Hate Speech vs Free Speech: Where is the current strongest?

[This is a post by Diksha Dadu, Contributing Member]

In this blog, I will be focusing upon the legal provisions with respect to the concept of Hate Speech by critically analyzing Indian precedents and certain foreign judgments to differentiate between discussion and the advocacy of incitement acts which are considered prejudicial to maintenance of peace and harmony. Furthermore, I will be enunciating upon an effort to find a transformative yet harmonious approach in relation to hate speech on Freedom of Expression and examining the restriction thereof, followed by the conclusion.

Introduction

“…[T]hat the law shall be certain, and that it shall be just and shall move with the times.”Lord Reid, Judge as Law Maker

The disparity in jurisprudence on hate speech has been considered as remotely distant in Indian Constitutional Law while the terrain of free speech still remains a contested field. “Hate speech is termed as the 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”, as defined by Black’s Law Dictionary. According to Article 19(1)(a), the right to freedom of speech and expression is granted to every citizen of democratic India. However, the constitution also provides for the reasonable restrictions against free speech in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence under Article 19(2) of The Constitution of India. The 2017 Law Commission Report, No. 267 recommended the introduction of new provisions within the penal code that specifically punish incitement to violence in addition to the existing ones while examining the scope of hate speech laws in India. Moreover, free speech is considered quintessential for every democracy to work efficiently. The doctrine of free speech has evolved as a bulwark against the state’s power to regulate speech. The liberal doctrine was a measure against the undemocratic power of the state.

Thus, this gives us an inference upon the reflection and attitude of our legislature and the juncture of decision making by the judiciary towards the issue of hate speech and the real extent of its reasonable restrictions thereof.

Hate Speech: Regulations and Legal Provisions in India 

In a democratic country like India which possess diverse communities of people, castes, creed, religions and languages as its unique nature, the principle of autonomy and free speech does not malign properly and wholly. This idiosyncratic nature of our Indian structure is one of the greatest challenges before the principle of autonomy and free speech principle. There is a constant battle of opinions to ensure that this liberty is not exercised to the detriment of any individual or the disadvantaged group or section of the society. 

As per the Indian Penal Code, the concept of hate speech constitutes under Section 153A, which is the offence of promoting communal disharmony or feelings of hatred between different religious, racial, language or regional groups or castes or communities, Section 153B of the Indian Penal Code, 1860 categorizes the offence of promoting religious, racist, linguistic, community or caste hatred or incites any religious, caste or any other disharmony or enmity within India, through any speech either in written form or spoken, Section 298 also classifies the offence of uttering words with the deliberate intent to wound the religious feelings of any person, Section 505 similarly criminalizes the act of delivering speeches that incite violence. As per the Representation of the People Act, 1951, Section 123(3A) also criminalizes hate speech of candidates contesting elections. 
In 2014, a Public Interest Litigation was filed before the Supreme Court of India seeking guidelines on hate speech during elections. It observed that hate speech attempts to marginalize individuals on the basis of their membership in a group which impacts such people socially by diminishing their social standing and acceptance within society. Hate speech, the Court observed, lays the groundwork for aggravated attacks on the vulnerable communities in the future. This weakens the ability of people to participate wholly in a democracy. It was further observed that the existing laws in India were sufficient to tackle hate speeches. The root of the problem is not the absence of laws but rather a lack of their effective execution, the Court reiterated.

Analysis of Hate Speech in India: Extent of Reasonable Restriction Principle and Position of State

The issue of the validity of hate speech laws and the extent of already existing hate speech laws has always been a heated debate in India. This issue has time and again raised before the legislature, court as well as the public. Under Article 19(2), the hate speech can be curtailed on the grounds of public order, incitement to offence and security of the State. In the infamous case of Ram Manohar Lohiya v. State of Bihar, the Apex Court observed 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 the 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 the security of the State.” The standard approach applied for restricting Article 19(1)(a) is the highest when imposed in the interest of the security of the State. 

Further, the Supreme Court while upholding the constitutional validity of Section 295A IPC ruled that this section does not penalize every act of insult or attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalizes 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 held that if an act does not actually cause a breach of public order, its restriction ‘in the interest of public order’ will be deemed reasonable with respect to Article 19(2), since it has a much wider connotation than interest and maintenance of public order. 

In Shreya Singhal v. Union of India, the court observed that expression could only be restricted when discussion and advocacy amounted to incitement, however, when no ingredient in offence of inciting anybody to do anything which a reasonable man would then the tendency of being an immediate threat to public safety or tranquillity would diminish. Therefore, the context of speech plays a vital role in determining its legitimacy under Article 19(1)(a) of the Constitution and that our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.

Hence, after analyzing the recent landmark decisions, it could be re-iterated that a speech protective regime has been followed in India. The main cause of action behind such a stance is the apprehension and fear of misuse of restrictive statutes by the State. Such a regime has been followed in the United States and the Courts therein are extremely cautious in restricting Article 19 of the Constitution to avoid vitriolic approaches from the public. Pluralism, tolerance, peace and non-discrimination have been termed non-derogatory values by the ECHR in ascertaining the extent of free speech allowed under the Convention.

Conclusion

Hate speech poses a complex situation against freedom of speech and expression. The constitutional approach to these challenges has been far from uniform as the boundaries between impermissible propagation of hatred and protected speech vary across jurisdictions. 

In a landmark judgment of Canada v Taylor, the constitutional validity of hate speech laws was challenged since it violated the right to freedom of speech and expression. It was held that hate and propaganda contribute little to the aspirations of Canadians or Canada in the quest for truth, the promotion of individual self‑development, or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. The Supreme Court of Canada opined that hate speech laws are indeed a part of the global commitment to eradicate racism and communal disharmony. 

However, ‘with every right comes responsibility’; and therein, is the need for a limitation on the right to freedom of speech and expression so as to prevent the destructive and regressive effect it could have. There is a massive need to revise and amend the existing anti-discrimination legislation with respect to hate speech without curtailing the freedom of speech and expression of people. Laws should be implemented in a non-selective, non-arbitrary and transparent manner, along the lines of golden principles of the constitution which should not be used to stifle dissent or the legitimate exercise of freedom of expression. Lastly, the fight against hate speech should not be pursued in isolation but with a harmonious holistic approach. Our constitutional history must be maligned with the traditional approaches along the lines of recent development and usage of hate speech laws, especially in terms of yellow journalism these days. With excessive interference of the media into the facts and evidence of the case has led the judiciary to negatively view such journalists as ‘thought intelligentsia’, which in turn impacts the justice delivery system as well. Therefore, a harmonious balance must be drawn while dealing with such matters and reasonable restrictions must be applied and followed strictly and not liberally in our diverse democratic country.

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