Punishing hate speech: How is it treated in Indian law?

Context:

A recent religious conclave held in Haridwar witnessed inflammatory and provocative speeches by proponents of Hindutva, many of them leaders of religious organisations. There was a threat that if the government resisted the formation of a ‘Hindu Rashtra’, there will be an ‘1857-like’ revolt against the state. Political parties and concerned citizens have termed these as ‘hate speech’ and demanded legal action against those involved in the propagation of hate and violence.

Relevance:

GS-II: Polity and Constitution (Freedom of Speech, Government Policies & Interventions, Issues arising out of the design and implementation of such policies)

Dimensions of the Article:

1. What is “Hate Speech”?
2. Laws related to hate speech in India
3. Observations of different institutions related to hate speech
4. Recommendations of T. K. Viswanathan committee
5. Way forward

What is “Hate Speech”?

• In general, “Hate Speech” refers to words whose intent is to create hatred towards a particular group, that group may be a community, religion or race.This speech may or may not have meaning, but is likely to result in violence.
• BPRD Definition: The Bureau of Police Research and Development recently published a manual for investigating agencies on cyber harassment cases that defined hate speech as a “language that denigrates, insults, threatens or targets an individual based on their identity and other traits (such as sexual orientation or disability or religion etc.).”
• According to the Law Commission of India, “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like. This, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”

Laws related to hate speech in India

Article 19 of the Constitution– Freedom of Speech and Expression is guaranteed to all the citizens of India. However, the right is subjected to reasonable restrictions in 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 in relation to contempt of court, defamation or incitement to an offence.

Indian Penal Code on Hate Speech

• According to Section 153A of IPC, “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”, is a punishable offence and attracts three years of imprisonment.
• According to Section 505 of IPC, “Statements that promote mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity; or is intended to incite or incites any class or community to commit an offence against another class or community”, will attract a jail term of up to three years under Section 505(1).
• Under Section 505(2), “it is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
• Under Section 505(3), the offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.
• Section 295A of the IPC deals with punishing acts that deliberately or with malicious intention outrage the religious feelings of a class of persons.

Observations of different institutions related to hate speech

• The Supreme Court had observed that “hate speech is an effort to marginalize individuals based on their membership in a group. It seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. It, therefore, rises beyond causing distress to individual group members and lays the groundwork for later, broad attacks on vulnerable….”
• The Human Rights Council’s ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression’ expressed that freedom of expression can be restricted on the following grounds:
  • Child pornography (to protect the rights of children).
  • Hate speech (to protect the rights of affected communities)
  • Defamation (to protect the rights and reputation of others against unwarranted attacks)
  • Direct and public incitement to commit genocide (to protect the rights of others)
  • Advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).

Law Commission’s Recommendations

• Separate sections are to be added to the IPC to criminalize hate speech instead of merging it with existing sections related to inflammatory acts and speeches.
• It has proposed two new sections, Section 153C and Section 505A in this regard.
• Section 153C – criminalize and attract a two-year jail term or a fine of ₹5,000 or both to anyone who:
  • Uses gravely threatening words, spoken or written or signs or visible representations, with the intention to cause fear or alarm.
  • Advocates hatred that causes incitement to violence, on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability, or tribe.
• Section 505A – proposes a prison term of up to one year and/or a fine up to ₹5,000 or both, to criminalize words, or display of writing or signs that are gravely threatening or derogatory, within the hearing or sight of a person, causing fear or alarm or, with intent to provoke the use of unlawful violence against that person or another”.

Recommendations of T. K. Viswanathan committee

The T. K. Viswanathan committee, constituted by the Centre, has recommended introducing stringent provisions for hate speech:

• It was of the opinion that it was more effective to insert the substantive provisions in the IPC instead of the IT Act, since the IT Act was primarily concerned with e-commerce regulation.
• It has recommended amendments in CrPC to enable each state to have a State Cyber Crime Coordinator (Sec 25B) and a District Cyber Crime Cell (Sec 25C).
• The offensive speech should be “highly disparaging, abusive or inflammatory against any person or group of persons”, and should be uttered with the intention to cause “fear of injury or alarm”.
• The committee also expressed the desirability of having guidelines in place to prevent the abuse of provisions by investigation agencies and to safeguard innocent users of social media.
• Insertion of Section 153C to prohibit incitement of hatred through online speech on grounds of religion, caste, community, gender, sexual orientation, tribe, language, place of birth etc.
• Section 505A was proposed to be inserted by the Law Commission to prevent causing of alarm, fear, provocation of violence etc. on grounds of identity.
• It was clarified that the need for intent has to be established.

Way forward

It is vital to examine the context in which speech is made in order to properly determine the motivation behind it – and the effect it is likely to have. The dangerousness of speech cannot be estimated outside the context in which it was made or disseminated, and its original message can become lost in translation. Supreme Court in Pravasi Bhalai Sangathan v. Union of India in 2014, states that hate speech must be viewed through the lens of the right to equality. However, few loopholes need to be plugged when it comes to regulation of hate speeches, so as to transform our country from being a procedural democracy to also a substantive one.

-Source: The Hindu