Section 153A: its use and misuse

Source– The post is based on the article “Section 153A: its use and misuse” published in The Indian Express on 25th February 2023.

Syllabus: GS2- Polity

Relevance: Issues related to freedom of speech and expression

News- Recently, AICC spokesperson Pawan Khera was arrested by Assam Police for alleged hate speech by him.

What are some facts related to Section 153A and Section 505?

Section 153A of the Indian Penal Code penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language and doing acts prejudicial to maintenance of harmony”.

This is punishable with imprisonment up to three years, or with fine, or both. The provision was enacted in 1898 and was not in the original penal code.

Section 505 penalises statements conducing to public mischief.

In 1969, the offence was widely amended to enlarge its scope to prevent communal tensions. The offence was also made cognisable.

How have these laws been applied by various governments?

Hate speech laws have been invoked by governments to crack down on criticism of public functionaries and to arrest individuals.

In May last year, Marathi actor Ketaki Chitale was arrested for a Facebook post allegedly defaming NCP leader Sharad Pawar.

Data from the National Crime Records Bureau (NCRB) show that the rate of conviction for Section 153A is very low.

In 2020, 1,804 cases were registered. However, the conviction rate in 2020 was 20.2%. It suggests that the process often becomes the punishment.

What are safeguards available against misuse of these laws?

There are safeguards against its misuse. Sections 153A and 153B require prior sanction from the government for initiating prosecution. But this is required before the trial begins, and not at the stage of preliminary investigation.

The Supreme Court laid down a set of guidelines in the Arnesh Kumar v State of Bihar, 2014 case. The police cannot automatically arrest an accused before investigation for offences that carry a sentence of less than seven years.

In a 2021 ruling, the SC said that the state will have to prove intent for securing a conviction under Section 153A. The SC in this case quashed an FIR against the editor of The Shillong Times, Patricia Mukhim.

As per SC, Words used in the alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men and not those of weak minds.