Author: Savio P Xavier, Student at NMIMS School of Law, Navi Mumbai, Maharashtra.
Co-Author: Jessica Mariam Vinod, Student at Government Law College, Thrissur, Kerala.
The fundamental rights are the rudimentary rights vested with Indian Citizens and is mentioned in Part III of the Indian Constitution. As far as the Constitution is concerned, fundamental rights act as a safeguard & protect the citizens from any kind of unreasonable & arbitrary interference in one’s pursuits by individuals or by Government, so that people of India remain tranquil and lead a life in peace & harmony.
These fundamental rights consist of individual rights which are customary in most of the democracies in the world. All the fundamental rights are for the protection of civil rights through writs. Considering the constitution of India, fundamental rights are contemplated as the foremost or intrinsic factor which is highly pertinent to the people of India for their far-reaching augmentation of idiosyncrasy and to sustain human stateliness. Hence for this purpose, the constitution of India affirms its citizens the freedom to speak & express among various other rights in the form of fundamental rights.
The freedom of speech and expression is contemplated as the mother of all other liberties. Thus it takes up a significant position in the hierarchy of liberty. In a democratic country like India ‘speak out’ and ‘to be listened’ are crucial factors so for a cut above exchange of sundry perspectives, freedom of speech is very essential. Hence, it is one of the paramount element of democracy. For the wholesome enjoyment of personal liberty, free speech is the prime & basic element. The freedom of speech and expression can be defined as the personal liberty of an individual to enunciate his or her point of view on distinct and handful affairs by words, print, writing or any alike modes of communication. A short while ago this has been cramped and most of the people wallow in it for their personal interest and cling neither to the society nor to the nation. This is termed as ‘hate speech’.
HOW HATE SPEECH DIFFERENT FROM FREE SPEECH
Exercising the right to free speech and expression must be with sedulousness to not hurt other fellow citizens & not make them feel embarrassed. When a free speech statement is violative of the religious feelings and credence of any person or a group of people in a community or the statement that is in divergence concerning the caste, creed, religion, gender, disability, place of birth etc of an individual or which directly hurts anyone’s credit. Generally speaking, hate speech refers to those speeches that convoy with any kind of activity that promotes fear, danger, violent actions, etc, which causes mental stress and tension in the mind of an individual.
Under the Constitution of India which provides a citizen their right to freedom of speech and expression under Article 19, Article 20, Article 21 and Article 22. the right under Article 19 which provides a citizen their right to free speech and expression is subjected to various restrictions in order to not misuse this right. thus this right is not an absolute right. Very often, a speech is criticised as a hate speech, to silence the critics of social policies which are not implemented effectively, solely to make their views correct. one the other hand people try to bridge a similarity between violent rhetoric and real-world brutality. History itself shows many instances when hate speech was used purely to stimulate or rather instigate & provoke ethnic violence, which end up in a very bad genocide and other socially unstable issues.
HATE SPEECH IN INDIA
In Indian history, hate speech has primarily been recognised as a speech meant to spread hatred, violence or communal riot between India’s religious communities. The restrictions to offences regarding hate speech are formed way back during british times. During that time the British were of the opinion that hate speech should be regulated inorder to avoid communal tensions in the society, without seeing who was at fault or not.
Considering India’s diverse culture, the makers of the constitution wanted to make sure a theme of tolerance was added just to restrict the right to speech and expression.
Article 19 (1)(a) of the Constitution goes on to say that the State can impose “reasonable restrictions” on the exercise of this right keeping in mind the sovereignty and integrity of the country, security of the state, welfare of citizens, and contempt of court.
LEGAL PROVISIONS REGARDING HATE SPEECH IN INDIA
Different forms of hate speech are prohibited in India using various sections of the Indian Penal Code(IPC), the Code of Criminal Procedure(CrPC) and also by few other laws which are made to regulate and govern the right under Article 19 of the Constitution.
Representation of People Act,1951 (RPA)
Under Article 324of the constitution it has clearly stated that those individuals selected as the people’s representatives are considered to be of high moral qualities and also posses good character. The (RPA) has stated certain standards of their quality and restrained demonstrations which may have the potential to defame the purity of the elections. It is under Sec. 123(3), 123(3A) and 125 of the RPA the continuous discourse gossip in India are restricted. But Sec. 123(3) is specifically for the sake of religion and so on.
The Indian Penal Code, 1860
In IPC various sections deal with hate speech. According to Sections 153 A and 153 B of the IPC, if any act which encourages hatred between groups or a religious group or race and is considered to be a prejudice to national intergration, then they will be punished for hate speech. Section 295 A of IPC asserts that any speech or even a piece of writing which is intentionally made inorder to insult a religious belief or their feelings will be punished upto 3 years of imprisonment.
The Code of Criminal Procedure, 1973
Section 95 of the Code of Criminal Procedure,1973 states that the government has the power to issue warrant for such publications which are declared as “forfeited”. These publications may include any books, documents or even newspapers for that fact are printed, if appeared to be forfeited by the State Government can be punished under section 124A or Section 292 or Section 293 or Section 295A of the IPC (45 of 1860).
CASES RELATED TO HATE SPEECH
Since a few years, several cases of hate speech have been filed in Indian Courts. The Indian judiciary has made numerous landmark judgements to curb the threat posed by hate speech.
Superintendent Central Prison v. Dr Ram Manohar Lohia was a case, where it was held that there must indeed be a difference in the interests arising from freedom of expression and social interests. But, it is impossible to bring these two interests on the same page considering the fact that they independently has equal weightage & equal significance. This rights cannot be supressed unless the circumstance is created by allowing this freedom as urgent and the interest of the community are not at stake.The expected peril or hazard shouldn’t be too far-fetched, conjectural or remote. A direct connection to the expression is necessary
In the case of Pravasi Bhalai Sangathan v Union of India & Ors, the Hon’ble Supreme Court of India observed that the issue of hate speech merited further consideration by the Law Commission of India. Accordingly, the Law Commission of India by taking into consideration all the laws and also various other pronouncements on hate speech, they submitted a report to the Government of India for consideration in 2017. The report opinioned to add a section to IPC on “Prohibiting incitement to hatred” under Sec. 153B of IPC and “’Causing fear, alarm or incitement to violence in certain cases” under sec. 505 of IPC.
One of the landmark judgments came in the case of Shreya Singhal vs Union of India. Two Maharashtrian women were arrested for expressing displeasure at the Shiv Sena band in Mumbai post the death of Bal Thackeray. This case was argued with by Adv. Shreya Singhal. In its report, the panel of Experts stated that “representatives of the Ministry of Women and Child Development” stressed the need to reintroduce section 66A of the IT Act, by adding appropriate amendments. However, other members of the panel argued that, if the IT Act was “commercial in nature,” it was important that the Indian Penal Code be amended by an act calling for punishment. The Law Commission, in turn, acted based on certain judgement made by the Apex Court in the case of Pravasi Bhalai Sangathan v Union of India in 2014. In this case, the Supreme Court exercised judicial restraint and did not allow to lay down guidelines to prohibit hate speech in politics as they wanted the Law Commission to look into this matter.
All kinds of abhorrent itchiness have to dealt with zero-tolerance solely because these actions takes place when someone is in their furious state of mind and frustration. Even though free speech is very significant and important in every nation’s democracy, it should be restricted to extraordinary cases of murder or violence. The most effective way to mitigate loathe will be through education, debate & other awareness programs.
Our prevalent school, public and social media personalities play a critical role in to assert such hatred, to promote social benefits and also to cater the needs of others. To minimize and restrain hatred in the coming years, we have to begin building up and instil the right quality education for the coming years so that the chance of such a kind of viciousness are limited. Despite having several laws on hate speech in India, the laws should be stringent in punishing a person doing these activities. This is because the most valuable thing for a person is their feelings for their religion as it is around which a person has lived their life. Everything a person does has been in accordance with his belief. So it is very important that we should respect his belief rather than insulting. And this is why nobody can avoid someone hurting their religious feelings.
- The Constitution of India bare act (bare act)
- The Indian Penal Code bare act(page 51)
- The Indian Penal Code bare act (page 105)
- The Indian Penal Code bare act (page 195)
- The Constitution of India(bare act)
- The Code of Criminal Procedure(bare act)
- The Prevention of Atrocities Act, 1989
- The Indian Penal Code
- Superintendent Central Prison v. Dr Ram Manohar Lohia , AIR 1955 All 193
- Pravasi Bhalai Sangathan v Union of India & Ors , AIR 2014 SC 1591