Date: 15/09/2022

Relevance: GS-1: Social empowerment, communalism, regionalism & secularism

Key Phrases: Law Commission Of India, Limitation On Free Speech, Hate Speech And Rumour Mongering, Indian Penal Code, Representation Of The People Act, 1951, Pravasai Bhilai Sanghatan Versus Union Of India

Why in News?

• The Election Commission of India has recently told the Supreme Court that it does not have the legal power to withdraw the recognition of a political party or disqualify its members if a party or its members indulge in hate speech.

What is Hate Speech?

• As per the 267th Report of The Law Commission of India, “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief.
• In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule, or indignity.

How is it treated in Indian law?

• Hate Speech and 'Rumour Mongering' has not been defined under any existing Law in India, but there are a few legislations that have a bearing on hate speech such as
  1. Indian Penal Code:
     • Sections 153A (Promoting enmity between different groups on the ground of religion, race, place of birth, residence, language, etc.),
     • 153B (Imputations, assertions prejudicial to national integration),
     • 295A (Deliberate and malicious acts, intended to outrage religious feelings),
     • 298 (Uttering words with deliberate intent to wound the religious feelings),
     • 505 (Statements conducing to public mischief)
  2. Representation of the People Act, 1951 disqualifies a person from contesting an election if they are convicted of misusing freedom of speech and expression.
  3. The Protection of Civil Rights Act, of 1955 penalises the encouragement of untouchability through words (written or spoken), signs, or visible representations.
  4. Religious Institutions (Prevention of Misuse) Act, 1988 prohibits the promotion of disharmony, feelings of enmity, hatred, and ill-will between different religious, racial, language, or regional groups or castes or communities.
  5. The Cable Television Network Regulation Act, of 1995 and The Cinematography Act, of 1952 deal with preventing and regulating the online transmission of any information that is intended to spread hate.

Hate Speech Jurisprudence in India:

• The Supreme Court in the Pravasai Bhilai Sanghatan versus Union of India (2014) referred the case to the Law Commission of India to examine whether the Election Commission should be conferred the power to de-recognize a political party and disqualify it or its members if a party or its members commit the offence of hate speech.
• However, the Law Commission neither answered the Court's question nor expressly made any recommendations to the Parliament to strengthen the Election Commission of India to curb the menace of hate speech.
• The Law Commission suggested making certain amendments to the Indian Penal Code and the Code of Criminal Procedure.

Steps taken by Election Commission to curb hate speech:

• The ECI has made amendments to the Model Code of Conduct with the following provisions:
  • Issues a Show Cause Notice to any candidate found guilty of spreading hate speech calling upon him/her to submit his/her explanation.
  • Issuing advisory cautioning the candidate from campaigning for a specified period of time or even initiation of a criminal complaint.
  • The ECI has drawn a list of DOs and DON'Ts which has been directed to be given the widest publicity to be brought to the knowledge of all the contesting candidates, to be followed by all candidates and political parties.
  • The ECI also submitted that the Model Code of Conduct has listed certain practices as corrupt practices and electoral offences in the IPC and RP Act.

Need for reformation of laws regulating Hate Speech:

• The IPC prohibits hate speech under Sections 153A and 153B. However, these sections are ineptly worded and fail to capture the essence of hate speech.
• Section 295A of IPC is an anti-blasphemy law that punishes hurting the sentiments of religious believers through offensive or insulting speech. By taking the hurt feelings of religious believers as the basis for criminalising speech, Section 295A leaves free speech at the mercy of those who choose to take offence, and hands them the power to shut down speech not only for themselves but for everyone else as well.
• The wide gap between this interpretation and the actual text of the provisions ensures that they continue to be misused at all levels of the police and the judiciary.
• The existence of several laws essentially creates a tangled web of legal provisions dealing with one or the other form of hate speech which makes it nearly impossible to comprehend exactly what kind of speech is hate speech, that is banned within the Indian jurisdiction.

Impact of Hate Speech on Freedom of Expression

• The right to freedom of speech and expression is one of the most essential liberties recognized by democratic States.
• The liberal theory of free speech views speech as an intrinsic aspect of the autonomous individual with the objective of promoting a plurality of opinions.
• Since it is entrenched in the constitutional right of freedom of speech and expression, hate speech has been manipulated by many in different ways to achieve their ulterior motive under the garb of such right, and the courts in absence of clear provisions in IPC, are not able to prosecute hate speech charges brought before them with success.
• Thus, even a speech that is ‘vehement, caustic, and sometimes unpleasantly sharp’ is protected from State intervention.

Way Forward:

• Freedom of speech and expression has been established as the key freedom required for sustaining democracy. However, with every right, comes responsibility; and therein, is the need for a limitation on the right to freedom of speech and expression to prevent the destructive and regressive effect it could have.
• There is a need to convince and educate the public on the responsible exercise of freedom of speech and expression.
• The Constitution requires amendments to article 19 to add several new grounds of restrictions upon the freedom of speech and expression.
• There is an urgent need for well-defined legislation on hate speech that will not only define the crime and prescribe the punishments but will also disallow the misuse of laws related to hate speech to frame innocent people to promote malafide agenda.

Conclusion:

• Democracy thrives on disagreements provided they do not cross the boundaries of civil discourse. Critical and dissenting voices are important for a vibrant society. However, care must be taken to prevent public discourse from becoming a tool to promote speech inimical to public order.
• Laws should be adopted to punish incitement to hatred that may result in violence, hostility, and discrimination.
• They should be implemented in a non-selective, non-arbitrary, and transparent manner, which should not be used to stifle dissent or the legitimate exercise of freedom of expression.
• All instances of violations of freedom of expression in the context of religion and incitement of hatred resulting in violence should be condemned and prevented.

Source: Live-Law

Mains Question:

Q. The doctrine of free speech has evolved as a bulwark against the state’s power to regulate speech. However, hate speech has been manipulated by many in different ways to achieve their ulterior motive under the garb of such right, and the courts in absence of clear provisions in IPC, are not able to prosecute hate speech charges brought before them with success. Examine. (250 words).