In an ideal democratic form of governance, differences in opinion are always respected, and critics and contradicting views keep the dynamic culture rolling. Democracy flourishes when public dissent is allowed to be shared, and all different voices are brought to a standard minimum acceptable point. For the last seventy-five years, India has proven to be a thriving democracy instilled with the resolve for fair treatment and righteousness, liberty, and parity. The path of freedom has been ensured by the constitution itself wherein freedom of speech and expression is guaranteed to all citizens with certain restrictions related to the security and sovereignty of the country.[1] Other certain restrictions to it are of course matters of relations with other countries, public law and order maintenance, matters concerning contempt of decency or defamation of courts or incitement to an offence[2].
Introduction
The recent Delhi elections witnessed the “hate speech” of senior leaders like Union Minister Mr. Anurag Thakur is urging the crowd “Goli Maro– to shoot down the traitors”[3] or Member of Parliament Mr. Parvesh Verma for instigating the people against the group protesting against the Citizenship Amendment Act(India, 2020) Recently, senior lawyer Prashant Bhushan too tore this thin layer of difference in freedom of speech and hated speech by remarking on the judiciary through his two tweets for which he has been convicted for criminal contempt by the apex court. Thus, we see that the most significant challenge before the standard of sovereignty and free speech rule is to guarantee that the freedom imparted does not cross the limits of civil discourse and should not be allowed to cause inconvenience to any person or create hassles for the impeded segment of the masses.
Most popular governments on the earth have banned hate speech on the limit of such combustible words from causing hurt as well as disturbing public order by the intensity of hate speech which is equipped for prompting fierce outcomes, such as hate crimes amongst other violent outcomes. Hate speech has not been characterized in any law in India. However, legal provisions in specific legislations restrict selected forms of speech as an exception to freedom of speech. In the year 2017, while looking at the extent of hate speech laws in India, the Law Commission in its report suggested further presenting new legislation inside the Indian Penal Code that explicitly rebuffs prompting to viciousness notwithstanding the current ones[4]. In their report law commission characterized hate speech as an “expression which is abusive, insulting, intimidating, harassing or which incites violence, hatred or discrimination against groups identified by characteristics such as one’s race, religion, place of birth, residence, region, language, caste or community, sexual orientation or personal convictions.” This upsurge of uncontrollable propaganda and crime as a result of hate speeches has persuaded the authors to ponder at the causes behind the utterance of hate speeches and whether the existing laws are capable of dealing with them.
Existing laws that regulate Hate Speech
The following legislations that have a bearing on hate speech in India at present:
(a) The Indian Penal Code, 1860 (hereinafter IPC)
Section 153A- ‘promote enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’.
Section 153B- ‘imputations, assertions prejudicial to national-integration.’
Section 295A- ‘deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs’
Section 298 penalizes ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’
Section 505(1) and (2) of the Indian Penal Code-publication or circulation of any statement, rumour, or report causing public mischief and enmity, hatred, or ill-will between classes.
(b) The Representation of the People Act, 1951
Section 8- disqualifies a person from contesting an election in case he is convicted for involving in acts amounting to the illegitimate use of freedom of speech and expression.
Sections 123(3A) and 125- prohibits the promotion of enmity on the grounds of religion, race, caste, community, or language and prohibits it.
(c) The Protection of the Civil Rights Act, 1955
Section 7 of the Act penalizes incitement to, and encouragement of untouchability through words, either spoken or written or otherwise.
(d) The Cinematograph Act, 1952
Sections 4, 5B, and 7 – empower the Board of Film Certification to prohibit and regulate the screening of a film.
(e) the Code of Criminal Procedure, 1973(hereinafter CrPC)
Section 95 – empowers the State Government to forfeit publications that are punishable under sections 124A, 153A, 153B, 292, 293, or 295A IPC.
Section 144- empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate empowered by the State in this behalf to issue an order in urgent cases of nuisance or apprehended danger.
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Amendment of the Law
Any hate speech that can impel to offend the security of the country can be abridged through public order under Article 19(2) of the constitution of India. As per the ruling of the SC court in “Brij Bhushan v. the State of Delhi” case,[5] the public order request must be associated with the free wellbeing and thought proportionate to the security of the State. This translation was approved by the “First Constitution Amendment” where public order was embedded as a ground of limitation under 19(2).
In Ram Manohar Lohia v. State of Bihar case[6], the apex court envisioned the role of law and order, public order, and tranquillity of State as three concentric circles; where the innermost circle represents the security of State, followed by a circle to represent public order and both these circles encircled by the most extensive circle of law and order. One can easily comprehend that a demonstration may influence law and order yet not influence public order or the security of the State.
Deciphering Sections 153A and 505(2) of IPC in Bilal Ahmed Kaloo v. State of AP[7], the Court pronounced that the common element in the two-sections is that it makes the advancement of the felling of animosity or hatred between various religions, races, societies or groups and doing exploits about the concordance of an offence. At least two groups or communities must be concerned in such cases to be included under these sections. Simply offending one group or community with no reference to another group or community can’t be drawn under both these sections.
The revered way to deal with the difficulties that hate speech presents to freedom of speech and expression has yet not acquired a uniform way as the limits between the impermissible proliferation of contempt and secured speech differ across jurisdictions[8]. A distinction of approach is detectable between the United States and different democratic nations.
In the US[9], hate speech is given complete sacred security, while under universal human rights covenants and in other western democratic countries, for example, Canada, Germany, and the United Kingdom, it is managed and liable to sanctions. Thus one can comprehend that there are blended emotions concerning the idea of hate speech in our nation and even across the world. The doers prevent the laws to be prohibitive while some, who are the survivors of this scorn, plead for stricter laws for their wellbeing and security.
Taking into account the above mentioned, it must be contemplated that new provisions in the IPC are required to be incorporated to address the issues extravagantly managing hate crime. Apart from bringing legislature, there is a dire need to persuade and educate the citizens in general on the capable exercise of freedom of speech and expression. (National Law University, 2018)
Basis for Reforms in the Existing Law
The current Section 66A of the Information Technology Act, 2002 which was struck down in “Shreya Singhal’s case”[10] is a model wherein the dubiousness of the legal sections prompted abuse of the law. The accuracy of law is one of the grounds embraced by the European Court of Human Rights in pronouncing the lawfulness of limitation forced by the State. Henceforth, any endeavour to characterize hate speech must meet the previously mentioned parameters set by the Apex court in different parameters.
The genuine pride and homogeny of each individual is the fundamental adage of global human rights characterized by article 20 of the ICCPR. Article 20(2) of the ICCPR expects states to ban hate speech. It is, in this manner, that worldwide law condemns statements that invalidate the equality of every individual. The backing of national, racial, or strict contempt that establishes induction to discrimination or antagonistic vibe is denied by law. Under the standard law system, such speech had been treated as ‘sui generis’ that is, ‘outside the domain of protected discourse’.
In the present situation, the risk of massive fines is a dissuading factor for publishers, artists, specialists, intellectuals, and the individuals who don’t have the financial muscle to challenge hate speech cases. Different countries have created broad laws related to hate speech and hate crimes. Judges in our nation have attempted to find some harmony between hurt brought about by hate speech and the risk to freedom of speech and expression. Any legitimate guideline of hate speech must consider the rules that have developed from these lawful points of reference.
Conclusion
We can’t disregard the intensity of words, which can turn into the instrument for unravelling difficulty yet on the off chance that it is abused, at that point it will end up being the creator of crisis. In-country like India which is so diverse, it is anything but challenging to affect quick break of harmony by utilizing words that beg to be defended on the bases of religion and caste and in present period numerous dubious individual for getting out of line advantage to have been utilizing their freedom of speech and expression for inducing violence between individuals belonging to religions, castes, beliefs, and customs. Due to the common hate crusade, India has encountered numerous mutual uproars in the past just as in the present. As we realize that media as the fourth pillar of the constitution since it is a mechanism for mass correspondence however on the off chance that media permits it to be utilized as fuel for impelling brutality through dynamic purposeful publicity or announcing then there is have to cause media to comprehend that it is an obligation of a media to report communal riot in such a way, that it ought to harmonize the violence and construct individuals’ trust in the law which exist for taking care of the communal issue.
In the present time, we have diverse laws that advise how to manage hate crime. We have a distinctive legitimate arrangement that gives discipline to instigating violence through words. To finish up, it is recommended that India should have a specific law that will just deal with hate. And only a new law could help tackle the issue of hate speech and afterwards likewise, the government should actualize the laws in a severe sense.
References
[1] The Constitution Of India, 1950, art. 19(2).
[2] Singh, “On Literacy in the context of the Constitution of India” ( 2016).
[3] “Union minister Anurag Thakur raises controversial slogan at Delhi rally”, The Times of India, 27th January,2020, available at: https://timesofindia.indiatimes.com/india/union-ministeranurag-thakur-raises-controversial-slogan-at-delhi-rally/articleshow/73670945.cms
[5] (2017). 267th Report on Hate Speech. New Delhi : Law Commission of India.
[5] AIR 1950 SC 129.
[6] AIR 1966 SC 740.
[7] 1997 7 SCC 127.
[8] Chandrachud, A. (2017), “Republic of Rhetoric: Free Speech and the Constitution of India”, Penguin Random India Pvt Ltd.
[9] Fisch, W. B. (2002). Hate Speech in the Constitutional Law of the United States. Retrieved from University of Missouri School of Law: https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1413&context=facpubs
[10] Shreya Singhal v. Union of India, AIR 2015 SC 1523.
BY POULOMI BARIK | KIIT SCHOOL OF LAW