PSDA – JURISPRUDENCE

HATE SPEECH IN INDIA

Gunjeet Singh (06617703817) and Himanshu Saini (07117703817)

INTRODUCTION TO HATE SPEECH

UN Strategy and Plan of Action on Hate Speech 1 defines Hate Speech as “any kind of
communication in speech, writing or behaviour, that attacks or uses pejorative or
discriminatory language with reference to a person or a group on the basis of who they are,
in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender
or other identity factor. This is often rooted in, and generates intolerance and hatred and, in
certain contexts, can be demeaning and divisive.”

As per Encyclopedia Brittanica2 “Typical hate speech involves epithets and slurs,
statements that promote malicious stereotypes, and speech intended to incite hatred or
violence against a group. Hate speech can also include nonverbal depictions and symbols. For
example, the Nazi swastika, the Confederate Battle Flag (of the Confederate States of
America), and pornography have all been considered hate speech by a variety of people and
groups. Critics of hate speech argue not only that it causes psychological harm to its victims,
and physical harm when it incites violence, but also that it undermines the social equality of
its victims. That is particularly true, they claim, because the social groups that are commonly
the targets of hate speech have historically suffered from social marginalization and
oppression. Hate speech therefore poses a challenge for modern liberal societies, which are
committed to both freedom of expression and social equality. Thus, there is an ongoing
debate in those societies over whether and how hate speech should be regulated or censored.”

FREEDOM OF SPEECH AND EXPRESSION UNDER THE CONSTITUTION OF

INDIA

Under the Constitution of India, Article 19(1)(a) provides for the freedom of speech and
expression and Article 19(2) provides for reasonable restrictions on this right on 9 grounds-
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.

Justice Holmes of the U.S. Supreme Court in Schenck v. United States 3 enunciated the clear
and present danger test as follows:

"...The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic. It does not even protect a man from an
1
https://www.un.org/en/genocideprevention/documents/UN%20Strategy%20and%20Plan%20of%20Action
%20on%20Hate%20Speech%2018%20June%20SYNOPSIS.pdf
2
https://www.britannica.com/topic/hate-speech
3
63 L. Ed. 470
 injunction against uttering words that may have all the effect of force. Gompers v.
Buck's Stove & Range Co., 221 U. S. 418, 439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L.
R. A. (N. S.) 874. The question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree." 

Following the aforesaid test, the Indian Supreme Court in Shreya Singhal v. Union of
India4 the Supreme Court observed

“…what is the content of the expression "freedom of speech and expression". There
are three concepts which are fundamental in understanding the reach of this most
basic of human rights. The first is discussion, the second is advocacy, and the third is
incitement. Mere discussion or even advocacy of a particular cause howsoever
unpopular is at the heart of Article 19(1)(a). It is only when such discussion or
advocacy reaches the level of incitement that Article 19(2) kicks in.”

Reasonable Restrictions under Article 19(2) of the Constitution of India

In Chintaman Rao v. The State of Madhya Pradesh5 this Court said:

"The phrase "reasonable restriction" connotes that the limitation imposed on a

person in enjoyment of the right should not be arbitrary or of an excessive nature,
beyond what is required in the interests of the public. The word "reasonable" implies
intelligent care and deliberation, that is, the choice of a course which reason
dictates."

In State of Madras v. V.G. Row6 this Court said:

"It is important in this context to bear in mind that the test of reasonableness, where
ever prescribed, should be applied to each, individual statute impugned and no
abstract standard, or general pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to have been infringed, the
underlying purpose of the restriction imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict. In evaluating such
elusive factors and forming their own conception of what is reasonable, in all the
circumstances of a given case, it is inevitable that the social philosophy and the scale
of values of the judges participating in the decision should play an important part,
and the limit to their interference with legislative judgment in such cases can only be
dictated by their sense of responsibility and self- restraint and the sobering reflection
that the Constitution is meant not only for people of their way of thinking but for all,
and that the majority of the elected representatives of the people have, in authorising
the imposition of the restrictions, considered them to be reasonable.”

4
AIR 2015 SC 1523
5
[1950] S.C.R. 759
6
[1952] S.C.R. 597
LEGISLATIONS IN INDIA ON HATE SPEECH

(i) The Indian Penal Code, 1860

 Section 124A IPC penalises sedition

 Section 153A IPC penalises ‘promotion of enmity between different groups on grounds of
religion, race, place of birth, residence, language, etc., and doing acts prejudicial to
maintenance of harmony’.

 Section 153B IPC penalises ‘imputations, assertions prejudicial to national-integration’.

 Section 295A IPC penalises ‘deliberate and malicious acts, intended to outrage religious
feelings of any class by insulting its religion or religious beliefs’.

 Section 298 IPC penalises ‘uttering, words, etc., with deliberate intent to wound the
religious feelings of any person’.

 Section 505(1) and (2) IPC penalises publication or circulation of any statement, rumour
or report causing public mischief and enmity, hatred or ill-will between classes.

(ii) The Representation of The People Act, 1951

 Section 8 disqualifies a person from contesting election if he is convicted for indulging in

acts amounting to illegitimate use of freedom of speech and expression.

 Section 123(3A) and section 125 prohibits promotion of enmity on grounds of religion,
race, caste, community or language in connection with election as a corrupt electoral practice
and prohibits it.

(iii) The Code of Criminal Procedure, 1973

 Section 95 empowers the State Government, to forfeit publications that are punishable
under sections 124A, 153A, 153B, 292, 293 or 295A IPC.

 Section 107 empowers the Executive Magistrate to prevent a person from committing a
breach of the peace or disturb the public tranquillity or to do any wrongful act that may
probably cause breach of the peace or disturb the public tranquillity.

 Section 144 empowers the District Magistrate, a Sub-divisional Magistrate or any other
Executive Magistrate specially empowered by the State Government in this behalf to issue
order in urgent cases of nuisance or apprehended danger. The above offences are cognizable.
Thus, have serious repercussions on liberties of citizens and empower a police officer to
arrest without orders from a magistrate and without a warrant as in section 155 CrPC.

(iv) The Religious Institutions (Prevention of Misuse) Act, 1988

 Section 3(g) prohibits religious institution or its manager to allow the use of any premises
belonging to, or under the control of, the institution for promoting or attempting to promote
disharmony, feelings of enmity, hatred, ill-will between different religious, racial, language
or regional groups or castes or communities.

JUDICIAL PRONOUNCEMENTS IN INDIA ON HATE SPEECH –

1) In Ramji Lal Modi v. State of U.P.7 the Supreme Court upheld the constitutional validity
of this S. 295A IPC and ruled that this section does not penalise every act of insult to or
attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalises 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.’20 It was also held by the Court that the
expression in the ‘interest of public order’ mentioned in article 19(2) is much wider that
‘maintenance of public order’. Therefore, even if an act does not actually cause breach of
public order, its restriction ‘in the interest of public order’ will be deemed reasonable.

2) In Ramesh v. Union of India8 the Supreme Court observed

“The problem of defining the area of freedom of expression when it appears to

conflict with the various social interests enumerated under Article 19(2) may briefly
be touched upon here. There does indeed have to be a compromise between the
interest of freedom of expression and social interests. But we cannot simply balance
the two interests as if they are of equal weight. 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. The
anticipated danger should not be remote, conjectural or farfetched. It should have
proximate and direct nexus with the expression. The expression of thought should be
intrinsically dangerous to the public interest. In other words, the expression should
be inseparably locked up with the action contemplated like the equivalent of a "spark
in a powder keg".

3) In Babu Rao Patel v. State of Delhi9 the Supreme Court held that S. 153A(1) IPC is not
confined to the promotion of feelings of enmity etc. on grounds of religion only, but takes
into account promotion of such feelings on other grounds as well, such as race, place of birth,
residence, language, caste or community.

4) The Delhi High Court observed, in relation to S. 153A IPC, in Trustees of Safdar
Hashmi Memorial Trust v. Government of NCT of Delhi10:

“Absence of malicious intention is a relevant factor to judge whether the offence is

committed. It can be said to be promoting enmity only where the written or spoken
7
AIR 1957 SC 620
8
AIR 1988 SC 775
9
AIR 1980 SC 763
10
2001 CriLJ (Delhi) 3689
 words have the tendency or intention of creating public disorders or disturbances of
law and order or affect public tranquillity. Mens rea has to be proved for proving
commission of the offence.”

5) The Orissa High Court, as early as 1952, in Narayan Das v. State11 observed in relation to
a Babaji, who had been accused of commission of offence under S. 295A IPC for alledgedly
making defamatory statements to Lord Jagganath,

“It should be remembered that the Babaji had already induced a belief in the minds
of several villagers that he was living God. He was undoubtedly free to preach about
the divinity in him and to dissuade people from idol worship. His object in saying that
Lord Jagannath at Bonaigarh was merely a piece of wood was to contrast his
position as living God with that of the inanimate object at Bonaigarh in furtherance
of his preaching against idol worship. The primary or dominant intention was
therefore to emphasise his own divinity and not to deliberately wound the religious
feelings of others by insulting Lord Jagannath.”

INTERNATIONAL HUMAN RIGHTS LAW ON HATE SPEECH –

The Law Commission of India in its 267 th Report12 summarized the legal position as regards
International Human Rights Law as follows:

“5.11 Broadly, international human rights law requires that measures which limit or
restrain the freedom of speech and expression may do so only where the ‘three-part
test’111 is satisfied. This standard requires that the measure by which a human right
is being curtailed, must satisfy the following requirements:

▪ The measure must by prescribed by law. This requirement is satisfied where the
right is curtailed by means of a law passed through the appropriate procedures and
through provisions worded in explicit and unambiguous language.
[Prescription by law]

▪ The measure must directly satisfy a legitimate aim.

[Legitimate aims]

▪ The measure must be necessary to achieve its stated aim and must be proportionate
to the harm that it attempts to prevent or redress. The standard of proportionality in
this context has also been understood to include a requirement for minimum
impairment of the right being restricted, i.e., the restriction must not do any more
damage to the right than is absolutely necessary to meet its aim. [Necessity and
proportionality]”

LAW COMMISSION RECOMMENDATIONS-

11
AIR 1952 Orissa 149
12
http://lawcommissionofindia.nic.in/reports/Report267.pdf
The Supreme Court in Pravasi Bhalai Sangathan v. Union of India 13 referred to the Law
Commission to examine if it ‘deems proper to define hate speech and make recommendations
to the Parliament to strengthen the Election Commission to curb the menace of “hate
speeches” irrespective of, whenever made.’

The Law Commission of India in its 267 th Report14 in March 2017 examined the said issue
and made the following recommendations –

A) Insertion of Section 153 C to the Indian Penal Code, 1860 –

"153 C. Whoever on grounds of religion, race, caste or community, sex, gender

identity, sexual orientation, place of birth, residence, language, disability or tribe -
(a) uses gravely threatening words either spoken or written, signs, visible
representations within the hearing or sight of a person with the intention to cause, fear
or alarm; or
(b) advocates hatred by words either spoken or written, signs, visible representations,
that causes incitement to violence shall be punishable with imprisonment of either
description for a term which may extend to two years, and fine up to Rs 5000, or with
both.".

B) Insertion of Section 153 C to the Indian Penal Code, 1860

"505 A. Whoever in public intentionally on grounds of religion, race, caste or

community, sex, gender, sexual orientation, place of birth, residence, language,
disability or tribe -
Uses words, or displays any writing, sign, or other visible representation which is
gravely threatening, or derogatory;
(i) within the hearing or sight of a person, causing fear or alarm,
or;
(ii) with the intent to provoke the use of unlawful violence, against that person or
another, shall be punished with imprisonment for a term which may extend to one
year and/or fine up to Rs 5000, or both".

13
AIR 2014 SC 1591
14
http://lawcommissionofindia.nic.in/reports/Report267.pdf