Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact.
Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected groups ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.
Black’s Law Dictionary, 9th Edn. defines the expression hate speech as under:
‘Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.’
In Ramesh v. Union of India, AIR 1988 SC 775, while dealing with the subject, this Court observed:
‘…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.’
Legal Framework to counter Hate Speech
Given such disastrous consequences of hate speeches, the Indian legal framework has enacted several statutory provisions dealing with the subject which are referred to as under:
|Indian Penal Code, 1860||Sections 124A, 153A,153B, 295-A, 298, 505(1), 505(2)|
|The Representation of People Act,1951||Sections 8, 123(3A), 125|
|Information Technology Act, 2000||Sections 66A, 69, 69A|
|Information Technology (Intermediaries guidelines) Rules, 2011||Rule 3(2)(b), Rule 3(2)(i)|
|Code of Criminal Procedure, 1973 |||Sections 95, 107, 144, 151, 160|
|Religious Institutions (Prevention of Misuse) Act, 1980||Sections 3 and 6|
|Unlawful Activities (Prevention) Act, 1967||Sections 2(f), 10, 11, 12|
|Protection of Civil Rights Act, 1955||Section 7|
|The Cable Television Networks (Regulation) Act, 1995||Sections 5,6,11,12,16, 17,|
|The Cable Television Network (Rules), 1994||Sections 19, 20 & Rules 6 & 7|
|The Cinematographers Act, 1952||Sections 4, 5B, 7|
In addition, thereto, the Central Government has always provided support to the State Governments and Union Territory administrations in several ways to maintain communal harmony in the country and in case of need the Central Government also sends advisories in this regard from time to time. However, in such cases, as police and public order being a State subject under the 7th Schedule of Constitution, the responsibility of registration and prosecution of crime including those involved in hate speeches, primarily rests with the respective State Governments.
The Central Government also issued revised guidelines to promote communal harmony to the States and Union Territories in 2008 which provides inter-alia that strict action should be taken against anyone inflaming passions and stroking communal tension by intemperate and inflammatory speeches and utterances.
The Guidelines On Communal Harmony, 2008 issued by the Ministry of Home Affairs, Government of India seek to prevent and avoid communal disturbances/riots and in the event of such disturbances occurring, action to control the same and measures to provide assistance and relief to the affected persons are provided therein including rehabilitation. The detailed guidelines have been issued to take preventive/remedial measures and to impose responsibilities of the administration and to enforce the same. Various modalities have been formulated to deal with the issue which have been emphasised on participation of the stake holders.
Section 124A of Indian Penal Code, 1860
So far as the statutory provisions, as referred to hereinabove, are concerned, Section 124A of Indian Penal Code, 1860 (hereinafter referred to as the IPC) makes sedition an offence punishable, i.e., when any person attempts to bring into hatred or contempt or attempts to excite disaffection towards the Government established by law. (Vide: Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955)
Sections 153A and 153B IPC
Sections 153A and 153B IPC makes any act which promotes enmity between the groups on grounds of religions and race etc. or which are prejudicial to national integration punishable. The purpose of enactment of such a provision was to check fissiparous communal and separatist tendencies and secure fraternity so as to ensure the dignity of the individual and the unity of the nation.
Undoubtedly, religious freedom may be accompanied by liberty of expression of religious opinions together with the liberty to reasonably criticise the religious beliefs of others, but as has been held by courts time and again, with powers come responsibility.
Section 295A IPC
Section 295A IPC deals with offences related to religion and provides for a punishment upto 3 years for speech, writings or signs which are made with deliberate and malicious intention to insult the religion or the religious beliefs of any class of citizens.
Supreme Court in Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, has upheld the Constitutional validity of the section.
Section 298, Section 505(2) and Section 295A IPC
Likewise, Section 298 IPC provides that any act with deliberate and malicious intention of hurting the religious feelings of any person is punishable. However, Section 295A IPC deals with far more serious offences.
Furthermore, Section 505(2) IPC provides that making statements that create or promote enmity, hatred or ill-will between different classes of society is a punishable offence involving imprisonment upto three years or fine or both.
The Protection of Civil Rights Act 1955
The Protection of Civil Rights Act 1955, which was enacted to supplement the constitutional mandate of abolishing untouchability in India, contains provisions penalizing hate speech against the historically marginalised Dalit communities.
Section 7(1)(c) of the Act prohibits the incitement or encouragement of the practice of untouchability in any form (by words, either spoken or written, or by signs or by visible representations or otherwise) by any person or class of persons or the public generally.
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Similarly, intentional public humiliation of members of the Scheduled Castes and Scheduled Tribes is penalized under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The R.P. Act, 1951
Section 123(3) of the R.P. Act, provides inter-alia that no party or candidate shall appeal for vote on the ground of religion, race, caste, community, language etc. Section 125 of the R.P. Act further restrains any political party or the candidate to create feelings of enmity or hatred between different classes of citizens of India by making such an act a punishable offence.
International Covenant on Civil & Political Rights, 1966
Article 20(2) of the International Covenant on Civil & Political Rights, 1966 (ICCPR) restrains advocacy of national, racial or religious hatred that may result in incitement for discrimination, hostility or violence classifying it as prohibited by law.
International Convention on the Elimination of All Forms of Racial Discrimination, 1965
Similarly Articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (lCERD) prohibits the elements of hate speech and mandates the member states to make a law prohibiting any kind of hate speech through a suitable framework of law.
Thus, it is evident that the Legislature had already provided sufficient and effective remedy for prosecution of the author, who indulge in such activities.
Pravasi Bhalai Sangathan v. Union of India, (2014)