Raksha Thakur
Maharashtra National Law University, Mumbai
There have been several occasions wherein we have encountered a variety of incidents of hate speech that have influenced the Indian population. While the constitution guarantees to each citizen, the freedom of speech and expression under Article 19(1)(a), a burning question emerges therefrom, what is the scope of such freedom and whether a piece of hate speech also deserves protection under this freedom umbrella. The question becomes all the more crucial in a time when the modes of accessibility to such hate speech are countless, one of the major forums being broadcast media. Against this backdrop of conflicts arising from Article 19(1)(a) it is often revealed to us in unfortunate ways that hate speech is not to thrive under the guise of Article 19(1)(a), it is in fact a major issue emerging as its by-product.
What is hate speech?
Hate speech means and includes, “Any written or spoken word, words, visual symbols beyond a person’s hearing or sight designed to induce panic or distress, or incitement to aggression”. Simply put, it is words or gestures which carry hatred for a particular group or community as a part of its essence. Such words or gestures may even be capable of affecting the peace and integrity of the nation.
As discussed above, the right to freedom of speech and expression and everything that it entails is rightfully placed on a pedestal under the Indian constitutional set up, this right however comes with its own set of constraints and is not an absolute right. While the sanctity of this freedom stands uncontested, it cannot be denied that many perpetrate the crime of hate speech under the guise of exercising inherent rights, giving rise to an air of distrust, and terror. It has to be understood that there is freedom for all. So let’s say if a hate speech was delivered in the name of free speech and the same in turn marginalizes certain individuals, then the liberty of those on the receiving end, stands violated. Such overlapping of rights arising from Article 19(1)(a) has the potential to create chaos which justifies the need for a separate regulatory mechanism. In the light of the same, let us first make an attempt to understand the need for regulation and the current regulatory mechanism for controlling hate speech in terms of broadcast media.
Current Regulatory Framework for Regulating Hate Speech in Broadcast Media:
- Cinematograph Act, 1952
The Act provides for the verification of cinematographic films for the purpose of public viewing or exhibition. As per section 5B of the Act, a film shall not be granted certification if the Central Board of Film Certification opines that the film or any part of it is “against 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 involves defamation or contempt of court or is likely to incite the commission of any offence”—all of which are also the prescribed restrictions under article 19(2).
In exercise of the power under this section the CBFC is guided by the CBFC guidelines issued in this behalf, which specifically provide for measures against hate speech by requiring the CBFC to ensure the following:
- Clause 2(xii)—visuals or words contemptuous of racial, religious or other groups should not be presented.
- Clause 2(xiii)—visuals or words, which promote communal, obscurantist, anti-scientific and anti- national attitude not to be presented.
In view of the above, the CBFC also has the power to require ‘excisions or modifications’ to be carried out before the board approves the film.
The powers bestowed on the CBFC under the Act have been extensively misused as it has, on many occasions, gone beyond its statutory authority to regulate cinema, which evidently violates the basic principle of freedom of thought and speech. Whenever any words or speech has been made in a film which outrages or has the ability to incite the public at large such that it would affect the peace and integrity of the nation then the CBFC has the power to regulate such films or impose certain restrictions as stated above. The question however is, whether by such regulation the CBFC has the scope to curtail genuine exercises of artistic freedom also?
There have been instances wherein regulation by CBFC has been viewed as ‘over-regulation’ so much so as the courts have had to over turn CBFC decisions. An appropriate example can be the ‘Final Solution’ of Rakesh Sharma, a study of hate politics. Despite international accolades, the CBFC banned the film in India for several months saying that “State security is under danger and public order is threatened if this film is released.” The ban was subsequently lifted following a concerted effort in October, 2004.
In the same background, the film ‘Chand Bujh Gaya’ by Faaiz Anwar portrayed a love tale of a young couple—a Hindu boy and a Muslim girl—whose lives are ripped apart in several uprisings. The Censor Board declined to approve the film due to its gory scenes with abuses and certain characters seemed to have a strong similarity to real-life figures. The Board’s order was later quashed by the Bombay High Court and the film was finally released in 2005 after having waged a 3-year war.
- Cable television Network (Regulation) Act, 1995
Hate speech on cable television is regulated through the Cable Television Act along with the programme code and advertisement code set out in Cable Television Network Rules, 1994. Section 20 of the act provides the power to the central government to prohibit operations or action of cable television if it is affecting the sovereignty, integrity and security of the nation or if it is in contravention of public order, morality or decency. The Central Government barred the transmission/retransmission of a channel ‘Janmat TV-Live India’ under section 20 in Court on its own Motion v. Government, alleging that it was involved in a sting operation involving a pornography racket. The substance of the undercover operation being broadcast also breached the Code of the Programme.
Rule 6(1)(e) of the programme code prohibits any transmission that is likely to incite violence or contains anything against maintenance of law and order. The Sathiyam TV Channel had broadcast a religious talk provided by a preacher featuring material that could ‘potentially give rise to a condition of general vulnerability and provoke the public to violent tendencies’. The MIB then released a notice to the Sathiyam TV Channel in 2015, urging them to maintain full compliance with the programme code.
- Information Technology Act, 2000
The IT Act serves the purpose of regulating online hate speech. Digital hate speech had been criminalised by Section 66A of the IT Act, the medium-specific law applied to internet content. However, in March 2015, in Shreya Singhal v. Union of India, the Supreme Court struck down section 66A as unconstitutional. It was found that the restrictions on speech under Section 66A were incompatible with the right to freedom of expression guaranteed by Article 19(1)(a) of the Constitution.
Currently, Section 69A specifies that the government can, in some conditions, restrict public access to the information available through a computer tool when the government is of the opinion that the same is ‘necessary or expedient‘ to do for the purpose of ‘good order’ making this provision a highlight tool for restricting hate speech in digital content.
Hate Speech continues to be a complex issue to address, as it is difficult to distinguish between free speech and hate speech. The hate speech dilemma worsens when it is aired or published in the press. If a bureaucrat or eminent person including political personalities deliver a hate message, the press coverage it receives is always massive. Yet, it must be borne in mind that media journalists should refrain from using the words or phrases that may contribute to abuse or intolerance. With excessive powers to the CBFC and the Central Government under the current regime of regulating hate speech in broadcast media, a legitimate concern arises in terms of the unfortunate sword that lies over genuine exercise of artistic freedom. Therefore, a systematic approach is required in order to address the existing structural issues and resolve the hate speech v. free speech dilemma.
