BNS 2023 does nothing to bring in a nuanced effective understanding of Hate Speech, making its prosecution even more difficult Why were crucial suggestions to strengthen laws on Hate Speech ignored?
10, Jul 2024 | CJP Legal Research Team
On July 1, 2024, three new criminal laws have come into force repealing the IPC, 1860, CrPC 1973 and the Indian Evidence Act, 1872. Modi 2.0 and now the third coalition government with Modi at the helm completely ignored and bypassed both the Law Commission (267th Report) and a slew of Supreme Court judgements urging more nuanced definitions and penal provisions for penalising hate speech. So much for the government’s claim that the 17h Lok Sabha had enacted a much-needed ‘de-colonised’ law!
While previous sections in the Indian Penal Code (IPC) –Section 153a, 153b, 153c and 505 of the Indian Penal Code (IPC) were found wholly inadequate in identifying and prosecuting the growing corrosive phenomenon, the newly implemented Bharatiya Nyaya Sanhita (BNS) 2023 breaks no new ground.
In fact, the new criminal laws, that were hurriedly rushed through Parliament while 146 Members of Parliament were suspended, with no amendments being discussed not entertained –and no referrals to a Joint Select Committee as is the norm—had been evolved in a secretive fashion by a “Committee” consisting of former Vice Chancellor, National Law University, Delhi (NLUD), Professor Srikrishna Deva Rao, present VC, NLUD, GS Bajpeyi and advocate Mahesh Jethmalani, Rajsya Sabha member, Bharatiya Janata Party (BJP). That such a committee did ignore Supreme Court judgements with clear cut directions on laws for prosecuting hate speech as also the Law Commission’s 267th Report.
The new criminal laws dealing with the subject-matter are simply not sufficient to cope with the menace of ‘Hate Speeches’. Hate/derogatory/inflammatory speech has not been defined in the new Bharatiya Nyaya Sanhita 2023 and neither in any other penal law.
The Black’s Law Dictionary, 9th Edn. defines the expression “hate speech” as under:
“hate speech. —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.”
Hate speech commonly relies on stereotypes about insular groups in order to influence hostile behaviour towards them. Supremacist and outright menacing statements deny that targeted groups have a legitimate right to equal civil treatment and advocate against their equal participation in a democracy. Destructive messages are particularly dangerous when they rely on historically established symbolism, such as burning crosses or swastikas, in order to kindle widely shared prejudices. Messages that are meant to hurt individuals –and incite violence against them –because of their race, ethnicity, national origin, or sexual orientation have a greater social impact than those that attempt to draw out individuals into pugilistic conflicts. Establishing a broad consensus for large-scale harmful actions, such as those carried out by supremacist movements, relies on a form of self-expression that seeks the diminished deliberative participation of groups of the population. Hate speech extols injustices, devalues human worth, glamorises crimes, and seeks out recruits for anti-democratic organisations.
Comparison between BNS 2023 and IPC 1860:
In the absence of specific provisions against the offence of Hate Speech, the prosecution was initiated only through the following provisions referred. Here is the comparison between BNS 2023 and IPC 1860:
| Indian Penal Code, 1960 | Bharatiya Nyaya Sanhita, 2023 |
| Section 153A – Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony | Section 196 – Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony
Electronic Communication Included |
| Section 153-B – Imputations, assertions prejudicial to national integration | Section 197 – Imputations, assertions prejudicial to national integration.
Electronic Communication Included |
| Section 295A – Deliberate and malicious intended to outrage religious feelings of any class, by insulting its religion or religious belief. | Section 298 – Deliberate and malicious intended to outrage religious feelings of any class, by insulting its religion or religious belief. |
| Section 298 – Uttering words, etc., with deliberate intent to wound the religious feelings of any person. | Section 302 – Uttering words, etc., with deliberate intent to wound the religious feelings of any person |
| Section 505(1) – Statements conducing to public mischief | Section 356(3) – Defamation |
| Section 505(2) – Statements creating or promoting enmity, hatred or ill-will between classes | Section 356(4) – Defamation |
Within the BNS, 2023 sections 196(1), and 197 (1) (Ss. 153A and 153B of IPC, 1860) – the sections that deal with hate speech – inserted with provision of “Electronic Communication”. However the entire newly enacted law –the Sanhita – does not, anywhere, define the tern, Electronic Communication.
Section 196(1) states that “if anyone Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony by words, either spoken or written, or by signs or by visible representations or through electronic communication”, he/she will be punished. Under section 197(1) imputations, assertions prejudicial to national integration by words either spoken or written or by signs or by visible representations or through electronic communication, is/are subject to prosecution under this provision.
A misuse of this provision has already been evident in a case from Shamli, Uttar Pradesh, when someone posting news on an alleged incident of “lynching” was booked under this section. Read here.
Armed Possession not criminalised under BNS:
Critically, Section 153AA of IPC, which deals with punishment for knowingly carrying arms in any procession or organizing, or holding or taking part in any mass drill or mass training with arms finds no place in the BNS 2023. This section was enacted in 2005 by Parliament but was never notified! The Section (amendment of 153AA) however still signifies a crucial change that could have been brought in through BNS but not reflected. The BNS does not seems to be a new approach to the law that addresses present day societal upheavals especially the corrosive crimes of hate speech.
As crucial is the deliberate bypassing by the BNS 2023 of the Law Commission’s 267th Report on Hate Speech:
The Supreme Court of India in Pravasi Bhalai Sangathan vs. Union of India, (2014) 11 SCC 477, directed the Law Commission of India to look into issue of hate speeches being made by politicians and to consider framing guidelines to prevent provocative statements and requested the Commission to examine the issue Hate Speech thoroughly also to define the expression “Hate Speech” and make Recommendations to Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made.
The Judgment Can be read here:
On March 23, 2017, the Law Commission of India (Chairman, Former Judge SC, Dr. Justice B.S. Chauhan) was submitted its 267th Report titled “Hate Speech” suggested to then Union Law Minister Ravi Shakar Prasad, amendments to the Indian Penal Code, 1860 and the Code of Procedure Code, 1973 by adding new provisions on ‘Prohibiting incitement to hatred’ following section 153B IPC and ‘Causing fear, alarm, or provocation of violence in certain cases’ following section 505 IPC and accordingly amending the First Schedule of the CrPC.
Despite the recommendation made by the Law Commission, the Union Government ignored the gravity and sensitiveness of the issue of Hate Speech, which is on the rise across country. The ‘Hateful’ and ‘Inflammatory Speech’ leading to violence, riots, promote enmity on grounds of religion and disturbing the long-standing harmony among the citizens.
Proposed new provisions to curb Hate Speech:
With its 267th Report, the Law Commission suggested not just that new provisions in IPC are required to be incorporated but keeping the necessity of amending the penal law, a draft amendment bill, namely, The Criminal Law (Amendment) Bill, 2017 suggesting insertion of new section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases), needs to be added.
Proposed Sections in IPC:
Chapter II – Insertion of new section after section153B.-
In the Indian Penal Code, (45 of 1860) (hereinafter referred to as the Penal Code), after section 153B, the following section shall be inserted, namely: –
Prohibiting incitement to hatred- “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.”.
Insertion of new section after section 505.-
In the Penal Code, after section 505, the following section shall be inserted, namely: – 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”.
The Law Commission’s 267th Report can be Read here:
Supreme Court’s concern over Hate speech:
Pertinently, the Supreme Court on various occasions, especially since 2022, has asked government to curb and prevent the incidents of hate speech in public discourse including the electronic and other media. As the existing legal framework is not sufficient to prevent this phenomenon, the Supreme Court has, time and again, issued directions about the absence of offence of Hate Speech in Indian Criminal Law. However, although, the word Hate Speech has not been squarely defined in Indian penal law, India’s Constitutional Courts have discussed this phenomenon, the ingredients of Hate Speech, the nuances and distinctions..
In October 2022, while hearing a petition by journalist Shaheen Abdullah, Justice KM Joseph had slammed the Government that “why is the government remaining a mute spectator” and asked them to bring a law regulating media and hate speech. In Shaheen Abdulla v. Union of India & Ors. [Writ Petition (C) No. 940 of 2022], the division bench of Justice Km Joseph and Justice Hrishikesh Roy, directed the directs Uttar Pradesh, Uttarakhand and Delhi Governments to take suo motu action against hate speech crimes without waiting for formal complaints irrespective of the religion of the offender.
The order can be read here:
The directions issued by the Supreme Court in Shaheen Abdulla (Supra) had been limited to Uttar Pradesh, Delhi and Uttarakhand.
On April 28, 2023, the division bench of Justice KM Joseph and BV Nagarathna in Ashwini Kumar Upadhyay v. Union of India [W.P. (C) No. 943 of 2021], extended its 2022 order and directed all States/UTs to register Suo moto FIR against Hate Speech irrespective of religion. The court added that when any speech or any action takes place which attracts offences such as Section 153A, 153B and 295A and 505 of the IPC etc., suo moto action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders in accordance with law.
The judgement can be read here:
On January, 2023, while hearing a batch of petitions involving hate speech incident and expressing the concerns about the manner in which TV Channels are functioning, the Supreme Court was observed that “offending anchors must be taken off Air, Media should not create division”.
Further, in Amish Devgan v. Union of India (2021) 1 SCC 1, the Supreme Court embarked on a comprehensive review of Indian and foreign decisions on hate speech, and a few academic articles on the subject. Devgan, a television journalist, faced criminal charges under various provisions of the IPC on the basis of his statements referring to a saint in Islam as an “invader, terrorist and robber who had come to India to convert its population to Islam” during a television programme hosted by him. The Court refused to quash the criminal cases against him, which affirmed the adequacy of existing criminal law to recognise hate speech, even if made accidentally or in error, as was claimed by Devgan. The Court observed that hate speech constituted three elements – content, intent, and harm or impact – and that the content of a speech must be coupled with the intent of the speaker to incite or cause harm.
The Judgement can be read here:
In the case of Kaushal Kishore vs. State of Up and Others (2023) 4 SCC 1, clarified that every citizen of India must consciously be restrained in speech, and exercise the right to freedom of speech and expression under Article 19(1)(a) only in the sense that it was intended by the framers of the Constitution, to be exercised. This is the true content of Article 19(1)(a) which does not vest with citizens unbridled liberty to utter statements which are vitriolic, derogatory, unwarranted, have no redeeming purpose and which, in no way amount to a communication of ideas. Article 19(1)(a) vests a multi-faceted right, which protects several species of speech and expression from interference by the State.
However, what is clear is that the right to freedom speech and expression, in plural d democracy does not protect statements made by a citizen, which strike at the dignity of a fellow citizen. Fraternity and equality lie at the very base of our Constitutional culture and upon which the superstructure of rights are built, and these do not permit such rights to be employed in a manner so as to attack the rights of another. If speech, ensuing from persons of political, social or any other authority by their utterance impact the dignity and right to life of a fellow citizen or a depressed section, with also a potential to create circumstances for him/them that are exclusivist or make them prone to violence, this constitutes Hate Speech.
The Judgement can read here:
In the case of Tehseen Poonawala vs. Union of India and Others (2018) 9 SCC 501, the Supreme Court of India discussed preventive, remedial and punitive measures in order to identity and prevent the incidents of hate speeches. The court further recorded that mob vigilantism and mob violence have to be prevented by the governments by taking strict action. That rising intolerance and growing polarisation expressed through incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country. The State has a sacrosanct duty to protect its people from unruly elements and perpetrators of vigilantism, with utmost sincerity.
The Judgement can be read here:
Conclusion:
There is no doubt that India’s long standing religious and cultural harmony among the peoples of different beliefs and faith, infected and affected by the hate and inflammatory statements made by politicians and giving rise to mob violence, lynching, harassment etc. Hate Speech has now become a tool and short cut to get publicity and the politicians are instead of curbing the incidents of hate speeches are encouraging the wrongdoers to fulfill their “hateful propaganda”, “destructive messages” and “biased speeches” for vote bank politics at the cost of integrity and harmony of the nation.
All these rich jurisprudential developments have been wilfully ignored by both government and Parliament that hastily passed the 2023 BNS Laws. Instead of addressing the inadequacies of the previous IPC and CrPC, the BNS 2023 makes the prevalent laws even more regressive and police authorities armed with more power.
In the arena of hate speech, BNS 2023 is not just wanting as a set of laws that will ensure prosecution but in fact may harbour in an era that is conducive to the vulnerable victim communities being further targeted and criminalized.
Related:
Towards a Hate Free Nation: Handbook for Police & Administration
New Criminal Laws: Reform or Repression? Insights from Legal Experts
Bharatiya Nyaya Sanhita Bills: Pro-People Reforms or Draconian Changes?
Debating India’s New Criminal Laws: Moving Away from Colonization or Towards Authoritarianism?
