Section 153A: Uses and Misuses
Polity & Governance
4th Mar, 2023
The Supreme Court granted interim bail to Pawan Khera, chairman of the media and publicity department of the All India Congress Committee, who had been arrested for alleged hate speech.
- The invocation of these laws are often criticised for restricting free speech and misusing the legal processes for political purposes.
What does section 153A says?
- Section 153A of the Indian Penal Code (IPC) penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”.
- This is punishable with imprisonment up to three years, or with fine, or with both.
- The provision was enacted in 1898 and was not in the original penal code.
- At the time of the amendment, promoting class hatred was a part of the English law of sedition, but was not included in the Indian law.
In the pre-Independence Rangila Rasool case, the Punjab High Court had acquitted the Hindu publisher of a tract that had made disparaging remarks about the private life of the Prophet, and had been charged under Section 153A.
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.
In 2020, 1,804 cases were registered, six times higher than the 323 cases in 2014.
Legal Provisions of Hate Speech in India:
- Responsible speech is the essence of the liberty granted under Article 21of 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.
Acts defining hate speech:
The Indian Penal Code, 1860 (hereinafter IPC);
- Section 153B(1) (Making imputations, assertions prejudicial to national integration);
- 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs);
- 500 (Defamation); and
- 504 (Intentional insult with intent to provoke breach of the peace).
What are the safeguards against laws for hate speech?
- 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.
- To curb indiscriminate arrests, the Supreme Court laid down a set of guidelines in its 2014 ruling in Arnesh Kumar v State of Bihar.
- As per the guidelines, for offences that carry a sentence of less than seven years, the police cannot automatically arrest an accused before investigation.
- In a 2021 ruling, the SC said that the state will have to prove intent for securing a conviction under Section 153A.
- 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.