The Supreme Court (SC), on subject matter of Hate Speech,  on Friday said some additional measures were needed to strengthen its 2018 guidelines on tackling hate crimes, including installation of CCTV cameras and formation of a committee of police officers in districts recording high number of hate speech cases. SC observed that “peace, harmony and brotherhood must be maintained in society”;  and wants “effective practical steps” to be taken to ensure there is no hate speech. It pointed out that CCTV cameras, a deterrent factor in such crimes, can be installed at vulnerable places.

In its 2018 guidelines(Tehseen Poonawalla v/s Union Of India ), the SC states and union territories to take preventive and remedial measures like

         Appointment of nodal officers, not below the rank of Superintendent of Police ,in each district to keep a tab on such activities.

         The cases of lynching/mob violence shall be tried in fast track Courts in each district – the trail has to be completed within 6 months.

      The Court recommended that the Parliament should create a separate offence of lynching which should be duly punished.

      An automatic FIR under Section 153A, IPC (promoting enmity between different groups) will be registered against individuals who incite people and spread fake news on social media.

LEARNING FROM HOME/ WITHOUT CLASSES/ BASICS

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.

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

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.