HATE SPEECH AND FREE SPEECH: WHAT IS THE LAW?

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HATE SPEECH AND FREE SPEECH: WHAT IS THE LAW?

Author: Tarang K Sancheti,
3rd year law student,
 School of Law, Christ (Deemed to be University)
Background
Rights are the cornerstone of individual autonomy. They are guaranteed as limits on the power of State.[1] In democratic societies they have been granted to protect individual from undue State interference. Freedom of expression has been enshrined in article 19 of the Universal Declaration on Human Rights.[2] It is considered to be one of the most significant rights as it allows a person to attain self-fulfilment and strengthen the capacity to fully enjoy freedom.[3]

The Constituent Assembly, conscious of the burdens of history placed utmost emphasis on ‘freedom of speech and expression’ as a hard-earned right of the new democracy. The discussion on limitations on this freedom therefore, centred on whether the proviso to the fundamental right to freedom of speech and expression should cover speech that is ‘likely to promote class hatred’. The discussion was brought up on multiple occasions, not just limited to debates on fundamental freedoms but also on ‘public order’ or ‘morality’.
It was initially suggested that the freedom of speech and expression would carry the proviso:
(a) the right of every citizen to freedom of speech and expression:
Provision may be made by law to make the publication or utterance of seditious, obscene, blasphemous, slanderous, libellous or defamatory matter actionable or punishable
Provision may be made by law to impose such reasonable restrictions as may be necessary in the public interest including the protection of minority groups and tribes. 
This provision faced substantial opposition in the Assembly where members argued that it denies ‘absolute’ nature to rights which are fundamental. After deep consideration and multiple revisions Ambedkar pointed out:
it is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court. It would be sufficient to quote one such judgment of the Supreme Court in justification of the limitation on the right of free speech contained in Article 13 of the Draft Constitution. In Gitlow Vs. New York in which the issue was the constitutionality of a New York “criminal anarchy” law which purported to punish utterances calculated to bring about violent change, the Supreme Court said: “It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”
It is therefore wrong to say that the fundamental rights in America are absolute, while those in the Draft Constitution are not.[4]
A plural democracy thrives on disagreements provided they do not cross the boundaries of civil discourse. Critical and dissenting voices are important for a vibrant society. However, care must be taken to prevent public discourse from becoming a tool to promote speech inimic
al to public order.  The mode of exercise, the context and the extent of abuse of freedom are important in determining the contours of permissible restrictions.[5]The State therefore assumes an important role in ensuring that freedoms are not exercised in an unconstitutional manner.
The Constitution acknowledges that liberty cannot be absolute or uncontrolled and makes provisions in clauses (2) to (6) of article 19 authorising the State to restrict the exercise of the freedom guaranteed under that article within the limits specified in those clauses.  Thus, clause (2) of article 19, as subsequently amended by the Constitution (First Amendment) Act, 1951 and the Constitution (Sixteenth Amendment) Act, 1963, enabled the legislature to impose reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of (i) the security of the State and sovereignty and integrity of India, (ii) friendly relations with foreign States, (iii)public order, (iv) decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
Thus, it was in this backdrop that the ‘limits’ to article 19 contained in 19(2) were arrived at, rather than approaching a definition of hate speech itself. 
Legal Provisions of Hate Speech in India
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 like India, with diverse castes, creed, religions and languages, this issue poses a greater challenge.
Article 19(2) of the Constitution guarantees freedom of speech and expression to all citizens of India. This article 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. However, legal provisions in certain legislations prohibit select forms of speech as an exception to freedom of speech.
Presently, in our country the following legislations have bearing on hate speech, namely: –
 (i) the Indian Penal Code, 1860 (hereinafter IPC)
          ·       Section 124A IPC penalises sedition
          ·       Section 153A IPC penalises ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’
          ·       Section 153B IPC penalises ‘imputations, assertions prejudicial to national-integration’
       ·         Section 295A IPC penalises ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’
     ·    &nbs
p;  Section 298 IPC penalises ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’
       ·       Section 505(1) and (2) IPC penalises publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes.
(ii) the Representation of The People Act, 1951
       ·       Section 8 disqualifies a person from contesting election if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression
      ·       Section 123(3A) and section 125 prohibits promotion of enmity on grounds of religion, race, caste, community or language in connection with election as a corrupt electoral practice and prohibits it. 
(iii) the Protection of Civil Rights Act, 1955
      ·       Section 7 penalises incitement to, and encouragement of untouchability through words, either spoken or written, or by signs or by visible representations or otherwise 
(iv) the Religious Institutions (Prevention of Misuse) Act, 1988
       ·       Section 3(g) prohibits religious institution or its manager to allow the use of any premises belonging to, or under the control of, the institution for promoting or attempting to promote disharmony, feelings of enmity, hatred, ill-will between different religious, racial, language or regional groups or castes or communities. 
(v) the Cable Television Network Regulation Act, 1995
    ·       Sections 5 and 6 of the Act prohibits transmission or retransmission of a programme through cable network in contravention to the prescribed programme code or advertisement code. These codes have been defined in rule 6 and 7 respectively of the Cable Television Network Rules, 1994.
(vi)  the Cinematograph Act, 1952
      ·       Sections 4, 5B and 7 empower the Board of Film Certification to prohibit and regulate the screening of a film.
(vii) the Code of Criminal Procedure, 1973
     ·       Section 95 empowers the State Government, to forfeit publications that are punishable under sections 124A, 153A, 153B, 292, 293 or 295A IPC
     ·       Section 107 empowers the Executive Magistrate to prevent a person from committing a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably cause breach of the peace or disturb the public tranquillity
    ·       Section 144 empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf to issue order in urgent cases of nuisance or apprehended danger.

The above offences are cognizable. Thus, have serious repercussions on liberties of citizens and empower a police officer to arrest without orders from a magistrate and without a warrant as in section 155 CrPC. 
Analysis of Hate Speech Jurisprudence in India
Hate speech can be curtailed under article 19(2) on the grounds of public order, incitement to offence and security of the State.  The Supreme Court in Brij Bhushan v. State of Delhi[6]  opined that public order was allied to the public safety and considered equivalent to security of the State. This interpretation was validated by the First Constitution Amendment, when public order was inserted as a ground of restriction under 19(2).[7]
However, in Ram Manohar Lohiya v. State of Bihar[8], Supreme Court distinguished law and order, public order and security of State from each other. Observing that: One has to imagine three concentric circles. Law and order represent the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
In Ramji Lal Modi v. State of U.P.[9]the Supreme Court upheld the constitutional validity of this section 295A IPC and ruled that this section does not penalise every act of insult to or attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.’[10]  It was also held by the Court that the expression in the ‘interest of public order’ mentioned in article 19(2) is much wider that ‘maintenance of public order’. Therefore, even if an act does not actually cause breach of public order, its restriction ‘in the interest of public order’ will be deemed reasonable.
In Shreya Singhal v. Union of India,[11]the court declared section 66 A of the Information Technology Act invalid as it did not establish any proximate relationship between the restriction and the act. It was opined that: the nexus between the message and action that may be taken based on the message is conspicuously absent – there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquillity. The court in this case differentiated between discussion and advocacy from incitement and held that the first two were the essence of article 19(1). Expression could only be restricted when discussion and advocacy amounted to incitement.  The incitement was read as incitement to imminent violence in Arup Bhuyan v. State of Assam,[12]wherein the Supreme Court declined to impute criminality on a person for being a member of a banned organisation unless that person resorted to violence or incited people to violence or created public disorder by violence or incitement to violence.
The context of speech plays an important role in determining its legitimacy under article 19(1)(a) of the Constitution. In State of Maharasthra v. Sangharaj Damodar Rupawate[13]the Court observed that the effect of the words used in the offending material 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.  In Arumugam Seervai v. State of Tami Nadu[14], the Supreme Court upheld the prosecution under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for using the words `pallan’, ‘pallapayal’ `parayan’ or `paraparayan’ with the intent to insult. The historical context of the impugned words was examined in this case.
Interpreting sections 153A and 505(2) of IPC in Bilal Ahmed Kaloo v. State of AP,[15]the Court held that the common feature in both sections is that it makes promotion of feeling of enmity, hatred or ill-will between different religious or racial or language or regional groups or castes and communities and doing acts prejudicial to maintenance of harmony an offence.  It is necessary that at least two such groups or communities should be involved to attract this provision. Merely hurting the feelings of one community or group without any reference to another community or group cannot attract either of the two sections.
The recent decisions show that the India follows a speech protective regime as in practice in the United States and the Courts are extremely cautious in restricting article 19 of the Constitution. The reason behind such a stance is the apprehension and fear of misuse of restrictive statutes by the State. 
Examination of the Issue by the Law Commission of India
Hate speech has always been a live debate in India. 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,[16]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 penalise hate speech as that would amount to ‘judicial overreach’. The Court observed that the implementation of existing laws would solve the problem of hate speech to a great extent. The matter was referred to the Law Commission 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.’
While recognising the adverse and discriminatory impact of hate speech on individuals, the Court in Pravasi Bhalai Sangathan[17]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 judiciary from defining hate speech in India and elsewhere.
The Court again went into the question of hate speech in Jafar Imam Naqvi v. Election Commission of India.[18]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 Election Commission for taking appropriate steps against such speeches. However, the Court dismissed the petition on the ground that the petition under article 32 of the Constitution regarding speeches delivered during election campaign does not qualify as public interest litigation and that the Court cannot legislate on matters where the legislative intent is visible.
Examining Restrictions on Freedom of Speech and Expression
Analysis of the Constituent Assembly debates and the debate around the First and Sixteenth Amendments, restrictions to speech based on hate speech are located primarily under the terms ‘public order’ and to a lesser extent ‘sovereignty and integrity’ under article 19(2). Both sections 153A and 295A have been justified as restrictions under public order. The Supreme Court, in Ramji Lal Modi,[19]has held that after the First Amendment in 1951, the language of 19(2) read – “in the interests of public order”. This has to be read very widely, so a law like section 295A might not directly deal with public order but can be read to be “in the interests of public order”.[20]
However, if hate speech is also about insulting persons or wounding religious feelings (without involving public order), then one could justify this under the ‘decency and morality’ clause of article 19(2). The Supreme Court held that section 123(3) was a constitutional restriction on speech, in the interests of decency. Similarly, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 proscribes “intentionally insult[ing] or intimidat[ing] with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.”[21]In Swaran Singh v. State[22]the Supreme Court held that calling a member of a Scheduled caste “chamar” in public view would attract Section 3(1)(x).
The form of hate speech that the Supreme Court here is dealing with is insult. It is related to a history of humiliation faced by Scheduled Caste persons, and is not directed against public order. Using the word “chamar” to insult someone could constitute hate speech irrespective of whether it leads to a public order disturbance. The restriction on speech here is more directly linked to ‘decency or morality’ in article 19(2) than ‘public order’. Similarly, the restrictions under section 153B (Imputations, assertions related to national integration) could be justified under the ‘sovereignty and integrity’ restriction in article 19(2).
Hate speech provisions are found in three different chapters of the IPC, “Of Offences Relating to Religion”, “Of Offences Against the Public Tranquillity” and “Of Criminal Intimidation,
Insult and Annoyance”. Section 295A, IPC was enacted to specifically target speech that intended to outrage religious feelings by insulting religion or religious beliefs.
Impact of Hate Speech on Freedom of Expression
Right to freedom of speech and expression is one of the most essential liberties recognized by the democratic States.[23]The concept of liberty has been primarily influenced by the principle of individual autonomy. The liberal theory of free speech views speech as an intrinsic aspect of autonomous individual, hence any restriction on exercise of this liberty is always subject to judicial scrutiny. The objective of free speech in a democracy is to promote plurality of opinions. The importance of allowing expression, howsoever, unpopular has been stressed by J.S. Mill in the following words, in his work ‘On Liberty’: If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.[24]
The importance of allowing diversity of opinion has guided the principles of free speech. Thus, even a speech that is ‘vehement, caustic, and sometimes unpleasantly sharp’[25]is protected from State intervention. 
Hate speech is an expression which is likely to cause distress or offend other individuals on the basis of their association with a particular group or incite hostility towards them. There is no general legal definition of hate speech, perhaps for the apprehension that setting a standard for determining unwarranted speech may lead to suppression of this liberty.
The philosopher Jeremy Waldron argues that, while purely offensive speech may not justify restrictions, there is a class of injury, amounting to more than hurt sentiments but to less than harm, in the sense of physical injury, that demands restriction in democratic frameworks. Where speech injures dignity, it will do more harm than simply offend its target. It would undermine the “implicit assurance” that citizens of a democracy, particularly minorities or vulnerable groups are placed on the same footing as the majority. While the right to criticise any group should continue to exist, speech that negates the right of a vulnerable group should be regulated.
Free speech has always been considered to be the quintessence of every democracy.  The doctrine of free speech has evolved as a bulwark against state’s power to regulate speech. The liberal doctrine was a measure against the undemocratic power of the state.   The freedom of expression was one of the core freedoms that were incorporated in the Bill of Human Rights. The greater value accorded to the expression, in the scheme of rights, explains the reluctance of the law makers and judiciary in creating exceptions that may curtail the spirit of this freedom. Perhaps, this is the reason behind the reluctance in defining hate speech.
Non-Legal Measures to Address Hate Speech
It is also worth considering whether there are ways to combat the harm created by hate speech
that are less harmful than banning or blocking the speech. Currently strategies such as prior
restraint or punishment for hate speech are being contemplated in Indian law.
Other strategies have also been explored in other countries and these include:
      ·       Popular television dramas which subtly and effectively promote harmony between warring communities,
       ·       the involvement of religious heads to build empathy across religious lines to reduce communal tension, and
     ·       strategic interventions (especially in the context of social media) to monitor the dissemination of hate speech and mob mobilisation.
         ·       Persuading people who are the weakest links, to stop spreading a harmful rumour.
An Effort to find Solution
The definition of hate speech is still subject to wider intellectual and academic debate. What is at issue is the criminalisation of hate speech and how the existing laws look at it. Since it is entrenched in the constitutional right of freedom of speech and expression, “hate speech” has been manipulated by many in different ways to achieve their ulterior motive under the garb of such right and the law courts in absence of clear provisions in IPC, are not able to prosecute hate speech charges brought before them with success.
As per the Jakarta Recommendations which was a regional consultation on “Expression, Opinion and Religious Freedoms in Asia”, held in Jakarta, Indonesia on 3-5 June, 2015 and which included expert participants such as UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression observed the following:
       ·       There is a need to revise and strengthen the existing antidiscrimination legislation so as to meet universal standards on equality across all groups, communities, men and women;
     ·       Laws should be adopted to punish incitement to hatred that may result in violence, hostility and discrimination.  They should be implemented in a non-selective, non-arbitrary and transparent manner, which should not be used to stifle dissent or the legitimate exercise of freedom of expression;
      ·       The religious minorities’ parliamentarians should be enabled to raise issues relating to freedoms of expression and religion, and the intersection of these rights, in the parliament and other platforms.
    ·       All instances of violations of freedom of expression in the context of religion and incitement of hatred resulting in violence should be condemned and prevented.
·       Fight against hate speech cannot be isolated.  It should be discussed on a wider platform such as the United Nations.  Every responsible government, regional bodies and other international and regional actors should respond to this threat.[26]
These recommendations can serve as guidelines for developing hate speech jurisprudence.

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