While Mohammad Zubair of Alt News was arrested for tweeting a still picture from a movie that had some religious context attached to it, Nupur Sharma, a member of the BJP, has been absconding with no coercive action taken against her for her inflammatory remarks on a prime-time TV show.
GS II: Polity and Governance
Dimensions of the Article:
- What is “Hate Speech”?
- Laws related to hate speech in India
- What is the history of Section 295 (A)?
- How has the legislation been interpreted?
- Should there be a difference between blasphemy laws and hate speech laws?
- How should one deal with incidents of blasphemy?
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
- Section 295A defines and prescribes a punishment for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
- “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both,” the IPC section reads.
- 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.
What is the history of Section 295 (A)?
- As far as laws in India go, there isn’t formal legislation against blasphemy.
- The closest equivalent to a blasphemy law is Section 295(A) of the Indian Penal Code (IPC), which punishes any speech, writings, or signs that “with premeditated and malicious intent” insult citizens’ religion or religious beliefs with a fine and imprisonment for up to three years.
The history of Section 295(A) of the IPC can be traced back to 95 years:
- In 1927, a satire was published which had obscene parallels to the Prophet’s personal life.
- It was indeed very offensive to the Muslim community but the erstwhile High Court of Lahore observed that the author of this cannot be prosecuted as the writing did not cause animosity or hostility between any communities.
- Thus, the offense did not fall under Section 153(A), which dealt with maintaining public tranquility/order.
- However, this incident gave rise to a demand that there be a law to protect the sanctity of religions, and thus, Section 295(A) was introduced.
Ramji Lal Modi case (1957):
- The legality of Section 295(A), which had been challenged in the Ramji Lal Modi case (1957), was affirmed by a five-judge Bench of the Supreme Court.
- The apex court reasoned that while Article 19(2) allows reasonable limits on freedom of speech and expression for the sake of public order, the punishment under Section 295(A) deals with aggravated form of blasphemy which is committed with the malicious aim of offending the religious sensibilities of any class.
How has the legislation been interpreted?
- The apex court redefined the test it laid down in the Ramji Lal Modi case.
- It decided that the connection between speech and disorder must be like a “spark in a powder keg”.
Superintendent, Central Prison, Fatehgarh vs Ram Manohar Lohia case:
- The Supreme Court stated that the link between the speech spoken and any public disorder caused as a result of it should have a close relationship for retrieving Section 295(A) of IPC.
- By 2011, it concluded that only speech that amounts to “incitement to impending unlawful action” can be punished.
- That is, the state must meet a very high bar before using public disturbance as a justification for suppressing expression.
Should there be a difference between blasphemy laws and hate speech laws?
- The wording of Section 295(A) is considerably too wide.
- It cannot be stated that deliberate disrespect to religion or religious sensibilities is necessarily tantamount to incitement.
- The Supreme Court has said on several occasions that perhaps the goal of hate speech statutes in Section 295(A) is to prevent prejudice and ensure equality.
- Unfortunately, there is a huge disparity between this interpretation and the actual wording due to which the law is still being exploited at all levels of administration.
- Insulting religion or religious figures may be disputed or condemned but it should not be legally outlawed or prosecuted.
- The reason for this is because hate speech laws are predicated on the critical distinction between criticising or ridiculing religion and encouraging prejudice or aggression towards individuals or a community because of their faith.
How should one deal with incidents of blasphemy?
- Blasphemy laws which prohibit religious criticism in general are incompatible with the principles of a democratic society.
- In a free and democratic society, there should be no screening of discourse and dissent.
- The only feasible solution that stands on the thin line of protection of faith and questioning hate speech should be keeping blasphemy in the statutes but de-criminalising it.
-Source: The Hindu