- Hate speech is an expression which is likely to cause distress or offend other individuals on the basis of their association with a particular group or incite hostility towards them.
- In general, it refers to words whose intent is to create hatred towards a particular group, that group may be a community, religion or race. This speech may or may not have meaning, but is likely to result in violence.
- There is no general legal definition of hate speech, perhaps for the apprehension that setting a standard for determining unwarranted speech may lead to suppression of freedom of speech.
- The Bureau of Police Research and Development recently published a manual for investigating agencies on cyber harassment cases that defined hate speech as a language that denigrates, insults, threatens or targets an individual based on their identity and other traits (such as sexual orientation or disability or religion etc.).
- In the 267th Report of the Law Commission of India, hate speech is stated as an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.
- In order to determine whether a particular instance of speech is a hate speech or not, the context of the speech plays an important role.
- One of the greatest challenges is not to exercise the principle of autonomy and free speech principles that are detrimental to any section of society.
- Free speech is necessary to promote a plurality of opinions where hate speech becomes an exception to Article 19(1) (a) (Freedom of Speech and Expression).
Legislations around Hate speech
Presently, in our country many legislations have bearing on hate speech, a brief snapshot is given here:
- The Indian Penal Code, 1860 (hereinafter IPC) Section 124A IPC penalises sedition
- Section 153A of the IPC penalises ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’.
- Section 295A of the IPC penalises ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’.
- Section 505(1) and (2) of the IPC penalises publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or illwill between classes.
- The Representation of The People Act, 1951
- Section 8 disqualifies a person from contesting election if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression.
- Section 123(3A) and section 125 prohibits promotion of enmity on grounds of religion, race, caste, community or language in connection with election as a corrupt electoral practice and prohibits it.
- The Protection of Civil Rights Act, 1955
- Section 7 penalises incitement to, and encouragement of untouchability through words, either spoken or written, or by signs or by visible representations or otherwise.
- The Religious Institutions (Prevention of Misuse) Act, 1988
- Section 3(g) prohibits religious institution or its manager to allow the use of any premises belonging to the institution for promoting or attempting to promote disharmony, feelings of enmity, hatred, ill will between different religious, racial, language or regional groups or castes or communities.
- The Code of Criminal Procedure, 1973
- Section 95 empowers the State Government, to forfeit publications that are punishable under sections 124A, 153A, 153B, 292, 293 or 295A IPC.
- Section 144 empowers the District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf to issue order in urgent cases of nuisance or apprehended danger. The above offences are cognizable.
Non-regulatory options available to Election Management Bodies (EMBs) are to emphasize the importance of external stakeholder outreach and collaboration as follows:
- Engage other stakeholders: Making inroads against hate speech will be contingent upon forming strategic partnerships and alliances, and working collaboratively in order to leverage the existing mandates, capabilities, and resources of government institutions, independent agencies, and civil society.
- Model good behavior: The baseline of EMBs strategy to combat hate speech should be to ensure that it does not engage in or tolerate discrimination or hateful speech toward any individual or group by the members of the institution or any of its election staff (permanent and temporary).
- Speak out against discrimination and hatred: As public officials, EMBs have a platform from which to speak out against hate speech. By speaking out, Election Commissioners can help to raise awareness of hate speech and its consequences which in turn can help to mobilize a public response.
- Contribute to learning: Investments in public opinion surveys and focus groups can help Election Management Bodies better understand how, in what manner and to what extent speech impacts behavior. Research is also essential to understand what counter strategies are effective in a given context.
- Monitor, collect and report data: The collection, monitoring, and reporting of data on the occurrence of hate speech, as with instances of electoral violence, will also be essential to developing and putting into place effective risk-mitigation strategies and security plans, as well as informing investigation and adjudication processes.
- Mitigate risk through security planning: EMBs should apply available data on hate speech to mitigate electoral violence and safeguard the security of all electoral stakeholders. EMBs will need to collaborate with human rights commissions or police oversight commissions to hold them accountable.
- Adjudicate effectively and responsibly: In election time EMBs will need to avoid the pitfalls encountered by other judicial and administrative bodies. These include slow adjudication, broad interpretation, inconsistent jurisprudence, political bias, legal overreach and abuse, disproportionate penalties, and noncompliance with international obligations.
- Train electoral stakeholders: Training programs should integrate themes relating to human rights, voting rights, non-discrimination, gender equality, protected and prohibited speech, what constitutes hate speech and incitement of hatred, and obligations under national law and international instruments.
- Raise awareness and educate voters: Public information campaigns and voter education programs can help voters identify and address intolerance in their own lives and recognize and resist hate speech purveyed by officials, candidates and their supporters, and the media.
Suggestion for Changes in IPC:
- Viswanathan Committee 2019:
- It proposed inserting Sections 153 C (b) and Section 505 A in the IPC for incitement to commit an offence on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe.
- It proposed punishment of up to two years along with Rs. 5,000 fine.
- Bezbaruah Committee 2014:
- It proposed amendment to Section 153 C of IPC (promoting or attempting to promote acts prejudicial to human dignity), punishable by five years and fine or both and Section 509 A IPC (word, gesture or act intended to insult member of a particular race), punishable by three years or fine or both.
Some Cases Related to Hate Speech:
- SC’ s Recent Judgement:
- In the context of discussing the limits of free speech and what may tantamount to hate speech, the Supreme Court (SC) has recently held that “Historical truths must be depicted without in any way disclosing or encouraging hatred or enmity between different classes or communities.”
- Shreya Singhal v. Union of India:
- Issues were raised about Section 66A of the Information Technology Act, 2000 relating to the fundamental right of free speech and expression guaranteed by Article 19(1) (a) of the Constitution, where the Court differentiated between discussion, advocacy, and incitement and held that the first two were the essence of Article 19(1).
- Arup Bhuyan vs State of Assam:
- The Court held that a mere act cannot be punished unless an individual resorted to violence or inciting any other person to violence.
- S. Rangarajan Etc vs P. Jagjivan Ram:
- In this case, the Court held that freedom of expression cannot be suppressed unless the situation so created is dangerous to the community/ public interest wherein this danger should not be remote, conjectural or far-fetched. There should be a proximate and direct nexus with the expression so used.
- Amish Devgan v. Union of India (2020)
- According to the Supreme Court, “hate speech has no valid or redeeming motive other than hostility for a specific group.”
- The most efficient way to dilute hatred is by means of Education. Our education system has a prominent role to play in promoting and understanding compassion with others.
- Fight against hate speech cannot be isolated. It should be discussed on a wider platform such as the United Nations. Every responsible government, regional bodies, and other international and regional actors should respond to this threat.
- Cases of hate speech can be addressed through Alternative Dispute Resolution as it proposes a shift from the long procedures of the court to the settlement of the dispute between parties by way of negotiation, mediation, arbitration and/or conciliation.
- Also, Public authorities must be held accountable for dereliction of the duty of care and also for non-compliance with this court’s orders by not taking action to prevent vigilante groups from inciting communal disharmony and spreading hate against citizens of the country and taking the laws into their own hands.
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