Freedom Of Speech And Expression V. Hate Speech - Analysing On The Basis Of Criminal Laws In India
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Category: Criminal Law
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FREEDOM OF SPEECH AND EXPRESSION V. HATE
SPEECH: ANALYSING ON THE BASIS OF CRIMINAL LAWS IN INDIA Joseph T. Koottakkara, LLM, Christ (Deemed to be University), Lavasa, Pune
ABSTRACT
The Indian Constitution guarantees freedom of speech under Article 19(1)(a), this right is not absolute and is subject to reasonable restrictions. These reasonable restrictions are outlined in Article 19(2). In the current legal framework Sections 153A and 295A of the Indian Penal code lacks a comprehensive definition or specific statute. Absence of clear legal standards complicates enforcement and raises concerns regarding potential misuse or arbitrary application, especially during politically sensitive periods. 1 There must be careful delineation to avoid infringement upon civil liberties. The amendments in Bharatiya Nyaya Sanhita (BNS) address the gaps, but it also raises questions about vagueness and potential for misuse. This research will analyse these gaps and will suggest possible solutions.
Through this research the researcher aims to contribute to the study of how India can navigate the complexities of free expression and societal harmony in a diverse environment. 1 Keywords: Hate speech, Fundamental rights, Freedom of Speech and expression, Indian Penal Code (IPC), Bharatya Nyaya Sanhita (BNS) 1 Lawoctopus, https://lawctopus. com/clatalogue/clat-pg/reasonable-restrictions-article-19-indian-constitution/, (last visited Oct. 31, 2024).
INTRODUCTION
Even with the existence of constitution, our country lacks a specific statute defining hate speech. Issues are addressed by relaying on various sections specified in IPC which has ow become Bharatiya Nyaya Sanhita (BNS) and the Bhartiya Nagarik Suraksha Sanhita. 2Section
196 of the Bharatiya Nyaya Sanhita (BNS) aims to prevent and punish actions that promote
enmity and hatred between different groups based on various grounds.2 The Supreme Court has clearly stated the importance of balancing freedom of expression with the need to curb hate speech. The court has emphasized that any legal framework in this regard must safeguard civil liberties while addressing societal harm. Through this research the researcher aims to analyse the current legal landscape regarding freedom of speech and hate speech in India. It also focuses on how recent legislative changes through BNS and BNSS impact this balance.
OBJECTIVES
Analysing the constitutional provisions under Article 19 to determine the balance between freedom of speech and its reasonable restrictions. • Investigating the effectiveness of existing provisions. • Analyse the recent legislative changes to determine their implications.
RESEARCH PROBLEM Whether balancing the right to freedom of speech and expression with the need to regulate hate speech under Indian law face any challenges? RESEARCH QUESTIONS
1) How can Indian laws effectively balance the right to freedom of speech while
effectively combating hate speech?
2 Bharatiya Nyaya Sanhita,2023, No
S.O. 850(E), Acts of Parliament 2024
2) What effects does new criminal laws have on incidents of hate speech and freedom of
expression in India?
METHODOLOGY
The methodology the researcher adopts is a doctrinal one. There will be a comprehensive examination of legal texts, judicial interpretations and legislative reforms. The first step is to carry out a detailed study of the Article 19(1)(a) to understand the fundamental right and the reasonable restrictions that that restricts them. The Research will also delve into gaps in existing laws and propose recommendations for reforms. Through doctrinal methodology this research aims to provide a method to regulate hate speech without transgressing the principal of the fundamental right to freedom of speech and expression. CONCEPTUAL FRAMEWORK Rabat Plan of Action The October 5, 2012, adoption of the Rabat Plan of Action provides a comprehensive framework for addressing incitement to national, racial, or religious hatred which can result in discrimination, hostility, or violence.
It highlights how important it is to differentiate between different types of hate speech and outlines a six-part threshold test to assess when speech crosses the line into criminality. This test assesses the context, speaker, intent, content, extent, and probability that the speech would cause harm. The Rabat Plan promotes a balanced strategy that acknowledges freedom of expression while recognizing the need for legal measures against incitement to hatred. It also urges the states to enact strong anti-discrimination legislation and promote education and awareness to foster tolerance and respect among diverse communities. IPC, BNS, CrPc, BNSS IPC: Section 153A, Sec. 295, Sec. 295A. , Sec 298, Sec.
505 BNS: Sections 196 to 198 CrPc: Section 95 BNSS: Section 98 Law Commission 267th Report The urgent need for legislative framework to prevent hate speech in India was addressed in the Law Commission of India’s 267th Report, “Hate Speech,” which was filled in March 2017. Concerns regarding the shortcomings of current legislation, which frequently fell short in addressing the subtleties of hate speech, gave rise to this report. The commission suggested adding new sections to the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPc). Specifically, it suggested adding Section 505A to address acts that incite violence or cause fear, or alarm based on identity factors like gender, race, or religion, and Section 153C to forbid incitement to hatred.
By highlighting the possibility that derogatory words could be punished even if they did not directly incite hatred, these guidelines sought to draw a clearer line between free expression and hate speech. The research emphasized how important it is to bring Indian law into line with international norms while making sure that any speech limits adhere to Article 19(2) of the constitution, which permits reasonable restrictions on right to free speech. The 267th Report’s overall goal was to offer a thorough legal framework that would protect individual rights and democratic principles while thwarting hate speech. Defining hate Speech: - 3At the very outset, it is crucial to establish a conceptual understanding of Hate speech which entails comprehending the nature and characteristics of hate speech. Defining Hate speech is a complex task as it appears to be an endeavour to define an emotion.
It can be challenging since it is closely intertwined with the impact of the speech itself. There are situations where the explicit meaning and language may not appear overtly hateful, yet the resulting consequences can be profoundly detrimental. Hence, understanding the context in which the speech has been delivered is of utmost importance. What may arguably be called as hate speech has been covered in different ways by various Indian Statutes, but the Indian law nowhere defines the phrase ‘hate speech’ as such.
3 Pallavi Sen, Hate Speech & Media Laws in India
A Critique Volume 6, International Journal of Law Management & Humanities,557,557-562,2023.
Hate speech in common parlance may be defined as an offensive discourse targeting a group or individual based on inherent characteristics (such as race, religion or gender) and that may threaten social peace. UN Strategy and Plan of Action on Hate Speech defines hate speech as “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are in other words based on their religion, ethnicity, nationality, race, colour, descent, gender and other identity factor”. It is important to note that hate speech is not merely an expression of personal dislike or disagreement; it actually involves speech that goes beyond the boundaries of reasonable discourse and aims to demean, dehumanize or marginalize individuals or communities.
The subjective nature of hate speech makes it challenging to formulate an all-encompassing definition which may capture its various contexts and manifestations. Fundamentally, it is not about an individual per se but an individual as a member of the group. For instance, Muslims are often claimed to be terrorists or Dalits or Adivasis are derogatorily characterized to be of low merit or usage of humiliating term such as ‘chinki’ for the people from the northeastern part of the country or ‘chamar’ for the Dalit community, ‘chakka’ for transgenders and so on. 3 1- Legal Framework Governing Freedom of Speech and Hate Speech in India
1.1 Constitutional Provision on Free Speech
Article 19(1)(a) of the Indian Constitution is very important as it guarantees the right to freedom of speech and expression to a democratic society, this gives rights to its citizens to express their thoughts and opinions without fear of censorship, thereby arousing participation in governance among the public. However, this right is not absolute and is subject to reasonable restrictions under Article 19(2). The restrictions aim at protecting a plethora of interests that includes India’s sovereignty and integrity and the national security. It also relates s to public order, decency, morality, contempt of court or defamation. The Supreme court, through judgements, has clarified that the grounds on which Article 19(2) imposes restrictions on the freedom of speech are exhaustive and must be strictly followed.
For instances, speech threatening the security of the state or inciting violence can be restricted but ordinary breaches of public order not endangering the state do not fall within its purview. The courts have further ensured that the restriction be reasonable and must be directly related to the grounds mentioned in Article 19(2). This would mean any law imposing such restriction would neither arbitrary nor excessive but rather should serve a public interest aligned purpose. Judgements have evolved over the years with free speech in balance with societal order, and landmark cases helped to underscore this necessary finding: freedom of expression is crucial but cannot ignore respect for others’ rights or for the norms of society.
The very debate going on today over such provision is illustrative of the dynamic nature of constitutional rights as a balance between freedom and its shaped limitations in a heterogeneous society.
1.2 Laws Regulating Hate Speech
The Bharatiya Nyaya Sanhita (BNS) 2023 updates the provisions concerning hate speech. Section 196 of the BNS parallels Section 153A of the IPC, but scope is much more elastic because now the Bharatiya Nyaya sanhita includes electronic communication as a means of promoting enmity. This is an update of an understanding in keeping with modern methods of communication and addressing hate speech in the digital regime. Moreover section 197 of BNS deals with related issued under Section 295A of the IPC but includes wider definitions and sentences of acts for intent to outrage religious feelings through various modes of communication. In fact, the scope and application of these provisions differ significantly. The sections of IPC relate more to traditional forms of communication and a limited set of grounds for enmity.
The BNS extends the provisions in such a way as to embrace electronic media and a greater variety of acts of communication. Therefore, it is an evolution towards learning to adapt frameworks of law to challenges posed by technology and the so-called social media regarding hate speech regulation.
1.3 Object and Form Test
4There are the “object and form” test and the “direct effect” test, both of which are standards by which courts in India would analyse legislation affecting under Article 19. The “object and form’; test is related to purpose and structure of the legislation, and the “direct effect” test is on actual effect on rights. In both Sakal and Bennett Coleman cases, the court resorted to the direct effect test, which has been condemned as having adverse consequences on Article 19(1)(a) and 19(1)(g).
1.4 Judicial Interpretations.
Landmark judgements, especially Shreya Singhal Vs. Union of India 2015, have drastically changed judicial interpretive developments in India for hate speech. Specifically, the case touched upon the question of whether section 66A of the Information Technology Act was constitutional, obfuscatory, or subject to inappropriate application as an infringement upon free speech. Doing this, it also declared that section 66A was unconstitutional as the restrictions put on the right to freedom of speech and expression under Article 19(1)(a) of the constitution were unreasonable. It clarified that the requirement of being reasonable must also be accompanied by direct nexus with one of the objectives stated in Article 19(2), namely, public order and national security. The case has been significant in pointing out the need for well-defined laws about speech.
1.5 IPC and BNS
Determination of hate speech is difficult particularly within Indian law. Indian Penal Code contains a variety of sections which discuss hate speech. Section 153A talks about promoting enmity between groups based on religion, race, language, or other reasons, while section 295A is against deliberate and malicious acts to outrage religious feelings. However, these provisions lack any universally accepted clear definition of what hate speech is. Interpretation and enforcement are left to judicial discretion, which obviously leads to inconsistency in the way that the law is applied. As such, some expressions pass in one case but fail in another case as hate speech. On the other hand, Bharatiya Nyaya Sanhita (BNS) 2023 tries to give a definition to hate speech. Provisions such as 153C and 505A, define what hate speech is as they detail the
4 Gautam Bhatia, From “Sakal Papers” to “M.F. Hussain” and “Baragur Ramchandrappa”
The Implications for Free Speech, 21 National Law School of India Review 189 (2009). intentions coupled with the situation. Section 153C would still criminalise serious threats or incitement to hatred which already seems to likely lead to violence whereas the intent behind section 505A is to bring Indian law into congruence with international standards as at the UN Rabat Plan of Action, which calls for a determination of context as to what constitute hate speech. It promotes cautionary understanding regarding the purposes of the speech and how it can be effective in affecting public order and social peace. 2-Freedom of speech and expression V. Hate Speech
2.1) Balancing Freedom of Speech and expression and Hate Speech
5Freedom of expression has been humanity’s yearning in times ancient to modern. Yet censorship has also been an ancient and universal phenomenon. The difference between protection of free speech and criminalization of hate speech is merely the intention and the implications of the speech delivered. A hate speech has a criminal intention or hatred towards a person, a community or religion, but these factors are absent in free speech. 5 Understanding that freedom of speech and expression is a fundamental right but not an absolute is necessary to strike a balance between hate speech and free speech. Reasonable limitations are required to preserve harmony and safeguard the rights of others. The purpose and consequences of the communication are what that distinguishes free speech from hate speech.
Community riots and social unrest can result from hate speech that incites hatred towards an individual, group, or religion and has a criminal motive. Therefore, it is believed that making hate speech is a legitimate limitation that is required to keep the peace in a civilized society. Furthermore, new laws that explicitly differentiate between various forms of hate speech according to their characteristics and seriousness are being called for which, would help to effectively combat hate speech while still respecting right to freedom of speech. 5
2.2) Role of Law
Section 153A, Sec. 295, Sec. 295A. , Sec 298, Sec. 505 of IPC deals with hate speech and related offences. As discussed, earlier section 153A criminalizes promotion of enmity between different groups based on faith, race, place of birth, residence, language etc. Section 153B 5 Syed Owais Khadir, Hate Speech: A Threat to the Unity and Peace in India, Volume 6, International Journal of Law Management & Humanities, 2136, 2136-2144, 2023. punishes imputations and assertions prejudicial to the national integration. Sections 295A, 298 and 505 Prohibits malicious acts intended to outrage religious beliefs of a community, uttering of words or showing gestures that would lead to the same effect and any publications having related effects.
BNS have widened the scope of IPC Section 153A by including digital platforms this can be considered crucial due to the rise of digital platforms where hate speech can proliferate rapidly. The improvements added to section 197 that replaces section 295A of IPC are the changes added to it by considering the evolving nature of communication. This section has greatly increased the punishment for similar offences. Section 505 of the IPC is replaced by section
198 of BNS, this section has widened the scope by involving statements that may create fear
or alarm without necessarily leading to immediate violence. All things considered, the BNS Sections 196 to 198 are a significant advance over their IPC equivalents since they offer more precise definitions, a wider range of applications, including electronic communications, and harsher punishments. By striking a balance between the necessity of preserving public order and social peace and the right to free speech, these modifications seek to establish a more potent legal framework for thwarting hate speech. Also, CrPc Section 95 gives the state government the power to declare certain publications forfeited and to issue search-warrants for the same. This section has been replaced by section
98 of BNSS, this section introduces major enhancements. Section 98 extends the jurisdiction
to cover a wider range of items such as newspapers and documents that contains contents punishable under various sections of BNS, even though section 95 of the CrPc permits the seizure of publications deemed injurious to public order. This clause gives the state government the authority to declare publications forfeited and make it easier for law enforcement to confiscate them throughout India. Additionally, it streamlines the enforcement process by enabling magistrates to issue search warrants for their retrieval. All things considered, Section
98 offers a more thorough and protective framework for dealing with potentially damaging
publications, strengthening governmental capacity.
2.3) Role of Judiciary
The Supreme Court has been guarding against the acts of hate speech in India by its notable judgements and observations. In the case of Arup Bhuyan vs State of Assam, the supreme court ruled that hate speech should be distinguished from offensive speech. It emphasized that offensiveness does not constitute hate speech unless it incites violence or possess a threat to the public order. 6 Hon’ble Supreme Court in the case of Pravasi Bhalai Sanghatahn vs.
Union of India & Others, observed the impact of hate speech on marginalized and vulnerable communities/individuals which can lay down 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” The petitioner in this case sought for stricter regulation on hate speech as the present laws were found to be inadequate to which the supreme court referred the issue to the Law Commission of India The Law Commission of India finally submitted its 267th Report titled ‘Hate Speech’ on March
2017 wherein it had recommended insertion of several sections in IPC & CrPC viz sec. 153C
for prohibiting incitement to hatred making it cognizable and non – bailable offence under CrPC, insertion of a new section 505A to deal with acts causing fear, alarm or provocation of violence in certain cases which is to be made a non- cognizable and bailable offence under CrPC. But these recommendations of the law commission have not be adopted yet. Again, in the Case of Firoz Iqbal Khan vs.
Union of India while dealing with the matter where the Sudarshan Tv telecasted a programme named ‘Bindas Bol’ which tried to vilify the Muslim community and using remark like UPSC Jihad, the court held that the edifice of the Indian Democratic Society is dedicated to the adherence of rule of law along with the constitutional rights values and duties associated with it good stuff the Supreme Court as the custodian of fundamental rights and constitutional values must thwart any attempts to vilify a community within the Socialist, Secular, Democratic, Republic of India. 6 5- Hate Speech and digital media The emergence of digital platforms has greatly changed the environment for both hate speech and free expression, increasing the reach and impact of harmful speech.
Social media sites like Facebook, Twitter, and WhatsApp make it easier to share information quickly, but they also make it possible for hate speech and misinformation to spread quickly. The Information
6 Ibid note 3 at page 5.
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, regulate online hate speech in India by requiring social media companies to designate compliance officers and remove offensive content as soon as possible. The enormous volume of content and the intricate problems of jurisdiction and duty make it difficult to enforce these standards, even though they offer a proactive strategy to reducing online hate speech. 7 8Social media businesses are frequently criticized for applying standards inconsistently, and the problem is made worse by the lack of transparency surrounding moderation procedures. Furthermore, because algorithms may not fully comprehend contextual or complex language, the employment of automated content moderation technologies may lead to unjustified suppression of free speech.
To create rules that effectively reduce hate speech while preserving free expression, cooperation between the government, digital corporations, and civil society is crucial. This could entail using increasingly advanced moderating tools, making content moderation guidelines more transparent, and encouraging digital literacy to assist users in identifying and appropriately handling hate speech. 8 4-Recommendations And Suggestions
4.1) What BNS lacks
9Despite introducing a number of reforms to modernize India’s legal system, the Bharatiya Nyaya Sanhita (BNS) 2023 is devoid of particular measures that effectively handle hate speech, which is essential for conforming to international norms like the Rabat Plan of Action. A notable flaw is the lack of a precise and thorough definition of “hate Speech”. The BNS does not specify what hate speech is, leaving it up for interpretation, in contrast to Black’s Law Dictionary, which defines hate speech as speech that displays animosity towards a certain group. Because it does not give the judiciary or law enforcement a clear standard to follow in cases involving hate speech, this uncertainty can make it more difficult to prosecute and enforce laws effectively. 9 ResearchOutreach, https://researchoutreach.
org/articles/hate-speech-regulation-social-media-intractablecontemporary-challenge/, (last visited Oct. 29, 2024) 8Ibid note 6 at page 10 9BnbLegal, https://bnblegal. com/article/comparison-of-bharatiya-nyaya-sanhita-bns-2023-and-indian-penalcode-ipc-1860/, (last visited Oct 28, 2024).
4.2) Recommendations
The BNS should include certain definitions and criteria for recognizing hate speech in order to better match with the Rabat Plan of Action, which places an emphasis on a nuanced understanding of hate speech and its context. Setting boundaries for what qualifies as incitement to violence or hatred while accounting foe elements like intent, context and possible harm is one way to do this. Furthermore, in light of widespread role that digital communication plays in disseminating damaging discourse, the BNS ought to have clauses that specifically address online hate speech. Furthermore, incorporating rules for judges and law enforcement on how to understand and use these criteria will improve uniformity in hate speech related court cases.
It might also be helpful to implement training programs that concentrate on comprehending hate speech in many circumstances, particularly with regard to cultural sensitivity. By implementing these policies, the BNS may establish a stronger legal framework that complies with international norms and successfully suppresses hate speech while also defending freedom of expression.
CONCLUSION
In Indian democracy striking a balance between the necessity to control hate speech and the right to control hate speech and the right to free expression is a difficult but vital responsibility. Even if current rules offer a framework, they are difficult to apply effectively particularly during contentious political events. To promote a society where free expression flourishes without causing harm, legal reforms must be paired with social and technological activities.
REFERENCES
1 Bharatiya Nyaya Sanhita,2023, No
S.O. 850(E), Acts of Parliament 2024.
2 Pallavi Sen, Hate Speech & Media Laws in India
A Critique Volume 6, International Journal of Law Management & Humanities,557,557-562,2023.
3) Gautam Bhatia, From “Sakal Papers” to “M.F. Hussain” and “Baragur
Ramchandrappa”: The Implications for Free Speech, 21 National Law School of India Review 189 (2009).
4 Syed Owais Khadir, Hate Speech
A Threat to the Unity and Peace in India, Volume 6, International Journal of Law Management & Humanities, 2136, 2136-2144, 2023.
5) Drishtiias, https://www.drishtiias.com/daily-news-analysis/defining-hate-speech, (last
visited Oct. 31, 2024). 6) Supreme Court Observer, https://www.scobserver.in/reports/restrictions-on-publicofficials-freedom-of-speech-judgement-summary/, (last visited Oct 29, 2024). 7) Nextias, https://www.nextias.com/ca/current-affairs/25-02-2023/section-153a-its-useand-misuse, (last visited Oct 28, 2024).
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Volume 18, Sage Publications, 297, 297-326, 2018.
10) Lawoctopus, https://lawctopus.com/clatalogue/clat-pg/reasonable-restrictions-article-
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