Debates around the regulation of hate speech are highly contested globally. There is little agreement over what constitutes hate speech, what part of hate speech should be regulated by law, and where to draw the line between freedoms of speech and hate speech that is deemed illegal. However, the range of international, domestic and theoretical material that has emerged around this theme, helps us understand and situate hate speech and the impulse to legally define and regulate such hate speech.
In a civil society like ours, man is regarded as a doer of rational things but when it comes to his expressions, he has to be controlled, modulated, monitored and balanced with the expression and thoughts of another man who inculcates the similar desires. With the baggage of a population of diverse caste, creed, religion the importance of delivering a responsible speech becomes a mandate for backing the principles of liberty and democracy enshrined in the Constitution
One of the greatest challenges is not to exercise the principle of autonomy and free speech principle that are detrimental to any section of society. Free speech is necessary to promote a plurality of opinions where hate speech becomes an exception to Article 19(1) (a).
Thus, even if a speech that is vehement, caustic, and sometimes unpleasantly sharp is protected from State intervention. It acts as palisade against the States power to regulate speech. The value accorded to the expression is greater in the lists of the rights that become the reason of the reluctance of the lawmakers and judiciary in creating exceptions to it that might curtail the spirit of this freedom provided. Perhaps, this could be one of the important reasons behind the reluctance in defining hate speech. Whether the provisions as prescribed in the Constitution allow them to do so?
The Legal Aspect Apart from the Constitution, there are various other legislation and self-regulatory mechanisms under which hate speech is negated, like:
1. The Indian Penal Code, 1860: Section 124A; Section 153A; Section 153B; Section 153 C; Section 295A; Section 298; Section 505 & (2).
2. The Representation of the People Act, 1951: Section 8; Section 324; Section 123(3); 123(3A) and Section 125.
3. The Protection of Civil Rights Act, 1955: Section 7
4. The Religious Institutions (Prevention of Misuse) Act, 1988: Section 3(g)
5. The Cable Television Network Regulation Act, 1995: Sections 5 and 6 of the Act prohibits transmission or retransmission of a program through cable network in contravention to the prescribed program code or advertisement code. These codes have been defined in rule 6 and 7 respectively of the Cable Television Network Rules, 1994.
6. The Cinematograph Act, 1952: Sections 4, 5B and 7 empower the Board of Film Certification to prohibit and regulate the screening of a film.
7. The Criminal Procedure, 1973: Section 95, 107, 144.
The above-mentioned laws may not directly deal with the issues of hate speech but the Constitution has been interpreted elaborately by the Supreme Court to confine these provisions under the reasonable restrictions of Article 19(2).
Hence, the notion of hate speech has been made wider in our country to maintain peace and public order. Despite such enumerate provisions in our laws, contradictory questions have been raised about them, first, it is inadequate and second, it restricts the freedom to express. This perplexing confutation is depicted by two different cases of the Honble Supreme Court-
Pravasi Bhalai Sangathan v. Union of India (AIR 2014 SC 1591): Where the petitioners found the existing laws related to hate speech inadequate and prayed that the State should enact stricter regulation and take peremptory action against people promoting hate speech. But the Court observed that the implementation of existing laws would solve the problem of hate speech to a great extent. The matter of hate speech deserved deeper consideration by the Law Commission of India. Therefore, the Commission after taking into view the laws and various pronouncements on hate speech had submitted its Report No.267 before the Government of India in March 2017 for consideration.
Subramaniam Swamy v. Union of India: (W.P. (Crl) 184 of 2014) In this case arguments were raised on the reasonableness of the restrictions imposed by Sections 499-500 IPC on free speech in light of settled law that restrictions should be narrowly tailored and should not be excessive, arbitrary or disproportionate. Subramanian Swamy argued that half a dozen sections of the IPC should be declared unconstitutional for violating Article 19(1) (a).
Therefore, it can be observed that there are mixed feelings regarding the concept of hate speech in our country where because of no concrete platform about it makes its implementation ineffective. The doers escape challenging the laws to be restrictive in nature while some who are the victims of this hatred, demands for stricter provisions for their safety and prosperity.
There are many judicial interpretations on this subject, like-
1. Shreya Singhal v. Union of India: W.P. (CRL.) NO.167 OF 2012; Issues were raised about Section 66A of the Information Technology Act, 2000 relating to the fundamental right of free speech and expression guaranteed by Article 19(1) (a) of the Constitution, where the Court differentiated between discussion, advocacy, and incitement and held that the first two were the essence of Article 19(1).
2. Arup Bhuyan vs State of Assam: (CRL. APPEAL NO(s). 889 OF 2007) The Court held that a mere act cannot be punished unless an individual resorted to violence or inciting any other person to violence.
3. S. Rangarajan Etc vs P. Jagjivan Ram: (1989 SCC (2) 574) In this case, the Court held that freedom of expression cannot be suppressed unless the situation so created are dangerous to the community/ public interest wherein this danger should not be remote, conjectural or far-fetched. There should be a proximate and direct nexus with the expression so used.
The Judicial decisions depict that India follows a speech protective regime, meaning the words that are used by the people to express themselves are critically heard and then reacted on them if the words go against public morality. Although the Courts are extremely cautious about putting restrictions on Article 19 because of the sole reason for it to be misused by the State negatively. Despite numerous precedents on this subject, it remains a challenging task to identify a a particular type of words or expressions that may have the capability to wake violence in the country.
The injury caused to the public is large because hate speech severely affects fraternity, dignity of individual, unity and national integration. Hate speech has potential of provoking individuals & society to commit acts of crime, genocides, ethnic cleansing etc. 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. Hate speech also offends fundamental rights guaranteed under Article 19 and 21.
We do agree that responsible speech is the essence of the liberty granted under Article 21 of the Constitution. One of the greatest challenges before the principle of autonomy and free speech principle is to ensure that this liberty is not exercised to the detriment of any individual or the disadvantaged section of the society. In a country ours, with diverse castes, creed, religions and languages, Hate Speech poses a greater challenge and threat. The Article 19 guarantees freedom of speech and expression to all citizens but it is subjected to certain restrictions, namely, 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. Hate speech has not been defined in any law in India but legal provisions in certain legislations prohibit select forms of speech as an exception to freedom of speech.
The hate speech has always been a live debate in our country. The issue has been raised time and again before the legislature, court as well as the public. In Pravasi Bhalai Sangathan v. Union of India [AIR 2014 SC 1591] case, the Supreme Court dealt with a case where the petitioners prayed that the State should take peremptory action against makers of hate speech. The Court did not go beyond the purview of existing laws to penalize hate speech as that would amount to ‘judicial overreach’. However, the Supreme Court observed that the implementation of existing laws would solve the problem of hate speech to a limited extent. Therefore, the matter was referred to the Law Commission of India to examine if it ‘deems proper to define hate speech and make recommendations to the Parliament to strengthen the Election Commission to curb the menace of ‘hate speeches’ irrespective of, whenever made.’ However, Executive did nothing to implement the report since 2017.
While recognizing the adverse and discriminatory impact of hate speech on individuals, the Court in Pravasi Bhalai Sangathan [AIR 2014 SC 1591] also expressed the difficulty of ‘confining the prohibition to a manageable standard’. The apprehension that laying down a definite standard might lead to curtailment of free speech has prevented the Court to define hate speech.
The Honble Supreme Court again went into the question of hate speech in Jafar Imam Naqvi v. Election Commission of India [AIR 2014 SC 2537] case. The petitioners filed a writ petition challenging the vitriolic speeches made by the candidates in the election and prayed for issue of writ of mandamus to the ECI for taking appropriate steps against such speeches.
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 use of unwarranted language, it is unwise to restrict speech that merely showcases tendency to evoke unwanted situations without intention. In order to promote robust and healthy debate, it is important that a fine balance is struck between freedom and restrictions. Elections are the manifestations of popular consent in democratic society. History assents that it has significant repercussions on making of a nation’s governance and the nature of its policies. The Constitution makers were concerned that religion race caste community or language may be misused for electoral gain. Similarly a lot of discussion was made regarding inclusion of the word “secularism”.
The forty-second amendment of the Constitution, to insert the words Secularism, Unity and Integrity, was in following lines: “The democratic institutions provided in the Constitution are basically sound and the path for progress does not lie in denigrating any of these institutions. However, there could be no denial that these institutions have been subjected to considerable stresses and strains and that vested interests have been trying to promote their selfish ends to the great detriment of public good. It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism, secularism and integrity of the nation, to make the directive principles more comprehensive and give them precedence over those fundamental rights which have been allowed to be relied upon to frustrate socio-economic reforms for implementing the directive principles.
In Preamble to the Constitution-(a) for words “Sovereign Democratic Republic” the words “Sovereign Socialist Secular Democratic Republic” shall be substituted; and (b) for the words “Unity of the Nation”, the words “Unity and Integrity of the Nation” shall be substituted.”
The Goswami Committee on Electoral Reform in its Report in 1990 had suggested parallel recommendation: “Election Commission shall have the power to make recommendations to the appropriate authority (a) to refer any matter for investigation to any agency specified by Commission (b) Prosecute any person who has committed an electoral offence under this Act or (c) appoint any Special Court for trial of any offence or offences under this Act.”. Further under Section 123 RPA, appeal on the grounds of religion, race, caste, community or language etc. and promotions of feelings of enmity between different classes constitute corrupt practice but same can be questioned only by way of election petition and the Election Commission of India cannot order the investigation even when Model Code of Conduct is in force.
Surprise to see that there is no provision to challenge the corrupt practice of candidates, who lost the election. Thus, the appeal on the grounds of religion, race, caste, community or language etc. and promotions of feelings of enmity between different classes cannot be questioned even by way of election petition. It has been observed, particularly, since 1990 onwards that not only in Parliament and State Assembly Elections, even in local body elections; hate speech is made to support particular party and candidate, which is against the basic dictum of a ‘sovereign socialist secular democratic republic’ like ours.
These technical capacities determine the level and effectiveness of regulation of content, as much as laws formulated by states. In the current scenario, the ability or inability of governments to intercept or block material on messaging platforms such as WhatsApp, Instagram, and Snapchat have led to both the ability to escape state regulation and enhance extreme measures by the Central and state governments. These extreme measures include suspending all internet services for extended periods of time, and blocking particular platforms such as Facebook, Twitter, and WhatsApp. In India, there is no proper institutional monitoring mechanism for monitoring social networking sites, and that Law Enforcement and Intelligence / Security Agencies monitor the internet on a case-to-case basis.
The hate speech has potential of provoking individuals to commit acts of riot, terrorism, genocides, ethnic cleansing etc. Such speech is considered outside the realm of protective discourse. 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. Any such hate speech severely affects fraternity, dignity of individuals, unity and national integration and also offends the fundamental rights guaranteed under Articles 19 and 21 of the Constitution of India. There are several examples from the previous incident of riot or violence illustrate how police and civil society struggled with the question of hate speech online, seemingly caught unaware by the scale and speed of circulation and impact of such hate speech contents.
As victims of hate speech citizens fear and are indeed nervous to enter public spaces or participate in the discourse. This brings a change in their behavior, such intangible effects of hate speech on people are the most insidious and damaging to their right to live with dignity. For a country like India with a massive population of diverse backgrounds and culture, subjects like Hate Speech become a complex issue to deal with as it is difficult to differentiate between free and hate speech. Several factors are to be considered while restraining speeches like the number of strong opinions, offensive to certain communities, the effect on the values of dignity, liberty, and equality. Certainly, there are laws for such atrocities but a major part of work is still left. For a prosperous India, we all have to work together and communicate efficiently to make our country a healthy place to live in.