The debate surrounding the comments by ruling party spokespersons have put the spotlight on the law that deals with criticism of or insult to religion.
India does not have a formal legal framework for dealing with hate speech.
India prohibits hate speech through several sections of the Indian Penal Code, the Code of Criminal Procedure, and other laws which put limitations on the freedom of expression.
Constitutionally, Article 19 gives all citizens the right to freedom of speech and expression but the said freedom of expression is subject to "reasonable restrictions" for preserving inter alia "public order, decency or morality".
What is hate speech?
There is no international legal definition of hate speech, and the notion of what constitutes "hateful" speech is debatable.
Hate speech is defined as any form of communication, whether spoken, written, or physical, that criticizes or discriminates against a person or a group based on their religion, ethnicity, nationality, race, color, descent, gender, or other identity factor.
Legal Provisions of Hate Speech in India
Responsible speech is the essence of the liberty granted under Article 21 of the Constitution.
Article 19(2) of the Constitution guarantees freedom of speech and expression to all citizens of India.
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.
Legislations around Hate speech
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’.
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.
Some Supreme Court Judgements
Rangila Rasool case
Rangila Rasool was a tract brought out by a Hindu publisher — that had made disparaging remarks about the Prophet’s private life.
Cases against the first pamphlet, filed under Section 153A, were dismissed by the Punjab and Haryana High Court, which examined the question whether targeting religious figures is different from targeting religions.
This debate in interpretation prompted the colonial government to enact Section 295A with a wider scope to address these issues.
Ramji Lal Modi v State of Uttar Pradesh
The constitutionality of Section 295A was challenged.
The Supreme Court upheld the law on the grounds that it was brought in to preserve “public order”.
Public order is an exemption to the fundamental right to freedom of speech and expression and the right to religion recognised by the Constitution.
Ramlal Puri v State of Madhya Pradesh
In 1973, the Supreme Court said the test to be applied is whether the speech in question offends the “ordinary man of common sense” and not the “hypersensitive man”.
However, these determinations are made by the court and the distinction can often be vague and vary from one judge to the other.
Baragur Ramachandrappa v State of Karnataka:
A 2007 decision of the Supreme Court, “a pragmatic approach” was invoked in interpreting Section 295A.
The state government had issued a notification banning Dharmakaarana, a Kannada novel on the ground that it was hate speech, invoking a gamut of provisions including Section 295A.
Misuse of Laws: Lower conviction rates for these provisions indicate that the process where a police officer can arrest without a warrant is often the punishment.
Violation of free speech: Critics have pointed out that these laws are intended for the state to step in and restore “public order” rather than protect free speech.
Vague terms in the law: The broad, vague terms in the laws are often invoked in its misuse.
Old-aged Laws: Section 295A lie in the communally charged atmosphere of North India in the 1920s.
Section 295A was passed in a different societal paradigm but as society has changed the law needs to change as well. If the law still reflects the ghosts of the past then there is no need for that law.
Section 295A needs to change to accommodate both religious sentiments and freedom of expression in a harmonious manner.
Rights of the individual need to be given the same importance as the right of the community.
Hate speech needs to be understood as the starting point or origin of marginalizing a particular class of persons under ‘fear of threat’. It should not be protected in the name of freedom of speech, otherwise it will lead to violation of principles on which Indian democracy is built on.
Q1) Define the term ‘Contours of free speech’ and its limitations with respect to offences regulating to religion.
Q2) What are the reasons for increasing hate speech in the Indian society? Suggest some steps that can be taken to tackle these kinds of issues with suitable examples.