, next circle represent the public order and innermost circle represent the security of the state. Then it shows that acts which affect the law and order do not affect the public order. Similarly, acts which affect the public order do not affect the security of the state. Art 19(1) (a) can be restricted solely on the ground of the security of the state and under Art 19(2) reasonable restrictions can be imposed on the ground of proximate and direct relation between the public order and restrictions.[11]

    Ramji Lal Modi v. State of UP[12] – In this case, the court justified the constitutional validity of the Sec 295A of IPC by stating that every act of an individual or a group can not be punished on the ground that it insults or tries to insult the religious belief of an individual or group. It punishes only those acts which deliberately or maliciously insult or try to insult the religious belief of an individual or group or class of the society. Court also said that the term ‘interest of public order’ mentioned in Art 19 (2) is much wider, therefore, restrictions can be imposed solely on the ground ‘in the interest of public order’ even if a breach of public order is not taking place.

    Shreya Singhal v. Union of India[13] – In this case, the court declared Sec 66 of the Information Technology Act invalid by saying that it does not demonstrate a proximate relationship between the restriction and the act. It was opined 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 tranquillity.”

    Arup Bhuyan v. State of Assam[14] In this case, the court said that an individual can not be punished solely on the ground that he is a member of a banned organization. He can be punished when he uses violence or encourages people to use violence or creates public disorder.

    State of Maharashtra v. Sangharaj Damodar Rupawate – In this case, the court said that the effect of the offending words must be judged on the basis of reasonable men perspective, not of a weak person mind.[15]

    Impact Of Hate Speech On Freedom Of Expression 

    Freedom of speech and expression is the keystone of a democratic state. Primarily the concept of liberty is influenced by individual autonomy.[16]The liberal philosophy of free speech sees speech as an inherent part of an independent citizen, so any limitation on the exercising of that right is therefore subject to judicial review. In a democracy, the purpose of free expression is to encourage the diversity of opinions. J.S Mill stressed on the word ‘expression’ in his work ‘On Liberty’ – If all mankind minus one, were of one opinion, and only one person was 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.[17]

    The principle of free speech in India is guided by the presence of a diversity of opinion. That’s why sometimes speech which is unpleasantly sharp is protected from the state interference.[18]

    Hate speech is a manifestation of a speech in a way which tends to create anguish or infuriate people on the ground of their connection with the specific cartel or instigate hatred in them. There is no specific statutory definition of hate speech, possibly because of the fear that it can contribute to the infringement of this right to freedom of speech.

    Jeremy Waldron a philosopher argues that offensive speech is not the sole reason for the reasonable restriction, it can be restricted on the basis of class of injury and these injuries are more than hurt sentiments but less than physical injury. Wherever speech does harm to the dignity of an individual in that case it will do more harm than simple hurt. It would sabotage the ‘clear assurance’ that minority groups are placed on the same pedestal as the majority groups.[19] But it doesn’t mean that right to speech is curtailed it would be there but it can curtail if speech invalidates rights of the minority groups.

    Conclusion – 

    Free speech has long been known as the essence of all democracy. In every democracy freedom of speech acts as a defence wall against the state power to curb speech rights. The liberal doctrine was the measure against the undemocratic control of the state. ‘Freedom of expression’ was the keystone of all freedoms that was mentioned in the Bill of Human Rights. In the system of rights, the greater importance granted to speech explains the inability of law-makers and the judiciary to establish exceptions that may limit the essence of this equality. This is perhaps the reason behind the inability to identify the definition of hate speech.

    References

    [1] AIR 2014 SC 1591.

    [2] J.S. Mill, On Liberty and Utilitarianism 4 (Bantam Classic, New York, 2008). 

    [3] U.N.G.A. Res. 217 A (III), 1948.

    [4] Constituent Assembly Debates (Nov. 4, 1948) 1459. 

    [5] S. Sivakumar, Press Law and Journalists 11 (Universal Law Publishing Co., Gurgaon, 2015).

    [6] AIR 2014 SC 1591 

    [7] AIR 2014 SC 2537.  

    [8] AIR 1950 SC 129. 

    [9] The Constitution (First Amendment) Act, 1951. 

    [10] AIR 1966 SC 740. 

    [11] O. K. Ghosh v. E. X. Joseph, AIR 1963 SC 812; and Supdt. Central Prison v. Dr. Ram Manohar Lohia, AIR 1960 SC 633. 

    [12] AIR 1957 SC 620. 

    [13] AIR 2015 SC 1523. 

    [14] (2011) 3 SCC 377. 

    [15] (2010) 7 SCC 398. 

    [16] Handyside v. United Kingdom, Application no. 5493/72(1976).

    [17] J.S. Mill, supra note 1.

    [18] New York Times v. Sullivan, 376 U.S. 254 (1964). 

    [19] Jeremy Waldron, The Harm in Hate Speech 87-88 (Harvard University Press, Cambridge, 2012).  


    BY DEEPIKA DHAWANIYA | NATIONAL LAW UNIVERSITY, JODHPUR

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