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Its a good article. Hate speech laws is a good subject to study.
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Rights are an important feature of an individual. They are guaranteed to people as in to put restrictions on the power of the state. “Freedom of expression has been given in article 19 of the universal declaration on Human Rights”. Responsible speech is the soul of the freedom granted under article 21 of the Constitution. Hate speech has not been defined in any law in India^1. However, legal provisions in certain legislations prohibit some selective forms of speech as in respect to freedom of speech.
“Legislations around Hate speech are the Indian Penal Code,1860 and in this Section 124A IPC, Section 153AIPC, Section 153B IPC, Section 295A IPC, Section 298 IPC, Section 505(1) and (2), the Representation of the People Act,1951 and in this Section 8, Section 123 3(A) and Section 125. The Protection of Civil Rights Act, 1955 in this section 7. The Religious Institutions (Prevention of Misuse) Act, 1988 in this Section 3(g).The Cable Television Network Regulation Act, 1955 in this Section 5 and 6. The Cinematograph Act, 1952 in this Section 4, 5B and 7.The Code of Criminal Procedure, 1973 in this Section 95, 107, 144”.^2
In the case “Ramesh vs. Union of India”^3 , the Supreme Court refused to “adjudge speech in isolation and held that a movie that intends to impart message of peace cannot be considered to violate article 19(1)(a) just because it shows fanaticism and violence in order to express the futility of such acts. It was observed that a restriction on speech was only justified only if it was imminently dangerous to the community.”
This research paper has been done due to the following reasons: To find what is Hate speech laws in India? To find what exactly it prohibits? To know what sections it includes.
(^1) J.S. Mill, On Liberty and Utilitarianism 4 (Bantam Classic, New York, 2008). (^2) Legal Provisions of Hate Speech in India, http://lawcommissionofindia.nic.in/reports/Report267. (^3) Ramesh vs. Union of India, AIR 1988 SC 775 (India).
this research paper. These articles, papers and newspaper reports are referred in this article and have helped to understand the concept properly and in depth.
Ch- 1 Background of Hate Speech.
Ch- 2 Legal provisions of Hate Speech in India
Article 19(2) Legislations around Hate Speech
Ch-3.Examination of the issue by the Commission
Analysis of Hate Speech Jurisprudence in India
Ch- 4 Impact of Hate Speech on Freedom of Expression An overview of international Legal Regimes on Hate Speech European Union and United Kingdom Tests for determining hate speech Racial and Religious Hate Canada South Africa
Ch-5 Identifying Criteria of Hate Speech
Ch-6 Conclusion
Responsible speech is the soul of the freedom granted under Article 21 of the Constitution. One of the biggest challenge when it comes to this right is that it is not used against the other people’s rights, that it does not infringe anyone’s fundamental rights and lead to a ruined society. Specially, in countries like India it very important to look after this challenge so that the logo of India “there is unity in diversity” can be maintained. Article 19(2) guarantees “freedom of speech and expression” to each and every individual out there^6. Hate speech has not been defined anywhere. LEGISLATIONS AROUND HATE SPEECH The Indian Penal Code, 1860 Section 124A IPC Section 153A IPC Section 153B IPC Section 295A IPC Section 298 IPC Section 505(1) and (2) The Representation of the People Act, Section 8 disqualifies any person from participating in election if he makes misuse of freedom of speech and expression. Section 123(3A) and Section 125 prohibits the promotion of hatred on the basis of caste, color, religion.
The Protection of Civil Rights Act, 1955
(^6) S. Sivakumar, Press Law and Journalists 11 (Universal Law Publishing Co., Gurgaon, 2015)
Section 7 prohibits the promotion of untouchability.
The Religious Institutions ( Prevention of Misuse) Act, 1988
Section 3(g) prohibits use of any means to promote hatred and ill-will between two religions.
The Cable Television Network Regulation Act,
Section 5 and 6
The Cinematograph Act, 1952
Section 4, 5B, 7 it empowers to prohibit the screening of film that promotes something that is not for the welfare of the society.
The Code of Criminal Procedure, 1973
Section 95 Section 107 empowers the Executive Magistrate to stop a person from disturbing the peace of public. Section 144
In Shreya Singhal vs. Union of India^12 the court declared that section 66 of the Information Technology Act is invalid.
Expression can only be restricted if it provokes someone’s emotions in a way that it can disturb the law and order, public order or pose a harm to the security of the state. Why, when, where, how the speech is said matters a lot.
Understanding the sections 153A and 505(2) of IPC in Bilal Ahmed Kaloo vs. State of A.P.^13 , the court held that the same feature in both the sections is that provoking any feelings of hatred on the basis of religion, caste etc. is considered an offence.
The discussions done above clearly show that the court has put reasonable restrictions on the freedom of right and expression because they know that its misuse can destroy a lot of things.
(^12) AIR 2015 SC 1523. (^13) AIR 1997 SC 3483.
Right to Freedom and Expression is an essential liberty given in all the democratic states. It is considered that right to speech is an essential right for any individual and putting restrictions over this right demands judicial scrutiny. Free speech means that the state is not governed by any single opinions but by the best one. This diversity of opinions helps us to know the best for the society^14.
Hate speech is an expression which tends to cause stress between two people mostly because of the religious things. Hate speech has never been defined anywhere so that it does not set any standards for the restrictions to be put over it. If speech hurts someone’s self respect then it does a lot more damage than can be seen.
Free speech is no doubt a very essential part of the democracy. The doctrine of free speech works as a defensive wall against the state’s powers to restrict the speech laws. The freedom of speech is a very essential right that was added to Bill of Human rights.
AN OVERVIEW OF INTERNATIONAL LEGAL REGIME ON HATE SPEECH
The free speech doctrine fails to see how one individual at times deals with the other individual. In the era of internet hate speech has become a big problem because of social media the offensive words spread like fire which hurts people’s emotions. Human Rights Council expressed that the freedom of expression^15 can be suppressed on the basis of these things:
Child pornography Hate speech Defamation that is disrespecting someone.
EUROPEAN UNION AND UNITED KINGDOM
European court has helped a lot in making a decree on Hate speech. When the European court was reviewing laws on Hate speech then it referred to the basics mentioned in the convention.
(^14) New York Times v. Sullivan, 376 U.S. 254 (1964). (^15) 99 U.N.T.S. 171 (1966).
There has been a lot of discrimination on the basis of the sexual orientation therefore they also need protection. No doubt there is free speech but one should always keep this in mind that whatever they are saying should not hurt other’s feelings.
THREAT TO DEMOCRATIC ORDER:
In Schimanek vs. Austria^18 the court held that the speech of the applicant was prohibited under article 10.
Hate Speech and Internet:
Internet made the whole globe a small place but at the same time it is a place where the news spread like fire and at times it hurts people’s emotions. Whereas internet is a place to share information, it is also a place where unlawful speech spreads very fast.
CANADA:
Canadian charter of rights and freedom guarantees freedom but with a reasonable amount of restriction.
SOUTH AFRICA:
Section 16 of the South African constitution talks about the freedom of speech and expression. However, this freedom has its own reasonable restrictions. The restrictions imposed are that it should not provoke the war or disturb the law and order of the society.
(^18) Application No. 32307/96(2000).
Freedom of speech is a very essential part in a democratic state and so are the limitations also. If incitement is there then it can concluded as hate speech else it has to be protected under Article 19(1) (a). Some countries have no specified definition for Hate speech. If something has to be termed as Hate speech then it has to sound very offensive. Whenever it comes to speech then it always have to contradict with liberty and equality. Speech should go with equality and neutrality; everyone has the right to be heard no matter where they belong or what their economic status is. Be it a wealthy person or a person who can’t even afford two meals a day, everyone has the same right to speak and express themselves.
The motive of granting the right to freedom to speech and expression is to give a voice to the weaker and the deprived section of the society. Thus, provoking not only for violence but even if it for discrimination then also it is termed as interference in the democratic life only. It was proposed once in a case that the unlawful things said by influencers, political leaders etc. should be declared unconstitutional. The potential speech is when from the words itself one can understand the mindset of the speaker. Not all the hate speech can be termed as hate speech under the legal provisions.
a) Pravasi Bhalai Sanghathan vs. Union of India AIR 2014 SC 1591 b) Brij Bhushan vs. State of Delhi AIR 1950 SC 129 c) Ram Manohar Lohiya vs. State of Bihar AIR 1966 SC 740 d) Ramji Lal Modi vs. State of U.P. AIR 1957 SC 620 e) Ramesh vs. Union of India AIR 1988 SC 775 f) Shreya Singhal vs. Union of India AIR 2015 SC 1523 g) Bilal Ahmed Kaloo vs. State of A.P. AIR 1997 SC 3483 h) Handyside vs. United Kingdom Supra note 30 at para 49 i) Anthony Norwood vs. United kingdom Application no. 23131/03 (2004) j) Schimanek vs. Austria Application No. 32307/96(2000)
a) Debating hate speech by Anthony Lewis b) There is no such thing as Hate Speech: a case for absolute freedom of expression by Ravi Shankar Kapoor.
a) Countering Hate Speech in India: looking for answers beyond the law by Anandita Yadav. b) Trends in religion based Hate Speech by Bijo P. Abraham.
c) Inter- religion Hate Speech in India: a sociological study on the ambiguous terminology of secularism by Pooja Shankar.
d) Hate Speech in India by Meghna Buchasia.
