From Satyameva Jayate to Shastrameva Jayate: Criminalization of Hate Speech in India

Freedom is the underpinning of any democracy and it cannot exist or grow in silos. According to the UNESCO Declaration of 1978, “Exercise of freedom of opinion, expression, and information, recognized as an inherent aspect of human rights and fundamental freedoms.” The Indian Constitution, promised its citizens the freedom of speech and expression. The phenomenon of placing one's right to free speech, whether explicitly or implicitly, governmental or otherwise in shackles might be an unjustified restriction on one's fundamental right to liberty. But upon closer study, it is a medium to ward off several issues that might arise if the freedom of speech goes unbridled. Amongst various monstrosities that raise their head under the garb of free speech is the ‘hate speech. A recent example is the Dharmsansad organized at Haridwar on 17^th and 19^th December 2021 where the violence against the Muslim community was called for.

There exist no single criteria for recognition of a speech as hate speech. In the words of Benoit Frydman, two different approaches are followed while dealing with issues related to hate speech. First, popularly called the ‘slippery slope’ has been seen in the case of the United States. The attempt to cage-free speech and expression blatantly fails because of the strong First Amendment rights. Therefore, the US has no anti-hate speech law unless there has been an act of extreme lawless action. Second is the ‘fatal slope’ approach which is common in Europe. There are stringent laws to prohibit speech to prevent mass-scale killings or any other hate crimes.

India lacks a specific piece of the legislature when it comes to the issue of hate speech. Also, there is no straight-jacket definition of the same because of its multitudinous dimensions. According to the 267^th Report of the Law Commission of India:

“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.”

As per the report, six broad categories are taken into account in deciding whether the speech amounts to hate speech or not. These include, (a) the extremity of speech; (b) incitement; (c) status of the author of the speech; (d) status of victims of the speech; (e) potential of the speech to cause harm; and (f) context of the speech.

The reason behind the inability to define and criminalization of hate speech is the fear that it might be maliciously used as an instrument of suppression. The Indian Supreme Court in the case of Pravasi Bhalai Sangathan v Union of India and Others (2014) expressed the same view. It stated that the process of ‘confining the prohibition to a manageable standard’ is of immense difficulty. But it also said that the current laws are insufficient to deal with this issue.

Hate speech has been vaguely dealt with within certain sections of the Indian Penal Code, 1860 (Indian Penal Code). Section 153A penalizes the promotion of enmity between any two groups based on religion, race, place of birth, residence, language, etc. It also prohibits acts resulting in disruption of harmony. Section 153B deals with penalizing ‘imputations and assertions’ that act as a threat to national integrity. Section 295A whose constitutionality was challenged in Ramji Lal Modi v State of Uttar Pradesh (1957) and Section 298 of the code deal with the religious issue. The former criminalizes the deliberate actions to outrage the religious feelings of a group through insult whereas the latter deals with the criminalization of uttering such words that are meant to wound the religious feelings of others. Section 505 penalizes the publication or circulation of any statement or rumor that may incite public mischief, hatred ill-will, etc.

Apart from the Indian Penal Code, there are certain other legislations in which the provisions regarding hate speech can be found. Section 8 of the Representation of People’s Act talks about the disqualification of the candidate for the misuse of freedom of speech and expression. Other than this legislations like The Protection of Civil Rights Act, 1955 along with the Religious Institutions (Prevention of Misuse) Act, 1988 deal indirectly with the issue of hate speech. The Cable Television Network Regulation Act 1995 and The Cinematograph Act, 1952 also include provisions that help prevent and regulate online transmission of any information that may lean towards spreading hate.

Therefore, there is clear lack of an exclusive legislation regulating the issue of hate speech. The T.K. Vishwanathan Committee in the year 2019 proposed an amendment in the Indian Penal Code for inserting sections 153C and 505A. It recommended the criminalization of incitement to commit an offense based on religion, race, caste, community, language, residence, etc and prescribed a punishment of fine amounting to INR 50,000 and two years imprisonment. It also recommended that relevant changes be included in the Criminal Procedure Code 1973 to make such offenses both cognizable and non-bailable.

Before that the Bezbaruah Committee in the year 2014 proposed a similar amendment to the Indian Penal Code. A bill was tabled in Lok Sabha titled The Criminal Law (Amendment) Bill, 2017 which dealt with the criminalization of hate speech.

Due to the increase in the number of incidents of hate speech it is time that the Indian legislature takes an appropriate action. Although criminalization of hate speech may lead to an increase in litigation that may over-burden the Indian courts, it is imperative to find suitable remedies to the problem.

Australia is a perfect example in this regard. It has successfully developed a mechanism where cases of hate speeches are resolved through mediation rather than criminal proceedings. An additional layer of civil mechanism has been added to the already existing criminal framework against cases of hate speech. The aim is to negotiate an acceptable agreement for the aggrieved. The commission so setup notes down the conditions of the agreement once the parties agree to conciliation. It decides on an appropriate discourse for taking action against the offense. If the accused is found guilty it may order payment of compensation. It may also ask the accused to apologize or retract the said statement. However, such a mechanism to deal with hate speech and its consequences is effective when the impact of the harm is not large scale.

Hate speech directly affects the victims of hate crimes and causes mental and physical injury. In the words of Jeremy Waldron targeting a person’s “immutable characteristics, ethnic background or religious identity causes a harm." An exclusive legislation based on the principle of the “doctrine of proportionality” could help regulate hate speeches in India and its harmful effect. Additional protection of civil mechanisms can be provided as an alternative to lessen the burdens of pending back-log of legal proceedings on Indian courts. However matters of grave concern should be strictly dealt with by the courts alone.

The author, Varalika Nigam, is a second year student at National University of Study and Research in Law.