Hate speech in the time of free speech

News: Over the last few years’ frequencies of hate speech has arisen in India.

What are the provisions for criminalising hate speech?

Black’s law dictionary defines hate speech as a speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances that are likely to provoke violence.

Indian penal code provides protection through various sections:

Section 153A – penalizes the promotion of enmity between different groups.

Section 153B– Punishes assertions prejudicial to national integration.

Section 505 –punishes rumours and news intended to promote communal enmity.

Section 295A –Criminalises insult to religious belief.

Various courts have also provided directions:

High Court of Karnataka in the case against hate speech Vs. the state of Karnataka gave the opinion that the Indian penal code makes hate speech illegal.

The Supreme Court in Pravasi Bhalai sangathan v Union of India (2014) described hate speech as an effort to marginalise individuals based on their membership in a group and that seeks to delegitimise group members in the eyes of the majority.

The Supreme Court upheld the view that the objective behind these provisions is to check communal and separatist tendencies and secure fraternity so as to ensure the dignity of the individual and unity of the nation.

Supreme Court in state of Karnataka V. Praveen Bhai Thogadia(2014) emphasized the need to sustain communal harmony. In Pravasi bhalai sangathan case, the Supreme Court underlined the impact of hate speech on the targeted group’s ability.

Madras High Court in G. Thirumurugan Gandhi v. State (2019) highlighted that hate speeches cause discord between classes. In Amish Devgan v. Union of India (2020), the Supreme Court held that hate speech has no redeeming or legitimate purpose other than hatred towards a particular group.

What are the challenges in controlling hate speeches?

There are uncertainties around the interpretation of hate speech, which have resulted in the adoption of varying standards. For example, The Madras High Court, in Maridhas v. State (2021), quashed an FIR alleging hate speech by holding that the ‘YouTuber’ is entitled to protection under Article 19(1)(a) of the Constitution. The court distinguished this case from the application of the ‘Who? What? Where? Test’ laid down in the Amish Devgan case.

On the contrary, the Madras High Court, in the case of Fr. P. George Ponnaiah v. Inspector of Police (2022), gave no relief to the petitioner.

Also, there is a lack of clear legislative guidance and the Supreme Court has been asked to review hate speech laws.

What are the various recommendations?

Law commission of India, in 267th report, recommended incorporation of 2 provisions:

Section 153C: to cover offence committed when any person uses threatening words which are intended to cause fear or hatred including violence on the grounds of race, caste, religion, sex, gender identity and other characteristics.

Section 505A: include provisions penalising causing of fear, alarm or provocation of violence.

Parliamentary standing committee on home affairs, 189th report, recommended incorporation of provisions in the information technology act to deal with online hate speech.

What should be the way forward?

Specialised legislation to govern hate speech propagated via the internet especially social media should be framed.

Inspiration can be taken from Australian federal law called criminal code amendment act 2019, which imposes liability upon internet service providers such persons are aware of any and if it is seen as offensive.

Source: This post is based on the article “Hate speech in the time of free speech” published in The Hindu on 12th January 2022.