Read: Explained | The need for a distinction between blasphemy and hate speech – The Hindu

In India, recent events, have triggered debate about the Anti-blasphemy law and the dichotomy between free speech and hate speech

Speech about religion and religious figures, the Indian Penal Code (IPC) prohibits two kinds of expression. The first — Section 295A — is an anti-blasphemy law: It punishes hurting the sentiments of religious believers through offensive or insulting speech.

In the context of the subjective world of the blasphemy law, the law is vague and arbitrary, where the entire focus of the law is on the subjective feeling of the individual or group that claims that speech has caused it offense.

The IPC prohibits hate speech under Sections 153A and B.

However, these sections are clumsily worded and fail to capture the essence of hate speech.

Indian free speech law should be based on any coherent set of principles.

It should not be framed in such a way that it becomes a tool to be wielded in service of offending sentiments or serving the political interest of those who are in power or in an arbitrary manner.

These provisions cannot distinguish between the dissenter and the hatemonger, between the uncivil and the illegal. Indeed, the failure to draw these distinctions only dilutes the provisions , and makes it more difficult to effectively define and prosecute actual and dangerous hate speech (of which we have seen a lot recently).

It is speech that can cause actual material harm through the social, economic, and political marginalization of a community.

While analyzing these provisions, the Supreme Court has noted, on more than one occasion, that the purpose of laws against hate speech is to combat discrimination and exclusion and ensure equality. However, there is a wide gap between this interpretation and the actual text of the provisions.

The Supreme Court of India in the case of Pravasi Bhalai Sangathan v. Union of India (2014) has said as much when it stated that ‘the idea of discrimination lies at the heart of hate speech’. Its impact is not measured by its abusive value alone, but rather by how successfully and systematically it marginalises a people.

On the other hand, when hate speech seems to align with political policy and institutional silence, then it becomes a distinct kind of threat.

The Supreme Court in the case of Amish Devgan v. Union of India (2020) has also recognised the principle of ‘variable context’ and held that contextually “all speeches are not alike. This is not only because of group affiliations, but in the context of dominant group hate speech against a vulnerable and discriminated group, and also the impact of hate speech depends on the person who has uttered the words.”

In other words, the harm caused by speech is differentiated in terms of the material effect it has on the person or community targeted.

Hate speech corrodes India’s pluralistic and social fabric. Free speech is very important in a democracy, and normally speech should neither be curbed nor regulated, provided it doesn’t become detrimental for the public at large. Hate Speech should be allowed insofar as it criticizes, satirizes, or, even be obnoxious; however, when this threshold is crossed, and it reaches the level of incitement to violence or hatred, regulation should kick in.

LEARNING FROM HOME/ WITHOUT CLASSES/BASICS

Freedom of speech is an essence of a democratic society, and limitations are subject to scrutiny.

Art 19: Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practice any profession, or to carry on any occupation, trade or business

(2)  Imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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

There is no general legal definition of hate speech. The Law Commission of India’s report on Hate Speech in 2017 highlights various examples from the past where the courts have looked into the scope of hate speech and have passed judgments. 

The Supreme Court of India in Shreya Singhal v. Union of India had differentiated between three forms of speech, discussion, advocacy and incitement. It was held by the Court that a speech can only be limited on grounds of exceptions mentioned in article 19(2) when it reaches the threshold of incitement. All other forms of speech, even if offensive or unpopular have to be protected under Article 19(1)(a). Incitement is the key to determining the constitutionality of a restriction on free speech.

Other provisions

Section 153A IPC penalizes ‘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.

· Section 153B IPC penalizes ‘imputations, assertions prejudicial to national integration.

 · Section 295A IPC penalizes ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

· Section 298 IPC penalizes ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’.

· Section 505(1) and (2) IPC penalizes publication or circulation of any statement, rumor, or report causing public mischief and enmity, hatred, or ill-will between classes.

The Representation of The People Act, 1951

· Section 8 disqualifies a person from contesting election if he is convicted for indulging in acts amounting to the illegitimate use of freedom of speech and expression.

· Section 123(3A) and section 125 prohibits the promotion of enmity on grounds of religion, race, caste, community, or language in connection with election as a corrupt electoral practice and prohibits it.

The Protection of Civil Rights Act, 1955

· Section 7 penalizes incitement to, and encouragement of untouchability through words, either spoken or written or by signs or by visible representations or otherwise

Freedom of speech and expression has been established as a key freedom required for sustaining democracy. However, with every right comes responsibility; and therein, is the need for a limitation on the right to freedom of speech and expression so as to prevent the destructive and regressive effect it could have.

The founding fathers of our Constitution were cognisant of the history and the need to highlight the responsibility attached to freedom of speech and expression. Thus, there is a need to convince and educate the public on the responsible exercise of freedom of speech and expression.