Tackling Hate Speech and Ensuring Freedom of Expression
Polity & Governance
3rd Jan, 2022
Hate speech is considered a black spot on the democratic values for a long time. But the use of social media in recent times to spread hate speech has aggravated these concerns because social media is largely unregulated, users are disperse and anonymous, thus making it difficult for the sates to regulate hate speech while promoting freedom of expression.
- Hate speech and freedom and expression are closely related and thus, even after repeated attempts, the delicate balance has not made between the two.
- While democracies across the world ensures Freedom of expression, there is a need to demarcate a thin line with hate speech so that one rights should not hamper other’s right and dignity.
- Several attempts are made in India and globally to value freedom of expression and prevent hate speech, there is a need to evaluate previous attempts and took further steps in this direction.
What is ‘hate speech’?
- There is no international legal definition of hate speech, and the characterization of what is ‘hateful’ is controversial and disputed.
- United Nations in its ‘Strategy and Plan of action on Hate Speech’ considers the term hate speech as any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are i.e. based on their religion, ethnicity, nationality, gender or other identity factor.
- International law does not prohibit hate speech rather it prohibits the incitement to discrimination, hostility and violence.
- 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.
- 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.
- 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.
Legislations around Hate speech
In India, at present, the following legislations have bearing on hate speech-
- Indian Penal Code, 1860 (hereinafter IPC)
- Section 124A IPC penalizes sedition
- Section 153A IPC penalizes ‘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 penalizes ‘imputations, assertions prejudicial to national-integration’.
- Section 295A IPC penalizes ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’.
- Section 298 IPC penalizes ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’.
- Section 505(1) and (2) IPC penalizes publication or circulation of any statement, rumor or report causing public mischief and enmity, hatred or ill-will between classes.
- 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.
- Protection of Civil Rights Act, 1955
- Section 7 penalizes incitement to, and encouragement of untouchability through words, either spoken or written, or by signs or by visible representations or otherwise 7
- 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.
- 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.
- Cinematograph Act, 1952
- Sections 4, 5B and 7 empower the Board of Film Certification to prohibit and regulate the screening of a film.
- 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 8 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.
What are the reasons of use of Hate speech?
- Hate speech is used by people for multiple reasons-
- It can be used as a means to gain purposive ends of certain individuals like electoral gains.
- It can also be used to demean a particular community or gender and reflect their superiority.
- The streotypes and rigid ideologies prevents the co-existence of several communities and can result into hate speech.
Assessing the impacts
- Such instances of hate speech can have following impacts-
- On the victims-
- They may be forced to toe a certain line of thought held by the other community. For instance, female abuse is called as a mean to reflect male superiority.
- A long term feeling of alienation, psychological inferiority can occur which impacts individual autonomy and decision making which is at the core of democratic values.
- On society-
- It generates intolerance and hatred among various communities which can result into communal hatred and even violence
- It can be demeaning and divisive in nature, creating impacting communal harmony and creating permanent strains on communal ties.
- It challenges the free and open nature of societies as a core theme of democracy.
Value of Freedom of expression-
- Right of freedom of speech and expression is one of the most essential liberties recognized by the democratic states. . The objective of free speech in a democracy is to promote plurality and diversity of opinions. Thus, even a speech that is ‘vehement, caustic, and sometimes unpleasantly sharp’ is protected from State intervention.
- S Mill in his work “On Liberty’ says-
- “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.
- On the concept of Hate Speech, philosopher Jeremy Waldron argues that
- where speech injures dignity, it will do more harm than simply offend its target. It would undermine the “implicit assurance” that all citizens of a democracy, including minorities and 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 freedom of expression was one of the core freedoms that were incorporated in the Bill of Human Rights. The greater value accorded to the doctrine of free speech explains the reluctance of the law makers and judiciary in creating exceptions that may curtail the spirit of this freedom.
Hate speech and Sedition-
- An offence of hate speech affects the State indirectly by disturbing public tranquility, while sedition is an offence directly against the State.
- To qualify as sedition, the impugned expression must threaten the sovereignty and integrity of India and security of the State.
What is a Sedition law?
- Section 124A of Indian Penal Code (IPC) deals with Sedition law in India.
- It states “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which a fine may be added; or, with imprisonment which may extend to three years, to which a fine may be added; or, with fine.”
- Sedition is a non- bailable offence. Despite being controversial, it is still being used in India.
Relevant Judicial cases related to hate speech
The related judgements by the honourable Supreme Court in this direction are-
- Brij Bhushan v. State of Delhi (1950)
- Hate speech can be curtailed under article 19(2) on the grounds of public order, incitement to offence and security of the State. SC 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).
- Pravasi Bhalai Sangathan v. Union of India (2014)
- The Court observed that the implementation of existing laws would solve the problem of hate speech to a great extent.
- Court 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.
- Shreya Singhal v. Union of India (2014)
- 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.
What is Section 66A of the IT act?
It reads: "Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine."
The recent decisions show that the India follows a speech protective regime 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.
International Legal Regime on Hate Speech-
The doctrine of free speech fails to address discriminatory, hostile and offending attitudes of some individuals and some small strata of the society. In this light, some steps have been taken-
- Under article 20(2) of the International Covenant on Civil and Political Right, 1966, there is a prohibition of ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’
- Similarly, articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1966 (hereinafter ICERD) prohibits ‘dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another color or ethnic origin’ and mandates the signatory states to provide effective remedies and protection against such actions.
- Recognising the greater significance of the issue of hate speech, Human Rights Council in its report expressed that freedom of expression can be restricted on the following grounds, namely:
- child pornography (to protect the rights of children),
- hate speech (to protect the rights of affected communities) defamation (to protect the rights and reputation of others against unwarranted attacks)
- direct and public incitement to commit genocide (to protect the rights of others)
- Advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).
- The analysis of hate speech in different countries suggests that despite not having a general definition, it has been recognized as an exception to free speech by international institutions and municipal courts
Addressing Hate speech
There is a need to address ‘Hate Speech’ to ensure individual rights are protected and collective rights are not hampered. Addressing hate speech requires a coordinated response that tackles the root causes and drivers of hate speech.
- The United Nations Strategy in tackling hate speech is guided by the following principles-
- The strategy and its implementation to be in line with the right to freedom of opinion and expression. The UN supports more speech, not less, as the key means to address hate speech
- Tackling hate speech is the responsibility of all – governments, societies, the private sector, starting with individual women and men. All are responsible, all must act.
- In the digital age, the UN should support a new generation of digital citizens, empowered to recognize, reject and stand up to hate speech.
- The regional consultation on “Expression, Opinion and Religious Freedoms in Asia” in Jakarta (2015) gave the following recommendations-
- There is a need to revise and strengthen the existing anti-discrimination legislation so as to meet universal standards on equality across all groups and communities.
- Laws should be adopted to punish incitement to hatred that may result in violence, hostility and discrimination. They should not be used to stifle dissent or the legitimate exercise of freedom of expression
- 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.
- In India, following committees gave recommendations in this direction-
- Bezbaruah committee- It proposed amendment to Section 153C and Section of 509A of IPC
- Viswanathan Committee- It proposed amendment to Section 153C (b) and Section of 505 A of IPC and recommending punishment of up to two years along with a fine of Rs. 5000.
It is necessary to realise that “freedom of “Expression” is the hallmark of a plural and democratic society. While it is important to take steps to restrict “Hate Speech”, it should not result in curtailing FOE and authoritarian state control. Thus, a balance should be ensured and a system of checks and balances should be developed.