FREEDOM OF SPEECH VERSUS HATE SPEECH: A LEGAL STANCE

INTRODUCTION

Right to freedom of speech and expression is prime and this right is guaranteed under Article 19(1)(a) of the Constitution of India. However, the misuse of this supreme right has some perils and if it is not used with utmost caution, disruption in harmony will be the consequence.

In order to maintain a consonance in a society where people belonging to different class reside, proper acknowledgement of rights and measures to prevent misuse of these rights has to be implemented. Hate speech is one of the methods through which one can incite violence and hatred towards a person or a group of persons. In the 267th Report of the Law Commission of India, hate speech is stated 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 this article, we will be discussing about the legal framework and Constitutional validity of hate speech with reference to some case laws.

CORRESPONDING SECTIONS IN INDIAN PENAL CODE AND BHARATIYA NYAYA SANHITA

 SECTION 196 OF BHARATIYA NYAYA SANHITA

Section 196 of BNS criminalizes any speech or actions which is likely to disrupt the harmony between groups. This section aims to maintain harmony in society since India is a country where people belonging to different class live together. One of the requirements of this section is to protect Article 25 of the Constitution of India which guarantees right to freedom of religion. While interpreting section 196 BNS, three key words which could be highlighted are ‘promoting’, ‘committing’, ‘organizing’.

Promoting hate between groups based on race, religion, language or region; committing acts which are likely to disturb public peace; and organizing events which may lead to violence or crime attract this section.

Punishment for violating section 196 of BNS stands as, imprisonment for up to three years or fine, or with both and an increased imprisonment for five years if the said offence occurs in a place of worship or during any religious ceremony.

In this century, social media plays a crucial role in reflecting one’s opinion through electronic means. Social media is a platform where people from every nook and corner of the world meet.  Therefore, it is important to maintain decency while using a social media platform to express one’s opinion. Section 196 of BNS also criminalizes promoting hate by visual representation through electronic means. Therefore, this section covers almost every possible ways through which one can promote hate speech, disruption of peace and disharmony in society.

SECTION 197 OF BHARATIYA NYAYA SANHITA

Section 197 of BNS is much similar to that of section 196 of BNS. The interpretation of this section can be summarized as any person, through speech, writing, signs or electronic means; assert that a group of people, who belongs to particular class, religion, caste, language, place of birth etc. cannot bear loyalty to the Constitution of India; encourages that such people should be denied all the rights as Indian citizen; utter statements which creates hatred between group of people; lay out deceiving information which intimidate India’s unity, security or integrity. The punishment under section 197 of BNS is imprisonment up to three years, or fine, or with both and an increased imprisonment for five years if the said offence occurs in a place of worship or during any religious ceremony.

SECTION 299 OF BHARATIYA NYAYA SANHITA

Section 299 of BNS is another slant of hate speech which is parallel to the definition of previously discussed sections. This section anchors the malicious act and intention of a person to outrage the religious feeling of any class by insulting the religion or religious belief. The term ‘act’ includes speech, writing, sign, visible representation and electronic means. The punishment for committing this offence is imprisonment up to three years, or fine, or with both.

SECTION 353 OF BHARATIYA NYAYA SANHITA

Section 353 of BNS not only comprises the segment of hate speech but also includes false information and rumors. To encapsulate this section, it states that; whoever spreads false information, rumors, report which cause military personnel to mutiny; generate fear that may lead anyone to commit an offence against the State or public order; ignite malevolence between different communities. The mode of communication includes electronic means also. The punishment under this is imprisonment up to three years, or fine, or with both and an increased imprisonment for five years if the said offence occurs in a place of worship or during any religious ceremony. Unlike previous three sections, section 353 of BNS hint at an exception to this offence. It states that if the person who makes the statement reasonably believes that the particulars are true and shares in good faith exempts from guilt.

HATE SPEECH AND THE CONSTITUTION OF INDIA

The Constitution of India guarantees right to freedom of speech and expression for the citizen under Article 19(1)(a). The term “right to freedom of speech and expression” means the freedom to think and express one’s thought. However, an absolute right could lead to the misuse of this freedom and eventually disturb the harmony of the society. In other words, absolute freedom of speech and expression could pave the way to target particular group of people and lead to discrimination.

By understanding this perspective, the Constitution has also included certain restrictions on this freedom, as mentioned under Article 19(2). This Article states that clause (1)(a) of Article 19 does not limit existing laws to put reasonable restrictions on freedom of speech and expression and also it does not prevent the State from making new laws to impose reasonable restrictions on freedom of speech and expression. These reasonable restrictions are allowed in the interest of India’s sovereignty and integrity, State security, friendly relations with other countries, public order, decency, morality, contempt of court, defamation, or incitement to an offence.

By reading and interpreting these two Articles together, one can understand that even though the Constitution has protected the right to freedom of speech and expression of its citizen, the draftmen had made provisions to protect the life of certain group of people from hate speech and incitement of violence.

Hate speech is a term that contains deep meaning and actions that could knock down a whole group. Provisions like these aims to make people think about what they say out loud in public. One’s freedom to speak does not contain the right to disrupt the reputation and harmony of another.

CASE LAWS

1. Shaheen Abdulla v. Union of India and Ors, 2022: The Supreme Court directed the authorities to take suo motu action against hate speech. In this case, Supreme Court of India mentioned the growing incidents of hate speech in the country. The court directed the Governments and police to authorities to take suo motu action against such incidents without waiting for lodging of proper complaint. The Supreme Court of India also quoted that there cannot be fraternity unless people belonging to all religious communities are allowed to live in harmony.
2. Pravasi Bhalai Sangathan v. Union of India: The Supreme Court acknowledged the impact of hate speech on fundamental rights but refrained from issuing guidelines, directing the Law Commission to propose legal reforms instead. In this case Pravasi Bhalai Sangatha, which is a welfare organization, filed a public interest litigation which addressed the increase in hate speech. The petitioner argues that this increase in hate speech disrupted the social harmony and also violated the fundamental rights guaranteed in the Constitution of India. The petitioner demanded the court for regulation, legal mechanism and guidelines to prevent hate speech. The petition also focused on the political campaigns during election. The Supreme Court of India understood the gravity of the issues raised and emphasized on the prevention of Hate speech. The court also admitted that the hate speech violated the fundamental rights of a citizen. However, the court didn’t issue immediate guidelines. Instead, the court asked Law Commission to study the issue and suggest legal reforms.
3. Jafar Imam Naqvi v. Election Commission of India: Court dismissed petition stating it does not qualify as public interest litigation under Article 32 and that existing laws govern the issue. In this case, the petitioner challenged hate speeches made during the election. The petitioners requested a court order directing the Election Commission to take action against such acts. However, the court dismissed the petition stating that this matter does not qualify as public interest litigation under Article 32. The court also stated that the court cannot interfere in matter where laws already exist.

METHODS TO COMBAT HATE SPEECH

Proper education and acknowledgment is the first and most important strategies to prevent hate speech. By making proper conversation and raising awareness, people must be able to understand the consequences and societal harm that could be create through hate speech.

Proper execution of existing laws is another important strategy. We have discussed about the legal framework against hate speech. Proper and speedy execution of these laws will make people to realize the consequences they have to face while giving a hate speech. Eventually, this will prevent the increase in hate speech.  

CONCLUSION

The Constitution of India guarantees right to freedom of speech and expression to the citizen of India. Having the right to freedom of speech is supreme since it is the foundation of democracy. However, this right should be handled with utmost care, securing the right and dignity of others. The reasonable restrictions in this right target the protection of certain group of people from hatred, violence and discrimination. Hate speech, in particular, is a trail which could incite violence and hatred towards a person or group of persons for variety of reasons such as caste, religion, ethnicity, language etc. Hence it sets a significant threat to social harmony.

In a diverse country like India, where cross- culturalism and coexistence are fundamental values, regulation and prevention of hate speech is essential to maintain peace. Understanding the law and proper execution of existing laws will prevent the escalation of hate speech and ultimately it will protect the fundamental rights of every citizen which are guaranteed under the Constitution of India. There are certain legal frameworks which provide safeguard against such unlawful acts.

The Constitution of India protects the right to freedom of speech of its citizen as well as provides reasonable restriction for that right. A proper approach is necessary to uphold both concepts. Public awareness, proper education, acknowledgement of consequences can aid to achieve a society where right and dignity of every person is protected. Ultimately, the constitutional values will be implemented and will uphold the dignity and fundamental rights of every citizen.

REFERENCES

1. Free Law, Hate speech: Laws in India, 02 June 2023 https://www.freelaw.in/legalarticles/Hate-speech-Laws-in-India
2. Drishti judiciary, Freedom of speech and expression, 20 November 2023 https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/freedom-of-speech-&-expression
3. Jyoti Prasad, The Amikus Qriae, case comment https://theamikusqriae.com/case-commentary-on-pravasi-bhalai-sangathan-v-union-of-india/
4. AbhinaV Chandrachud, Republic of Rhetoric Free Speech and the Constitution of India, 2017
5. Shaheen Abdulla v. Union of India and Ors, 2022, W.P (C) No- 000940/2022
6. Pravasi Bhalai Sangathan v. Union of India, W.P (C )No- 157of 2013
7. Jafar Imam Naqvi v. Election Commission of India, AIR 2014 Supreme Court 2537
8. Indian Penal Code, 1860
9. Bharatiya Nyaya Sanhita, 2023
10. The Constitution of India