HATE SPEECH: AN UNMENTIONED TERM IN OUR INDIAN CONSTITUTION, CONCERNING FREEDOM OF SPEECH AND EXPRESSION AND A MENTION OF SHREYA SINGHAL CASE VS UOI.
This report is a way to map hate speech laws in India, and discuss the exclusion of a precise definition of hate speech in the constitution. It discusses the relationship between hate speech laws concerning the right to freedom of speech and expression under the constitution of India; the IPC,1860; Criminal laws and other laws governing hate speech. It also talks about the legal standards developed by the courts, applicable to hate speech in the nation. It calls attention towards the extra laws made for hatred example Sedition and various reasons for abolishing it. The mapping of these laws and their specific standards come with certain necessary reasons:
The rapid increase of hate speech in India, not for lack of law regulating restrictions on hate speech in India but also for the legal standards which have been stated clearly by the judiciary in the context of specific laws. If India is not open to positive criticisms, then there would be no difference between pre- and the post- Independence period. The laws are not applied in a manner that is consistent with those standards as per the constitution because there is no mentioning of the term and definition of ‘Hate speech’ in the constitution. The data inferred is a result of critically researching several articles, previously written research papers, news, and the internet.
The report below examines the work published by authors on reputed websites. On the contrary, in recent times we have witnessed an uphill in cases of hate speech by the politicians, common people, or even by the media which has resulted in severity amongst the public. The purpose of this study is to highlight how an individual on his part is getting restraint of his right to express by the hate speech delivered by a politician that caused violence, ferocity, potency, communal killings and unrest amongst the society.
A coin has two faces and so does hate speech, therefore, we can observe that there are varied notions related to this concept of hate speech wherein an absence of a concrete platform about it makes its implementation ineffective and on the other hand an individual getting destitute of his right to freedom to speech. The performers escape challenging these laws which are not so restrictive while those who are the victims of this hate and hatred request for stern provisions for their safety, prosperity, and happiness. Hence, the topic stands by hate speech: an unmentioned term in our Indian constitution, concerning freedom of speech and expression and a mention of Shreya Singhal case vs UOI.
“Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hatred; only love can do that.”
– Martin Luther King, Jr.
These famous lines by Martin Luther King, Jr. are indeed true and aptly quoted basis which the research topic Hate speech stands by.
Hate speech is most commonly known as ‘bhadkau bhaashan’ (भड़काऊ भाषण) in Hindi, is in more extensive terms known as giving an injurious or undermining discourse or composing preferences against somebody’s physical appearance, a specific gathering particularly based on race and religion, age, inability or sickness. It can be slander, in libel, or even in the form of art or specimen. There is no mention of the term hate speech as such in the Indian constitution and hence there is no accurate definition of hate speech in our nation India.
[Black’s Law Dictionary undermines hate speech as the “speech which carries absolutely no meaning other than expression or sign of hatred or enmity for some group, such as a particular race, caste or religion especially in the circumstances wherein the communication is likely to provoke violence and communal killings”.]Therefore by this it can be broadly said that anything derogatory spoken towards someone else.
The law commission following the 267th report in March 2017 has stated hate speech as “Incitement to hatred or enmity primarily and most importantly against a group of people defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.” This definition has been made by doing different changes in the particular segments of the Indian Punitive Code,1860 and Code of criminal strategy, 1973 by including new arrangements ‘Forbidding prompting to disdain’ following area 153B IPC and causing apprehension, caution or incitement of savagery in specific cases’ following segment 505 IPC, and as needs be correcting the Principal timetable of CrPC.
Since the beginning of the battle of Indian Independence from the British rule, prominently from 1848 to 1947 that is, (the period between 18th and 19th century), the British colonialism was known for its autonomy and ‘Freedom of expression and speech’ has constantly had an essential influence on the people. Before independence, there was no constitutional provision for safeguarding of speech or press or expression as the British colonies considered themselves powerful enough to speak and do whatever they wanted to. It is now considered as one of the basic human rights under article 19 of the Universal Declaration of Human Rights (UDHR).
In the Indian constitution, Freedom of speech and expression is viewed as a fundamental right under Article 19(1)(a) for all the citizens wherein the citizen is provided with these three rights namely:
- Right to receive
- Right to express own ideas
- Right to keep any communication as a secret.
Freedom of press and speech is a principal pillar of unchained governance; when this support is taken away, the constitution of a free society is dismissed, and cruelty is erected on its ruins. It was very important back then for the government to give a sense of recognition and responsibility to its citizens as India’s democratic and friendly government stands by the people, to the people, and for the people.
But in this present time, this freedom of speech and expression has been misused up to a great extent through hate speeches even though there is no such mention of this term in the constitution yet, but speeches or opinions or specimens including hatred are peculiarly a problem to this freedom and has also resulted in chaos for the same in between the religions as India we all know is a nation of multiple and diverse cultures.
Hate speech can also be stated as extended defamation whereby a person is not only defamed but his reputation and feelings are also hurt. The journalists also get hatred from society as they are sometimes the victims of political manipulation and they are even threatened to say or print something which might result in the benefit of the other political party. Therefore, there is a crucial need for the recognition of the word and definition of HATE SPEECH into the constitution of India which is supposed to be the backbone of our nation.
Review of literature
“Hate speech in India: Media’s rabble-rousing doesn’t help the cause, proves counter-productive to free speech”
Devika Agarwal (Sept 2014).
A comparison of the European Union (EU) law and Indian law of hate speech has been done wherein under EU, the unlawful hate speech is understood as [“public incitement to violence or hatred directed to groups or individuals based on certain characteristics, including race, colour, religion, descent and national or ethnic origin”] and India, on the other hand, has no precise definition of hate speech as such in the constitution of India. There is only one definition which is given by the law commission in the 267th report. Hate speech is an exception to freedom of speech which can be recognized in the case-law of Shreya Singhal v/s Union of India AIR (2013) 12 SCC 73.
The supreme court, in this case, invalidated section 66A of the IT Act, 2000. The court held that the disallowance against the spread of data by methods for a PC asset or a specialized gadget expected to irritate, bother or affront which didn’t fall under any sensible limitations to the activity of the privilege to the opportunity of articulation of the right to freedom of expression
Cases of hate speech in India
Incidents in the past have mostly included the politicians’ example of which can be the Allahabad HC upholding a session court order and quashing a magistrate’s order in the case of hate speech given by Mr. Yogi Adityanath in 2007. This case was filed by Rasheed Khan in 2008. The Supreme Court dismissed the petition seeking prosecution of the CM in that hate speech. In 2017, #notinmyname (Not in my name) crusade was started via web-based networking media where eminent open figures upheld the reaction to a few occurrences of horde lynching. Later the preeminent court looked for a reaction from the UP. Government about an abhor discourse instance of Mr. Yogi Adityanath which caused shared killings in Gorakpur.
When ‘Umar Khalid’, a JNU student leader was attacked in August 2018, the then chief minister of Jammu & Kashmir Omar Abdullah strongly disapproved of the attack and said it as a hate campaign using social and mainstream media.
In the 2018 Bhima Koregaon brutality, a famous television grapple as of late made a disorder when he named the activists and attorneys regarding the attacks as ‘Urban Naxals’ and ‘Maoists’ on his prime time appear. By this the Human Rights Dissident that the channel ought to be sued for detest discourse on the grounds of impelling networks and undermining national security.
The ques herein arise that whether these statements or languages by the media, which incriminate certain individuals in cases like Bhima Koregaon raids, amount to hate speech?
The article is also inclusive of the legal provisions of the hate speech in India concerning the section of the Indian Penal Code,1860.
Narrian’s view on Hate Speech
Narrain (2018) in “Social Media, Violence and the Law” writes that with the arrival of the internet and the increase in hate speeches over social media, the governing laws regulating it have also developed subsequently. Narrain mentioned a very captivating case regarding Police Surveillance, the report highlighted the disclosed interventions that created were by the major Social Media Labs in the country, namely in, Mumbai & Uttar Pradesh. The extrusive one [is the Mumbai Social Media Lab (MSML) in conjunction with the National Association of Software and Services Companies (NASSCOM) set up in the year 2014.] The specified enterprises with the help of other profit enterprises SocialAppsHQ.com planted a monitoring application for the real-time alert on the content of the social media platforms. This SML was set up as the response to the enormous mobilization of protestors due to the brutal gang rape of a young woman in Delhi to track the public views and sentiments on “sensitive issues and protests”.
The second set of Social Media Labs is being set up in Uttar Pradesh along with IIIT, DELHI. While one is located in Meerut and the other in the capital, Lucknow. Official statements declared that the main reason has been concern around communally sensitive material circulating in Uttar Pradesh, especially in the wake of the Muzaffarnagar riots, 2013.
The report also tells about the proceedings of these incidents, in April 2015, under the response to the Parliament’s interrogation on whether the government was monitoring social media sites, the Union Telecommunications Minister did not mention about all. Rather, he expressed that there is no institutional observing instrument for checking long range informal communication locales and that Law Authorization and Knowledge/Security Organizations screen the web on a case-to-case premise.
The Minister only referred to the Electronic Media Monitoring Centre (EMMC), located in the Union Ministry of Information and Broadcasting, to track trends on social media and monitor “public interface on the social media network.” (Ministry of Information and Technology 2015). Moreover, the Minister also mentioned section 79 of the IT Act that requires intermediaries to observe due diligence quoting an advisory issued to all intermediaries by the previous government in 2012, to monitor “both national and international networking sites”, and to disable inflammatory and hateful content hosted on their websites on a priority basis (Ibid).
Narrain tries to illustrates the struggle faced by the police and the civil society who are unaware by the magnitude and pace of circulation and the impression of such connotation which can be stated with the sense of “like” and “dislike”.
This research paper is completely based on doctrinal research in compilation, organization, interpretation, and systemization of the secondary source material. [Doctrinal research methodology includes certain concepts like legal concepts and principles of all types – cases, statutes, and rules. ‘Doctrine’ is stated as ‘a synthesis of various regulation, principles, norms, interpretive guidelines and values taken out from various sources], It explains, makes coherent or justifies a segment of the law as part of a larger system of law. Doctrines can be more or less abstract, binding, or non-binding’. This research paper is based on information extracted from secondary sources. The data has been collected from various internet websites, research papers, news, youtube, etc. In the dichotomy of qualitative and quantitative research, it is primarily qualitative and web-based.
Objectives of this Study
The meaning of hate speech in contemporary times has traveled beyond merely offensive speech as it encompasses the speech which is insulting, provocative in nature, causes enmity, communal killings, hatred, violence between people with different religions, class of people or society at large. It even leads to disturbance in the harmony and peace amongst people and society. As we know that ‘hate speech’ term eludes a universal definition. Through this report the objectives of this study are:
- To critically analyze the current status of Hate speech in India regarding the Freedom of Speech and Expression.
- To analyze as to what constitutes in the definition of hate speech under the law commission of India.
- To analyze the impact of hate speech in India and how an individual is getting deprived of the right to speech.
- To bring it into the eyes of the readers, the absence of hate speech should be mentioned separately in the constitution of India and The IPC,1860.
- To remove the certain section of IPC violation of which, provisions are already mentioned in other acts.
Legal provisions related to Hate Speech
Constitution and Hate Speech
Article 19(1)(a) and section 19(2): When just because the right to speak freely of discourse and articulation was proposed in the constituent get together, there have been requests for putting restrictions and hindrances on this opportunity. This direct coordinated towards the constitution (First Change) Act,1951, and the constitution (6th Amendment) Act, 1963. This amendment added assorted grounds of imposing reasonable restrictions on this freedom in article 19(2)(a) of the constitution. Article 19(1)(a) of the Indian constitution guarantees the [right to the right to speak freely of discourse and articulation to every single Indian resident. The option to proliferate one’s thoughts is a piece of the privilege to the opportunity of articulation, and each resident has the option to distribute, scatter, and flow their ideas.]
 In a society like that of India where humans are considered as performers of their doing but when it comes to their expression, they are supposed to be controlled and balanced. [Probably the best test isn’t to practice the rule of independence and free discourse rule that is inconvenient to any area of society. Free discourse is important to advance a majority of suppositions where despise discourse turns into a special case to Article 19(1) (a).] A closer look at hate speech jurisprudence suggests that the judiciary tends to uphold the constitutionality of hate speech restrictions in the interest of ‘public order’. However, in certain cases, courts have used other grounds under Article 19(2), such as ‘decency’ or ‘morality’ to uphold restrictions. The word reasonable restrictions mean the limitations that need to be substantively and procedurally reasonable. Apart from the Constitution, there are various other legislation and self-regulatory mechanisms under which hate speech is negated, they have been mentioned below.
The Indian Penal Code and Hate Speech
This subheading of the report discusses the hate speech offenses in the Indian penal code, 1860 such as the promotion of enmity regarding religion, race, national integration, destruction of places of worship, or sacred objects. These are covered in the following sections of IPC
[Sedition]. The Indian Penal Code defines sedition as a crime committed when [“any person who by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.] This is a non-bailable offense in which the punishment ranges from imprisonment up to three years to a life term, to which fine may be added. There are certain arguments against section 124A which are as follows:
- Section 124A is unsuited in a democratic form of government as it imposes constraints on the exercise of Article 19(1)(a) which is Freedom of speech and expression.
- The introduction of sedition has been made by the British to oppress the Indians under their rule. They have abolished this law in their country, hence there is no need for this law to exist in India as well. While framing the Indian constitution, Dr. Br. Ambedkar said that freedom to press is inclusive of freedom of speech and expression because this part was taken from our constitution, there is no need to further mention it in our constitution. So when sedition has been abolished from their constitution why not ours?
- The phrase used under Section 124A like ‘disaffection’ is not clear and subject to different interpretations of the whims and fancies of the investigating officers.
- IPC and Unlawful Exercises Avoidance Act as of now have arrangements to punish “upsetting the open request” or “ousting the administration with brutality and illicit methods”. These are adequate for ensuring national honesty and subsequently, there is no requirement for dissidence 124A.
[Promotion of hatred between different groups based on religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.] This section criminalizes the promotion of antipathy between different groups based on their religion, the language they speak, their caste, etc. this section also prescribes the punishment for the violation of this section which may be imprisonment for up to five years or a fine or with both. The intention appears to be a crucial element to establish an offense under 153A. This section has been challenged before the court on multiple occasions but has been saved by the ‘public order’ exception under article 19(2) of the Indian constitution. Hence the judiciary has upheld its constitutionality and said that it imposes restrictions which are reasonable under Article 19(1)(a) which is the freedom of speech and expression.
[Imputations, assertions prejudicial to national-integration.] This section of IPC states that who so ever makes any accusation or assertions prejudicial to national integration; advises, consults or publishes anything which is denying a certain right to a particular class of religion, caste, etc. as mentioned in the law should be punished with imprisonment which may extend to three years or fine or both. This section also includes punishment for anyone who commits an offense [by words either spoken or written or by visible representations in a place of worship in an assembly engaged in the performance of religious worship, religious ceremonies up to five years] and the accused shall also be liable to fine if proved guilty henceforth.
[Injuring and defiling place of worship or a religious place to insult the religion of any class.] This section states and punishes for anyone who makes destruction causes damage or makes defilement of a place of worship or an object held sacred intending to hurt the religion and people following that particular religion. The punishment exceeds up to imprisonment for two years, or with fine, or with both. This section has been enacted to compel people to respect the religious susceptibilities of persons of different religious persuasion or creeds. This constitutes an essential element of hate speech which states include respecting the religions either verbally or otherwise.
[Speaking certain words, etc., with a deliberate intention to wound and cause harm to the religious feelings of a person.] This section criminalizes oral speech, spoken to wound the religious feelings of any person. In cases relating to section 298, a successful prosecution under this section requires the feelings of the complainant with ‘deliberation intention’.
[Statements that result in public mischief.]According to this section any person who makes or publishes anything regarding a government servant example a police officer, soldier which is likely to cause him/her disregard or fail in his duty as such shall be punished with the imprisonment which may extend to five years and shall also be liable to fine. Any individual with a purpose to cause, or which is probably going to cause, dread or alert to the general population, or to any area of the open whereby an individual might be prompted to submit an offense against the State or the open peacefulness; or with the expectation to actuate, or which is probably going to affect, any class or network of people to submit any offense against some other class or network, will be rebuffed with detainment which may stretch out to three years, or with fine, or with both.
There are certain other Acts and sections in which hate speech is negated, they are:
The Protection of Civil Rights Act, 1955
Section 7 provides with punishment to any person who by words, either spoken or written, or by signs encourages any person or any class of persons to ‘untouchability’ for a period up to six months, or fine or both.
[The Religious Institutions (Prevention of Misuse) Act, 1988]
Section 3(g) [Prohibition of use of religious institutions for various purposes.] This particular clause of section 3 states that no religion should provide with or promote disharmony, enmity, hatred or ill-will between different religions or language or caste.
The Cable Television Network Regulation Act, 1995
Section 5 and section 6 [of the Show restricts transmission or retransmission of a program through connection mastermind in invalidation to the suggested program code or business code. These codes have been described in standard 6 of the Advanced Telecom organization Rules, 1994.]
The Cinematograph Act, 1952
Section 4, section 5B, and section 7 empower the Board of Film Certification to prohibit and regulate the screening of a film which is against any particular religion or causes any harm to the feelings of any person or a class of people of any religion.
The Code of Criminal Procedure, 1973
Section 95, Section 107 and Section 144.
Judicial approach towards Hate Speech
SHREYA SINGHAL VS UNION OF INDIA
AIR (2012) 12 SCC 167 
Shreya Singhal, an Indian born lawyer fought against Section 66A of the Information Technology Act, 2000 brought her to the national prominence in India.
The case was not anyone petition, rather it was a group of writ petitions under Article 32 of the Constitution of India. Section 66A, IPC was misused by the Police or the Government in many instances.
There were several protests. One of the Instances was:
When in Mumbai, when Bal Keshav Thackeray (Founder of Shiv Sena) died on 17th November 2012; Shiv Sena (The Hindu Nationalist Political Party) declared Bandh in the state of Maharashtra in the wake of Chief Minister’s death. The two girls: Shaheen Dhada and Rinu Srinivasan (residing in Thane) commented on Facebook questioning the reasoning behind the Bandh. They were arrested by the Mumbai police in 2012 under Section 66A, IPC. The captured ladies were discharged later on alongside the choice to close the criminal bodies of evidence against them, yet the charged pulled in far-reaching open dissent. The dissent was concerning how Police was abusing its capacity by conjuring the Area 66A bury Alia standing up to that it damages the Right to speak freely and Articulation.
Similarly, in Kerala and other parts of the country, this section was misused by the police.
The batch of the writ petition was filed in Public Interest under Article 32 of the Constitution of India by the petitioner seeking to declare: Section 66A, Section 69, and Section 79 of the IT Act, 2000. The petitioner raised a large number of points to the constitutionality of Section 66A, foremost of them was the breach of the Fundamental Right mentioned in Article 19 (1)(a): Freedom of Speech & Expression.
It was held by the supreme court to struck down section 66A of the IT Act. Justice Nariman in this act also discussed various standards that were given to a judge for reasonable restrictions under Article 19(2) especially related to speech. The court held that section 66A was not mentioned properly and vague, and hence it did not comply with Article 19(1)(a) of the Indian constitution which is Freedom of speech and expression. The court likewise watched the ‘chilling impact’ on discourse brought about by unclear and over-expansive legal language as a reason for striking down the arrangement. After that, the court held a limitation to the term ‘open request’ and held that it would just be applied to the instances of ‘induction’ which has a connection with the open issue and not to the instances of ‘support’.
S. RANGARAJAN ETC VS P. JAGJIVAN RAM
AIR 1989 SCR (2) 204, 1989 SCC (2)574
FACTS AND JUDGEMENTS:
In this case, the supreme court held that Article 19(1)(a), that is ‘freedom of speech and expression’ cannot be suppressed unless the situation is created in a way that it is held dangerous and hazardous to the community or public interest. There should be a direct relationship between the words and expressions so used.
The judicial decision depicts that India follows a speech protective pattern, this means that the words and speeches of the people are critically analyzed and heard and then only it is decided if it is a speech violating public order or morality. The courts are very careful in framing the restrictions for Article 19 only for the reason for it to be misused by the state negatively. Although the state has provided with restrictions, it becomes really difficult to identify a particular type of word or expression or speech which may result in violence and hatred amongst people, class of people, or society at large. Therefore, this can be the reason for hate speech not being mentioned in the books under any specific act or article.
CONCLUSION AND SUGGESTION
‘Communication is a basic human right- We apply it to advocate for other human rights’
Dixie Hawtin, Global Partners, and Associates, UK 
There have been many cases of hate speech not only in our nation but also across Facebook, Twitter, and other social networking sites. According to the transparency Report, 2019 Hate speech is not allowed on youtube. A total number of 88,589 videos were removed from various social sites due to hate speech or violence. The substance was expelled which advanced savagery or scorn against people or gatherings dependent on any of the accompanying qualities which are age, rank, inability, ethnicity, sex personality, nationality, race, migration status, religion, sex/sex, sexual direction, casualties of a significant brutal occasion and their relatives, and veteran status.
The people who are victimized of hate speech develop a fear to enter into new places. This brings a change in their behaviour and it becomes difficult for them to live with dignity. A recent example can be of the #boislockerroom (Bois Locker Room) wherein young men on social media share certain pictures of girls mainly juveniles which are not dignified in nature. This may not result to hate speech but a mere degradation of the girl’s morality and dignity.
Another hate speech case can be related to Amir Faisal Siddiqui a tik toker who is known for making hate content regarding religion and also a supporter of acid attacks and brutality against people through his social media account on Tik-Tok. There is a thin line between free speech and hate speech wherein free speech encourages debate while hate speech incites violence.
Steps to tackle these issues:
Some steps to tackle such problems could be:
- Special laws or mention of the term hate speech in the constitution of India with emphasis on Article 19(2). The separate mentioning of hate speech in a specific Act may also come as a solution for the same so that the spokesperson as well as the victim to get a clear definition of the term and definition regarding the same.
- Awareness projects and activities about keeping up sincere connections must be taken by the legislature as well as to private individuals.
- Cases of despise discourse can be addressed through elective debate goals as it proposes a movement from the drawn-out systems of the court to the settlement of the question by the method of fine, exchange, and so forth.
Freedom of expression is suppressed more frequently momentarily. As we know in the recent past cases of hate speech have boosted up in India. The law is abused by lawmakers, who use it unjustly amongst the individuals that are considered as a threat. It is done to silence the voices which confront the government’s administration. Hate speech has become the most concerning issue in recent times as it has resulted in communal intolerance and public unrest. Both politicians and media have been seeing making hate speeches in the society which should be limited and curbed with a strong and relatable law.
Srishti Bansal | Amity Law School, Noida
- The Constitution of India, published by LexisNexis (2020) Edition.
- The Indian penal code, 1860.