The debate surrounding the comments by BJP spokespersons have put the spotlight on the law that deals with criticism of or insult to religion. Provisions in the Indian Penal Code (IPC), primarily Section 295A, define the contours of free speech and its limitations with respect to offences relating to religion.
- India does not have a formal legal framework for dealing with hate speech. However, a cluster of provisions, loosely termed hate speech laws, are invoked. These are primarily laws to deal with offences against religions.
GS II- Polity and Governance
Dimensions of the Article:
- What is “Hate Speech”?
- Laws related to hate speech in India
- Indian Penal Code on Hate Speech
- Observations of different institutions related to hate speech
- Rangila Rasool case
- Later cases
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.
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).
Rangila Rasool case
- Rangila Rasool was a tract — brought out by a Hindu publisher — that had made disparaging remarks about the Prophet’s private life. Cases against the first pamphlet, filed under Section 153A, were dismissed by the Punjab and Haryana High Court, which examined the question whether targeting religious figures is different from targeting religions.
- When a second, similar piece was published, it raised tensions. While the magistrate had convicted the publisher Rajpaul under Section 153A, the Lahore High Court held that a “scurrilous and foul attack” on a religious leader would prima facie fall under Section 153A — although not every criticism.
- This debate in interpretation prompted the colonial government to enact Section 295A with a wider scope to address these issues.
- In 1957, the constitutionality of Section 295A was challenged in Ramji Lal Modi v State of Uttar Pradesh.
- The Supreme Court upheld the law on the grounds that it was brought in to preserve “public order”.
- Public order is an exemption to the fundamental right to freedom of speech and expression and the right to religion recognised by the Constitution.
- In a 1960 ruling, in Baba Khalil Ahmed v State of Uttar Pradesh, the Supreme Court said that “malicious intent” of the accused can be determined not just from the speech in question but also from external sources.
- In 1973, in Ramlal Puri v State of Madhya Pradesh, the Supreme Court said the test to be applied is whether the speech in question offends the “ordinary man of common sense” and not the “hypersensitive man”.
- However, these determinations are made by the court and the distinction can often be vague and vary from one judge to the other.
- In Baragur Ramachandrappa v State of Karnataka, a 2007 decision of the Supreme Court, “a pragmatic approach” was invoked in interpreting Section 295A.
- The state government had issued a notification banning Dharmakaarana, a Kannada novel written by award-winning author P V Narayana on the ground that it was hate speech, invoking a gamut of provisions including Section 295A.
- The pragmatic approach was to restore public order by “forfeiture” of a book over individual interest of free speech.
–Source: Indian Express