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, as defined under Black’s Law dictionary. Every democratic country gives its citizen the right to freedom of speech and expression. The question here is when does this right of freedom of speech turn into a hate speech, making it punishable under rule of law.
Hate speech have their basis from stereotypes; stereotypes that rise due to identity issues, discriminatory structures, norms and rules embedded deeply in the society. Whenever there is a distinction between ‘us’ and ‘them’ and ways are adopted to reinforce this believe of ‘our’ over ‘their’. Ideologies play a vital role. When one refuses to accept or consider any alternative ideology, then their dissatisfaction, bigotry and intolerance vents out in the form of hate speeches. These hate speeches can evolve from one’s love for nation, their community, identity or religion as well.
Any democratic county like India- considers the freedom of speech and expression as an essential and prerequisite feature for the country to prosper. But this freedom comes with certain restrictions. Sometimes in the name of free speech, a hate speech is given, those result in marginalization of certain groups. The 26th Law Commission Report also states that- Incitement to violence and discrimination has been recognized as a ground for interfering with the freedom of speech and expression as enshrined by the Constitution of India.
The Constitution of India has provisions under Article 19 that restricts the freedom of speech and expression; this is because liberty cannot be absolute or uncontrolled. Therefore, clauses under Article 19(2) deal with the restrictions put on speech and expression. Hate speech is also covered under the same.
Legal Provisions of Hate speech-
In a country like India, where there are various classes, castes, religion and diversity, it becomes difficult to not let a section feel detriment. And when something like this happens then the marginalized or the minority feels to stand up against resulting negatively into hate speeches and incitement which makes them liable under the Constitution of India, making themselves criminally liable for their acts holding severe punishments.
Article 19(2) of the Constitution of India deals with the restrictions imposed in situations when the sovereignty and integrity of the nation, security of the State, and friendly relations with foreign states, public order, morality or decency in relation to contempt of court, defamation or incitement is the subject matter. There is no definite definition of hate speech in laws in India but there are rules and laws by the legislation and otherwise in the Constitution that deal with hate speeches.
Section 124A of the Indian Penal Code, 1860, penalizes sedition. When a speech or a conduct of a person incites people to rebel against the authority of the state or the government, then, that results into sedition, which is punishable under IPC. Section 298 of IPC penalizes words, acts, uttering etc, which is made with deliberate intent to wound the religious belief or feelings of any person. Section 153 of IPC penalizes the promotion of any kind of enmity between different groups based on the grounds of religion, caste, language, sex, race, place of birth etc, and by doing acts that are prejudicial for the maintenance of harmony in the country.
Whenever there are attempts of deliberate and malicious acts that are done with an intention to outrage the religious feelings of any group by insulting their religious beliefs or their religion itself, then that act is penalized under Section 295A of IPC. Assertions and imputations that are prejudicial to the national integrity of the state are penalized and punishable under Section 153B of IPC. Section 505(1) and (2) of IPC penalizes circulation and publication of any rumor or statement that is causing enmity or public mischief or disturbance, hatred or ill will between the classes.
Section 95 of Code of Criminal Procedure, 1973, empowers the government to forfeit the publications which are punishable under the aforementioned sections of IPC. Section 8 of Representation of the People Act, 1951, disqualifies a person from contesting the elections if he has been convicted for indulging in acts that amount to illegitimate use of freedom of speech and expression.
There are more laws which keep a check on the use of freedom of speech and expression that turn into hate speech causing a problem or disturbance in the working of the state, and most importantly peace of the country.
Analysis in India with case law-
Hate speeches have always been debatable in India. Some agree to them as causing disturbance in the working, others treat them as their right to criticize and question. The courts have also dealt with cases regarding the same and this is how this issue has been looked upon in a broadened manner.
In the Pravasi Bhalai Sanghathan case, the Court had expressed that considering the discriminatory impact of hate speeches on individuals, it is difficult to confine the probation to a manageable standard. If this happens then it might lead into curtailing freedom of speech and expression, which is why there is no specific definition of hate speech in India.
In Jafar Imam Naqvi vs. Election Commission of India, the petitioners had challenged the victorious speech of a candidate running election, and wanted the Election Commission to take action against these speeches. But the SC had dismissed the petition stating that this matter was not under public interest and therefore wasn’t a public interest litigation, which is why the Court under Article 32, did not have the jurisdiction to hear the matter.
Public order is in relation with public safety and security of the state was given consideration in the matter of Brij Bhushan vs. State of Delhi. Public order was then inserted as a ground of restriction under Article 19(2). However, the SC had distinguished public order, law and order, and security of State from each other in the case of Ram Manohar Lohiya vs. State of Bihar.
Delhi riots regarding the CAA Bill has been in the limelight where politicians, activists, leaders, students have been accused of propagating hate speech to the mobs and are being made liable for their acts. Similarly, many political leaders are currently facing charges of laws on hate speech while delivering their speeches.
Conclusion- Recent decisions by the SC regarding hate speeches show that the Judiciary is firm in implementing laws on hate speeches and restrictions under Article 19(2) very seriously. The reason behind such a stance is the apprehension and fear of misuse of restrictive statutes by the State. Democracy favors giving its citizens the right to speech and expression and that is their fundamental right. But this has to be controlled and supervised by laws on hate speeches, because they can be a reason for violence, hatred, disrespect and overall disturbance of peace in the State or the country as a whole.
Article by- Mukti Heliwal, Bharti Vidyapeeth University.