With data reflecting a recent increase in cases of promoting enmity between groups under Section 153A of the Indian Penal Code (IPC), which is primarily invoked in hate speech cases, the situation prompts the question as to whether a specific law is required.
A recent judgment of the Delhi High Court discussed in detail, the different legal provisions, tests and commentaries on hate speech. The Court underlined the requirement of effective regulation of hate speech at all levels and said that all law enforcing agencies “must ensure that the existing law is not rendered a dead letter”.
While some experts call for new ways to deal with the issue, others find the existing laws sufficient, especially when hate speech is seen from the prism of incitement of violence or creating disharmony among different groups.
As far as Indian laws are concerned, Section 153A IPC recognises and punishes “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”. This is the primary provision invoked in hate speech cases.
The provision resultantly shows a wider spectrum of grounds towards which the hate can be directed and encapsulates all such attempts by way of “words, either spoken or written, or by signs or by visible representations or otherwise”.
According to National Crime Records Bureau (NCRB) data, incidents of promoting enmity between different groups has seen a jump from 478 cases in 2016 to 1,804 occurrences in 2020.
The Kerala legislator was booked in two separate cases for allegedly communal remarks against a particular community. George was arrested by the police in one of the two cases, following which he sought bail and anticipatory bail, respectively.
In both cases, apart from Section 153A, IPC Section 295A (deliberate and malicious act intended to outrage religious feelings by insulting its religion or religious beliefs) was invoked.
On May 27, the Kerala High Court granted him relief, with one of the riders being,
“Petitioner shall not make any speech or statement which would tend to result in commission of offences under Sections 153A or 295A of the Indian Penal Code."
A petition was filed in the Supreme Court seeking an investigation into the alleged hate speech against a particular community at two events, one held at Haridwar and the other at Delhi in December 2021.
After a response was sought by the apex court, the Delhi Police initially said there was no instance of "hate speech" during the Delhi event. However, it later changed its stance and informed the apex court that an FIR had been registered under Sections 153A, 295A and 298 (uttering, words, etc., with deliberate intent to wound the religious feelings of any person) IPC.
Jitendra Tyagi, formerly known as Waseem Rizvi, was booked by the Uttarakhand Police for his alleged speeches and remarks against a particular faith at Haridwar’s Dharam Sansad held in December, 2021. He was granted interim relief by the Supreme Court in May, 2022.
Another complaint in a Srinagar court alleged that Tyagi had made offensive statements against a particular religion. In February, the Court took cognisance of the complaint and summoned Tyagi.
Yati Narsinghanand, who was arrested for his speech at the Haridwar Dharam Sansad and other offences, was granted bail by a local court in February 2022.
On August 8, 2021, a rally under the banner of Bharat Jodo Movement against colonial-era laws in the country was organised by Advocate and BJP member Ashwini Kumar Upadhyay.
Some videos from the event that later emerged purportedly showed sloganeering against a particular community. Four people including Upadhyay were arrested under Section 153A of IPC. Upadhyay, who denied having knowledge about the sloganeering, was granted bail by a Delhi Court on August 11.
The anticipatory bail plea of another accused, Pinky Chaudhary, was rejected by a Delhi court and the Delhi High Court had also refused to intervene on August 27, following which he surrendered to the police.
He was granted bail by a Delhi court on September 30 on parity with the bail granted to co-accused Preet Singh, who was granted bail by the Delhi High Court on September 24.
The Intelligence Fusion and Strategic Operations (IFSO) unit of the Delhi Police arrested the co-founder of fact-checking website Alt News Mohammad Zubair under Sections 153A and 295A for a tweet he had put out in 2018.
The police action came on a complaint from a Twitter handle alleging that Zubair had tweeted a questionable image with the intention to deliberately insult the God of a particular religion. Zubair was booked under Section 153A and for violations of the Foreign Contribution (Regulation) Act, 2010 (FCRA).
After a court in Delhi remanded Zubair to police custody, his lawyers approached the Delhi High Court against the remand order.
A Delhi Court subsequently rejected his bail plea and sent him to 14 days of judicial custody. On appeal against this order, a Patiala House court on July 15 granted him bail. While doing so, the court held that the police "failed to establish the identity" of the Twitter user based on whose complaint a first information report was filed against him.
The Supreme Court recently allowed him interim relief in an FIR under Section 295A registered in Uttar Pradesh's Sitapur District.
Zubair, however, was booked in a separate case in Lakhimpur, Uttar Pradesh wherein he was remanded to judicial custody.
Over the years, courts have either defined or quoted definitions on "hate speech". On one occasion, Supreme Court felt that although a “universal definition” of hate speech was difficult, the commonality was “incitement to violence” which was punishable.
In 2014, the Supreme Court recognised "hate speech" as being violative of constitutional guarantees under Article 14, 15 and 21 in Pravasi Bhalai Sangathan v. Union of India.
"Hate speech," it had underscored, was an effort to marginalise individuals based on their membership in a group. The judgment stated,
"Using expression that exposes the group to hatred, "hate speech" seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society.”
According to the Delhi High Court, the apex court by way of the judgment specified that laws related to "hate speech" had to be applied objectively, besides underlining that the problem with laws relating to it was rooted in their non-execution.
In 2017, the Law Commission’s 267th report outlined that the courts in the country had adopted three tests for the determination of hate speech. The three-fold analysis required courts to check, while determining tjhe legitimacy of interference with the freedom of expression, whether:
1. Such an interference is lawful or not;
2. If the interference is proportionate to the legitimate aim pursued and;
3. If such an interference is necessary in a democratic society.
The Commission also clarified that in order to qualify as hate speech, it must be offensive and project the extreme form of emotion.
In 2021, however, the Bombay High Court opined that an extreme point of view did not necessarily fall in the bracket of "hate speech" and quashed an FIR under Section 153A stemming from a person’s act of retweeting a contentious post.
“Merely because the point of view of the petitioner is extreme or harsh will not make it a "hate speech" as it is only expressing a different point of view,” it said, calling the State action against the petitioner “hypersensitive”.
Among the recent takes on hate speech, the top court in Amish Devgan v. Union of India discussed international jurisprudence on the subject while observing without acceptable public order, the freedom to speak and express would get restricted for the common masses and law-abiding citizens.
The Court, as a result, refused to quash the FIRs against the television anchor, albeit extending the interim protection from arrest subject to his joining the police investigation.
On ways to tackle hate speech, former Supreme Court judge, Justice Madan B Lokur in a talk session earlier this year emphasised on showing solidarity with victims.
“One suggestion that I have is to discuss this, persuade parliament to enact a law, persuade courts to be far more proactive. We need to get the executive involved, the prosecution involved,” he suggested.
Former Madras High Court judge, Justice K Chandru told Bar & Bench that the country is overburdened with several laws which are “only used to browbeat people who speak the truth, not the other way around”.
“For violators there are no laws…Perverted interpretation of laws is used to silence people who speak the truth. I am of the opinion that existing laws are enough but the implementation machinery is already biased,” he added.
Senior Advocate Gopal Sankaranarayanan, however, labelled hate speech as a western construct - something that doesn’t find a mention in Indian laws.
“This question of ‘hate speech’ is a very American term which we have very conveniently borrowed. You don’t find it in the law. So what does it encompass and where do you stop? If I want to engender hatred against a particular community or a group or a gender...We only think there is Hindu, Muslim, but there are millions of divisions. Community-wise, caste-wise, we have gender issues. And that’s the beauty of this country. Despite all these divisions - food and clothing and everything else, we come together,” he said.
According to him, the traditional provisions of law dealing with speech restriction were based on the media - primarily print or television. But now, in his opinion, with an exponential rise in publication of speech through social media, compiling data was impossible.
“We need to understand whether the increase in the number of forms of expression require a new regulation. In my view, no. I don’t think it is necessary because these traditional provisions of law are wide enough to cover the field as far as criminal law is concerned. But remember that criminal law on its own is not sufficient redress for a large number of views,” he explained.
Warning against “over-regulating”, Sankaranarayanan doubted the necessity for framing of a law that drew a distinction on the context of a contentious speech.
“I think we are fine. I think there is a misuse of the law that doesn’t mean law needs to be changed. Law substantially takes care of stuff. The only issue is misuse. It is a copybook followed everywhere,” he added.
Whether Section 153A was being applied appropriately, the senior lawyer said,
"But the problem is that this Section itself is wide enough for that kind of interpretation. ‘Promotes or attempts to promote’ is the phrase they use. That means if you haven’t even promoted but it looks like you attempted to create disharmony, then also it will apply. Now how do I know attempting to promote disharmony between groups? Like I said, you put out one comment and people would say you have attempted to create disharmony,” he argued.
Speaking at an event in March this year, former Supreme Court judge Justice L Nageswara Rao said that hate speech on social media was something to be taken note of.
The 267th Law Commission report recognised the internet’s role in providing anonymity to a miscreant for easily spreading false and offensive ideas. It argued such ideas need not always incite violence but might perpetuate the discriminatory attitudes prevalent in the society—contributing towards the identification of "hate speech".
The United Nations in this regard noted,
“Growing weaponisation of social media in order to disseminate hateful and divisive narratives - often promoted by online corporations proprietary algorithms bias - has exacerbated the stigmatisation of vulnerable communities and exposed the fragility of our democracies worldwide.”
Advocate and founder of digital advocacy organisation Internet Freedom Foundation Apar Gupta referred to research studies on the algorithms directed towards users who spend a greater degree of time on social media platforms.
This, he said, allowed gathering of personal data to show contextual ads on social media platforms or even a situation where personal data is sold to third parties.
“This economic model sometimes leads to provocative and polarising speech being preferred over much more complex pieces of information that require a greater degree of thought, depth, understanding and patience,” he said.
These algorithms, resultantly, have paved way for increased social polarisation, provocative and hate speech on social media, he added.
Gupta believes private platforms in India were not keen on taking down provocative content from social media platforms.
“Content-based take downs for "hate speech" by private platforms are not taking place in India as they should, as the Frances Haugen disclosures show. Quite often, social media companies lack local language classifiers for content moderation or they are under resourced—a small fraction of their global budget for their content moderation is purposed towards India as opposed to the United States,” he pointed out.
In 2021, Haugen, a former employee-turned whistleblower, had revealed that Facebook selectively moderated content and took action against only 3-5% of hate speech on the platform.
In Gupta's opinion, people’s participation on social media has to be with the acknowledgment that it can have real-life consequences.
“They need to acknowledge that theirs is a country with an incredible amount of diversity and that’s what gives us the strength rather than it being a division by itself,” he said.
The amplification of views or speech expressed on a wide variety of social media platforms does call for an introspection into the existing tools determining speech to be hateful or otherwise. More importantly, the situation requires a deeper understanding of what could be a matter of subjective opinion as of now.