This Article is written by Nashita Nazneen. A, student of B. S. Abdur Rahman Crescent Institute of Science and Technology Crescent School of Law.
HATE SPEECH AND CONSTITUTIONAL LAW
Article 19(1) of the Constitution of India guarantees the right to freedom of speech and expression to all Indian citizens. The right to propagate one’s ideas includes the right to publish, disseminate and circulate their ideas. The Constitution does not permit any arbitrary restrictions on speech. Restrictions or limitations are permitted only if the speech falls within one of the eight grounds mentioned in Article 19(2).
Hate speech laws are saved by the public order exception. Grounds of decency, morality, incitement of an offence are justifiable for hate speech. All these restrictions must be reasonable i.e., need to be substantively and procedurally reasonable, and not arbitrary or excessive. The Supreme Court has held that restrictions to fundamental opportunities can be seen as sensible, just in uncommon conditions, inside as far as possible, and can’t get legal review. Each impugned statute shall pass the test of reasonableness.The ‘public order’ exception is instrumental in saving some hate speech laws from unconstitutionality it is irrespective of whether there was any actual breach of public order. The constitutionality must be weighed against these evolving standards.
In S. Rangarajan v. P. Jagjivan Ram, the Supreme Court held that speech could only be curtailed if it was intrinsically dangerous to the public interest. In Sherya Singhal v. Union of India, three stages of a speech were discussed namely, discussion, advocacy and incitement. The first two stages were considered as the heart of Article 19(1)(a) and hence only when a speech enters the last stage, the speech shall be curtailed.
In Dr. Ramesh YeshwantProbhoo v. Prabhakar Kashinath Kunte, the Supreme Court discussed the constitutionality of Section 123(3) of the Representation of the People Act, 1951, it restricts acts that promote enmity or hatred between classes (hate speech during elections). The Supreme Court upheld as constitutional and reasoned that it amounted to a reasonable restriction on grounds of public order, incitement of hatred and decency.
In PravasiBhalaiSangathan v. Union of India, the Supreme Court identified that the objective of hate speech restrictions is to reduce and/or eliminate discrimination. It recognized hate speech as an exercise that aims to marginalize individuals and reduce their social standing, making them vulnerable to discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. It relates to principles of equality, rather than issue of hurt sentiments or feelings.
HATE SPEECH AND CRIMINAL LAW
Hate speech laws are found on different aspects such as offence relating to religion, public tranquility and criminal intimidation, insult and annoyance. Laws criminalizing hate speech, such as Sections 153A and 295A of the Indian Penal Code (IPC) and Section 95 of the Code of Criminal Procedure, 1973 (CrPC), have been challenged for unreasonably restricting free speech. They were found in accordance with the constitution. The following are the provisions that inter alia deals with hate speech laws:
- Section 153A: Promotion of Enmity Between Groups
- Section 153B: Imputation or Assertion Prejudicial to National Integration
- Section 295: Destruction of Sacred Objects
- Section 295A: Outraging Religious Feelings with Deliberate and Malicious Intent
- Section 298: Speech with the Intention of Wounding Religious Feelings
- Section 505: Public Mischief
Section 144 of CrPC is often used to implement internet shutdowns. There have been 164 instances of internet shutdowns between January 2010 and April 2018. This to be in the interest of law and order. Under the above-mentioned section, a District Magistrate can impose internet shutdown in their own district.
HATE SPEECH AND INTERNATIONAL COVENANTS
The Indian hate speech laws are to be at par with India’s International Human Rights obligations.
- Universal Declaration of Human Rights (UDHR)
It operates as a framework for other Human Rights instruments that constitute binding International Law thought UDHR is not binding. Article 7 of UDHR deals with the right to be protected against any form of discrimination and against incitement of hatred.
Indian hate speech laws target a spectrum of speech and incitement of discrimination. It furthers the goal of Article 7. Article 29 of UDHR spells out the limitations i.e., meeting the just requirements of morality, public order and the general welfare in a democratic society.
- International Covenant of Civil and Political Rights (ICCPR)
Article 19 of ICCPR deals with freedom of speech and expression and Article 20 of ICCPR spell out the limitation i.e., states are required the advocacy of national, racial or religious hatred leading to incitement of discrimination, hostility and violence. Article 19 and Article 20 are compatible and complement each other.Article 19(3) allows states to establish laws that confine hate speech, and Article 20 forces a positive commitment to preclude certain demonstrations. Further, any limitation under Article 20 should likewise consent to Article 19(3).
- International Convention on the Elimination of Racial Discrimination (ICERD)
Article 4 of ICERD imposes clear duties on members States to combat hate speech. Member States shall condemn all propaganda and all organizations who promote racial hatred and discrimination in any form. They shall declare an offence punishable by law all such activities that shall incite violence and declare such organizations illegal. It shall not permit public authorities or establishments, national or local, to advance or induce racial segregation.
- Convention on Elimination of All Forms of Discrimination against Women (CEDAW)
Article 2 of CEDAW mandates the prevention and punishment of all acts of gender-based violence and other forms of gender-based discrimination. Member States to the convention shall make efforts to raise awareness and against harmful against women. It mandates to promote equality among men and women through adopting various legislations and measures.
ONLINE HATE SPEECH
The Information Technology Act, 2000 (IT Act) is the principal legislation governing online communication. The IT Act gives effect to some of the State’s strategies to control online hate speech. On 2015, Section 66A of IT Act was struck down as unconstitutional by the Supreme Court.
On 2012, the police arrested two young women for merely posting and liking a Facebook post about political figures in Maharashtra. On March 2015, the Supreme Court, in Shreya Singhal v. Union of India, held Section 66A to be unconstitutional and struck it down. The Supreme Court originally asserted that the right to speech of discourse accessible online should be agreed a similar degree of assurance as that of offline.It then examined Section 66A vis-à-vis the fundamental right to freedom of speech and expression granted under Article 19(1)(a) of the Constitution. On this foot, it found that Section 66A placed an arbitrary and disproportionate restriction on the right to free speech. It ruled that Section 66A was inconsistent with Article 19(1)(a) of the Constitution and fell beyond the ambit of reasonable restrictions.
In its 189th Report, on December 2015, the Parliamentary Standing Committee on Ministry of Home Affairs recommendedamendments to the IT Act. These provisions shall be like Section 153A and 153B of IPC. Stricter penalties shall be imposed on online mode of hate speech due to the fast and wider spread of online material and its tendency to lead to severe consequences.
SOCIAL MEDIA PLATFORMS
In the recent times, social media platforms have the lions share of most widespread hate speech. Reported number are increasing day-by-day. A Sectoral review is as under;
Facebook defines ‘hate speech’ as ‘a direct attack on people based on what we call protected characteristics – race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender, gender identity and serious disability or disease’.
Community guidelines must be adhered by everyone who uses the platform. An ‘attack’ is defined as ‘violent or dehumanizing speech, statements of inferiority, or calls for exclusion or segregation’.It attempts to create a balance between the freedom of speech and community respect. Facebook has three categories for the purpose of moderation namely; protected categories, quasi-protected categories and non-protected categories.
Twitter’s General Policy prohibits hateful conduct on their platform. This includes speech directed against a user on the ‘basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease’. Examples of hateful conduct also includes ‘behaviour that incites fear about a protected group’ and ‘repeated and/or or non-consensual slurs, epithets, racist and sexist tropes, or other content that degrades someone’.
The abuse or threats, directed through a user’s profile information, which includes ‘multiple slurs, epithets, racist or sexist tropes’ could lead to permanent suspension of accounts. Hateful imaginary shall be removed.
YouTube’s community standards discourage users from uploading hate speech. The policy also states that users should report hateful content by fagging videos or file abuse reports, if required. According to their community guidelines, the YouTube staff review the reported videos and decide whether they should be age-restricted, removed or whether the account should be terminated.
YouTube’s Ad content guidelines also state that content that discriminates or ‘disparages or humiliates an individual or group of people on the basis of the individual’s or group’s race, ethnicity or ethnic origin, nationality, religion, disability, age, veteran status, sexual orientation, gender identity, or other characteristic that is associated with systemic discrimination or marginalization is not eligible for advertising’.
Due to widespread and massive impact of hate speech, laws are required to deter the speakers of such speech and the followers acting upon it. Strong and stringent laws must be applicable to all without any discrimination. On another hand, vague and ambiguous laws shall turn an innocent into criminal. Too many laws relating to a single issue shall not turn out as intended. There shall be a single law that is clear, crisp and precise in accordance with the constitutional law and the international covenants.
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
― George Orwell
- Centre for Communication Governance, Hate Speech Laws in India, National Law University, Delhi (2018); Available at :https://nludelhi.ac.in/res-ccg.aspx
- Convention on Elimination of All Forms of Discrimination against Women; Available at : https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx
- Criminal Procedure Code, 1973
- Ramesh YeshwantProbhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130
- International Convention on the Elimination of Racial Discrimination
- International Covenant of Civil and Political Rights
- PravasiBhalaiSangathan v. Union of India, (2014) 11 SCC
- Rangarajan v. P. Jagjivan Ram, 1989 SCC (2) 574
- Sherya Singhal v. Union of India, AIR 2015 SC 1523
- The Constitution of India, 1950
- The Indian Penal Code, 1860
- The Representation of the People Act, 1951
- Universal Declaration of Human Rights