Hate speech and the Right to freedom
Written by: Ms Devshree Dangi
Every citizen of India has a Right to freedom and expression. But with this Right, the Indian Constitution imposes certain reasonable restrictions so that this Right couldn’t be misused. The Courts have always been interpreted the laws that deal with the limitations on the Right of freedom of speech and expression.
This fundamental right does not give an absolute right to freedom so hate speech is totally different from free speech. The Constitution gives fundamental Rights to every citizen of India so it has a duty to protect their rights and the makers of the constitution by keeping this in mind had put certain limits on enjoying these Rights so that one cannot misuse their rights in order to harm other. The Indian constitution does not use the term “Hate Speech”. Also in India, there is no law dealing with hate speech but there are many laws that prohibit hate speech in India.
What is hate speech?
According to the Black law’s Dictionary hate speech is, “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.”
Cambridge Dictionary defines Hate Speech as “public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation”.
The law commission of India in its 267th report defined Hate speech as “an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.
In other words hate speech is a speech that could cause violence, fear and negativity among people against race, religion, sex etc.
Right to freedom of speech and expression
The Indian Constitution provides six fundamental rights to the people of India. The right to freedom of speech and expression is one of the significant rights provided by the Indian constitution.
Article 19(1)(a) of the Indian Constitution give freedom of speech and expression to the people of India. It includes the right to express a person’s views and opinions regarding any issue through any medium ( by words whether spoken or written, prints, pictures films. movies etc.)
According to this Right, every person who lives in India has freedom of speech and expression but this Right of freedom of speech and expression does not provide absolute freedom in order to protect the other rights given by the Indian Constitution.
However, hate speech differs from free speech. There are certain exceptions provided under the Indian Constitution for this Right which restricts a person from using this Right as absolute freedom such as;
- Where it’s a matter of security of the state
- Where it affects the friendly relations with foreign States.
- Public order
- Decency and morality
- Where it’s a matter of contempt of court
- Defamation
- Incitement to an offence
- Where it affect the sovereignty and integrity of India.
Laws pertaining to hate speech in India
No law in India directly deals with hate speech but there are many laws related to hate speech in India.
- The Indian Penal Code, 1860: Section 124A; Section 153A; Section 153B; Section 153 C; Section 295A; Section 298; Section 505(1) and (2).
- The Representation of the People Act, 1951: Section 8; Section 324; Section 123(3); 123(3A) and Section 125.
- The Protection of Civil Rights Act, 1955: Section 7.
- The Religious Institutions (Prevention of Misuse) Act, 1988: Section 3(g)
- The Cable Television Network Regulation Act, 1995: Sections 5 and 6 of the Act prohibit transmission or retransmission of a program through cable network in contravention to the prescribed program code or advertisement code. These codes have been defined in rule 6 and 7 respectively of the Cable Television Network Rules, 1994.
- The Cinematograph 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; Section 107; Section 144.
Although the above-mentioned laws do not deal with Hate speech directly these laws impose restrictions on hate speech.
Cases of hate speech in India
Pravasi Bhalai Sangathan v. Union of India
In this case, the petitioner seeks the state to take action against people who make hate speech. Although the court did not cross the limits and took action as per the existing laws. The court suggested the matter to the law commission of India to examine the condition in a recommendation to the election commission against the people who made hate speech.
In the case of Jafar Imam Naqvi v. Election Commission of India, again the question on hate speech was aroused. A writ petition had been filed questioning the speeches made by the candidates during the election, the court dismisses the petition stating that the speeches don’t qualify as public interest litigation.
Shreya Singhal v. Union of India,
In this case, the court held that any speech can only be limited on the grounds included in article 19(2). Further, the Court differentiated between discussion, advocacy, and incitement and also it held that the first two were the essence of Article 19(1).
Nowadays hate speech has become an international issue. In India, it is really difficult to differentiate between hate speech and free speech. There are laws that put restrictions on hate speech but they are limited in their nature. The courts are bound with these laws and cannot go beyond them. But the Government can take appropriate measures to control hate speech in India in order to maintain the peace and integrity of India. The existing laws are needed to be more specific about hate speech so that the increasing number of cases of hate speech could be controlled. The law commission has already proposed laws for hate speech in the year 2017. Hate speech should be considered as a reasonable restriction to the right to freedom and expression.
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