M: 134

Introduction

Rights are the cornerstone of individual autonomy. They are guaranteed as limits on the power of State[1]. In democratic societies they have been granted to protect an individual from undue State interference. Freedom of expression has been enshrined in article 19 of the Universal Declaration on Human Rights[2]. It is considered to be one of the most significant rights as it allows a person to attain self fulfilment and strengthen the capacity to fully enjoy freedom[3].

The essence of personal liberty as granted by the Constitution under Article 21 is responsible speech. One of the major hindrances against the principle of free speech and autonomy is to ensure that the exercise of this liberty is not to the detriment of any person or any section of the society. In a diverse country like India, this poses a great problem. Article 19(2) of the Constitution guarantees freedom of speech and expression to all citizens of India which is subjected to certain restrictions, namely, 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 offence[4].

Speech v Hate Speech

There is no universal definition of ‘Hate Speech’, however, Black’s 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”[5]. Therefore, it can be said that hate speech is “speech that is, broadly speaking, derogatory towards someone else”[6]. Race, religion, ethnicity or class are some of the common grounds falling under the domain of hate speech across countries. India with its rich diversity of caste, race, language, religion, beliefs and culture presents a unique case for regulation of hate speech. Basically, any word, spoken or written; any sign; any visual representation can qualify as ‘speech’. If such speech insults the ethnic, cultural, religious or racial groups by offending and creating ‘hatred’ among the people, we can categorise the same as ‘hate speech’. 

Legal Provisions in India and Examination of the Issue of Hate Speech

Coming to the Indian context, “Hate speech has not been defined in any law in India. However, legal provisions in certain legislations prohibit select forms of speech as an exception to freedom of speech. Legislations Around Hate speech: Presently, in our country the following legislations have bearing on hate speech, namely: –

(i) The Indian Penal Code, 1860 (hereinafter IPC)

  • Section 124A IPC penalises sedition
  •  Section 153A IPC 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’.
  •  Section 153B IPC penalises ‘imputations, assertions prejudicial to national-integration’.
  •  Section 295A IPC penalises ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’.
  •  Section 298 IPC penalises ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’.
  •  Section 505(1) and (2) IPC penalises publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes.

(ii)  The Representation of The People Act, 1951

  • Section 8 disqualifies a person from contesting election if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression.
  • Section 123(3A) and section 125 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.

(iii) The Protection of Civil Rights Act, 1955

  • Section 7 penalises incitement to, and encouragement of untouchability through words, either spoken or written, or by signs or by visible representations or otherwise

(iv) The Religious Institutions (Prevention of Misuse) Act, 1988

  •  Section 3(g) 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.

(v)  The Cable Television Network Regulation Act, 1995

  • Sections 5 and 6 of the Act prohibits transmission or retransmission of a programme through cable network in contravention to the prescribed programme code or advertisement code. These codes have been defined in rule 6 and 7 respectively of the Cable Television Network Rules, 1994.

(vi) the Cinematograph Act, 1952

  • Sections 4, 5B and 7 empower the Board of Film Certification to prohibit and regulate the screening of a film.

(vii) the Code of Criminal Procedure, 1973

  •  Section 95 empowers the State Government, to forfeit publications that are punishable under sections 124A, 153A, 153B, 292, 293 or 295A IPC.
  • Section 107 empowers the Executive Magistrate to prevent a person from committing a breach of the peace or disturb the public 8 tranquillity or to do any wrongful act that may probably cause breach of the peace or disturb the public tranquillity.
  • Section 144 empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf to issue order in urgent cases of nuisance or apprehended danger. The above offences are cognizable. Thus, have serious repercussions on liberties of citizens and empower a police officer to arrest without orders from a magistrate and without a warrant as in section 155 CrPC.’[7]

For the sake of brevity, this paper is only going to be confined to the provisions of IPC.

As mentioned earlier, IPC does not explicitly define the term ‘Hate Speech’, however, there are certain provisions such as Sections 153A, 153B, 295A, 298 and 505(2) which can be said to criminalize hate speech. While Section 298 and Section 505 were part of original penal code introduced by Macaulay, the other provisions were introduced subsequently and have also been amended a number of times[8]. Section 153A and 295A are the provisions that arouse most debate with respect to hate speech in India today[9]. It is around these provisions pertaining to the promotion of enmity between religions and hurting religious sensibilities that most of the case law has developed[10]. Now, it has been said that India’s hate speech provisions are a manifestation of its commitment to freedom of speech and expression and also the need to protect the religious feelings of the Indian citizens, which position has been adopted because of history of communal conflict[11].

These provisions were enacted initially for the purpose of regulating speech which might lead to conflict between Indians and the British[12]. But these provisions now are mostly used to prevent enmity and conflict between differentreligions[13].

Siddharth Narain in his detailed analysis of the of the origins of hate speech laws in India observes that these provisions can be traced back to the ‘English common law principle of seditious and blasphemous libel[14]‘. These provisions, Narrain argues were introduced into Indian law in order to address the ‘peculiar religious sentiments and vulnerability to insult and offence’ of the Indian population[15]. Infact, it is pertinent to note that there exists an entire Chapter XV in IPC that deals with ‘Offences relating to Religion’. The drafting of the hate speech provisions were influenced by Macaulay’s opposition to ‘religious fanaticism’ in England[16]. The provisions are reflective of his belief that the right to discuss religion should not be at the expense of causing ‘pain, disgust or outrage’[17].

There were criticisms levelled at the provisions even at the time of introduction of the IPC. Narrain cites the example of Sir Lawrence Peele, the then Chief Justice of the Supreme Court who believed that a provision like Section 298 should not have been incorporated into the IPC [18]. Though he supported the inclusion of Chapter XV, he was the opinion that mere ‘wounding of religious feelings’ shouldn’t be proscribed under the law unless it led to public disorder[19]. Other fears were expressed that such a provision might lead to the criminalization of religious debate[20]. Apprehensions were voiced that even if these laws were administered responsibly by the English magistrates, they might subsequently be interpreted in an abusive manner by possible future Indian Government[21]. These provisions were incorporated into the IPC despite the opposition.

Now, the freedom of speech should extend to accommodating all diverse view-points even when they unpalatable or question commonly held beliefs[22]. Hate speech laws that aim to prevent harm due to effects of such speech shouldn’t be used to protect religions or belief systems irrespective of how popular these beliefs are[23]. The right to free speech also enables the exercise of other freedoms and rights, from demanding crucial socio-economic rights to the freedom of artistic expression, these rights have to be taken into consideration while limiting its ability to cause harm[24].

Hate Speech provisions under the IPC have been criticized for restricting more speech than is necessary to prevent the harms that are attributable to the use of such speech[25]. The right to free speech should not extend to situations when it is used to the detriment of vulnerable groups and minorities, but laws criminalizing speech in India have enabled the suppression of even legitimate speech or criticism when claims are made that it offends groups that find it disagreeable[26].

Tracing Grounds of Speech Censorship

One of the manners to curtail Hate Speech is on the grounds of public order, incitement to an offence and security of the State under Article 19(2). The Supreme Court in Brij Bhushan v. State of Delhi[27] opined that public order was allied to the public safety and considered equivalent to security of the State. This interpretation was validated by the First Constitution Amendment, when public order was inserted as a ground of restriction under 19(2)[28]. However, in Ram Manohar Lohiya v. State of Bihar[29], Supreme Court distinguished law and order, public order and security of State from each other. Observing that: One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. The standard applied for restricting article 19(1)(a) is the highest when imposed in the interest of security of the State. Also, a reasonable restriction under article 19(2) implies that the relation between restriction and public order has to be proximate and direct as opposed to a remote or fanciful connection[30].

It was said that, ‘Intended to protect minorities and the powerless, these laws are often used at the behest of powerful individuals or groups, who claim that they have been offended, to silence speech they do not like. The State too often pursues such complaints, therby leaving members of minority groups, writers, artists and scholars facing threats of violence and legal action.[31]

From a tool of protection from hatred and violence, it has become a tool to gag the speech of the people who make their dissent known in public; their speech is countered by using the provision of it being against public order.This results in censorship of various kinds such as censorship of constructive criticism of religion, artistic work or social critique. A case that demonstrates this is the example of Urdu journalist and editor of the newspaper ‘Avadhnama’, Shirin Dalvi who was charged under Section 295A[32]. Dalvi was forced to go into hiding after receiving threats and facing harassment for simply having published the cover of Charlie Hebdo as an accompaniment to the news on the killings in Paris[33].

Another aspect of criminalization of legitimate, free speech through hate speech laws that are prone to be misused is that the criminal process itself serves as a punishment. As Rajeev Dhavan explains in detail, the process itself produces a chilling effect on speech even if the cases are ultimately dismissed by the Courts[34]. Even if judges have narrowed down interpretations of the provisions to protect genuine speech, a large amount of self-censorship takes place because of the filing of complaints by groups that claim to be offended[35]. Rather than go through the harrowing criminal process which is exacerbated because of the cognizable nature of many of these provisions, the financial and psychological costs of litigation apart from continued threats of violence that writers and others face they prefer to withdraw their books and apologize for statements that resulted in controversy rather than pursue the case in court[36]. Groups having sufficient power are able to strongarm the persons whose speech had ‘offended’ them and due to the political power, they might have, these groups are able to remain beyond the clutches of law while using Hate Speech legislation according to their own whims and fancies.

The object of hate speech laws was to protect the minority groups however, it is the dominant groups which use it to suppress the Freedom of speech of the minorities. For religious minorities, academicians and artists, the criminal process has itself become a tool for harassment when powerful groups are able to use vague, overbroad laws to silence them. 

Lapses in Hate Speech Laws

Shifting the focus, there are certain categories which are still not considered within the ambit of Hate Speech provisions under the law. Religion, race, place of birth, residence, language, caste or community are the specific grounds which have been mentioned and any statement promoting enmity, hatred or ill-will shall be punishable. In these sections, certain groups have not been mentioned even though those are constantly subjected to various kinds of discrimination, not just limited to hate speech, on the basis of their attributes and their identities. Categories which are conveniently absent are ‘gender’, ‘sexual orientation’ and ‘sex’.

Further, in the context of the controversies over rapper Honey Singh’s music Arundhati Katju argues that the debate is wrongly confined to obscenity when it should be considered as hate speech[37]. Referring to a video of Singh‘s which normalizes violence against women Katju states that if the women in the video were replaced by a religious community then it would definitely have been brought under the ambit of hate speech law[38]. Katju observes that only indirectly Section 505(1) can be brought to bear on such speech acts such as these through punishing statements and rumors which incite a community of people to commit an offence against another community or under Section 505(2) which punishes making of statements or rumors which cause fear or alarm[39].

Further, sexual minorities is another category which has been left out from the purview of hate speech law provision. After the 2013 ruling of the Supreme Court in Kaushal[40], media reports indicated an increase in hostility towards people who identified as LGBT. A media report read thus:

‘Soon after the judgment, a group called Christians Against Homosexuality was formed in Chennai. On January 5, 2014, they went on a march on Marina Beach, declaring that homosexuality was immoral. As a reaction, another group, Christians Against Homophobia, was also formed that January. In Madurai, a Muslim political party called the Indian National League also put up posters against homosexuality.’[41]

The ruling of the Court was thus reported to have led in an increase of incidences of such hate speech against sexual minority groups. Considering the hate speech and discrimination that are faced by the persons belonging to these groups, it would be a welcome step to recognize sexual orientation as a separate category under the hate speech provisions. Especially taking into account the progressive trend of the Supreme Court judgments which have now started to follow the approach of transformative constitutionalism and have started giving constitutional morality more importance than societal morality.

Another category is that of transgenders, who a few years back, in the Supreme Court’s NALSA judgment of 2014 received recognition as a third gender are not covered under the provisions either[42].

A wide interpretation of the provisions could bring the above-mentioned categories under the head of ‘classes’

Even though the provisions can be interpreted as including these categories as the classes provided are not exhaustive it would be in their interests if they were explicitly included, considering many of these groups are discriminated against and advocates of hate speech might feel entitled to do so since law does not include them as separate categories. The Supreme Court’s Judgment in Kaushal seemed to indicate that some groups felt emboldened to spread hate towards the LGBT community. Legal support in the form of provisions prohibiting hate speech against such communities would go a long way in providing assurance to them against hate speech and discrimination.  

Conclusion

Right to freedom of speech and expression is one of the most essential liberties recognized by the democratic States[43]. The individual autonomy has always influenced the concept of personal liberty. Free speech is a basic necessity to exercise autonomy, further, it is a necessity in a democracy. However, where there is free speech, there will exist its alter i.e. hate speech. In the current times, as technology advance and the methods to express oneself has increased, it has become all the more important to define ‘hate speech’. A proper definition to bring in its purview all kinds of inciting and hateful speech, not limited to just the offline mode but also to include the online mode, spreading of rumors.

Now, in Pravasi Bhalai Sangathan v. Union of India[44] the petitioners had requested rge Court to issue guidelines ‘as the existing legal frame work is not sufficient to control the menace of ‘hate speech’[45]. Though the Court held that existing provisions in the law are sufficient, the Law Commission pursuant to the judgment proposed amendments to the existing hate speech provisions in the penal code in its 267th report[46]. The proposed amendments to IPC are given below i.e. Sections 153C and 505A:

‘Prohibiting incitement to hatred-

“153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –

(a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence 52 shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”.

Causing fear, alarm, or provocation of violence in certain cases-

“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribeuses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

  1. within the hearing or sight of a person, causing fear or alarm, or;
  2. with the intent to provoke the use of unlawful violence, against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both” ‘[Ibid.]

The proposed amendments in the IPC are yet to be accepted but if accepted, these would curb the menace of hate speech against the individuals not only on the basis of religion, race, caste or community, but would also include sex, gender, sexual orientation, disability and tribe. This would not only prevent animosity leading to communal rights but also blatant sexism, misogyny and demarginalization of the Lesbian, Gay Bisexual, Transgender and Queer community. Further, even the individuals who suffer from any kind of impairment or disability would also be given protection against hatred of any kind. This seems like a refreshing and progressive change in the attitude of the legal fraternity which wants to bring protection to each and every individual regardless of his gender sexual orientation, religious views etc. This step shows that there is some iota of acknowledgment of the discrimination and hatred faced by the people belonging to the above-mentioned categories.

However, law is not the only way to bring about a change. There needs to be alternate measures to promote harmony and peace among the people of India. Some of the non-legal measures, followed in other countries too, as suggested in the 267th Law Commission Report are as follows:

  • Popular television dramas which subtly and effectively promote harmony between warring communities,
  • the involvement of religious heads to build empathy across religious lines to reduce communal tension, and
  • strategic interventions (especially in the context of social media) to monitor the dissemination of hate speech and mob mobilization.
  • Persuading people who are the weakest links, to stop spreading a harmful rumour.[47]

These methods could be much better to facilitate the need to educate people so as to rid their minds from deep seated bigotry, prejudices, sexism and their negative attitude.


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

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

[3] Steffen Schmidt and II Mack C. Shelley, Barbara Bardes et. al., American Government and Politics Today (Cengage Learning, USA, 2014).

[4] The Indian Constitution, Article 19(1) (a) r/w Article 19(2)

[5] Black’s Law Dictionary, 9th edition, 2009

[6] Gautam Bhatia, Offend, Shock Or Disturb : Free Speech Under The Indian Constitution 139 (Oxford University Press, Delhi, 1 st Edn., 2016).

[7] 267th Law Commission Report Of India,2017

[8] Siddharth Narrain, Hate Speech, Hurt Sentiment, and the (Im) Possibility of Free Speech 119EPW 51 (2016)

[9] Ibid

[10] Ibid

[11] Cherian George, India: Narendra Modi and the Harnessing of Hate, HATE SPIN: THE MANUFACTURE OF RELIGIOUS OFFENCE AND ITS THREAT TO DEMOCRACY 89 (2016)

[12] Rajeev Dhavan, Censorship and Intolerance in India in PUBLISH AND BE DAMNED: CENSORSHIP AND INTOLERANCE IN INDIA 139 (2008)

[13] Ibid

[14] Siddharth Narrain, The Harm in Hate Speech Laws: Examining the Origins of Hate Speech Legislation in India SENTIMENT, POLITICS CENSORSHIP: THE STATE OF HURT 39 (2016)

[15] Ibid

[16] Ibid at 43, See e.g. Thomas Piney, The letters of Thomas Babington Macaulay 43-44 6th Ed. Cambridge University Press]

[17] Ibid

[18] Ibid at 44

[19] Ibid at 46

[20] Asad Ali Ahmed, Specters of Macaulay, CENSORSHIP IN SOUTH INDIA: CULTURAL REGULATION FROM SEDITION TO SEDUCTION 180 (2009)

[21] Ibid

[22] UN Human Rights Council, Report of Special Rapporteur on the Promotion and Protection of Right to Freedom of Opinion and Expression, Sep 2012. http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf

[23] Ibid at 16

[24] Gautum Bhatia, OFFEND, SHOCK OR DISTURB: FREE SPEECH UNDER THE INDIAN CONSTITUTION 56(2016)

[25] Human Rights Watch, Stifling Dissent: The Criminalization of Peaceful Expression in India, May 2016, https://www.hrw.org/sites/default/files/report_pdf/india0516.pdf

[26] Ibid at 1

[27] AIR 1950 SC 129

[28] The Constitution (First Amendment) Act, 1951

[29] AIR 1966 SC 740

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

[31] Supra Note at 18

[32] Mumbai: Editor arrested for reprinting Charlie Hebdo cartoon. Hindustan Times(29 January 2015). https://hindustantimes.com/india/mumbai-editor-arrested-for-reprinting-charlie-hebdo-cartoon/story-WoavPv3nOzUdocmPW7CV9H.html

[33] Ibid

[34] Rajeev Dhavan. Harassing Hussain: Uses and Abuses of the Law of Hate Speech, PUBLISH AND BE DAMNED: CENSORSHIP AND INTOLERANCE IN INDIA 173-213(2008)

[35] Ibid

[36] Ibid

[37] Arundhari Katju, India: Let’s Call it Hate Speech, South Asian Citizens Web, January 2013

http:www.sacw.net/article3504.html (Last Visited on November 23, 2019)

[38] Ibid

[39] Ibid

[40] Suresh Kumar Kaushal and Anr. V. Naz Foundation and Ors. AIR 2014 SC 563

[41] Ipsita Chakravarti, Ruling against gay sex ban sparked rise in homophobia in India, says activist’, Scroll, June 2017 at https://scroll.in/article/809921/indian-judgment-upholding-gay-sex-ban-sparked-rise-in-homophobia-says-activist (Last Visited on November 25,2019)

[42] National Legal Services Authority v UOI and ors. 2014 5 SCC 438

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

[44] AIR 2014 SC 1591

[45] ibid

[46] 267th Law Commission Report- March 2017

[47] Ibid