“Freedom of speech is unnecessary if the people to whom it is granted do not think for themselves.

Mokokoma Mokhonoana.

In today’s world, the society has observed a prick in cases of hate speech, forwarded either by the media or by the politicians that has resulted in societal violence. Breathtaking and electrifying reporting and monologues on delicate issues just for the sake of viewership and infamy has resulted in the smear of an individual or community’s image. The status of freedom in India of the normal individual and the upsurge in instances of hate speech in current times. This article also answers how the Indian government is restraining the individual’s right to express and how the Indian politicians and media are liable for hate speeches by presenting tendentious views and elicit news. The fact says that there have been a lot of demands for limiting the said law freedom of speech and expression through restrictions, since when it was tabled in the Constituent Assembly, which resulted as the constitution’s First Amendment Act, 1951 and the Sixteenth Amendment Act, 1963 resulting Article 19(2), various grounds of restriction imposed over Article 19(1)(a).

The major issue arising in current scenario is because the Hate Speech is not defined anywhere in the laws, the prohibition for using certain forms of speeches and expressions are mentioned in the 267th Law Commission of India’s report. Which states hate speech as “an incitement to hatred primarily against a group of person defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.” Through this article the author is trying to spread some light on the present day society, where a human is considered as a doer of rational things but when we consider his/her expressions, it is meant to be modulated, controlled, monitored and balanced with the expression and thoughts of another human who inculcates the same kind of desires.

Definition:

Hate Speech:

Hate speech is not defined anywhere in the laws.

According to the Black’s Law Dictionary , Hate speech is the speech that carries no meaning other than expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence. In some countries laws hate speech is considered as speech, conduct, gesture, displayed or written that is capable enough to incite violence or prejudicial actions against a group or an individual on the basis of their membership into certain groups.

Hate speech laws in India:

Freedom of speech and expression is protected in India under Article 19(1) of the constitution of India which is not absolute, “reasonable restrictions” provided under Article 19(2) keeps a check on it which can be imposed on this freedom of speech and expression considering the interest of “ the 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”.

Freedom of Speech 

It is a principle which supports an individual’s or a community’s freedom to accommodate their opinions, ideas and views without getting interfered with the fear of retaliation, legal sanction or censorship. The term “Freedom of Expression” is sometimes synonymously used but at the same time includes any act of receiving, imparting information or ideas, seeking regardless of the used medium.  

Laws to deal with hate speech case

In the Case of Menka Gandhi v. Union of India, 19781 the apex court held that “the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.”

Romesh Thapar v. State of Madras, 19502 

The court held that “Freedom of speech and press lay at the foundation of all democratic organizations for without free political discussion no public education, essential for proper functioning of the process of popular government, is possible.”

The freedom of speech and expression do not confer an absolute right under the Indian Laws , one’s right to express his/her thoughts and ideas freely is confirmed under Article 19 (1)(a) of the constitution and restricted under Article 19(2) of the constitution .Reasonable restriction can only be imposed by a duly enacted law and cannot be imposed by any executive action.

Historical background.

  1. Hate speech:

The history of hate speech is quite simple and very less in words all that can be said is that, the hate speech originated as a boon with the society as any given section of population when starts to think and express their views on any rule or law implemented by the  government and if the same view is not soothing to the law makers or the sovereign that view or thought either written or spoken will be classified as a hate speech, as ultimately the decision of calling a speech a hate speech is in the hands of the judiciary, the guardians of the law which brings the judiciary into the question, whether the judiciary is independent or not ? the answer to this question is yes it is but the records says that no matter the speech or view expressed is inciting hatred, violence or not but the trial of the person who made it buries the speech their only, it’s sad but true. The laws in current scenario in India may find its root in Section 295(A) of Indian Penal Code, which was accepted and enacted in India by the British Administration.

  1. Freedom of speech:

The freedom of speech and expression has a certainly long history that anticipates contemporary International Human Rights. The concept of freedom of speech is witnessed in the documents of early Human Rights. England’s Bill of Rights, 1689 which legally implanted the right to freedom of speech in parliament as a constitutional right and is still in effect. The United States of America adopted the feature of freedom of speech in its First Amendment to the United States Constitution in 1791. The Article 11, of the French Declaration is concentrated towards the freedom of expression, stating that, The free communication of ideas and opinions is one of the most precious right of a man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law”.

Comparison with present scenario.

Today, freedom of speech, or the freedom of expression, is widely identified in International and Regional Human Rights Law. The protection of freedom of speech as a legal right includes both the content and its medium (the means of expression). The author with the help of this article would like to state that, despite the presence of plentiful laws to deal with the freedom of speech and expression the numbers of hate speech cases are continuously increasing. This gets on ones nerve when realized that all of the registered cases are not subjected to false allegation, the undeniable fact is, hate speech has led to abhorrent hate crimes which are recently witnessed in India, such as communal riots, series of violent clashes between various lamaseries which aroused as a result of  inflammatory propagated speech from divisive groups. Widely reported matters of mob-lynching, horrible killing wherein “Hate” for another community was given utmost importance. 

    Landmark judgments.

Through this article the author would also like to proliferate some light over the concept of hate speech through plethora of cases and land mark judgments.

  1. S. Rangarajan Etc v. P. jagjivan Ram,19893 

The court held that “freedom of expression cannot be suppressed unless the situation so created are dangerous to the community/ public interest where in this danger should not be remote, conjectural or far-fetched. There should be a proximate and direct nexus with the expression so used.” 

  1. Arup Bhuyan V. State of Assam, 20114 

The court stated that “a mere act cannot be punished unless individual resoted to violence or inciting any other person to violence.” 

  1. Subramaniam swamy v. Union of India, 20145

In the said case, the reasonable restriction imposed by sections 499 and 500 of IPC on free speech were in question. The court held “the restriction should be narrowly tailored and should not be excessive, arbitratory or disproportionate in any manner. The petitioner i.e. Subramanian Swamy argued that a lot of sections of Indian Penal Code, 1860 should be struck down as they are in clear violation of Article 19(1)(a).”

Soc184 of 2019ial media’s role:

Social media is acting as one of the greatest medium of sharing daily activity in our day today life, but as good it seems to share oneself to other it can be thousand times hazardous if misused, reports suggests that Facebook one of the leading social media platform released its Transparency Report which disclosed that there were around 3 million hateful posts which were later struck down from its platform by the Facebook itself. YouTube on another hand being a social media platform where one is allowed to share video content on its site reported that around  25,000  videos were questionable and were removed in a single month, the team YouTube also said that its happening after restricting the content with numerous of restrictions.

In the year 2017 #notinmyname or NOT IN MY NAME campaign launched on social media which was supported by few of the prominent public figures where several incidents of mob-lynching were posted on different social media platform, an urge of raising communal violence, religious disharmony was clearly visible.

Conclusion:

All citizens of India are entitled to have the right to freedom of speech and expression, provided under Article 19(1)(a) of the constitution but nothing in sub clause (a) of clause (1) shall affect the already existing law operation, or avert the state from making of any law, in such a way that may or may not impose or foist reasonable restrictions on practice of the said right argued by the said sub-clause in the interest of any of the reasonable restriction mentioned under Article 19(2).castigate promotion of acrimony on the bases of religion, race, place of birth. Residence, language, etc., between two groups, where acts shall be done prejudicial or counterproductive for the maintenance of harmony. Castigate incriminations, assertions prejudicial to national-integration, incitement and hatred shall be prohibited as the practice of any is an offence which may lead the offender for a term which may extend to two years or with Fine of rupees 5000, or with both. The deliberate and malicious acts which are intended to outrage religious feelings of any class by insulting them should be penalized. 

The government is empowered to forfeit publications that are punishable under section 124A, 153A, 153B, 292,293or 295A of Indian Penal Code 1860. District Magistrates are empowered to issue an order in the urgent cases of public nuisance or seize danger. 

Suggestion:

“Communication is a foundational human right- we use it to advocate for other human rights”

-Dixie Hawtin.

  • Government as well as the private individuals shall take initiatives in promoting awareness programs subjected to maintenance of cordial relationship.
  • Strict penalizing is required against the act of hate speech, as religious sentiments and beliefs are precious gems for an individual.
  • Every responsible government, regional bodies as well as the international and regional actors including United Nation shall stand together in this fight against hate speech.
  • Alternative Dispute Resolutions can be used as an option to negotiate, mediate, arbitrate or council the matter as taking any matter to the court takes a lot of time and money.

About the author

Akash Sharma is a student at Law College Dehradun, faculty of law at Uttaranchal University, he adores writing about various legal aspects, as being a law aspirant he does believe, it is our duty to make the society well aware about legal knowledge, everyone may not choose to go to a law school and study law for almost 5 or 3 years, so he will try to write short articles regarding some legal issues witnessed by people in day to day life in a hope that it may help them understanding law easily.

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