Astha Nagori
School of Law, D.A.V.V.
One of the most cherished rights under Indian Constitution is to speak one’s mind and write one’s thoughts.
Justice Sanjay Kaul
Introduction:
The Fundamental Right to Freedom of Speech and Expression is bestowed upon the citizens of almost every democratic country. The right is stipulated under Article 19(1)(a) of the Indian Constitution. However, the legislative body imposes certain restrictions on the right of free speech under clause (2) of Article 19 in order to ensure that the right does not end up violating the democratic principles which constitute the foundation of the state. Such restrictions in fact seem necessary today as the right is being misused rather than being used and this is where the hate speech i.e., a reasonable restriction under Article 19(2) comes to light.
Unlike Free Speech, Hate Speech is not defined under any law. However, some forms of speech are prohibited under certain legislations as an exception to Article 19(1). Blacklaw’s Dictionary defines hate speech as, “Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.”[i] It is important to note that when a speech harms the dignity of a person, it affects not only the said target but also undermines the fact that the minority/vulnerable groups are placed on the same footing as majority in a democracy. The attack on such groups may lead to discrimination, ostracism, segregation, and violation and in some cases even genocide.
Regulations: The Sine Qua Non:
The concept of regulation of Hate Speech doesn’t shrink the space for criticism and dissent; instead, it protects the stifling condition of the groups that are subject to hate speech, from racial, religious or caste discrimination amongst others. In India, Hate Speech is regulated by several sections of Indian Penal Code, Criminal Procedure Code and by other laws that put restrictions on Article 19(1). Section 124-A of the IPC penalises sedition i.e. spreading contempt, hatred or disaffection towards the Government through words, signs, action, etc. Sedition and Contempt of Court are amongst the most exploited provisions. On one hand, the religious and political leaders instigate people through their hate speech in the guise of Freedom of Speech, creating havoc and chaos; while on the other hand the suits for defamation and sedition are lodged to suppress the people and media-houses opposing them, in the guise of hate speech. There has been a rapid increase in the filing of Sedition cases (191 cases in 2015-18) but only 43 cases were tried and mere 4 people convicted[ii]. As per the relevant data majority of such cases were filed to harass individuals or media-houses and pressurise them to succumb to the petitioner’s narrative.
Likewise Section 153-A and 153-B prescribe the offence and punishment for promoting communal disharmony or feelings of hatred between different religious, racial, linguistic or regional communities/groups. Although, the anti-hate laws are contested due to its clash with Article 19(1)(a), the right cannot be propagated untrammelled as the dignity of individuals whose identity is based on their ethnicity, race or religion must be protected. Section 295-A of IPC penalises deliberate and malicious acts intending to outrage religious feelings of any community by insulting the religion or their beliefs through words (spoken/written), signs, etc. In Ramji Lal Modi vs. State of U.P.[iii], the constitutional validity of the section was challenged as the Petitioner claimed it to be violative of Article 19(1)(a). However, the Apex Court upheld the validity of the section, and held that the section was introduced to punish individuals involved in deliberate vilification of any particular religion of a class of citizens with the intention to outrage the religious feelings of that group.
Hate Speech is a form of group defamation. It instils hatred among the groups leading to communal disharmony which is atrocious for a nation that is home to multiple communities, religions, etc. Among others, Section 505 of IPC criminalises the act of delivering speeches that incite violence. Hate speech necessarily need not be deeply-rooted with hate but may even include love for a specific religion, caste, class etc. if the love is so confined that it leads to fanaticism and haughtiness for their religion leading to denial of any contrary views. The Protection of Civil Rights Act, 1955 that was enacted to supplement the purpose of abolition of ‘untouchability’, also penalises hate speech against the historically marginalised communities under Section 7. Similar provisions are also available in SC & ST (Prevention of Atrocities Act), 1989. Various International Human Rights Instruments also provide strong directives against hate speech that shall be followed upon by countries. Article 19(3) of International Covenant on Civil and Political Rights provides for regulation of free speech to maintain public order and protect the rights of others. Article 10(2) of European Convention on Human Rights also provides for reasonable restrictions, and duties while exercising the right of Freedom of Speech. Countries like Canada, UK, Switzerland, Italy, Germany, etc also provide for hate speech’s regulation and prescribe it as a restriction on free speech. Interestingly, the First Amendment to the US constitution forbids the Congress from making laws that limit the Freedom of Speech and Expression.
Judicial View-Point:
The potentiality and the effect of words must be judged from the view-point of reasonable and strong-minded persons rather than people having hostile point of view or vacillating minds[iv]. In Rangarajan & Ors. v. P. Jagjivan Ram[v], it was held that imminent danger to the community must be the proximate and with direct nexus rather than the far-fetched consequence of hate speech. Recently Suresh Chavhanke, Editor-in-Chief of Sudarshan News claimed to expose an alleged infiltration of Muslim Community in Civil Service, in his show (Bindas Boll), and also termed it as ‘Bureaucracy or UPSC Jihad’. The issue of hate speech was opposed by various people who further approached the Delhi High Court[vi] and Supreme Court[vii] to get a stay on the telecast of the programme. At first, the Apex Court refused to put a pre-broadcast interlocutory injunction but ultimately the Court realised that the intent and purpose of show was to vilify Muslim community and create a frenzy of fear among other communities. The programme violated the Programme Code under Cable Television Networks (Regulation) Act, 1995. The case highlights the need of setting up a balance between Right to Free Speech and Right to fair and equal treatment of every segment of citizens.
Section 123(3A) and 125 of Representation of People Act, 1951 outlines hate speech as a corrupt practice and prescribes punishment for delivering hate speeches during election. In 2014, a PIL[viii] was filed in Supreme Court for issuance of guidelines concerning hate speech during elections. The Court relied on Canada v. Taylor[ix] wherein it was held that hate speech erodes tolerance in a multicultural society and undermines the dignity of targeted groups. Though the Apex Court agreed with the Canadian Court, it held that the existing laws in India are sufficient to tackle hate speech and the problem lies with the infelicitously broad scope of laws, their rampant abuse and ineffective execution. Even in Jafar Imam Naqvi v. Election Commission of India[x] the Supreme Court dismissed a similar PIL on the ground that Fundamental Rights of citizens cannot be curbed by the Judiciary and it is for the Legislature to decide. It further referred the matter to the Law Commission, to provide recommendations to Parliament and to define hate speech and its extent. The Commission provided the criteria to identify hate speech in its 267th Report[xi]. They are— Extremity of speech[xii], incitement[xiii], potentiality of speech[xiv], status of the author and victim and the context of speech[xv].
Conclusion and the Way Forward:
The Drafting Committee introduced Article 19(1) to ensure that people may express their views even if critical without the fear of facing repercussions for the same but as noted by Walter Berns, “Not all free speech is good speech”[xvi]. Hate speech is the initial point in marginalizing a particular community whereas the goal of State shall be to provide a secular and multi-cultural environment. Though, the right is necessary to promote plurality of opinions but Hate Speech particularly when juxtaposed with free speech becomes a controversial issue. It reduces acceptance, full participation and social standing of such group within the society. In India the problem lies with the waning laws. Time and again laws have been misused yet there exists persistent refusal to enforce them properly. Making the restrictions more stringent will only lead to increase in cases of false hate speeches. Neither will the decriminalising of hate speech be a practical solution. Hate Speech laws come with the primary objective of protecting the most vulnerable as it is the utmost supremely recognised Human Right in the World. Hence, there is need to thrive towards balance by reducing the vagueness and undefined parameters of Article 19(2) by stricter enforcement of laws regulating the hate speech and by strengthening The Rule of Law.
REFERENCES:
[i] Ujjaini Chatterji, Why is free speech different from hate speech (August 29, 2020).
https://www.theleaflet.in/why-is-free-speech-different-from-hate-speech/#
[ii] Kabir Dhamija, Freedom of Speech and Expression: Exigency for Balance (May 15, 2020).
https://www.latestlaws.com/articles/freedom-of-speech-and-expression-exigency-for-balance/
[iii] Ramji Lal Modi vs. State of U.P., 1957 AIR 620 (India).
[iv] Ramesh v. Union of India, AIR 1988 SC 775 (India).
[v] Rangarajan & Ors. v. P. Jagjivan Ram, 1989 (2) SCC 574 (India).
[vi] Syed Mujtaba Athar & Ors. V. Union of India, W.P. (C) No. 6336/2020 (India).
[vii] Firoz Iqbal Khan v. Union of India, W.P. (C) No. 956/2020 (India).
[viii] Pravasi Bhalai Sangathan v. Union of India & Ors., (2014) 11 SCC 477 (India).
[ix] Canada v. Taylor, (1990) 3 SCR 892 (Canada).
[x] Jafar Imam Naqvi v. Election Commission of India, AIR 2014 SC 2537 (India).
[xi] Justice B.S. Chauhan, Law Commission Report (267) on Hate Speech, (March 2017)
[xii] Saskatchewan (Human Rights Commission) v. Whatcott, (2013) 1 SCR 467 (Canada)
[xiii] Shreya Singhal v. Union of India, AIR 2015 SC 1523 (India).
[xiv] Supra note 5
[xv] Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846 (India).
[xvi] PROF. WALTER BERNS, (FREEDOM, VIRTUE & FIRST AMENDMENT), Louisiana State University Press, 1957
