Right to Freedom of Speech V/S Hate Speech

Blog authored by Arshdeep Kaur, law student from Punjab School of Law, Patiala

INTRODUCTION

In times of huge political, social and economic views, the world is witnessing a battle against each other through words. Dehumanizing and defaming are new weapons of the society. People nowadays have misapprehended the term freedom of expression with hate speech. Availability of social media has given people enough opportunity and liberty to express their ideas on a particular topic.

Hate speech has gained popularity in the recent times because  social media has provided the platform and has become the  most famous source of spreading hate news.


FREEDOM OF SPEECH AND EXPRESSION

Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that, “all citizens shall have the right to freedom of speech and expression”. Under Article 19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of Article 19(2) cannot be valid.

The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.  It thus includes the freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2). Free expression cannot be equated or confused with a license to make unfounded and irresponsible allegations against anybody.

The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. 

This right is available only to a citizen of India and not to foreign nationals. This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offence.

HATE SPEECH

Hate speech is an emotion which we counter in our day to day life. Hate can be seen in the statements of many legislators, scholars, politicians, jurists, actors and so on. According to Reports in the “ERA OF HATE” a lot of people choose online platform to spread hate through their posts.

Hate speech is defined as any kind of communication in speech, writing or behavior, 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 or other identity factors 

Recently, Union Minister Mr. Anurag Thakur and BJP MP Mr. Parvesh Verma received a ban of 72 hours and 96 hours respectively from campaigning for the Delhi Elections. The reason behind the same was the ‘Hate Speech’ that they delivered in their respective rallies in Delhi. While Mr. Thakur urged the crowd in a rally to shout “Goli Maaro (gun down the traitors)”, Mr. Verma claimed in a rally that those who are protesting at Shaheen Bagh against the new Citizenship Law will one day enter the houses and rape sisters and daughters.

HATE SPEECH AND FREEDOM OF SPEECH

The Constitution of India provides freedom of speech and expression to all citizens of India. It is recognized as one of the most essential features that a free democratic country must provide. However, the said right comes with certain reasonable restrictions as well. But under the guise of exercising this right, many perpetrate the crime of hate speech, giving rise to an air of distrust, and terror. It must be understood that liberty is there for everyone. If in the name of free speech, a Hate Speech is given which marginalizes certain persons, then the liberty of those people is taken away.

In the 267th Report of Law Commission of India, it was stated that “Liberty and equality are contemporary and not antithetical to each other. The intention of having the freedom of speech is not to disregard the weaker sections of society but to give them an equal voice. The intent of equality is not to restrain this liberty but to balance it with the necessities of a multicultural and plural world, provided such constraint does not unduly infringe on the freedom of expression. Thus, incitement to not only violence but also to discrimination has been recognized as a ground for interfering with freedom of expression.

LAWS REGULATING HATE SPEECH

Sections 153A and 153B of Indian Penal Code, 1860 make any act a punishable offence that incites or promotes disharmony or feeling of enmity or hatred between different religious or racial or linguistic or regional groups or castes or communities. The objective of having such a provision was “to check fissiparous communal and separatist tendencies and secure fraternity so as to ensure the dignity of the individual and the unity of the nation”.

Section 295A of Indian Penal Code, 1860 provides for punishment for any act done by anyone with deliberate and malicious intention to outrage the religious feelings of any class of the citizens, insults or attempts to insult the religion or the religious beliefs of that class of citizens. Under S. 295A what is required to constitute an offence, is the presence of both, namely, the intention must be deliberate and malicious.   Under Section 298, punishment is prescribed for any act committed with the deliberate and malicious intention of hurting the religious feelings of any person. Thus, it is restricted to protect the hurting of any religious feeling only, however, unlike Section 295A, it protects any person, whether citizen or non-citizen.

Section 505(1) and 505(2) makes the making, publishing or circulating of any statement or rumor an offence, which is likely to incite any class or group of persons to commit any offence against other class or group of persons, or promotes or is likely to promote feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. In Section 505(2), words “whoever makes, publishes or circulates” cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, any person, making a statement that may attract section 505, would be held liable without any publication or circulation.

One important feature of sections 153A and 505(2) of IPC is that there must be at least two groups or communities involved. Mere abuse of the feeling of a community or group without any reference to any other community or group, cannot attract either of the two sections.

In Criminal Procedure Code, 1973 as well there are provisions related to such acts. Section 95 gives power to State Governments to forfeit any publications that are offence under sections 124A, 151A, 153B, 292, 293, or 295A of Indian Penal Code, 1860.  Section 107 gives power to Executive Magistrate to prevent a person from committing any act that may disturb the peace and tranquility of the society.

Section 8 of Representation of People’s Act, 1951 puts a bar on a person, from contesting the election, who has been convicted of illegitimate use of freedom of speech and expression. Sections 123(3A) and 125 prohibit the promoting of animosity on the grounds of religion, race, caste community or language in reference to election and terms it, as corrupt electoral practices.

Is the Ban on Hate Speech a “reasonable restriction” of the  Freedom of Speech and Expression?

Hate speech is considered a reasonable restriction on freedom of speech and expression. This issue was considered in the case of Canada v Taylor,[1990] SCR 892 where the constitutional validity of hate speech laws was challenged on the ground that it violated the right to freedom of speech and expression. It was held that hate and propaganda contribute little to the aspirations of Canadians or Canada in the quest for truth, the promotion of individual self‑development, or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. The Court also observed that it undermines the dignity and self‑worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open‑mindedness that must flourish in a multicultural society which is committed to the idea of equality. The Supreme Court of Canada opined that hate speech laws are indeed a part of the global commitment to eradicate racism and communal disharmony.

The Indian Supreme Court had also referred to this judgement in 2014. The Court had also observed the holding of another observation by the Supreme Court by which they said 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

 In the case of Rangarajan etc., v P. Jagjivan Ram 1989(2)SCC 574, it was held by the Supreme Court that in order to restrict free speech, a proximate and direct nexus must be found with any imminent danger to the community. This nexus cannot be farfetched, remote, or conjectural.  The Court held that our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing freedom are pressing and the community interest is endangered.  The anticipated danger should not be remote, conjectural, or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to public interests.

CONCLUSION

Hate Speech is the starting point in the chain of marginalizing and putting a particular class of persons under fear of threat. If it is protected in the name of freedom of speech and expression then it will lead to violation of principles on which a free and democratic country is built on. Hate speech have become a universal phenomenon nowadays because of internet availability to every person, it is reachable to every part of the society


Despite new and strict laws, the number of cases of hate speech is increasing day by day. Proper measures should be taken to prevent the spread of Hate Speech. The state’s prime objective should be to provide a secular, pluralist and multicultural environment so that there is harmony and peace which aids free interplay of ideas in order to promote growth and development. To make sure that hate speech does not affect the society and sods not damage or defame any person’s reputation and beliefs, there is a need of a having a transparent system. Speech which spreads violence and discrimination should be penalized.  So “RAISE VOICES NOT HATE”.

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