14, Nov 2022 | Legal Researcher
“In its published, posted, or pasted-up form, hate speech can become a world-defining activity, and those who promulgate it know very well—this is part of their intention—that the visible world they create is a much harder world for the targets of their hatred to live in,” says Jeremy Waldron in his book The Harm in Hate Speech. This statement summarises succinctly the deleterious impact of hate speech: a phenomenon that negatively alters reality to make it harder for the ones at the receiving end of such hate speech to live, as equals, with dignity, in the society.
During the Rwandan Genocide which saw the killing of the ethnic minority Tutsis, one of the most used propaganda tools to spew hatred against the Tutsis was the Rwandan Radio which broadcasted inciteful anti-Tutsi propaganda. After all, what could be better used to convince a majority population to commit violent and gruesome acts against the minority ethnic groups than carefully crafted, provocative and inciteful words. No other example is really necessary to demonstrate that hate speech disturbs the societal fabric and intrinsically contains the potential to incite people to commit violent acts.
In India, a society and polity with a mix of cultures, ethnicities, languages, religions, castes and other identities in the country, it is crucial we understand the distinction between free speech and hate speech.
Nearly a year ago, an event called ‘Dharam Sansad’ was held (in the city of Haridwar) where there a string of hate speeches by Hindutva supremacists against minorities were delivered and propagated; in fact, all out calls for genocide were made too. This kind of speech, everyone would widely agree is hate speech. [Unfortunately, these examples were lamely prosecuted by complicit state authorities and the matter is subject of litigation in the Supreme Court of India, presently.] A similar example was the recent case before the Supreme Court against a TV Channel called Sudarshan TV which broadcasted a program named ‘Bindass Bol’ (Free Talk) in which hateful remarks were made against Muslim candidates who cleared the UPSC examination, hinting at some larger conspiracy and bias. Even this has been frowned upon by the Supreme Court. There are numerous such instances of public figures and politicians engaging in hateful remarks coupled with people dispersing information which is ill-intended and hateful, aimed at perpetuating prejudicial attitudes and stereotypes. One question that arises before the courts and within academia is the process (and this needs to be rigorous) of distinguishing free speech and hate speech.
Some have argued that for a liberal construct, opining that easy labelling be detrimental to the idea of free speech enshrined in Article 19(1)(a) of the Indian Constitution. Others have argued that hate speech rather falls under the exception to Article 19(1)(a) rather than under free speech. This article is an effort to put forth the criteria –or some at least — that could be used to differentiate hate speech and free speech.
What is Hate Speech?
The Supreme Court in the case of Pravasi Bhalai Sangathan vs. UOI (2014) has analysed the issue and stated that Hate Speech marginalises individuals based on their identity that Hate Speech lays the foundation for attacks on the vulnerable people including violent ones. The Court stated as follows:
“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise 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.”
India’s legal regime does not have a statute concerning hate speech nor does it have a definition for it. If a person has to be charged with such act, there are various provisions under the Indian Penal Code and –as an extension– the Representation of Peoples Act, 1951 or the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Additionally, the state is empowered under Criminal Procedure Code to curb speech or such representation of hatred in various forms by banning these etc. In the years since India became independent, there are various instances of the state’s excesses in banning a book in deference to the sentiments or beliefs of a section of the population. Of late, the growing phenomenon of public figures and politicians propagating views (hate speech) that target and marginalise sections of societies, in their speeches in rallies and yatras, has become rampant. Before getting into the discussion on hate speech and how can it be distinguished from speech that is satirical and humorous, it is important to briefly look at the provisions that the Indian legal system employs to deal with Hate Speech.
The regime can be roughly divided into two branches. One is the Penal Code, and another is the specific laws.
1) Penal Code.
Section 153A deals with promoting enmity between different groups on the grounds of religions, race, place of birth, residence, language etc and committing acts prejudicial to maintenance of harmony. Section 153B deals with imputations, assertions that are prejudicial to national integrity. Section 295A narrows down the scope from national integrity and harmony to deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Section 298 too, deals with speech that is deliberately intended to wound religious feelings. Section 505 is a distant one from the paradigm of insult to religious feelings or promoting enmity, but it does deal with statements conducing to public mischief.
Section 95 of the Criminal Procedure Code states that the state government has the power to ban a new paper or a book or any documents, via notification, that has content-as appears to the state government-punishable under Sections 153A, 153B and 295A.
The Representation of Peoples Act, 1951 also has provisions regarding Hate Speech (manipulation of religion for political ends). Section 125 states that – Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable, with imprisonment for a term which may extend to three years, or with fine, or with both.”
This is on the lines of 153A but just within the contours of an election, and it can be safely assumed that this specific provision is to deter elections and political processes from becoming grounds for division, given the secular nature of the country and Secularism being an inherent characteristic of the Indian state despite its late entry into the preamble.
2) Specific Law- The SC ST (Prevention of Atrocities Act), 1989
Section 3(1)(x), The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989[SC ST Act] states that one who intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view shall be punished with imprisonment of not less than 6 months that can extend up to 5 years.
This law holds significance in understanding the difference between speech that is satire and speech that constitutes hate speech. This provision does not speak of punishing the promotion of enmity or ill-will against the members of the Scheduled Castes or the Scheduled Tribes. There is a separate provision in the act, within the same section i.e. Section 3(1) (u), to address such acts. Section 3(1) (x) however deals with a more sensitive and specific kind of speech and forbids it to correct the historical injustices done to the marginalised. This provision recognises that the any attempt to devalue and dehumanise a person based on their belonging to a caste, would create a hostile environment for the whole community.
A similar principle, as will be discussed in the following section, should guide us in differentiating hate speech and free speech.
Need for redefining and adopting Hate Speech to Indian Legal regime.
The reason we need a separate understanding of Hate Speech is that the existing penal provisions regarding hate speech are legacies from not only a colonial past but they have constructed hate speech within the contours of acts that are ‘detrimental to harmony’ between two groups of society and therefore with a potential to cause harm to public order. For example, one can be charged under IPC for promoting enmity between two religions under Section 153 A and not for vile insults that de-value and de-humanise certain communities.
In Bilal Ahmed Kaloo vs State of AP (1997), the Supreme Court had held that merely hurting other people’s religious sentiments cannot amount to the crimes made Section 153B or Section 505 of the IPC. The Judgement stated:
“The common feature in both sections being promotion of feeling of enmity, hatred or ill-will “between different” religious or racial or language or regional groups or castes and communities it is necessary that at least two such groups or communities should be involved. Merely inciting the felling of one community or group without any reference to any other community or group cannot attract either of the two sections.”
A clear identification of groups and pitching them against one another with clear intention is required under Section 153A. However, to put them on par with hate speech is an unwise mistake. Enmity and Hatred or Ill-Will have a different impact that Hate Speech does. The same distinction can be seen in the provisions of the SC ST act between Section 3(1)(x) which deals with specific Hate Speech and the Section 3 (1) (u) which deals with promoting enmity. Hate Speech not just promotes enmity but it slowly, like an opiate, given in consistent doses has a deleterious effect on the confidence and dignity of the whole community against whom the hate is being spewed. That is why we need to have a separate approach, in dealing with Hate Speech.
Understanding Hate Speech Restrictions
Article 19 (2) of the Indian Constitution provides for an exception to Article 19 (1) (a) i.e., to the right to freedom of speech and expression. Article 19(2) states – “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the 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.”
Therefore, if there needs to be a law that is to restrict freedom of speech, it should be formulated under the grounds available in Article 19(2). The closest grounds for restriction on Hate Speech can be narrowed down to Incitement of an Offence, Public Order, Decency and Morality. The strength of a Hate Speech Law could be derived from the restrictions on the violent actions that are incited on the basis of hate speech, discrimination that is caused against a section and the curtailment of equality and dignity that results. Public Order, decency and morality under the Indian Constitutional Scheme envisage that every and all sections feel they are treated as equals and live lives of non-discrimination and dignity. The decency or the morality, not on the basis of public perception but on the basis of Constitution. A simple question and our answer to that question can indicate whether a law restricting hate speech falls under morality restriction of Article 19(2). The question would be -Is it within the contours of Constitutional Morality to allow the de-basing and de-humanising treatment of the minorities-gender and religious and marginalised castes that subject them to a vulnerable state, an aggressive and non-conducive environment? The answer should be no given that the Articles 14, 15, 16, 17, 21, 25, 26, 27, 28, 29, 30 of the Constitution assure otherwise The emphasis on the special provisions for the minorities and the marginalised section indicates that the Constitutional morality does not allow such non-conducive environment. The Supreme Court in the case of Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, dealt with the scope of the word ‘decency’ in Article 19 (2) and it stated:
“Thus, the ordinary dictionary meaning of `decency’ indicates that the action must be in conformity with the current standards of behaviour or propriety, etc. In a secular polity, the requirement of correct behaviour or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the House.
It is in this reasoning lies the conclusion that restriction on Hate Speech is very well covered in Article 19(2).
Until now, two issues have been dealt with, in this discussion. One is that the existing legal regime that deals with Hate Speech is inadequate, rightly so, since it was designed to deal with harmony within the country and to make sure there is not enmity between different sections. The second issue is that the restriction on Hate Speech would not be infringing the right enshrined in Article 19(1)(a) of the constitution since it would fall under the Incitement to Offence, Decency and Morality restriction, given the interpretation of Decency and Morality within the system of constitutional values.
The final issue to be formulated is, what actually constitutes as Hate Speech to enable a restriction to be placed on it. Would humorous or satirical comment on a sects or identity be construed as Hate speech? Arguably, this should not be considered as such. Not only would such a restrictive definition be used by an already powerful state to stifle dissent. Even were that not so, it would be an unconstitutional restriction to have in place. The distinction, Jeremy Waldron, says is rooted in protecting the dignity of the individual. He argues that there is difference between protecting an individual from getting offended and a protecting an individual from losing their dignity.
For example, a person makes a generalising comment to the effect that “The fashion sense of Gays is so gaudy that I want to get an eye-check-up after all that glitz.” Certainly, some people could be offended and even annoyed by it. However, such a comment cannot be restricted under Article 19 (2). However, if someone makes a comment saying, “Homosexuality is an unnatural disorder that affects younger generations, causing loss to humankind which is why it should be actively chased away from home and workplaces.’ This comment is not just an offensive statement. Such a statement attacks the dignity of homosexuals and gays, directly impacting of their dignity, even humiliates them. This distinction should be guiding the policy that restricts free speech.
The 267th Law Commission report did give recommendations to insert a 153C and 505A and associated provisions in the CrPC to deal with Hate Speech.
Section 153, according to the report would read as
“153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –
(a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or
(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”
Section 505A, as presented by the commission’s report read as:
Causing fear, alarm, or provocation of violence in certain cases.
“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;
(i) within the hearing or sight of a person, causing fear or alarm, or;
(ii) with the intent to provoke the use of unlawful violence, against that person or another,
shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.
In this recommendation under 505A, the law commission first used the words ‘gravely threatening or derogatory.’ This means, that the words could even be derogatory and still be considered as Hate speech if they adhere to further conditions. They do not have to hurt the feelings of community as a whole or they do not have to promote enmity or ill-will. It is enough if they are derogatory. The Section does not end there. There are two further conditions that will make an action punishable under this section. Such derogatory remake made within hearing or sight of a person, causing fear or alarm. This means that a remark does not have to incite violence or hurt the feelings of a community or dampen national integrity. A derogatory remark that causes fear or alarm, made on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe would be punishable. One might argue that the term ‘causing fear’ is subjective and could be prone to misuse but that is nature of all laws- being prone to misuse.
These provisions, if enacted into the IPC after wider consultation with practitioners and experts, always keeping in mind the test of constitutionality, would be a starting point in defining and dealing with the issue of Hate Speech.
Hate Speech is perpetuated not just against identities based on religion or castes. It is the product or systemic phenomenon and a tool that is normally used by the powerful to further alienate the powerless, in a polity. If we recognise this characteristic of Hate Speech, it will be easier to legislate against it. And for that, the conversations that go into arriving at such a definition have greater impact than the law itself. The law on restricting hate speech too, if made, will probably do more via the conversations it propels rather than the convictions it may or may not effect.
(The author is a legal researcher currently giving his post graduate examinations)
 The Harm in Hate Speech, Waldron, J. (2012)
 Chris McGreal, Rwanda: Blood on their Hands, 1994
 Haridwar ‘dharam sansad’: Hate speech is spoiling the atmosphere of the country, says SC, https://scroll.in/latest/1023817/haridwar-dharam-sansad-hate-speech-is-spoiling-the-atmosphere-of-the-country-says-sc
 Articles 14, 15, 16, 17 deal with Equality, Article 21 deals with Right to Life and Personal Liberty and Articles 25-29 deal with Right to Freedom of Religions.