Context:

  • Following a Supreme Court directive in the case of Pravasi Bhalai Sangathan v. Union of India, the Law Commission, in its 57-page report, made concrete recommendations in 2017 to the government on “prohibiting incitement to hatred” and “causing fear, alarm, or provocation of violence in certain cases.”

Relevance:

GS-II: Polity and Governance (Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure)

Mains Questions:

  1. Hate speech is a menace to democratic values, social stability and peace. In this context discuss the hate speech in Indian context and also suggest measures to address it. 10 Marks
  2. A much more vigorous intervention for prevention of and punishment for hate speech is required from concerned citizens and political parties. 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

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

Law Commission has recommendation for punishment

  • Prohibiting incitement of hatred: If a person:
    • uses threatening words or signs within the hearing or sight of a person with the intention of causing fear, or
    • advocates hatred by words or signs that incites violence, he will be punishable with imprisonment of up to two years, and fine up to Rs 5,000. However, the incitement of hatred must have been on grounds of religion, caste, community, sex, gender identity, sexual orientation, place of birth, residence, disability, etc. This would be a cognizable and nonbailable offence.
  • Causing fear, alarm or provocation of violence in certain cases: If a person uses threatening or derogatory words or signs in public on certain grounds (e.g. religion, caste, community, sex, gender identity):
    • within the hearing or sight of a person creating fear.
    • with the intent to provoke violence, it will attract a punishment. The punishment will be imprisonment up to one year, and/or fine up to Rs 5,000. This would be a non-cognizable and bailable offence.

Concerns associated with Committee’s recommendations

  • The Law Commission identifies the status of the author of the speech, the status of victims of the speech, the potential impact of the speech, in order to qualify something as Hate Speech. However, these concerns are apparently not well reflected in the committee report.
  • Besides, extremely broad terms like, highly disparaging, indecent, abusive, inflammatory, false or grossly offensive information, etc., have been used by the report which takes us back to the ambiguity that the section 66A held.

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.

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