By Prateek Som
The Constitution of India is one of the lengthiest written constitutions in the world and contains a preamble, 470 articles, 12 schedules and 5 appendices. India is a better place to live because the citizens have a right to freedom as a fundamental right. The fundamental rights of the Constitution of India confirm equality among the people and the harmony of the nation. However, many construe fundamental rights as an absolute right. During constituent assembly debates, some argued that the USA has fundamental rights which are absolute to which Ambedkar pointed:
“It is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution, one can refer to at least one judgment of the United States Supreme Court. In Gitlow Vs. New York in which the issue was the constitutionality of a New York “criminal anarchy” law which purported to punish utterances calculated to bring about violent change, the Supreme Court said: “It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.” It is therefore wrong to say that the fundamental rights in America are absolute, while those in the Draft Constitution are not.”
The Constitution acknowledges that liberty cannot be absolute or uncontrolled and makes provisions in clauses (2) to (6) of Article 19 authorising the State to restrict the exercise of the freedom guaranteed under that article within the limits specified in those clauses. Thus, clause (2) of Article 19 (Freedom of speech & expression), as subsequently amended by the Constitution (First Amendment) Act, 1951 and the Constitution (Sixteenth Amendment) Act, 1963, enabled the legislature to impose reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the (i) security of the State and sovereignty and integrity of India, (ii) friendly relations with foreign States, (iii) public order, (iv) decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
Legal position in India
In a country like India, with diverse castes, creed, religions and languages, the issue of hate speech poses a greater challenge especially when Article 19(2) of the Constitution guarantees freedom of speech and expression to all citizens of India. Of course, this article is not absolute and subjected to certain restrictions.
Till today, hate speech has not been defined in any law of India. Recently, the Bureau of Police Research and Development recently published a manual for investigating agencies or cyber harassment cases that defined hate speech as “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.)”
Presently, in our country the following legislations have bearing on hate speech, namely:-
(A) The Indian Penal Code, 1860 (hereinafter IPC)
· Section 124A IPC penalises sedition
· Section 153A 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 153B IPC penalises ‘imputations, assertions prejudicial to national-integration’
· Section 295A IPC penalises ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’
· Section 298 IPC penalises ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’
· Section 505(1) and (2) IPC penalises publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes
(B) 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.
(C) 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 7
(D) 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, or under the control of, 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.
(E) The Cable Television Network Regulation Act, 1995
· Sections 5 and 6 of the Act prohibits transmission or retransmission of a programme through cable network in contravention to the prescribed programme code or advertisement code. These codes have been defined in rule 6 and 7 respectively of the Cable Television Network Rules, 1994.
(F) The Cinematograph Act, 1952
· Sections 4, 5B and 7 empower the Board of Film Certification to prohibit and regulate the screening of a film.
(G) 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 107 empowers the Executive Magistrate to prevent a person from committing a breach of the peace or disturb the public 8 tranquillity or to do any wrongful act that may probably cause breach of the peace or disturb the public tranquillity.
· 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. Thus, have serious repercussions on liberties of citizens and empower a police officer to arrest without orders from a magistrate and without a warrant as in section 155 CrPC.
Examination of the issue: Law Commission report
Hate speech has always been a live debate in India. The issue has been raised time and again before the legislature, court as well as the public. In Pravasi Bhalai Sangathan v. Union of India, the Supreme Court dealt with a case where the petitioners prayed that the State should take peremptory action against makers of hate speech. The Court did not go beyond the purview of existing laws to penalise hate speech as that would amount to ‘judicial overreach’. The Court observed that the implementation of existing laws would solve the problem of hate speech to a great extent. The matter was referred to the Law Commission to examine if it ‘deems proper to define hate speech and make recommendations to the Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of, whenever made.’ While recognising the adverse and discriminatory impact of hate speech on individuals, the Court in Pravasi Bhalai Sangathan (Supra) also expressed the difficulty of ‘confining the prohibition to a manageable standard’. The apprehension that laying down a definite standard might lead to curtailment of free speech has prevented the judiciary from defining hate speech in India and elsewhere.
The Court again went into the question of hate speech in Jafar Imam Naqvi v. Election Commission of India. The petitioners filed a writ petition challenging the vitriolic speeches made by the candidates in the election and prayed for issue of writ of mandamus to the Election Commission for taking appropriate steps against such speeches. However, the Court dismissed the petition on the ground that the petition under article 32 of the Constitution regarding speeches delivered during election campaign does not qualify as public interest litigation and that the Court cannot legislate on matters where the legislative intent is visible.
Analysis of Hate Speech: Jurisprudence in India
Hate speech can be curtailed under Article 19(2) on the grounds of public order, incitement to offence and security of the State. The Supreme Court in Brij Bhushan v. State of Delhi opined that public order was allied to the public safety and considered equivalent to security of the State. This interpretation was validated by the First Constitution Amendment, when public order was inserted as a ground of restriction under 19(2). However, in Ram Manohar Lohiya v. State of Bihar, the Supreme Court distinguished law and order, public order and security of State from each other. Observing that: One has to imagine three concentric circles. Law and order represent the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
In Ramji Lal Modi v. State of UP, the Supreme Court upheld the constitutional validity of this section 295A IPC and ruled that this section does not penalise every act of insult to or attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. It was also held by the Court that the expression in the ‘interest of public order’ mentioned in article 19(2) is much wider that ‘maintenance of public order’. Therefore, even if an act does not actually cause breach of public order, its restriction ‘in the interest of public order’ will be deemed reasonable. In Ramesh v. Union of India, the Supreme Court refused to adjudge speech in isolation and held that a movie that intends to impart message of peace cannot be considered to violate article 19(1)(a) just because it shows fanaticism and violence in order to express the futility of such acts. Thus, it is not the act itself but the potentiality of the act.
In Ram Manohar Lohiya supra and Arun Ghosh v. State of West Bengal, the court in this case differentiated between discussion and advocacy from incitement and held that the first two were the essence of Article 19(1). Expression could only be restricted when discussion and advocacy amounted to incitement. The incitement was read as incitement to imminent violence in Arup Bhuyan v. State of Assam, wherein the Supreme Court declined to impute criminality on a person for being a member of a banned organisation unless that person resorted to violence or incited people to violence or created public disorder by violence or incitement to violence. The context of speech plays an important role in determining its legitimacy under article 19(1)(a) of the Constitution. In State of Maharashtra v. Sangharaj Damodar Rupawate, the Court observed that the effect of the words used in the offending material 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 Arumugam Seervai v. State of Tami Nadu, the Supreme Court upheld the prosecution under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for using the words ‘pallan’, ‘pallapayal’ ‘parayan’ or ‘paraparayan’ with the intent to insult. The historical context of the impugned words was examined in this case.
Interpreting sections 153A and 505(2) of IPC in Bilal Ahmed Kaloo v. State of AP, the Court held that the common feature in both sections is that it makes promotion of feeling of enmity, hatred or ill-will between different religious or racial or language or regional groups or castes and communities and doing acts prejudicial to maintenance of harmony an offence. It is necessary that at least two such groups or communities should be involved to attract this provision. Merely hurting the feelings of one community or group without any reference to another community or group cannot attract either of the two sections.
In Babu Rao Patel v. State of Delhi the Court held that Section 153A(1) IPC is not confined to the promotion of feelings of enmity etc. on grounds of religion only, but takes into account promotion of such feelings on other grounds as well, such as race, place of birth, residence, language, caste or community. The recent decisions show that the India follows a speech protective regime as in practice in the United States and the Courts are extremely cautious in restricting article 19 of the Constitution. The reason behind such a stance is the apprehension and fear of misuse of restrictive statutes by the State.
It is difficult to define hate speech as any ambiguity in a definition may allow intrusion into freedom of speech and expression. The erstwhile Section 66A of the Information Technology Act, 2002 which was struck down in Shreya Singhal’s case is an example wherein the vagueness of the legal provision led to misuse of the law. The precision of law is one of the grounds in adjudging the legality of restriction imposed by the State. Hence, any attempt to define hate speech must meet the above-mentioned parameters.
The Author is an Advocate, Supreme Court of India & National Spokesperson of Jannayak Janta Party