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Issue of Hate Speech: Law Commission Report No. 267

“Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.” Martin Luther King, Jr.

Understanding the term “Hate Speech”

Responsible speech is the essence of the liberty granted under article 21 of the Constitution. One of the greatest challenges before the principle of autonomy and free speech principle is to ensure that this liberty is not exercised to the detriment of any individual or the disadvantaged section of the society. In a country like India, with diverse castes, creed, religions and languages, this issue poses a greater challenge. Under International Human Rights Law, there is no universal definition of hate speech as the concept is still widely disputed with regard to freedom of opinion and expression, non-discrimination, and equality.

According to Merriam Webster dictionary, “ hate speech is a speech expressing hatred of a particular group of people” .

Collins dictionary defines hate speech as “ speech disparaging a group on the grounds of colour, race, ethnicity, nationality, religion, sex, sexual orientation, gender identity, or disability, or a person who identifies with such a group ”.

As per the oxford dictionary , “ hate speech is speech or writing that attacks or threatens a particular group of people, especially based on race, religion, or sexual orientation ”.

Black’s Law Dictionary has defined it as “ speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence .”

Whereas the Cambridge dictionary describes hate speech as “ public speech that expresses hate or encourages violence toward a person or group based on something such as race, religion, sex, or sexual orientation (the fact of being gay, etc.) .”

the Supreme Court, in Pravasi Bhalai Sangathan v. Union of India (2014) , described hate speech as “ an effort to marginalise individuals based on their membership in a group” and one that “seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society.”

To provide a unified framework for the UN system to address the issue globally, the United Nations Strategy and Plan of Action on Hate Speech defines hate speech as…“ any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factors .”

European Convention on Human Rights : Similarly, Article 10(2) of the European Convention on Human Rights, provides reasonable duties and restrictions during the exercise of one’s fundamental right to free speech.

International Covenant on Civil and Political Rights (ICCPR): As per Article 19(3) of the ICCPR, the right of freedom of speech can be regulated in order to honour the rights of others and in the interest of public order, public health or morals.

Article 20(2) of the ICCPR also declares that any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prevented by law.

Recent Developments Around Hate Speech

• Reference from the Supreme Court of India: The Supreme Court in the case of Pravasi Bhalai Sangathan v. Union of India, AIR 2014 SC 1591 , observed that the issue of hate speech deserves deeper scrutiny by the Law Commission of India and also to consider, if it deems proper, defining the expression hate speech and make recommendations to parliament to strengthen the election commission to curb the menace of hate speech irrespective of whenever made.”
• High case filling rate with a low conviction rate: According to the National Crime Records Bureau data, cases filed under Indian Penal Code (IPC) Section 153A (promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language) saw almost 500 percent increase between 2014 and 2020. The number of cases from 323 in 2014 raised to 1804 in 2020. On the other hand, the conviction rate of only around 20% in ‘hate speech cases in the year 2020 is almost 1/3rd of the conviction rate of all cognizable IPC crimes. In other words, the conviction rate of ‘hate speech’ related cases is among the lowest of all IPC crimes.

Freedom of Speech and Hate Speech 

Hate speech has not been defined in any law in India. However, legal provisions in certain legislations prohibit select forms of speech as an exception to freedom of speech. Article 19(1) (a) of the constitution of India guarantees the right to speech and expression. But there cannot be any right that is injurious to the community as a whole. If people were given complete and absolute liberty without any social control the result would be ruined ( Wills- Constitutional Law and the United States, 477).

Justice Patanjali Shastri in A.K Gopalan v. State of Madras AIR 1951 SC 21 observed, “ man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by the other individuals .”

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, 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 (i) the 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 Provisions of Hate Speech In India

At present India have the following legislations that deal with hate speech, namely:-

• The Indian Penal Code, 1860
• Section 124A IPC penalises sedition
• Section 153A IPC penalises ‘the promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony.
• Section 153B IPC penalises ‘imputations, and 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 penalise publication or circulation of any statement, rumour, or report causing public mischief and enmity, hatred, or ill-will between classes.
• The Representation of the People Act,1951  
• According to Section 8 of the Act, a person shall be disqualified from contesting the election if he is convicted of including in acts amounting to the illegitimate use of freedom of speech and expression.
• Section 123(3A) and section 125 prohibit the promotion of enmity on grounds of religion, race, caste, community, or language in connection with an 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, 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.  
• The Cable Television Network Regulation Act, 1995
• Sections 5 and 6 of the Act prohibits transmission or re-transmission of a programme through a cable network in contravention to the prescribed programme code or advertisement code. These codes have been defined in rules 6 and 7 respectively of the Cable Television Network Rules, 1994.
• The Cinematography Act, 1952
• Sections 4, 5B, and 7 empower the Board of Film Certification to prohibit and regulate the screening of a film.  
• 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 disturbing the public tranquillity or to do any wrongful act that may probably cause a 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 on this behalf to issue the order in urgent cases of nuisance or apprehended danger. The above offences are cognizable. Thus, have serious repercussions on the liberties of citizens and empowers a police officer to arrest without orders from a magistrate and without a warrant as in section 155 CrPC.

Criteria for Hate Speech

Not all types of speeches are hate speech. Only certain types of speeches are presumed to be hated in nature. There are certain parameters through which one can distinguish between speech, discussion, advocacy, and incitement. The Supreme Court in the matter of Shreya Singhal v. Union of India AIR 2015 SC 1523 , had differentiated between three forms of speech, discussion, advocacy, and incitement. It was held by the Court that a speech can only be limited on grounds of exceptions mentioned in article 19(2) when it reaches the threshold of incitement. All other forms of speech, even if offensive or unpopular have to be protected under article 19(1) (a). Incitement is the key to determining the constitutionality of a restriction on free speech.

Many parameters have been developed by the courts of different jurisdictions to identify hate speech. Some of them are summarised s below:

• The extremity of the speech

A speech can be termed hate speech if it is offensive and it projects an extreme form of emotion. The supreme court of the United States in the case chaplinsky v. New Hampshire, 315 U.S 568(1942) held that the expressions of advocacy and discussion of sensitive and unpopular issues have been termed ‘low-value speech’ unqualified for constitutional protection.

The element of incitement to discriminate is the basic factor of hate speech. A speech can be classified as hate speech if it has an intention to incite the public to discriminate the others based on race, caste, gender, religion, etc. the supreme court of India in Shreya Singhal v. Union of India observed that the speech must amount to incitement in order to be restricted.  It is important to mention here that incitement to not only violence but also discrimination has been recognized as a ground for interfering with freedom of expression.

• Status of the author of the speech

The European Court of Human Rights (ECtHR) has recognized that position of the author of the speech is important in determining the legality of limitations imposed by the State. The Supreme Court in Pravasi Bhalai Sangathan v. Union of India AIR 2014 SC 1591 was approached to sanction hate speech. The petitioners sought the court’s intervention to declare “hate speeches” delivered by elected representatives, and political and religious leaders as unconstitutional. The petition was specifically addressed to the people who held power to influence society on a large scale. The Court recognizing the negative impact of hate speech referred the matter to Law Commission for an in-depth examination.

• Status of the victim of the speech

The status of the targeted audience is also important to determine whether the speech can be restricted or not. The limits of acceptable criticism are wider for a politician as such than regard a private individual.  

• Potentiality of the speech

The potentiality of speech and how much impact it has on the minds of the public is also an important element. In Ramesh v. Union of India, AIR 1988 SC 775 Supreme Court examined the validity of the restriction based on the potential of the movie to impact the audience.

• Context of the speech

  Not all speech is hate speech. The context of the speech determines the permissibility of the speech.

Test For Restraining the Freedom of Speech And Expression

International human rights law developed a three-part test that determines whether a particular type of speech should be curtailed or not. The following standards should be satisfied before curtailing the human right:

• Prescription by law: as per this rule, the restriction imposed must be prescribed by law. The means by which the right is curtailed should be passed through the appropriate procedures and through explicit provisions of the law.
• Legitimate aims: The measure must directly satisfy a legitimate aim.
• Necessity and proportionality: there must be a need for such a measure. The restriction cannot be imposed for any reason. There should be an urgent need to restrict any rights. Also, the restriction must not do any more damage to the right than is necessary to meet its aim.

Judicial Perspective on Hate Speech

The Supreme Court, in State of Karnataka v. Praveen Bhai Thogadia (2004), emphasised the need to sustain communal harmony to ensure the welfare of the people. In the Pravasi Bhalai Sangathan case, the Supreme Court pointed out the impact hate speech can have on the targeted group’s ability to respond and how it can be a stimulus to further attacks.  In G. Thirumurugan Gandhi v. State (2019) , the Madras High Court explained that hate speeches cause discord between classes and that the responsibility attached to free speech should not be forgotten.

In Amish Devgan v. Union of India (2020) , the Supreme Court held that “hate speech has no redeeming or legitimate purpose other than hatred towards a particular group”. In the matter of Arup Bhuyan vs the State of Assam, The Court held that a mere act cannot be punished unless an individual resorted to violence or incited any other person to violence. In the case of S. Rangarajan Etc. vs P. Jagjivan Ram ,  the Court held that freedom of expression cannot be suppressed unless the situation so created are 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.

Non-legal Measures to Tackle Hate Speech

To address the issue of hate speech many non-legal measures should be taken. Some of them are as follows:

• Television dramas that promote harmony between warring communities should be promoted.
• The religious heads should be involved to build empathy across religions so that the social tension can be reduced.
• Strategic interventions should be made by the government especially in the context of social media so that the dissemination of hate speech and mob mobilisation can be monitored.
• To aware people to stop spreading harmful rumours.

India is culturally rich country. Any attempt to allow hate speech can marginalise classes and groups of persons who are already in a minority due to their race, language, and religion. The already existing laws are not sufficient to deal with instances of hate speech. The law commission in its 267th report made recommendations for provisions for prohibiting incitement of hate speech and prohibiting causing fear, alarm, or provocation of violence through such speech. The report was published in the year 2017 although no development so far.  The idea of criminalization of hate speech and how the existing laws look at it needs attention for bringing the right change. Since it is entrenched in the constitutional right of freedom of speech and expression, “hate speech” has been manipulated by many in different ways to achieve their ulterior motive under the garb of such right and the law courts in absence of clear provisions in IPC, are not able to prosecute hate speech charges brought before them with success. There is no general legal definition of hate speech. The law in this regard is awaiting development.

About the author

CHIRAYU SHARMA

Joint Secretary, Student Research & Reporting Board

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| Socio-Legal Review

National law school of india university, bengaluru       issn no.: 0973-5216.

• Aug 10, 2017

Unpacking the Law Commission's Hate Speech Report

- Siddharth Narrain*

Introduction

The 267th Law Commission Report on Hate Speech, recently submitted to the Law Ministry, is a mixed bag. On the one hand, it has, for the first time, analysed hate speech in a detailed manner, focusing on global jurisprudence, Indian law, and putting forward a strong and reasoned argument on why hate speech should be regulated. On the other hand, its recommendations have a very narrow focus, suggesting criminal law amendments, specifically the introduction of new provisions in the Indian Penal Code (IPC), and amendments to their corresponding provisions in the Code of Criminal Procedure (CrPC). A number of legal commentators [1] have already responded to the amendments, raising important concerns on how the laws proposed by the Commission if enacted, will lower existing standards and free speech protections laid down by courts, and may be used to curb legitimate speech and dissent.

While I agree with these concerns, given the rampant misuse of existing IPC provisions such as sections 153A and 295A to target dissent and creative expression, I will focus on the main text of the report, which, in its attempt to reconcile concerns around liberty, equality, free speech and discrimination, puts forward very important legal distinctions that all of us must engage with.

Origins of the Report

The Law Commission’s Hate Speech report has its origins in the Supreme Court’s 2014 Pravasi Bhalai Sangathan judgment, [2] a case dealing with speech that targeted interstate migrant workers. The Supreme Court in that case observed that India had enough laws to deal with the issue at hand, but the problem was the non-implementation of these laws. The Court suggested that the Law Commission look into the matter, and specifically suggested that the Law Commission study the issue of hate speech in the lead up to elections, to enable the Election Commission to deal with this issue. The present Law Commission, headed by Justice B.S. Chauhan, one of the judges who authored the Pravasi Bhalai Sangathan judgment, took up this matter on priority, and has come up with this detailed report.

Findings and Recommendations of the Report

The most important aspect of the 267th Law Commission Report on Hate Speech is that it goes into a detailed discussion on hate speech itself, a theme that has not been discussed much in Indian legal texts. The Commission draws upon academic legal writing in India and in comparative jurisdictions to lay out a map of the global debates around hate speech, the range of existing Indian laws that could be understood as hate speech laws, and the underlying tension between the right to liberty and the right to equality when it comes to legislating hate speech.

The Commission lists a number of laws that would broadly have a bearing on hate speech. These include provisions from the Indian Penal Code, 1860 The Code of Criminal Procedure 1973, the Representation of People’s Act 1951, The Protection of Civil Rights Act 1955, The Religious Institution (Prevention of Misuse) Act 1988, The Cable Television Network Regulation Act 1995, and The Cinematograph Act 1952.

Crucially, the Commission lays down a framework for the principles that need to be applied while dealing with hate speech, drawing upon developments in European and international law. The Commission stresses on the three-part test – 1) Is the interference prescribed by law? 2) Is the interference proportional to the legitimate aim pursued? 3) Is the interference necessary in a democratic society? These principles of necessity, proportionality and the requirement of limitations to free speech being prescribed by law and having a legitimate aim, underlie the ICCPR understanding of the freedom of speech, and the decisions of the European Court of Human Rights.

Along with this, the Commission also draws upon international developments to lay down the parameters that need to be taken into account while considering whether speech amounts to hate speech or not. These include how extreme the speech is; the requirement of incitement; the status of the author of the speech; the status of the victim of the speech; the potentiality and context of the speech. Perhaps, the most important of these parameters is the emphasis on the incitement standard, which the Commission endorses strongly. The Commission cites both the Supreme Court decisions in Shreya Singhal , [3] which in the context of online speech, distinguished between ‘discussion’, ‘advocacy’, and ‘incitement’, and in Arup Bhuyan [4] where the court held that mere membership of a banned organisation is not sufficient to impute criminality and that it has to be shown that the person incited violence or created public disorder.

The Legal Distinctions

While the Commission recommends that elements of intent and incitement must be included in any formulation of hate speech legislation, it distinguishes between incitement to violence, and incitement to discrimination, recognising both of these as factors that contribute to identifying hate speech. According to the Commission, even if speech does not incite violence, but perpetrates discriminatory attitudes it could amount to hate speech. This move has been justified by the Commission’s view that liberty and equality are complementary and not antithetical to each other. The Commission draws on the work of legal scholars such as Jeremy Waldron, who have argued that while purely offensive speech or hurt sentiments should not be regulated, there is a class of speech amounting to more than just hurt sentiments but less than actual physical injury that should be regulated in democracies. This category is speech that impacts the dignity of groups, undermining the implicit assurance that citizens of a democracy, especially politically disenfranchised minorities and vulnerable groups are placed on the same footing as the majority. [5]

The example Commission uses to illustrate this is the exodus of around 50,000 persons belonging to the North East from cities such as Bengaluru and Pune in 2012. This exodus was the result of threatening SMSs, MMSs circulated at the time, and stray attacks on persons belonging to the North East in these cities. The Commission, however does not do justice to this example, and has not delved upon the specificities of speech on the internet, especially when it seems to be suggesting a broader understanding of incitement than the Shreya Singhal standard. There is a growing jurisprudence and global discussion around hate speech online, including the link to issues of intermediary liability, jurisdiction, and techno-legal developments, all of which would require a separate discussion, and could not possibly be covered in a general discussion on hate speech.

The internet and social media apart, the Commission is making an important intervention around the incitement to discrimination standard for hate speech. In his book, The Harm in Hate Speech Laws , [6] Waldron uses a telling illustration. He asks the reader to imagine a situation where a Muslim family in the United States, post the 9/11 attack, steps out of their home to see large billboards all over the city that are talk about the threat of Islamic fundamentalism, or is Islamophobic. Recent reports of billboards that are being put up in cities in Uttar Pradesh, warning Rohingya and Bangladeshi refugees to leave Jammu [7] or posters that appeared in a village in Bareilly district after the election results in the state asking Muslims to leave the area, [8] clearly show us that far from being an exceptional situation, is fast becoming the new normal. The tension here is between the criminalisation of a swathe of speech in a situation where hurt sentiment and offensive speech are constantly produced by various local actors, [9] and protecting the rights of vulnerable communities, ensuring that they are not scared into silence on the pretext of free speech.

The move to the incitement to discrimination standard is reflected in the framing of the proposed sections 153(C) and 505 (A) IPC, where the first part of the sections reflect an incitement to discrimination standard, and the second part reflect an incitement to violence standard. [10] By suggesting an incitement to discrimination standard in the context of online speech, the Commission fails to do is to address the specificities of the Indian context. There is only a passing reference to the gross misuse of the existing provisions of law such as sections 153A and 295A IPC to curb dissent and artistic license. For those who have followed the manner in which these laws have been used to drag people to court, and silence actors through the threat of litigation, this is a glaring omission. One of the main concerns of free speech advocates has been how to institute more procedural safeguards to protect speech. This concern is reflected in the Bombay High Court’s decision in the cartoonist Aseem Trivedi’s case [11] where the court suggested that certain safeguards be instituted to prevent the sedition law (section 124A IPC) from being misused. [12]

The amendments to the IPC that have been suggested in the report have expanded on the categories covered by the law, in line with a contemporary understanding of hate speech, including hate speech based on sexual orientation, gender identity, and disability. By doing this, the Commission has positioned these amendments as in tune with global developments on this front. However, this does not address the worry that these amendments, by themselves, will be unable to address the problem of hate speech, as the use of the law will be determined by those in power, and by political calculations.

We know for instance that the Chief Minister of Uttar Pradesh, Yogi Adityanath faces a number of hate speech charges including a provocative speech in January 2007 that was followed by incidents of communal violence. [13] (at the time was an elected MP from Gorakhpur). Now that he is Chief Minister a file seeking sanction for prosecution in a hate speech case against Adityanath has to be cleared by his government. [14] Meanwhile critics of the Chief Minister, who have made comments, or posted morphed images of him online, who are being charged with the same set of laws, by the Uttar Pradesh police. [15]

It is the dark irony of this situation that underlies my serious doubts on whether the amendments to the penal law suggested by the Commission were warranted, or can be viewed as a positive development. After all, hate speech laws are designed to be invoked by the government in power against those who violate the law, but the question is what happens when hate speech has the tacit support of those in power, or if it is the government itself that is producing hate speech?

*Siddharth Narrain is a Visiting Faculty at the School of Law, Governance and Citizenship, Ambedkar University, Delhi. He can be contacted at [email protected].

[1] See for instance, Aman Lekhi, The Law Commission’s Curious Recommendations on Hate Speech , Bloomberg Quint (April 08 2017), https://www.bloombergquint.com/opinion/2017/04/08/the-law-commissions-curious-recommendations-on-hate-speech; CCG, NLU Delhi, Reviewing the Law Commission’s Latest Hate Speech Recommendations , Legally India (14 April 2017), http://www.legallyindia.com/views/entry/reviewing-the-law-commission-s-latest-hate-speech-recommendations; Aditya Bapat, The Law Commission’s Recommendations on Hate Speech: Be Fearful and Alarmed , The Huffington Post (12 April 2017), http://www.huffingtonpost.in/aditya-bapat/the-law-commissions-recommendations-on-hate-speech-be-fearful-a/.

[2] Pravasi Bhalai Sangathan v. Union of India, AIR 2014 SC 1591.

[3] Shreya Singhal v. Union of India, AIR 2015 SC 1523.

[4] Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.

[5] Law Commission of India, Report No. 267, Hate Speech 16 (March 2017).

[6] Jeremy Waldron, The Harm in Hate Speech (2012).

[7] Ashutosh Sharma, Quit Jammu: Billboards Target Rohingya, Bangladeshi Refugees , National Herald (7 February 2017), http://www.nationalheraldindia.com/news/2017/02/07/quit-jammu-billboards-target-rohingya-bangladeshi-refugees-to-throw-out-rohingyas-settled-for-decade-and-more.

[8] In This U.P. Village, Posters appeared Overnight asking Muslims to Leave , Huffington Post , 16 March 2017, http://www.huffingtonpost.in/2017/03/16/in-a-village-in-uttar-pradesh-posters-ask-muslims-to-leave-the_a_21897281/.

[9] William Mazzarella and Raminder Kaur, Censorship in South Asia: Cultural Regulation From Sedition to Seduction (2009).

[10] Prohibiting incitsement to hatred-

"153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe -

1. (a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

2. (b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence

shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.".

3. Insertion of new section after section 505. - In the Penal Code, after section 505, the following section shall be inserted, namely:- Causing fear, alarm, or provocation of violence in certain cases.

"505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe-

uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence,

against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both".

[11] Sanskar Marathe v. State of Maharashtra, 2015 CriLJ 3561.

[12] The Law Commission’s report clearly distinguishes between hate speech and sedition as two distinct spheres, which is important since these two categories are often collapsed in public discussion. While both these laws do have a common history, hate speech has to do with speech targeting other persons or communities while sedition deals with the citizen’s relationship with the state.

[13] Shahnawaz Alam , How the SP and BSP helped Yogi Adityanath get away with his hate speeches , Business Standard (30 March 2017), http://www.business-standard.com/elections/uttar-pradesh-assembly-elections-2017/how-sp-and-bsp-helped-yogi-adityanath-get-away-with-his-hate-speeches-117033000148_1.html.

[14] Maulshree Seth, On Yogi Govt Table, File on Yogi hate speech case , Indian Express (23 March 2017), http://indianexpress.com/article/india/yogi-adityanath-uttar-pradesh-govt-table-file-on-yogi-hate-speech-case-orakhpur-radhamohan-das-agarwal-4581333/.

[15] Vinit, 22-Year Old Arrested in Noida for Facebook Post on Yogi Adityanath , Hindustan Times (24 March 2017), http://www.hindustantimes.com/noida/22-year-old-arrested-in-greater-noida-for-facebook-post-on-uttar-pradesh-cm-adityanath/story-mT44NjypbLGuTLYCu3oirM.html.

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Hate Speech

Last updated on October 29, 2022 by ClearIAS Team

Numerous events, including ones that occurred in a religious setting and on online forums, have targeted minority communities. This has brought attention to problems with the implementation of legislation to curb hate speech. What are the laws related to hate speech in India? Are there any new legal precedents on this menace? To know more, read further. 

In Pravasi Bhalai Sangathan v. Union of India (2014) , the Supreme Court of India outlined its definition of hate speech as “an effort to marginalize individuals based on their membership in a group which seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society.”

Hate speech, according to the European Commission against Racism and Intolerance (ECRI), encompasses a wide range of expressions that encourage, incite, promote, or otherwise justify hatred, violence, or discrimination against an individual or a group of individuals for a number of different reasons.

The Law Commission of India’s 267th Report defines hate speech as an incitement to hatred directed principally towards a group of people who are identified by their race, ethnicity, gender, sexual orientation, or other characteristics.

Table of Contents

What are the legal provisions related to Hate Speech in India?

• Article 19(2) of the Constitution of India puts reasonable restrictions on the Freedom of Speech including public order, decency or morality, defamation, or incitement to an offense.
• Section 153(a) of the Indian Penal Code (IPC) punishes the promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. with imprisonment up to 3 years.
• Section 153(b) of IPC punishes assertions prejudicial to national integration (e.g., asserting that a class of persons cannot bear true faith and allegiance to the Constitution of India) with imprisonment of up to 3 years.
• Section 295(a) of IPC punishes deliberate and malicious acts, intended to outrage the religious feelings of any class by insulting its religion or religious beliefs with imprisonment for up to 3 years.
• Section 505(2) of IPC punishes statements creating or promoting enmity, hatred, or ill will between classes with imprisonment for up to 3 years.
• Section 8 of the Representation of People’s Act, 1951 (RPA) prevents a person convicted of the illegal use of the freedom of speech from contesting an election.
• Sections 123(3A) and 125 of the RPA b ar the promotion of animosity on the grounds of race, religion, community, caste, or language in reference to elections and include it under corrupt electoral practices.

Suggestions made by Law Commission

In its 267th report, the Law Commission of India proposed including the following two provisions:

• Section 153C covers  crimes committed when someone threatens someone with remarks meant to incite fear, hatred, or violence based on someone’s race, caste, religion, sex, gender identity, or other characteristics.
• Section 505A should be included and have provisions that make inciting fear, alarm, or violence a crime.

Interpretation of the Supreme Court related to Hate Speech

Following are the case laws wherein the Supreme court cleared its stand.

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Ramji Lal Modi Case( 1957)

A five-judge Supreme Court bench upheld the validity of Section 295(A) in this case.

While Article 19(2) permits reasonable restrictions on freedom of speech and expression for the sake of public order, the Supreme Court reasoned, a more severe type of blasphemy that is done with the intent to outrage the religious sensibilities of any group is punishable under Section 295(A).

Superintendent, Central Prison, Fatehgarh Vs Ram Manohar Lohia case (1960)

It was claimed that in order to invoke Section 295(A) of the IPC, a strong linkage must exist between the speech that was spoken and any public disorder that was brought about as a result of it.

In addition, it came to the conclusion in 2011 that only speech that amounted to “incitement to impending unlawful conduct” is punishable.

That is to say, a very high standard must be met before the state can use public disturbance as an excuse to censor expression.

S. Rangarajan Etc vs P. Jagjivan Ram

In this decision, the Court ruled that the right to free speech cannot be restricted unless the situation it creates is one that endangers the community or the public interest, and that threat cannot be imagined, remote, or improbable.

If the expression is taken, there must be a close connection.

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 Problem of over-criminalization of Hate Speech

In a dramatic and very personal turn of events in 2015, Indian novelist Perumal Murugan declared his creative “death,” pulled the entirety of his published works from circulation, and vowed never to write again.

This resulted from the violent backlash he received from religious and caste-based groups who claimed that his fifth book, “Madhorubagan” in Tamil, or “One Part Woman,” offended religious sensibilities, insulted the Kailasanathar temple, Lord Shiva, and female worshippers, among other allegations.

They also claimed that it appealed to prurient interest, among other things.

A Forward Approach

Many of the legal restrictions on hate speech that are in place today date back to the days before the Internet. Specialized law to control hate speech spread on the Internet and, notably, social media, is urgently needed.

It is possible to make reference to the Australian federal law known as the Criminal Code Amendment Act, 2019, which holds Internet service providers accountable if they know that any obscene or violent content—which is defined to include content that a reasonable man would find offensive—is accessible through the service they provide.

In the context of a “digital single market,” the European Union has also adopted a code of conduct to prevent the spread of hate speech. It calls for cooperative, autonomous, inclusive regulation that adheres to global best practices for content filtering and privacy rights while being tailored to local and cultural norms.

Actions usually performed in response to contemporary hate speech have a whack-a-mole effect, whereby the underlying desire to sow division or hatred among communities endures through digital or social media platforms irrespective arrest of the offenders.

By modifying the IPC and the Information Technology Act, it is crucial to implement precise and long-lasting legislative rules that prevent hate speech, especially that which is spread online and through social media.

In the end, only when hate speech is acknowledged as a justifiable limitation on free expression would this be feasible.

Click here to read more about the 100 Must-Know Acts Enacted by the Indian Parliament.

Article Written By: Jis John Sebastian 

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Abusive and Offensive Online Communications

We published our Scoping Report on Abusive and Offensive Online Communications on 1 November 2018.

For our project on reforming the communications offences to tackle online abuse, please click here .

Download the Scoping Report (Reference LC 381) .

Download the Summary .

Download the Welsh-language summary .

The problem

The rise of the internet and social media in recent decades has fundamentally reshaped the way we engage with each other and as a society. This radical shift has brought many benefits, but there are also associated risks and harms, and it has proved challenging for the law to keep pace with this rapidly changing environment.

As part of its efforts to make the UK the safest place online in the world, the Prime Minister announced in February 2018 that the Law Commission was to review the current law around abusive and offensive online communications and highlight any gaps in the criminal law which cause problems in tackling this abuse.

In particular, we were asked to assess whether the current criminal law achieved parity of treatment between online and offline offending.

Project scope

Our agreed Terms of Reference asked us to consider the applicable criminal law, identifying any deficiencies, focusing on whether the criminal law provides equivalent protection both online and offline. We also considered whether specific groups in society are more vulnerable to abuse than others.

The Government already has active programmes of work in some areas of online communications offences. As a result, the following areas were excluded from the scope of this review: child sexual exploitation online, terrorism offences, liability of social media platforms.

The Scoping Report’s conclusions

We were asked to assess whether the current criminal law achieved parity of treatment between online and offline offending. For the most part, we have concluded that abusive online communications are, at least theoretically, criminalised to the same or even a greater degree than equivalent offline offending. However, we consider there is considerable scope for reform:

• Many of the applicable offences do not adequately reflect the nature of some of the offending behaviour in the online environment, and the degree of harm it can cause.
• Practical and cultural barriers mean that not all harmful online conduct is pursued in terms of criminal law enforcement to the same extent that it might be in an offline context.
• More generally, criminal offences could be improved so they are clearer and more effectively target serious harm and criminality.
• The large number of overlapping offences can cause confusion.
• Ambiguous terms such as “gross offensiveness” “obscenity” and “indecency” don’t provide the required clarity for prosecutors.

Reforms would help to reduce and tackle, not only online abuse and offence generally but also:

• “Pile on” harassment, where online harassment is coordinated against an individual. The Report notes that “in practice, it appears that the criminal law is having little effect in punishing and deterring certain forms of group abuse”.
• The most serious privacy breaches – for example the Report highlights concerns about the laws around sharing of private sexual images. It also questions whether the law is adequate to deal with victims who find their personal information e.g. about their health or sexual history, widely spread online.

Our Scoping report calls for:

• reform and consolidation of existing criminal laws dealing with offensive and abusive communications online;
• a specific review considering how the law can more effectively protect victims who are subject to a campaign of online harassment; and
• a review of how effectively the criminal law protects personal privacy online.

The Department for Digital, Culture, Media and Sport (DCMS) will now analyse the Scoping Report and decide on the next steps, including what further work the Law Commission can do to produce recommendations for how the criminal law can be improved to tackle online abuse.

Other related future Law Commission work

Additionally, the Government has recently asked the Law Commission to consider a broad review of the law of hate crime in England and Wales. Our intention is that some of the observations in this report, such as the role and effectiveness of the law in addressing hate speech, will be addressed further in the context of this separate review.

The Government has also announced we will be reviewing the law concerning the taking and sharing of non-consensual intimate images.

Comparative Analysis

As part of our review, we sought evidence from jurisdictions other than England and Wales to see if any lessons could be learnt for potential reform. Select academics from the following jurisdictions were asked to provide a succinct analysis of the laws governing abusive and offensive communication in their jurisdiction:

New Zealand

The opinions expressed in these works are those of the authors themselves and not the Law Commission.

EXPLAINER | Hate speech and how Indian laws deal with it

NEW DELHI: The recent row over the alleged hate speech at the Dharam Sansad event and other incidents have sparked interest on how Indian laws deal with hate speech.

India prohibits hate speech through several sections of the Indian Penal Code, the Code of Criminal Procedure, and other laws which put limitations on the freedom of expression. Constitutionally, Article 19 gives all citizens the right to freedom of speech and expression but the said freedom of expression is subject to "reasonable restrictions" for preserving inter alia "public order, decency or morality".

Sections 153A, 153B, 295A, 298, 505 of the Indian Penal Code 1860 deal with speech or words that could create mischief, outrage religious beliefs or cause imputations to national integration.

The New Indian Express spoke to some lawyers to gain a fuller understanding.

"The legal position in India with regard to hate speech can only be termed as that of contradictory paradoxes and one of legal and judicial quandary. While there is no specific law against hate speech, there are specific provisions under the penal code and criminal procedure. However, when it comes to prosecution, the courts have taken a contradictory stand and most recently even gone to the extent of saying the speeches that clearly fall in violation of Section 295(A) of the Indian Penal Code if said with a smile cannot be tantamount to hate speech," advocate Salman Waris, Managing Partner of the Delhi-based law firm TechLegis Advocates & Solicitors said.

"In a Public Interest Litigation (PIL) filed by the Pravasi Bhalai Sangathan in 2013, the Supreme Court issued a notice to the central government on a petition seeking framing of guidelines to curb elected representatives from delivering hate speeches in pursuance of their political goals. However, in 2014, the Supreme Court dismissed a PIL by advocate ML Sharma seeking intervention by the court in directing the Election Commission to curb hate speeches. Dismissing the plea, the apex court said that it could not curb the fundamental right of the people to express themselves," he added.

Bharat Chugh, former Judge and an advocate at the Supreme Court of India says that there are limits to this right and as every right, this right also has a corresponding duty. Chugh explained the recent cases that dealt with alleged hate speeches.

He explains how the Uttarakhand High Court, while deciding the bail application of Jitendra Narayan Tyagi in the Haridwar hate speech case, looked into the far-reaching effect of hate speech and its possible impact on the society, rejected the bail application.

Chugh further refers to a recent case of TV journalist Amish Devgan where he had hosted and anchored a debate and several FIRs were filed against him for allegedly insulting a pious saint belonging to the Muslim community.

"...The court refused to quash the FIR but accepted the prayer of transferring all pending FIRs to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered under Sections 153B, 295A, 298 Indian Penal Code and 66F of Information Technology Act, 2000. The Court had observed that in regards to hate speech, the actual utterance of words or something more than thought is required and in case of publication, mere thought would not be actionable," Chugh said.

He elaborated how after the case of Pravasi Bhali Sangathan, the Law Commission was requested to examine the issues related to 'hate speech' and to recommend parliament to curb the menace of 'hate speech'.

The law commission then went on to submit its 267th report titled 'Hate Speech' in March 2017 where Draft Amendment Bill titled Criminal Law (Amendment) Bill, 2017, was suggested to be incorporated into the existing penal law.

"The suggestions included the need of insertion of Section 153C which punishes threatening/ advocating hatred on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe and Section 505A which punishes uttering words etc. in public intentionally on grounds of religion, race caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe," he said.

"However, one could argue that for a law meant to protect hate speech, Section 153C does not go far enough because it requires the incitement or injury or alarm before an offence is made out under the provision. A hate speech law should ideally punish a person for merely uttering certain phrases regardless of whether it results in an injury. For example, under the SC/ST Act referred to above the mere utterance of certain phrases can result in a conviction if such words cause “enmity, hatred or ill-will” against the members of such castes or tribes. There is no requirement to prove harm or injury being caused to such persons," Prashant Reddy T, Hyderabad-based lawyer said.

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Unpacking the Law Commissions Hate Speech Report

2017, Socio-Legal Review, NLSIU

Published in the Socio-Legal Review Forum, National Law School of India University, 10 August 2017

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Experts & views, reviewing the law commission’s latest hate speech recommendations.

Introduction

The Law Commission has recently released a report on hate speech laws in India. The Supreme Court in Pravasi Bhalai vs. Union of India  asked the Law Commission to recommend changes to existing hate speech laws, and to “define the term hate speech”. The report discusses the history of hate speech jurisprudence in India and in certain other jurisdictions. In addition, it stresses upon the difficulty of defining hate speech and the lack of a concise definition. In the absence of such a definition, certain ‘identifying criterion’ have been mentioned, to detect instances of hate speech. It also discusses the theories of Jeremy Waldron (the ‘dignity’ principle) and makes a case for protecting the interests of minority communities by regulating speech. In this regard, two new sections for the IPC have been proposed. They are as follows:

(i) Prohibiting incitement to hatred-

“153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –

(a)  uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b)  advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”.

(ii) Causing fear, alarm, or provocation of violence in certain cases.

“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe-

uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence,

against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.

The author is of the opinion that these recommended amendments are vague and broadly worded and could lead to a chilling effect and over-censorship. Here are a few reasons why the recommendations might not be compatible with free speech jurisprudence:

• Three – part test

Article 10 of the European Convention on Human Rights lays down three requirements that need be fulfilled to ensure that a restriction on free speech is warranted . The Law Commission report also discusses this test; it includes the necessity of a measure being ‘prescribed by law’, the need for a ‘legitimate aim’ and the test of ‘necessity and proportionality’.

Under the ‘prescribed by law’ standard, it is necessary for a restriction on free speech to be ‘clear and not ambiguous’ . For instance, a phrase like ‘fear or alarm’ (existing in Section 153A and Section 505) has been criticized for being ‘vague’ . Without defining or restricting this term, the public would not be aware of what constitutes ‘fear or alarm’ and would not know how to comply with the law. This standard has also been reiterated in Shreya Singhal vs. Union of India , where it was held that the ambiguously worded Section 66A could be problematic for innocent people since they would not be aware as to “which side of the line they fall” towards.

• Expanding scope to online offences?

The newly proposed sections also mention that any ‘gravely threatening words within the hearing or sight of a person’ would be penalized. Presumably, the phrase ‘within the sight or hearing of a person’ broadens the scope of this provision and could allow online speech to come under the ambit of the IPC. This phrase is similar to the wording of Section 5 (1) of the Criminal Justice (Public Order) Act, 1986 [1] in the United Kingdom, which penalizes “harassment, alarm or distress”. Even though the section does not explicitly mention that it would cover offences on the internet, it has been presumed to do so. [2]

Similarly, if the intent of the framers of Section 153C is to expand the scope to cover online offences, it might introduce the same issues as the omitted Section 66A of the IT Act did. Section 66A intended to penalize the transmission of information which was ‘menacing’ and also which promoted ‘hatred or ill will’. The over-breadth of the terms in the section led to scrapping it. Another reason for scrapping the section was the lowering of the ‘incitement’ threshold (discussed below). Even though the proposed Section 153C does not provide for as many grounds (hatred, ill will, annoyance, etc.), it does explicitly lower the threshold from ‘incitement’ to ‘fear or alarm’/’discrimination’.

• The standard of ‘hate speech’

  The report also advocates for penalizing the ‘fear or alarm’ caused by such speech, since it could potentially have the effect of ‘marginalizing a section of the society’. As mentioned above, it has been explicitly mentioned that the threshold of ‘incitement to violence’ should be lowered and factors like ‘incitement to discrimination’ should also be considered.

The Shreya Singhal judgment drew a distinction between ‘discussion, advocacy and incitement’, stating that a restriction justifiable under Article 19(1) (a) of the Constitution would have to amount to ‘incitement’ and not merely ‘discussion’ or ‘advocacy’. This distinction was drawn so that discussing or advocating ideas which could lead to problems with ‘public order’ or disturbing the ‘security of the state’ could be differentiated from ‘incitement’ which establishes more of a ‘causal connection’.

Similarly, if the words used contribute to causing ‘fear or alarm’, the threshold of ‘incitement’ would be lowered, and constitutionally protected speech could be censored.

Despite the shortcomings mentioned above, the report is positive in a few ways. It draws attention to important contemporary issues affecting minority communities and how speech is often used to mobilize communities against each other. It also relies on Jeremy Waldron’s ‘dignity principle’ to make a case for imposing differing hate speech standards to protect minority communities. In addition, the grounds for discrimination now include ‘tribe’ and ‘sexual orientation’ amongst others.

However, existing case laws, coupled with recent instances of censorship , could make the insertion of these provisions troubling. India’s relationship with free speech is already dire; the Press Freedom Index ranks the country at 133 (out of 180) and the Freedom on the Net Report states that India is ‘partly free’ in this regard. The Law Commission might need to reconsider the recommendations, for the sake of upholding free speech. Pravasi Bhalai called for sanctioning politicians speeches, but the recommendations made by the Law Commission might be far reaching and the effects could be chilling.

[1] Section 5- Harassment, alarm or distress. (1)A person is guilty of an offence if he— (a)uses threatening or abusive words or behaviour, or disorderly behaviour, or (b)displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

[2] David Wall, Cybercrime: The Transformation of Crime in the Information Age, Page 123, Polity.

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