Hate Speech v Free Speech: A Study of IPC Provisions

Prof. Santosh Kumar Tewari*

This goes without saying that hate speeches disturb peace and harmony in society. Maintaining harmony, particularly communal one, is India’s greatest challenge. Communal, regional or linguistic tensions sometimes provide opportunity to media to increase its circulation or viewership with ultimate target of earning more profit.

History of India is filled with several instances of hate speech. There are cases of hate speech against Maharashtra Navnirman Sena (MNS) chief Raj Thackeray, Akbaruddin Owaisi of the All India Majlis-e-Ittihadul Muslim in and Praveen Togadia of the Vishwa Hindu Parishad (VHP). Thackeray made speeches in 2012-2013 allegedly threatening migrants from Uttar Pradesh and Bihar who migrated to economically well-off Maharashtra and its state capital Mumbai.

The Economic Times 23 April 2014 carried a news story entitled ‘Maximum hate speech cases against Pravin Togadia, Owaisi faces 11 such cases: MHA’. In a story published in The Economic Times 23 April 2014 it has been stated that until August 2013 Togadia had 19 cases or complaints registered of alleged his hate speech. Similarly Owaisi had 11 cases. None of these cases could have come to logical end.1

Hate speech also finds its expression in media reports. Post-Godhara Gujarat riots would not have cost so many lives, had the two Gujarati dailies Gujarat Samachar and Sandesh observed restraint in reporting the communal tension. Their provocative reporting was later censured by the Press Council of India.2

In the Editors Guild Fact Finding Mission Report New Delhi dated 3 May 2003 by Aakar Patel, Dileep Padgaonkar, B.G. Verghese, it was also stated: “There were, however, some notable offenders, especially Sandesh and Gujarat Samachar and certain local channels.”3 However, none of these two newspapers or local channels were prosecuted for post-Godhara violence. Similarly during the Cavery water dispute agitations, role of regional language press of Karnataka and Tamil Nadu was not only divisive but causing enmity between people of two regions. During last general elections of LokSabha in 2014, there were allegations against BJP leader Amit Shah and Samajwadi Party leader and Uttar Pradesh Minister Mohammad Azam Khan.

Objective of research: In this research paper an attempt has been made to find out the problems in controlling hate speech in India. For narrowing down the research problem this paper does not deal with online hate material. The paper is largely based on literature review.

The U.S. Supreme Court has issued six major landmark rulings on hate speech law since 1949.4 In 2013 the Supreme Court of Canada upheld the constitutionality of the prohibition of hate speech in their human rights legislation.5

Offences of hate speech dealt with in different statutes in India:The offences of hate speech has been dealt with in Indian Penal Code, the Representation of People Act, 1951, Code of Criminal Procedure, 1973, Unlawful Activities (Prevention) Act, 1967, Protection of Civil Rights Act,1955, Religious Institutions (Prevention of Misuse) Act, 1980, Information Technology Act 2000, The Cinematographers Act, 1952 The Cable Television Networks (Regulation) Act, 1995 and Cable Television Network (Rules), 1994.

In the Indian Penal Code, 1860, the following sections deal with hate speech:

Sections 124-A, 153-A, 153-B, 295-A, 298, 505(1), 505(2).

Section 124-A of IPC primarily deals with sedition. It makes sedition an offence punishable, i.e., when any person attempts to bring into hatred or contempt or attempts to excite disaffection towards the Government established by law.6

Sections 153-A and 295-A of IPC are important provisions for controlling hate speech.

Section 153-A:Whoever, promotes enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and commits offences prejudicial to maintenance of harmony shall be punished with imprisonment which may extend to three years, or with fine, or with both.

The promotion of enmity may be by words, either spoken or written, or by signs or by visible representations or otherwise.

Section 153-B:If the same offence, as stated above, is committed in any place of worship or in any religious assembly or ceremony, the offender shall be punished with imprisonment which may extend to five years and shall also be liable to fine.

Section 295-A: Whoever, with deliberate intention outrages the religious feelings of any class of Indian citizens, shall be punished with imprisonment for a maximum of three years, or with fine, or both.

The religious feelings might be hurt by words, either spoken or written, or by signs, or otherwise.

Major difference between Section 153-A, 295-A and 500: Section 153-A was enacted by an Amendment Act of 1969 to supplement the law of sedition which was found insufficient to prevent the conflict of classes for which it was absolutely inadequate. This section may, however, be said to deal with defamation of a class as distinguished from defamation of a person punishable under Section 500, or Section 295-A which deals with defamation of religion.

Section 298 of IPC is similar to Section 295-A. However, the difference is that former deals class of Indian citizens, whereas later deals with “any person”. Section 295-A of IPC deals with far more serious offence than that of Section 298.

Difference between Section 153-A and 502 (2) IPC: The main distinction between the two offences under Sections 153-A and 505 is that while the publication of the words or representation is not necessary under the former, such publication is necessary condition under Section 505.7

Section 505 of IPC has reference to, and a direct effect on, the security of the state or public order.8 Merely inciting feeling of one group without any reference to another will neither attract the provision of Section 153 A or Section 505.9 The objective of Section 153-A is to prevent breaches of public peace which might result from excited feelings of enmity between classes of people. For punishing any one on the basis of Section 153-A and 295-A, mensrea (malicious intention) has to be proved against the accused. Since this is difficult to prove, the accused are acquitted in many cases.

The objective of Section 153-A is not to penalize political thoughts and doctrines, even though they are of extreme kinds. It deals with only such writings which directly cause feelings of hatred or enmity between different groups, castes and communities. In the case of Bennett Coleman & Co. v. State of J & K (1975) , it has been decided that no offence is committed if a publication makes disparaging and derogatory remarks about all inhabitants of a particular State, as regards their cultural and social development.10

There is a common feature in Sections 124-A ,153-A, 295-A, or 505. According to Section 196 Criminal Procedure Code, no court shall take cognizance of an offence under Sections 124-A ,153-A, 295-A, or 505 without previous sanction of Central or State government.

Hate speech: not defined in Indian statues: In the case Pravasi Bhalai Sangathan v. Union of India and others, decided by the Supreme Court of India on 12 March, 2014, it was argued on behalf of the petitioner:

“The existing law dealing with the subject matter is not sufficient to cope with the menace of “hate speeches”. Hate/derogatory speech has not been defined under any penal law. …”

Black’s Law Dictionary, 9th Edition. defines the expression ‘hate speech’ as under:

“Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.” 11

In Ramesh v. Union of India (1988), while dealing with the subject, the Supreme Court of India observed:

“…that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.” 12

Representation of People Act, 1951:

Section 123(3) of the R.P. Act, provides inter-alia that no party or candidate shall appeal for vote on the ground of religion, race, caste, community, language etc.

Section 125 of the R.P.Act further restrains any political party or the candidate to create feelings of enmity or hatred between different classes of citizens of India by making such an act a punishable offence.

In the above stated Economic Times 23 April 2014 news story, it has been stated:

“The main obstacle to speedy inquiries in such cases is the legal requirement for police to get prior sanction from the state or the central government for prosecution …”13

In the same news story it is stated that Administrative Reforms Commission had asked for scrapping of this provision and sought direct prosecution of persons accused of inciting riots, communal offences or making hate speech.

In the case Pravasi Bhalai Sangathan v. Union of India and others decided by the Supreme Court of India on 12 March, 2014, it was argued on behalf of the petitioner:

“The existing law dealing with the subject matter is not sufficient to cope with the menace of “hate speeches”. Hate/derogatory speech has not been defined under any penal law. … (The author of such speeches … also gets) political patronage.”

During general elections in the country, hate speeches get more political patronage. The Election Commission in exercise of its powers, can take appropriate action against a political party on its failure to observe model code of conduct or in case the party fails to observe or follow the lawful directions and instructions of the Election Commission. The model code of conduct provides certain guidelines inter-alia that no party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between two different castes and communities, religious or linguistic and no political party shall make an appeal on the basis of caste or communal feelings for securing votes. It further provides that no religious place shall be used as forum for election propaganda.

However, the Election Commission only has power to control hate speeches during the period of enforcement of the code of conduct, and not otherwise. The Election Commission does not have the power to deregister/derecognise a political party under the R.P. Act once it has been registered.

The three-judge bench of Supreme Court of India, constituted of Justices B.S. Chauhan, M.Y. Iqbal and A.K. Sikri, refused to intervene in the matter. The bench requested “the Law Commission of India to define the expression “hate speech” and make recommendations to the Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made”.14

The Law Commission had in February this year called a stakeholders meeting but major parties like the BJP, Congress and AamAadmi Party had not attended the meet. Law Commission Chairman Justice A P Shah, during an interaction with Times of India, had said that criminal elements have the potential to subvert the judicial process if they are allowed to be elected to parliament or assemblies. “As a result you can see trials are delayed for several years and that is the reason why the rate of conviction is less,” Shah had observed. 15

This indicates that major political parties are not showing sufficient interest in decriminalizing the election process.

Communal violence and Media: If any communal incident occurs, channels of contact with media persons should be established at a responsible level. The objective is to provide the media with the facts to avoid speculative reporting leading, inter alia, to fuelling rumoursand community sentiments. Frequently, the electronic media continuously shows images of specific incidents, which could lead to exaggerated perceptions about the incidents and lead to provoking sentiments and passions. Regular monitoring and briefing of the media in this context should be ensured. 16

Controlling hate speech in the USA: Inthe case of Jafar Imam Naqvi v. Election Commission of India (judgement delivered on 15 May 2014), the two-judge Supreme Court Bench said:

“For a long time the US courts were content in upholding legislations curtailing “hate speech” and related issues. However, of lately, the courts have shifted gears thereby paving the way for myriad of rulings which side with individual freedom of speech and expression as opposed to the order of a manageable society.” 17 Therefore even in the USA the legal position in respect of hate speech tricky one.

The two-judge bench of the Supreme Court of India observed in its judgement:

“A public interest litigation pertaining to speeches delivered during election campaign, we are afraid, cannot be put on the pedestal of a real public interest litigation. There are laws to take care of it. In the name of a constitutional safeguard entering into this kind of arena, in our convinced opinion, would not be within the constitutional parameters”.

Earlier on 3 March 2014 Supreme Court had dismissed another Public Interest Litigation filed by M.L. Sharma seeking directions to restrain politicians from indulging in “provocative and hate speeches” Sharma sought intervention of the Court in directing the Election Commission to curb hate speeches. Dismissing his plea, the Apex court said that it could not curb the fundamental right of the people to express themselves. “We cannot curtail fundamental rights of people. It is a precious rights guaranteed by Constitution,” a bench headed by Justice RM Lodha said, adding “we are a mature democracy and it is for the public to decide. We are 1280 million people and there would be 1280 million views. One is free not accept the view of others”.18

In another PIL filed by an NGO, PravasiBhalaiSangathan Supreme Court in 2014 has directed the Law Commission of India to look into issue of hate speeches being made by politicians and to consider framing guidelines to prevent such provocative statements.

Conclusion: This may be concluded that there has been lack of political will in controlling hate speeches in India. Hate speech has not been defined in any Indian statute including IPC. Until it is defined, courts have been relying on what might be described as common understanding of the meaning of the term ‘hate speech’.

The biggest problem in dealing with hate speech is the legal provision which require permission form state or central government for taking action against offenders. At present, no prosecution can be instituted under Sections 124-A, 153-A, 295-A and 505 without the previous sanction of government under Section 196 Criminal Procedure Code. This delays the prosecution process. Hate speech offends, threatens, or insults groups, based on race, colour, religion, region, sexual orientation, or other traits. Hate speech disturbs peace and harmony which are necessary conditions for the development of our country. Therefore should hate speech be discouraged? The easiest answer is “Yes”. However, developing such policies runs the risk of limiting an individual’s ability to exercise free speech. Therefore any restriction on hate speech should be reasonable as enshrined in Article 19 (2) of the Constitution of India.

References

  1. The Economic Times 23 April 2014 ‘Maximum hate speech cases against PravinTogadia, Owaisi faces 11 such cases: MHA’, The Economic Times , New Delhi, 23 April 2014
  2. http://www.rediff.com › News (Press Council slams Gujarati dailies for role in riots 01 July 2003)
  3. http://www.rediff.com › News (Editors Guild pulls up leading Gujarati dailies for coverage of riots)
  4. Terminiello v. Chicago (1949); Brandenburg vs. Ohio 395 U.S. 444 (1969); National Socialist Party v. Skokie (1977); R.A.V. v. City of St. Paul 505 U.S. 377 (1992); Virginia v. Black (2003); and Snyder v. Phelps (2011)
  5. Saskatchewan Human Rights Commission v. Whatcott (2013)
  6. KedarNath Singh v. State of Bihar AIR 1962 SC 955
  7. Ratanlal&Dhirajlal, Indian Penal Code General editor V.R. Manohar (32nd Enlarged edition 2013) Gurgaon: LexisNexis, p.790
  8. Ibid. p.2842
  9. Bilal Ahmed Kaloo v. State of Andhra Pradesh AIR 1997 SC 3483: (1997) 7 SCC 431
  10. Bennett Coleman & Co. v. State of J & K (1975) Cr.L.J. 211 (paras 9-10)
  11. Black’s Law Dictionary (1990) West Publishing Co., St. Paul, Minnesota
  12. Ramesh vs. Union of India, AIR 1988 SC 775
  13. Economic Times, op.cit.
  14. PravasiBhalaiSangathan v Union of India AIR 2014 SC
  15. ‘After judicial revamp, NDA Govt. mulls big ticket electoral reforms’, Times of India, New Delhi, August 16, 2014
  16. Guidelines on Communal Harmony, 2008 Ministry of Home Affairs, Government of India, New Delhi, p. 18
  17. supremecourtofindia.nic.in/outtoday/wc42914.pdfJafar Imam Naqvi v. Election Commission of India (judgement delivered on 15 May 2014)

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