Published On: 10 July, 2024
Authored By: Inayat Ahmed
ABSTRACT
Hate speech is one of the most trending issues in India. Hate speech simply means issuing/using such words, terms, or language that provokes and discriminates against other castes, religions, races, genders, etc. Hate speech often leads to violence and disrupts public peace. These speeches can be made online or in any public gathering. Hate speech is often statements of discrimination on the basis of religion, often targeting minorities. Cases/incidents of hate speech have increased rapidly in recent times. The Supreme Court has stressed balancing freedom of speech and hate speech, pointing out the thin line that separates the two. In this article, we will understand what hate speech is and what constitutes it. We will also take a look at some of the case laws where the Supreme Court had given some landmark judgments revolving around freedom of speech and hate speech. There are different laws in India that prevent and penalize hate speech. Of course, our Constitution is the first to prevent hate speech in the reasonable restrictions for freedom of speech, as mentioned in Article 19(2). We will also read about the views of different jurists from around the country on this matter. Furthermore, we will take a look at how different countries have framed their laws relating to hate speech and the methods of implementation they use. We will understand the problems arising out of such incidents of hate speech and try to find out the best ways to curb hate speech.
INTRODUCTION:
This critical issue is not new but has become a rising concern, especially with the elections, so it is important that the judiciary takes proper steps and punishes the violators. The burden lies on the apex court, The Supreme Court of India, to take control of this matter. The Indian Constitution gives every citizen freedom of speech; however, there are restrictions on the right to freedom of speech. These restrictions are known as reasonable restrictions, and they are issued in order to stop cases like hate speech. Often, the judiciary finds itself in the middle of such a case where, on one side, there is freedom of speech, and on the other, there is human rights.
Understanding Hate Speech:
A robust legal framework in India addresses hate speech, a form of communication that discriminates against individuals or groups based on attributes like race, religion, gender, or disability. Provisions under the Indian Penal Code (IPC), including Sections 153A, 153B, 295A, and 505, criminalize acts that promote enmity between different groups and incite violence. This comprehensive legal framework is designed to protect the rights and dignity of all citizens, underscoring India’s commitment to combating hate speech and promoting social harmony.
The Supreme Court of India had to step in and issue guidance to take measures to curb the cases of hate speech. The Supreme Court of India highlighted that hate speech is being used to target minorities, and such racism and discrimination shall not be taken lightly. Further, it was highlighted that hate speech should not be tolerated as such cases/incidents degrade the image of our country globally. India has always been known for its ‘Unity in Diversity’ motto, and hate speech is the exact opposite of that. Hate speech has always become more common and is being used to attract people during the election campaigns for the Indian General Election 2024. For this reason, the Supreme Court and the Election Commission issued orders that Hate speech and religious remarks shall not be used by politicians to attract voters.
Indian Legislature and laws against Hate speech:
In India, various legislations, such as the Indian Penal Code, Technology Act 2000, and Representation of People Act 1951, have laid down various provisions relating to Hate speech, discrimination, etc.g
Indian Penal Code (IPC):
1. Section 153A: This section deals with promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc., and acts prejudicial to the maintenance of harmony.
Punishment: Imprisonment up to three years, or with a fine, or both.
2. Section 153B: This section deals with imputations and assertions prejudicial to national integration.
Punishment: Imprisonment up to three years, or with a fine, or both.
3. Section 295A: This section deals with deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs.
Punishment: Imprisonment up to three years, or with a fine, or both.
4. Section 298: This section deals with uttering words, etc., with deliberate intent to wound religious feelings.
Punishment: Imprisonment up to one year, or with a fine, or both.
5. Section 505(1): This section deals with statements conducing to public mischief, including those likely to incite any class or community to commit an offense against any other class or community.
Punishment: Imprisonment up to three years, or with a fine, or both.
6. Section 505(2): This section deals with statements that create or promote enmity, hatred, or ill will between classes.
Punishment: Imprisonment up to three years, or with a fine, or both.
Information Technology Act, 2000
Section 69A: This section deals with the blocking of public access to any information through any computer resource if it is necessary for, among other reasons, maintaining public order or preventing incitement to the commission of any cognizable offense.
Punishment: Non-compliance can result in imprisonment of up to seven years and a fine.
The Constitution of India:
Article 19: Protection of Certain rights regarding Freedom of Speech, etc.
All citizens shall have the right-
- to freedom of speech and expression;
- to assemble peaceably and without arms;
- to form associations or unions or co-operative societies;
- to move freely throughout the territory of India;
- to reside and settle in any part of the territory of India; and
- to practice any profession or to carry on any occupation, trade, or business.[1]
Supreme Court on Hate Speech cases:
Over the years, the Supreme Court of India has decided several cases regarding hate speech. Some of the landmark cases are:
‘Pravasi Bhalai Sangathan v. Union of India’ – In 2014, The Supreme Court, while deciding the case, said that more effective laws must be implemented to deal with Hate speech matters. The Supreme Court said that the existing laws need to undergo changes to tackle hate speech, especially in the digital era.
“..that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”[2]
‘Shreya Singhal v. Union of India’—In 2015, while deciding the case, The Supreme Court struck down Section 66A of the Information Technology Act 2000, which laid down the punishment for Offensive content posted Online. The Supreme Court was of the opinion that any law that restricts freedom of speech shall be implemented to restrict certain content but not all content.
In the historical case of Romesh Thappar v. State of Madras, the question pertaining to the constitutional validity of Section 9(1A) of the Madras Maintenance of Public Order Act, 1949 came before the court of law. The provision authorized the regional government to bar the ingress and circulation of a newspaper for the maintenance of public order and safety in that region. After this, the Constitution of India came into force, and question raised on whether the provision is safeguarded under Article 19(2) of the Indian Constitution. Hence, the Hon’ble Supreme Court, after hearing the pleas of both sides, asserted that the reason behind the establishment of Section 9(1-A) is wider than that of Article 19(2), and it is impossible to severe the section under its shield. Therefore, in such cases, the impugned legislation will fail in its entirety. This judgment of the Apex Court has acted as an important judicial precedent in the Shreya Singhal’s case because of its rational justification over the scope of liberty to speech and expression in our country.[3]
‘Subramanian Swamy v. Union of India’ – In 2016, The Supreme Court upheld the constitutional validity of criminal defamation laws (Sections 499 and 500 IPC), stating that free speech does not mean the right to defame. This case highlighted the thin line between protecting reputation and upholding free expression.
Views from different professionals on Hate Speech crimes:
Let’s look at the views of some of the jurists and scholars on hate speech and human rights issues.
1. Justice Dipak Misra – Former Chief Justice of India
Justice Dipak Misra has pointed out the importance of balancing freedom of speech with the prevention of hate speech. In the Subramanian Swamy v. Union of India case in 2016, where the Supreme Court upheld the constitutional validity of criminal defamation laws, Justice Misra explained that free speech is not an absolute right and must be balanced against the right to reputation. He highlighted that hate speech poses a significant threat to society and social harmony and must be addressed through appropriate legal mechanisms.
2. Justice Markandey Katju – Former Judge, Supreme Court of India
Justice Katju has always advocated for freedom of speech and has criticized laws as overly restrictive. Justice Katju has emphasized that Freedom of speech results in the growth of democracy, and restrictions on the right and usage of hate speech laws stall the growth.
3. Justice R.F. Nariman – Former Judge, Supreme Court of India
In his various judgments, Justice Nariman has underscored the need for clear and precise legal definitions to combat hate speech effectively. He played a crucial role in the Shreya Singhal v. Union of India case when Section 66A of the IT Act was struck down. Justice Nariman was of the opinion that laws against hate speech should not be so broad that they restrict free speech. He stated his opinion that only such cases where it is clear that genuine hate has been used in speech/communication should be brought under the head of hate speech crimes.
4. Fali S. Nariman – Senior Advocate, Supreme Court of India
Fali S. Nariman, a leading jurist, expressed his concerns over the potential misuse of hate speech laws. He argued that while hate speech must be curbed to protect social harmony, the laws must clearly define the scope of hate speeches and shall be narrowly interpreted to prevent them from being used as tools of oppression against dissenters and minorities.
Issues arising from hate speech crimes:
There are various issues and flaws in the legal system that are highlighted by the rise of hate speech crimes.
- Ambiguity in Legal Definitions: The current legal framework in India does not clearly define what constitutes hate speech. Terms like enmity, hatred, and insult are subjective, leading to various interpretations. This ambiguity often leads to inconsistent enforcement and misuse of laws to suppress and target specific individuals or groups. For instance, in 2014, while deciding the case of Pravasi Bhalai Sangathan v. Union of India, the Supreme Court acknowledged the limitations of existing laws in effectively curbing hate speech.
- Balancing Free Speech and Regulation: The Indian Constitution guarantees freedom of speech and expression under Article 19(1)(a) but also states reasonable restrictions under Article 19(2). Balancing these rights with the need to prevent harm from hate speech is challenging. Overly broad restrictions can infringe on legitimate free speech. The Supreme Court, in 2015, decided the case Shreya Singhal v. Union of India, which struck down Section 66A of the IT Act for being overly broad, highlighting this tension.
- Technological Advancements and Online Hate Speech: The rise of social media has significantly amplified the reach and impact of hate speech. The rapid dissemination of content online makes it difficult to implement laws effectively. Online platforms’ anonymity and speed can lead to widespread harm before authorities can intervene to take down any such hateful content.
- Increasing Violence Against Minorities: Hate speech often ignites violence and discrimination against minorities. These acts of violence lead to significant social unrest and undermine the rights and safety of minority communities.
- Targeting Human Rights Defenders and Journalists: Activists, journalists, and human rights defenders are often targeted through hate speech, which creates fear and suppresses free speech. The government sometimes targets individuals who are critics of the ruling party and politicians; these individuals are then suppressed in the name of hate speech.
How can we prevent/curb hate speech:
- Establish clear, precise, and consistent definitions of hate speech in the legal framework. The legislation shall amend existing laws and remove ambiguities. A committee consisting of Lawmakers, legal experts, and human rights organizations shall be formed to draft comprehensive definitions that minimize subjective interpretations.
- Regular workshops and training programs for police officers and judges can improve their ability to recognize and address hate speech appropriately. This will help strengthen the existing hate speech laws and ensure more effective implementation.
- Develop better regulatory frameworks for digital platforms that balance the need to curb hate speech with protecting free speech. The tech companies shall work on implementing better community guidelines and preventing the publication of any hate speech. Better vigilance by the tech companies is also very important in this case.
- The Government and various organizations should collaborate to launch educational programs and campaigns that foster understanding and respect among different communities. Educational institutes should also make it part of their programs to help students understand the importance of free speech, respect for all minorities, and the meaning and consequences of hate speech.
- Enact laws to protect human rights defenders, establish rapid response mechanisms for threats and attacks, and hold wrongdoers accountable.
International laws/hate speech laws in different countries:
Now, we will take a look at the different laws on hate speech from different countries. Every country has different legislations, rules, procedures, and punishments for hate speech crimes.
1. United States
The First Amendment of the U.S. Constitution guarantees freedom of speech and expression, making it one of the most protective legal frameworks for free speech in the world.
In 1942, the ‘Fighting Words’ doctrine was introduced, which explained certain restrictions on speeches that result in violence and disturb the public order.
Just like the case in India, hate speech and free speech are ongoing debates, where online hate speech/content has been increasing rapidly. Some jurists and journalists say that free speech should never be restricted, that hate speech laws should be very narrow, and that their definitions must be clear.
2. United Kingdom
Two major Acts—the Public Order Act 1986 and the Communications Act 2003—were enacted to protect free speech and restrict hate speech. While the Public Orders Act restricts and penalizes any hate expressed toward any individual or group based on race, religion, or gender. The Communications Act 2003 restricts and penalizes any hate communicated or posted online or through any other public electronic communications network.
The laws in the UK align with the European convention, which states that scholars and jurists agree that the absolute right to free speech often leads to discrimination and hate toward other communities of society.
3. Germany
Germany has very strict laws preventing discrimination and hatred toward any individual or group. The German Laws grant free speech to every citizen; however, there are restrictions to protect the honor of other individuals and also prevent any actions, remarks, and speeches that may lead to hate and violence.
The German Criminal Code criminalizes hate speech. Furthermore, German laws require the appropriate authorities to prevent the publishing of any hate or discriminatory content on any online platforms. The authorities are ordered to remove any such content within 24 hours.
The International Convention on the Elimination of all Forms of Racial Discrimination (CERD), adopted by the UN General Assembly in 1965, prohibits “propaganda” and “dissemination of ideas” about racial superiority and racial discrimination, including from public authorities or public institutions (art. 4).
The Convention on the Prevention and Punishment of the Crime of Genocide is the first human rights treaty adopted by the General Assembly of the United Nations in 1948, on the heels of the atrocities committed during the Second World War. It specifies that genocide is a crime that can take place in times of war or peace, and it obliges States to take measures to prevent it and punish perpetrators.
The Rome Statute of the International Criminal Court adopted in 1998 also holds “criminally responsible and liable for punishment” anyone who ”directly and publicly incites others to commit genocide” (art. 25).
“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.” — United Nations Secretary-General António Guterres, June 2019.[4]
Conclusion:
In conclusion, We can say that combating hate speech in India requires a balanced approach that respects freedom of speech while protecting individuals and communities from harm. This requires changes in the laws and effective enforcement. The judiciary, legislature, and society must come together to ensure that laws against hate speech are precise, just, and effectively implemented, safeguarding both democratic freedoms and social harmony. It is not possible to achieve this goal without the support of the other.
Indian Legislation can take examples, cases, and guidance from the lawmakers of other countries. The laws relating to hate speech and the various cases are very helpful in drafting better laws in our country. Further, these other countries that have found better and more successful ways/methods to implement the laws can share their ideology on how to implement hate speech laws successfully.
The government should start various campaigns and awareness programs to educate people about freedom of speech and reasonable restrictions. It is, after all, our Constitution, and every citizen should know their constitution, if not completely, then at least the important points of it. The importance of public awareness on these matters is reflected in today’s society. These public awareness campaigns can be carried out via educational institutes. In fact, all schools should make it part of their syllabus/curriculum to teach the students the importance of freedom of speech, the need to prevent hate speech, and the consequences of hate speech.
Reference:
https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html
https://cjp.org.in/an-indian-law-on-hate-speech-the-contradictions-and-lack-of-conversation/
https://www.msnbc.com/opinion/msnbc-opinion/arundhati-roy-case-free-speech-india-rcna120220
https://www.un.org/en/genocideprevention/genocide-convention.shtml
[1] ‘Article 19 in Constitution of India’ <https://indiankanoon.org/doc/1218090/> accessed 28 June 2024.
[2] ‘Pravasi Bhalai Sangathan vs U.O.I. & Ors on 12 March, 2014’ <https://indiankanoon.org/doc/194770087/> accessed 28 June 2024.
[3] ‘Shreya Singhal v. Union Of India AIR 2015 SC 1523’ <https://legalserviceindia.com/legal/article-10124-shreya-singhal-v-union-of-india-air-2015-sc-1523.html> accessed 26 June 2024.
[4] United Nations, ‘International Human Rights Law’ (United Nations) <https://www.un.org/en/hate-speech/united-nations-and-hate-speech/international-human-rights-law> accessed 28 June 2024.
