Republic and its discontents
SC Allows Hate Speech Probe Against Arnab Goswami to Proceed, Stays Multiple FIRs.
GS Paper 2: Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure; Comparison of Indian constitutional scheme with other countries’
- What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss. 15 marks
Dimensions of the Article
- What is hate speech?
- Observations of different institutions related to hate speech.
- Laws related to hate speech in India.
- Recommendations of T. K. Viswanathan committee.
- Way forward
What is hate speech?
Hate speech, speech or expression that denigrates a person or persons on the basis of (alleged) membership in a social group identified by attributes such as race, ethnicity, gender, sexual orientation, religion, age, physical or mental disability, and others.
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….”
Law Commission in its 267th report had observed that “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. Thus, 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.”
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).
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.
Section 153(a) of Indian Penal Code: Whoever, by words, signs or otherwise promotes enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., shall be punished with imprisonment which may extend to three years, or with fine, or with both.
Section 295(a) Indian Penal Code: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, visible representations or otherwise, insults the religion or the religious beliefs of that class, shall be punished.
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.
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.