Author: Varsha Singh
In modern democracies, no topic is more controversial than free speech and hate speech. Just today in France, a middle school teacher was beheaded in Paris because he used certain controversial cartoons during his lectures[i]. Many considered action of the teacher as hate speech and many called it a part of free speech. The dilemma is too much with regards to what constitutes a hate speech and what is a free speech. It is an accepted principle of free speech that it serves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are or, stirs people to anger.” It is a well-accepted view worldwide that freedom of speech is nothing without the freedom to offend shock or disturb one.[ii]” Keeping this view at mind we have to decide what constitutes a hate speech.
Most democracies around the world (except the U.S.A.) restrict and regulate hate speech. But the biggest challenge Infront of all of them remains the same, i.e. to reconcile hate speech with free speech. Similar is the position of India, where although hate speech is restricted, the courts attempt to restrict such speeches based only on principle of the rule of law and democratic and constitutional principles of this great democracy. But as time passed away, our courts have somehow forgotten the historical context in which these laws are made and interpreted laws in such a manner which would curtail free speech.
Indian laws restrict hate speech generally under four provisions. Which are as follow-
- Section 295 A of I.P.C. 1860 (Insulting religious feeling)
- Section 153 A of I.P.C. 1860 (Causing disharmony or enmity between different caste and communities)
- Section 3(1) X of Schedule tribe and Schedule caste (prevention of atrocities) Act
- Section 123 A of Representation of People Act 1951 (Restricting certain kind of speeches during the election)
All these laws are generally used by the Indian law enforcement agencies to restrict hate speech, but in this article, I will look upon the hate speech regulations in India only in the context of Section 295A and 153A of I.P.C. That how our courts have interpreted these provisions and what actually constitutes a hate speech. In this article, I will also argue that how restrictive interpretation of free speech has affected the rights of the citizens and considered too many subjects as part of the hate speech, furthermore, how this interpretation could be changed.
HATE SPEECH AND SECTION 295A I.P.C.
Section 295A[iii] criminalizes insulting or attempt to insult the religious belief of a particular community. This law was incorporated in the statutes book in a communally charged atmosphere of 1920s India. Tensions were too high as a Hindu publisher made some derogatory remarks regarding the prophet’s private life in his publication. Proceedings were started under Section 153A I.P.C. [iv]. But the Punjab high court did not accept his action of publishing as promotion of hatred and enmity between different community[v]. This caused huge outrage among the general public. In this background Section, 295A was introduced in the legislative assembly. The wordings of the section was heavily criticized by the dissenters as they believe it would affect the freedom of media and citizens right to hear the truth[vi]. The response was that fair criticism and truth would never be restricted to be told.
The manner of interpretation and the applicability of 295A seems fair, but our Supreme court has interpreted the provision in such a manner which violated basic tenant of this section. In Baragur Ramachandrappa V. State of Karnataka[vii], the case involved a ban on an award-winning Kanada novel that fictionizes the life of 12th-century saint Bashweshswara. The fiction offended so many people that it was banned by the government. This ban was challenged before the Apex court, and the Supreme court upheld the ban in following words “no person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered. It cannot be ignored that India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted.[viii]”
Further, in paragraph 22 and 23 of the judgement[ix], the court took upon itself the responsibility to determine a historical disagreement about actual fact and imposed responsibility upon the writer to prove his facts with proper evidence. This imposed too much burden upon the authors of fictional work and in essence, curtailed their right of free speech.
HATE SPEECH AND SECTION 153A I.P.C.
In similar circumstances, Section 153A of I.P.C. was also incorporated in the statutes book[x]. This section was also interpreted in such a manner which would instead of restricting hate speech would curtail free speech.
Recently this provision was used in banning the book of James Laine’s, Shivaji: The Hindu King In Muslim India. This historical writing has caused great outrage in the state of Maharashtra[xi], which resulted in the ban of the book by the state government. This ban was challenged before the Bombay High Court, which was struck down by the Bombay High court[xii].
Hence, the state government made an appeal before the Apex court against the judgement, in that the destruction of the institute t book was published used as evidence that this book creates enmity between the communities. However, the Apex court struck down the ban on the grounds of technicality. But the observation of the Apex court was very much disturbing as it recognized that historical truth was not a complete defence against a Section 153A charge[xiii]. These observations bring to our notice the fact that how restrictively our constitutional courts have interpreted the provisions against hate speech that now it even curtails the free speech. In essence, they have forgotten the intent with which these laws have been made historically.
DETERMINING WHAT ACTUALLY IS HATE SPEECH
Therefore, one of the most important question which still remains pertinent that what actually constitutes hate speech and how to define hate speech so that free speech can always be free. Answer to these questions can be found from the Apex court ruling itself in Pravasi Bhalai Sangathan V. Union of India[xiv] where the court while giving guidelines for curtailment of hate speech defined hate speech as following “Hate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.[xv]”
If we go by the above-mentioned phrase, then it will be quite easy for us to determine what actually constitutes a hate speech and how hate speech can never be used as a justification to curtail free speech in our vibrant democracy. Hence, it could only be hoped that the future courts, while determining what actually constitutes a hate speech, will look upon this judgement of the court.
[i] Ap, France: Teacher beheaded in Paris; Macron calls it ‘Islamist terrorist attack, (Indian Express, October 17 2o20) https://indianexpress.com/article/world/france-teacher-beheaded-killed-macron-islamist-terror-attack-6758335/
[ii] Handyside V. The United Kingdom (1976) ECHR 5.
[iii] India Penal Code 1860, Act of Imperial council, 1860.
[v] Nair N, ‘Beyond the communal 1920s the problem of intention legislative pragmatism and the making of section 295A of Indian penal code’ 50(3) Indian Economic Social History, 317-40.
[vii] (2007) 3 S.C.C 11
[viii] Ibid para 8.
[ix] Ibid, para 22,23.
[x] Supra note 5.
[xi] Gautam Bhatia, Offend Shock and Disturb free speech under Indian Constitution, pg- 146, O.U.P., 2015.
[xiii] State of Maharashtra V. Sanghraj Rupwate, para 25.
[xiv] A.I.R. 2014 SC 1591.
[xv] Ibid, para 7
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