Critical Analysis

Hate Speech: Are The Existing Provisions Really Not Enough?

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Recently, alleged inflammatory speeches were made in a religious gathering held in December 2021 in Haridwar, Uttarakhand. It is alleged that calls for genocide against the Muslims and other minorities were made by the religious leaders of Hinduism in order to ‘protect’ Hinduism. There were arguments made that the current Indian Penal Code (IPC) provisions are deficient and ineffective in dealing with the proponents of hate speech. But are they really so?

It is important to note that neither is there an exact definition of hate speech in the IPC, nor is there a specific provision to deal with the same. The Supreme Court in Pravasi Bhalai Sangathan observed that hate speech is an effort to marginalize individuals based on their membership in a group and an effort towards delegitimization of that group in the society. The Supreme Court in this case also referred to the definition of hate speech in the Black’s Law Dictionary.  Further, the Apex Court observed that in addition to causing distress to the members of the group, hate speech can also have a huge societal impact and can lead to violence and discrimination and in extreme cases, even ‘genocide’, which allegedly was the call for in the Haridwar case. The existing provisions in the IPC which deal with hate speech are Sections 153A, 153B, 505 and 295A with Section 153A, being the go-to section in cases related to hate speech.

Important observations made by the Courts

In Amish Devgan, in the context of S. 153A, S. 295A and S. 505 of IPC, the court observed that acts which promote or are likely to promote divisiveness and hatred are directly harmful to the pillars of pluralism and diversity. Identity based hate speech which is specifically targeted towards a specific group harming their dignity and rights, disrupting or likely to disrupt public order and inciting or likely to incite violence should not be ignored. The Apex Court in this case referred to an article on assessment of hate speech by analyzing three elements – content-based element which deals with the content of the speech and its ability to arouse feelings of anger and hatred; intent-based element which deals with the intention to promote hatred and violence among groups and; harm or impact-based element which deals with the harm which the individual or a group suffers from hate speech like loss of self-esteem, mental stress, physical violence, discrimination etc. A Who-What-Where test by the Court was considered as to who made the speech, to whom it was directed, what was the content and where the person has made the speech and under what circumstances. The Court observed that the person’s influence also matters like in cases where the accused is a leader or a news anchor. The content of the speech should have a component of hate which the speaker should be directing towards a particular group inciting violence or hatred against them.

In Pravasi Bhalai Sangathan, the petitioner pleaded that the Apex Court should take action against the people who are making hate speeches. It asked the Apex Court to declare the act of hate speech an act against the Union of India. The Apex Court observed the findings of the Canadian Supreme Court in Saskatchewan that hate speech instances must be considered objectively that whether a reasonable man after reading or hearing the content would feel that a certain group is exposed to hatred. It also observed that ‘hatred’ should be equated to extreme interpretations like that of ‘detestation’ and ‘vilification’ and its effect on the audience. The Court ruled that there is no need for the Supreme Court to instruct the Legislature to make a law on hate speech. The Courts are barred to create a law and the same would amount to judicial overreach. The Court observed that there are provisions already existing which can be used to deal with the crime of hate speech.

In Campaign against Hate Speech, Karnataka High Court observed that since the Parliament has not made a law specifically for hate speech, it would be judicial overreach on part of the courts to come up with the same or to direct the Parliament to frame a law on the same. In addition to this, it also observed that there are enough remedies available in the existing provisions if someone is aggrieved by a hateful speech. Another question which comes in the mind is that what if there is promotion enmity or disturbance in public tranquility within a same religious group. The Karnataka High Court in this case answered this question and stated that S. 153A of IPC will be violated if the words were aimed to promote hatred or to incite violence within the same religious group or sect.

Dealing with Sections 153A and 505 of IPC, the Apex Court observed in Bilal Ahmed that the provisions deal with prohibition of activities which promote enmity, disharmony and hatred between groups on the basis of religion, caste, race etc. and thus held that there needs to be a mention of two groups or religious communities along with a sentimental hurt aimed towards one particular community.

Thin line between hate speech and free speech

In Sunaina Holey, the Bombay High Court observed that extreme or harsh opinion is not hate speech. It observed that the speech should result in incitement and that there should be some clear threat to public safety.

In Patricia Mukhim, non-tribal boys were assaulted with lethal weapons and the appellant uploaded a post on Facebook appealing the authorities to protect the interest of the non-tribals and take action against the perpetrators. A case was lodged against her under S. 153A and 505(1)(c) of the IPC claiming that the post was worthy of instigating rift between groups. The Apex Court came to the rescue of the person and distinguished her plea for protection of non-tribals with hate speech. These cases are examples of what some people argue that the provisions for hate speech have an overreaching effect and are often misused by the State authorities.

In the case of Kamal Kishore, the Apex Court was dealing with a poster in which the candidate was asking for votes so that he could teach a particular community a lesson. The Apex Court held this as an offensive and communal poster which was likely to incite disharmony between two groups. In Babu Rao Patel, the Court saw through the disguise of historical truths to point out the hate speech which was being made. Another important aspect to note here is that historical or other notions of truth or even academic work cannot be taken as defense in cases of hate speech because truth can also be used to promote hatred and enmity between groups. In Harnam Das, the Court held that if the historical or academic context has delved into abuses or offences, it will lie outside the domain of free speech.

Conclusion

The Courts have time and again emphasized that hate speech cases require a thorough analysis of reason and rationale. The new provisions of 153C and 505A proposed in the 267th Law Commission Report contain some new grounds like gender identity and sexual orientation are explicitly mentioned unlike in the existing provision which, though not exhaustive, does not have an explicit mention like the proposed provisions have, which can be seen as a positive step towards achieving a ‘hatred-less’ society. But, new sections will not automatically solve the core problem.

In spite of a number of cases in which the Court have talked about hate speech, it is evident from a number of baseless cases lodged in the name of hate speech that there does not exist a clear line of distinction which can minimize the misuse of the IPC provisions. The authorities should not be ignorant of the reasoning which the courts have propounded over the years. The arbitrary application of these sections should be minimized as soon as possible. There are enough provisions already existing for hate speech and additional provisions may result in more exploitation of the hate speech provisions.

Retired Judge of the Supreme Court Rohinton Nariman also expressed grave concern over the reluctance of the authorities and the government to book the people who clearly were calling for a genocide against a community. The topic of hate speech is very subjective and the existing provisions already are being exploited. Having new sections will not automatically solve the problem. The new sections which are proposed will also have a huge amount of subjectivity attached to them and the burden will be upon the courts to interpret the sections so that they are not misused. Thus, the existing sections and especially the courts’ interpretations need to be relied upon. An improvement that can be made regarding to hate speech provisions is their reasonable and timely application and the authorities need to be careful of the same.


ABOUT THE AUTHOR

Shivesh Didwania

Shivesh is a second-year law student at Maharashtra National Law University, Mumbai. Shivesh is proficient in legal research and is interested in the field of legal writing. He also likes to take part in moot courts and ADR competitions.

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