“…[T]hat the law shall be certain, and that it shall be just and shall move with the times.”
-Lord Reid, Judge as Law Maker 112
1 It is difficult to define hate speech as any ambiguity in a definition may allow intrusion into freedom of speech and expression. The erstwhile section 66A of the Information Technology Act, 2002 which was struck down in Shreya Singhal113 is an example wherein the vagueness of the legal provision led to misuse of the law. The precision of law is one of the grounds adopted by ECtHR in adjudging the legality of restriction imposed by the State. Hence, any attempt to define hate speech must meet the aforementioned parameters.
2 Incitement to violence cannot be the sole test for determining whether a speech amounts to hate speech or not. Even speech that does not incite violence has the potential of marginalising a certain section of the society or individual. In the age of technology, the anonymity of internet allows a miscreant to easily spread false and offensive ideas. These ideas need not always incite violence but they might perpetuate the discriminatory attitudes prevalent in the society. Thus, incitement to discrimination is also a significant factor that contributes to the identification of hate speech.
3 The term “hate speech” has been used invariably to mean expression which is abusive, insulting, intimidating, harassing or which incites violence, hatred or discrimination against groups identified by characteristics such as one’s race, religion, place of birth, residence, region, language, caste or community, sexual orientation or personal convictions. However, in international human rights law, it is defined by article 20 of the ICCPR. The inherent dignity and equality of every individual is the foundational axiom of international human rights. It is, therefore, perhaps not surprising that international law condemns statements which negate the equality of all human beings. Article 20(2) of the ICCPR requires states to prohibit hate speech. Advocacy of national, racial or religious hatred that constitutes incitement to discrimination or hostility is prohibited by law. Under the common law system, such speech had been treated as ‘sui generis’ that is, ‘outside the realm of protected discourse’.
4 One of the recent examples of such rumour mongering is the case of the Northeast exodus in the year 2012. Up to 50,000 citizens belonging to the Northeast moved from their residences across India, back to the North-eastern states.114 This was triggered because of the circulation of false images of violent incidents that took place in Myanmar several years ago. These were projected to be images from the Assam riots of 2012.115 This resulted in creation of panic across the country as other groups started targeting people from Northeast living in other parts of India. The police authorities responded with a complete internet shutdown.
5 Hate speech has the potential of provoking individuals or society to commit acts of terrorism, genocides, ethnic cleansing etc. Such speech is considered outside the realm of protective discourse. Indisputably, offensive speech has real and devastating effects on people’s lives and risks their health and safety. It is harmful and divisive for communities and hampers social progress. If left unchecked hate speech can severely affect right to life of every individual.
Examining Restrictions on Freedom of Speech and Expression
6 Analysis of the Constituent Assembly debates and the debate around the First and Sixteenth Amendments, restrictions to speech based on hate speech are located primarily under the terms ‘public order’ and to a lesser extent ‘sovereignty and integrity’ under article 19(2). Both sections 1 53A and 295A have been justified as restrictions under public order.116 The Supreme Court, in Ramji Lal Modi,117 has held that after the First Amendment in 1951, the language of 19(2) read – “in the interests of public order”. This has to be read very widely, so a law like section 295A might not directly deal with public order but can be read to be “in the interests of public order”.118
7 However, if hate speech is also about insulting persons or wounding religious feelings (without involving public order), then one could justify this under the ‘decency and morality’ clause of article 19(2). The Supreme Court held that section 123(3) was a constitutional restriction on speech, in the interests of decency.119 Similarly, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 proscribes “intentionally insult[ing] or intimidat[ing] with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.”120 In Swaran Singh v. State121 the Supreme Court held that calling a member of a Scheduled caste “chamar” in public view would attract Section 3(1) (x).
8 The form of hate speech that the Supreme Court here is dealing with is insult. It is related to a history of humiliation faced by Scheduled Caste persons, and is not directed against public order. Using the word chamar to insult someone could constitute hate speech irrespective of whether it leads to a public order disturbance. The restriction on speech here is more directly linked to ‘decency or morality’ in article 19(2) than ‘public order’.122 Similarly, the restrictions under section 153B (Imputations, assertions related to national integration) could be justified under the ‘sovereignty and integrity’ restriction in article 19(2).
9 Hate speech provisions are found in three different chapters of the IPC, “Of Offences Relating to Religion”, “Of Offences Against the Public Tranquillity” and “Of Criminal Intimidation, Insult and Annoyance”. Section 295A, IPC was enacted to specifically target speech that intended to outrage religious feelings by insulting religion or religious beliefs.123
Politics and Hate Speech
10 Political speeches often assume a divisive tone in order to exploit social prejudices for electoral gains. However, this discourse must take place in an environment that does not foster abusive or hateful sentiments. Though, political rivalry might encourage the use of unwarranted language, it is unwise to restrict speech that merely showcases the tendency to evoke unwanted circumstances without intention.124 In order to promote robust and healthy debate, it is important that a fine balance is struck between freedom and restrictions.
11 In Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte & Ors.125, the Court analysed the meaning of sub-section (3A) of section 123 of The Representation of People’s Act, 1951 (hereinafter RPA, 1951) observing that the said provision is similar to section 153A, IPC as “the promotion of, or attempt to promote, feelings of enmity or hatred” as against the expression “Whoever …. promotes or attempts to promote disharmony or feelings of enmity, hatred or ill-will ….” in section 153A, IPC. The expression ‘feelings of enmity or hatred’ is common in both the provisions but the additional words in Section 153A, IPC are ‘disharmony ….or ill-will’. The difference in the plain language of the two provisions indicates that even mere promotion of disharmony or ill-will between different groups of people is an offence under section 153A, I.P.C, while under sub- section (3A) of section 123 of the RPA, 1951, only the promotion of or attempt to promote feelings of enmity or hatred, which are stronger words, are forbidden in the election campaign.
12 In Prof. Ramachandra G. Kapse v. Haribansh Ramakbal Singh126, it was held that the accused could not held responsible for the content of the election manifesto as he did not participate in making it. Also, in Manohar Joshi v. Nitin Bhaurao Patil & Anr.127, the Supreme Court observed that a statement by a candidate during election that first Hindu State will be established in Maharashtra cannot be considered a corrupt practice under section 123(3) of the RPA, 1951 as:
[the statement] by itself [was] not an appeal for votes on the ground of his religion but the expression, at best, of such a hope. However, despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion.
13 The recent judgment of the Apex Court, Abhiram Singh v. C.D Commachen (Dead) by Lrs. &Ors.128 analysed the law on corrupt practices under the Act, 1951 taking into account series of case laws and observed that Sub-section 3A was simultaneously introduced so as to provide that the promotion of or an attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language would constitute a corrupt practice where it was indulged in by a candidate, his agent or by any other person with the consent of the candidate or his election agent for furthering the election prospects of the candidate or for prejudicially affecting the election of any candidate. While widening the ambit of the corrupt practice as provided in sub-section (3), a significant change was brought about by the inclusion of the words “for any person on the ground of his”.
14 The Constitutional validity of section 123(5) of the Act, 1951 was upheld by the Constitution Bench in which the sweep of the corrupt practice on the ground of religion was rather broad. The Court also made an observation that section 123(3A) has a different ambit. It does not mean vilifying another language or creating enmity between communities. It refers to the promotion of or attempt to promote hatred between different classes of citizens on the proscribed grounds but section 123(3A) does not refer to the religion, race, caste, community or language of a candidate or of a rival candidate (unlike section 123(3) which uses the expression “his”). Section 123(3A) refers to the promotion of or attempts to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language.129
15 Courts have consistently upheld the constitutional validity of hate speech provisions, including sections 153A and 295A IPC on the basis of the ‘public order’, an exception carved out in article 19(2).130In State of U.P. v. Lalai Singh Yadav 131, the Supreme Court upheld the “the constitutional value of ordered security.”132 In this judgment, ordered security was identified as a constitutional value that is to be safeguarded and courts should give preference to the State if their intent is to protect safety and peace. Here the principle of ordered security is enunciated as a positive principle, without which creativity and freedom are meaningless.
16 The Model Code of Conduct given by the Election Commission of India for the guidance of political parties and candidates should be amended to the extent that effect is given to the sub section (3A) of section 123 of the RPA, 1951. The first part of the Code i.e. General Conduct should expressly provide a provision that prohibits any kind of speech that promotes, or attempts to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
17 In the current scenario the threat of large fines is a deterring factor for publishers, artists, bloggers and those who do not have the financial muscle to contest hate speech litigation.
18 Other jurisdictions133 have developed extensive jurisprudence on hate speech law. Judges have tried to strike a balance between harm caused by hate speech and the threat to freedom of speech and expression. Any legal regulation of hate speech must take into account the principles that have evolved in these jurisdictions. For instance, in the Canadian case Sasketchwan v. Whatcott134, the Canadian Supreme Court limited the meaning of the term ‘hatred’ to extreme manifestations of “detestation” and “vilification”. In this case, the Court identified two categories of hate speech (i) marginalising individuals based on their membership of a targeted group, thus affecting inclusiveness and dignity (ii) impairing their ability to respond to substantive ideas under debate, thus creating a serious barrier to their full participation in democracy.135
Distinguishing Sedition from Hate Speech
19 Care must also be taken to differentiate hate speech from sedition. The difference between offences under Chapter VIII (that cover aspects of hate speech) and sedition is that the offence of hate speech affects the State indirectly by disturbing public tranquility, while sedition is an offence directly against the State.
20 In 1897 when amendments to section 124A IPC were being proposed, a Select Committee reviewing the Bill recommended that sedition must be distinguished from stirring up class hatred. It reasoned that:
It appears, to us that the offence of stirring up class-hatred differs in many important respects from the offence of sedition against the State. It comes more appropriately in the chapter relating to offences against the public tranquility. The offence only affects the Government or the State indirectly, and the essence of the offence is that it predisposes classes of the people to action which may disturb the public tranquility. The fact that this offence is punishable in England as seditious libel is probably due to historical causes, and has nothing to do with logical arrangement.136
21 To qualify as sedition, the impugned expression must threaten the sovereignty and integrity of India and security of the State. Since it has been made a distinct offence under section 124A, it would not be advisable to place expressions exciting disaffection against the State under the proposed section on hate speech. Also, imputations or assertions prejudicial to national integration are punishable under section 153B IPC.
Non-Legal Measures to Address Hate Speech
22 It is also worth considering whether there are ways to combat the harm created by hate speech that are less harmful than banning or blocking the speech. Currently strategies such as prior restraint or punishment for hate speech are being contemplated in Indian law.
23 Other strategies have also been explored in other countries and these include:
An Effort to find Solution
24 The definition of hate speech is still subject to wider intellectual and academic debate. What is at issue is the criminalisation of hate speech and how the existing laws look at it. Since it is entrenched in the constitutional right of freedom of speech and expression, “hate speech” has been manipulated by many in different ways to achieve their ulterior motive under the garb of such right and the law courts in absence of clear provisions in IPC, are not able to prosecute hate speech charges brought before them with success.
25 As per the Jakarta Recommendations which was a regional consultation on “Expression, Opinion and Religious Freedoms in Asia”, held in Jakarta, Indonesia on 3-5 June, 2015 and which included expert participants such as UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression observed the following:
26 These recommendations can serve as guidelines for developing hate speech jurisprudence.
Prohibiting Advocacy of Hatred138
27 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 responsible exercise of freedom of speech and expression.
28 The Constitution in its working, however, required amendments to article 19 so as to add several new grounds of restrictions upon the freedom of speech and expression; initially, under the Constitution (First Amendment) Act, 1951 followed by the Constitution (Sixteenth Amendment) Act, 1963. The new grounds of restrictions added were (i)
friendly relations with foreign states (ii) defamation or incitement to an offence (iii) the sovereignty and integrity of India (iv) security of State (v) decency and (vi) contempt of court.
29 In pursuance of the aforesaid constitutional provisions, certain provisions such as section 153A, section 153B and section 295A, were added in IPC to deal with particular category of offences which fall in general expression of hate speech. In IPC those provisions of hate speech fall under the categories of Offences Relating to Religion, Offences Against Public Tranquillity and Criminal Intimidation, Insult and Annoyance. Section 124A penalises sedition, 153A penalises promoting enmity among groups on various grounds and doing acts prejudicial to maintenance of harmony, section 153B penalises imputation assertions prejudicial to national integration, and section 295A penalises malicious acts intended to outrage religious feelings which supplement section 298 which relates to uttering words with intent to wound the religious feelings. Section 505 deals with statements conducing to public mischief.
30 The reading of above provisions make it clear that there is no water tight compartment to deal with the various acts relating to hate speech which generally overlap. In a particular situation hate speech may become sedition. In the case of Kedar Nath Singh v. State of Bihar139 , the Supreme Court upheld section 124A IPC as constitutionally valid, following the view of the Federal Court in Niharendu Dutt Majumdar v. Emperor140 and did not accept the interpretation given to it by the Privy Council in Emperor v. Sadasiv Narain Bhalerao141 . In Niharendu142 the Federal Court held that “public order or the reasonable anticipation or likelihood of public disorder”was the gist of the offence of sedition and that in order to be punishable under section 124A, – “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that was their intention or tendency”. The Supreme Court in Kedar Nath Singh143 interpreted section 124A to mean that an utterance would be punishable under this section only when it is intended or has a reasonable tendency to create disorder or disturbance of the public peace by resort to violence.
31 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 (sections 153A, 295A read with section 298 IPC). 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.
32 Hate speech poses complex challenges to freedom of speech and expression. The constitutional approach to these challenges has been far from uniform as the boundaries between impermissible propagation of hatred and protected speech vary across jurisdictions. A difference of approach is discernible between the United States and other democracies. In the United States, hate speech is given wide constitutional protection; whereas under international human rights covenants and in other western democracies, such as Canada, Germany, and the United Kingdom, it is regulated and subject to sanctions.
33 In view of the above, the Law Commission of India is of considered opinion that new provisions in IPC are required to be incorporated to address the issues elaborately dealt with in the preceding paragraphs. Keeping the necessity of amending the penal law, a draft amendment bill, namely, The Criminal Law (Amendment) Bill, 2017 suggesting insertion of new section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases) is annexed as Annexure-A for consideration of the Government.