NAME OF THE COURSE:-NCP 1

A Critical Analysis Of Media Law And Hate Speech

BY
YASH SINHA
19FLICHH010226
2023

SUBMITTED TO: DR. KATYANI JUNEJA SHARMA

DESIGNATION: ASST.PROF

MEDIA LAW

DATE OF SUBMISSION:-31/01/2023
 TABLE OF CONTENT

Topics Page no
CHAPTER 1: INTRODUCTION
1.1 Subject of problem
1.2 Research questions
1.3 Hypothesis
1.4 Research Methodology
CHAPTER 2: PROVISIONS RELATING
TO HATE SPEEC
CHAPTER 3: Election laws and hate
speech
CHAPTER 4: MEDIA LAW AND HATE
SPEECH
CHAPTER 5: CONCLUSION AND
SUGGESTIONS
5.1 Conclusion
5.2 Suggestions
 TABLE OF CASES CITED

1.Abhiram Singh v C.D. Commachen

2.Arundhati Roy, Hurriyat leader Syed Ali Shah Geelani
3.Babulal Parate v. the State of Maharashtra, 1961 SCR (3) 423).
4.Balwant Singh (n. 4)
5.Ramji Lal Modi Vs. state of UP17
6.Virendra v. State of Punjab, AIR 1957 SC 836).

LIST OF STATUTES

• Article 19 (2)
• article 19(1) (a)
• Indian Penal Code, 1860
• Section 124 penalizes sedition.
• Section 153A penalizes promotion of enmity between different groups on the grounds of
caste, sex, religion, place of residence, etc., and doing acts prejudicial to maintenance of
harmony.
• Section 153B penalizes assertions and imputations prejudicial to national integration.
• Section 298 penalizes uttering of any words with intent to hurt any religious sentiments.
• Section 505(1) and (2) penalizes publication or circulation of any statement, reports, etc.,
causing public mischief and hatred between classes.
 CHAPTER 1
A Critical Analysis Of Media Law And Hate Speech

INTRODUCTION:

According to Oxford, the definition of hate speech is expression that is likely to offend or
distress other people due to their affiliation with a particular group and/or provocation.

Freedom of speech and expression is a recognised worldwide right. The right to freedom of
speech and expression is an absolute right. As a result, different discussions have shown that it is
a very contentious issue to determine how much freedom of speech and expression should be
allowed. Therefore, throughout time, the constitutional experts of different constitutional
benches have established a line of demarcation beyond which such freedom is illegal and
requires careful consideration.This article talks about the constitutional foundation of hate speech
in India extending the discussion of the expression towards its consequences and procedure to
deal with such matters in IPC and CrPC respectively.

SUBJECT OF PROBLEM:

One of the biggest dangers to society's sense of order is hate speech. It has always been mistaken
for the freedom of expression protected under Article 19 of the Indian Constitution. One need not
constantly concur with what is going on in the world. Citizens in nations like India are free to
express their thoughts, regardless of whether they agree with the general opinion or the ruling
party. The researcher seeks to distinguish between hate speech, sedition, and the right to protest
in this research article. The researcher also draws attention to the hate speech that is expressed on
numerous platforms in India and examines whether the judiciary has played a significant role in
ensuring that freedom of expression has been maintained by restricting or eliminating hate
speech.

RESEARCH QUESTION:

1.How is hate speech spread through social media?

2.Has the judiciary played an important role to minimize or curb hate speech in India? 3.What is
the impact of hate speech on freedom of speech and expression guaranteed under Article 19(1)
(a) of the Indian constitution.
RESEARCH HYPOTHESIS:

Hate speech is one of the biggest threats to the public order of the society. It has always been
confused with the right to dissent guaranteed under Article 19 of the Indian constitution. One
need not always agree with everything happening around them. In countries like India, citizens
have a right to voice out their opinions irrespective of it aligning with the public majority and the
government.

RESEARCH METHODOLOGY:

The core focus of the thesis is analysing the implications of private regulation on hate speech on
social media. To achieve this aim, this paper will employ various legal research methods. With
regards to identifying the definition of hate speech, doctrinal, comparative and critical methods.

The nature of hate speech intrinsically requires inter-disciplinary research methods. Especially,
the comprehensive analysis of hate speech on social media and its effects could hardly be
conducted only through doctrinal methodology. This type of analysis will particularly be
beneficial to understand the implications of hate speech that can be disseminated very quickly
without national border restrictions and by anyone, to further understand theoretical challenges
imposed by hate speech.

Hate speech through social media:

Only a reflection of society may be found on online platforms. Online venues now make it safer
for people to voice thoughts that they might have otherwise held in for fear of criticism.
Hate speech on social media is a societal issue rather than a technological one. 49 worshippers
were killed in New Zealand when a terrorist opened fire at two mosques. 14 The attacker
broadcast the assault live on Facebook. The video was eventually removed from Facebook and
Twitter, but not before it was seen by the majority of people in the world. False news and hate
speech have an impact on how society functions.Fake news and hate speech in India often refer
to people's caste, religion, sex, and gender, which are real sensitive subjects for the majority of
Indians. The Indian Penal Code, Information Technology Act, Code of Criminal Procedure, and
other inadequate laws are sprinkled with provisions that deal with hate speech. The need to
reconcile the current laws is there now. As disinformation spreads across internet networks, hate
speech has increased on social media platforms. WhatsApp and other social networking apps are
become the most popular platforms for propagating hate speech. Attacks on individuals and mob
lynchings continue to occur despite the company's efforts to educate its users about the dangers
of disseminating false material that qualifies as hate speech.
Role of judiciary to minimize hate speech:

When hate speech and acts of violence rise on social media platforms, it is the responsibility of
the higher judiciary to guarantee that these incidents are kept to a minimum. The judiciary's
function, though, has been uneven. For instance, Tablighi Jamaat members were the target of
viral social media campaigns that sought to defame them, and petitions were filed asking the
Supreme Court to get involved. The matter was, however, dismissed by the court. In the
Sudarshan News TV case, the court didn't become involved until some of the episodes had
already aired.In 2020 Delhi right hate speech case, the Chief Justice of Delhi High Court gave
the union government 4 weeks to respond when the court at least could have directed the filing
of an FIR against the accused.

Hindutva group raised slogans against minority community. A petition was fired to ensure that
the police prevented such crimes. Our court simply tagged the petition with similar other
positions. After this case genocide were made at religious conclave at Haridwar. It is only after
the Supreme Court intervened in the matter, the arrest was made
 CHAPTER 2
PROVISIONS RELATING TO HATE SPEECH:1

Freedom of Speech and Expression is protected as a fundamental right in the Lengthiest

Constitution i.e. Constitution of India under Article 19(1)(a) which states as all citizens shall
have the right to freedom of speech and expression.

However, under Art 19(2), a reasonable restriction has been put forth by the Indian constitution
where the word reasonable should strike a balance between the use and misuse of this freedom.
As per Article 19(2) of the Indian constitution, it reads as follows:

“Nothing in Article 19(1)(a) shall influence the operation of any existing law, or prevent the
State from making any law, in thus far intrinsically law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the nation, friendly relations with foreign States, public order,
dignity or morality or in relation to contempt of court, defamation or instigation to an offence.”

If a restriction does not fall under Art. 19(2), it must nevertheless be fair. The range of
reasonability can be used to evaluate exceptional occurrences, but it cannot be applied
consistently to all situations. The Supreme Court has concluded that no abstract rules are
frequently made relevant to all or any circumstances, thus each specific statute that is being
challenged must be put to the same standard of reasonableness.(Ref: Row (n. 10); Virendra v.
State of Punjab, AIR 1957 SC 836).

In Article 19(2), the term "In the interest of" refers to the limitation placed on this right in order
to safeguard the nation's sovereignty, integrity, security, and relations with other states, hence
allowing for a small number of exceptions to the absolute freedom of speech and expression1.

As long as it complies with Article 19's provisions, the SC decided that an anticipatory action or
previous constraint on expression is acceptable.(Ref: Babulal Parate v. the State of
Maharashtra, 1961 SCR (3) 423).

1A critical analysis of Media Law and hate speech (2022) NYAAYSHASTRA LAW REVIEW.
Nyaayshastra. Available at: https://hcommons.org/deposits/item/hc:46865/ (Accessed: January 31, 2023).
Public order has been an exception that has received a liberal interpretation in a number of
decisions made by constitutional courts, along with other exceptions mentioned in Art. 19(2).
This exemption covers any actions that may result in public disorder, regardless of whether there
is any actual disruption brought on by the activity or not. If a legislation does not specifically
address public order, it may be interpreted to be "in the interest of" public order.(Ref: Ramji Lal
Modi Vs. state of UP17 (Ramji Lal Modi), Public order has been further read to mean
‘public peace, safety and tranquillity’. (Ref; Lohia-I (n. 19), para 11)

India Penal Code and hate speech2

The Indian Penal Code has several clauses that apply to hate speech. These Sections make hate
speech illegal and outline the penalties for doing so. According to Section 153A of the IPC, acts
that are harmful to maintaining harmony and the promotion of hostility between groups of people
on the basis of factors like race, religion, place of birth, and language are both crimes. The
maximum sentence for such offences is five years in prison and a fine.

An essential and significant component of this crime has been the intention. Mens Rea must be
established in order to establish the commission of the offence. (Citation: Balwant Singh (n.
4)Although it may not be an absolute defence under Section 153A, the truth may be used as a
defence in this offence. History-related facts can be used as a defence to some extent, but it is
ineffective because it often breeds animosity and enmity among various communities,
organisations, and groups.

Section 153B of the IPC, which criminalizes imputations and assertions by speech directed
towards certain members of a group which arises by virtue of them being a member of such a
community prejudicial to national integration holding them liable for such speech2.

Section 295 of the Indian Penal Code 1860, which criminalizes the destruction of places of
worship or sacred objects. In this section, the intention or knowledge of likelihood to insult is an
important factor that must be done along with the destruction or injury to the place of worship or
sacred object.

Section 295A of the IPC 1860, which criminalizes deliberate and malicious acts that outrage the
religious feelings of any class of people by insulting their religion or religious beliefs. Critique
done in good faith should be protected by law which needs a high threshold of deliberate and

2 -, R.G. et al. (2021) Hate speech in India, iPleaders. Available at: https://blog.ipleaders.in/hate-speech-
india/#India_Penal_Code_and_hate_speech (Accessed: January 31, 2023).
Admin (2023) Freedom of speech and expression [Article 19(1)(a)] - indian polity notes,
malicious intention for unlawful speech that would outrage the religious feeling of any class of
people where truth is no defense. The offence under Section 295A is cognizable and a non-
bailable and non-compoundable offence. The police are authorized to arrest a person charged
under Section 295A of IPC with a warrant.

Section 298 of the IPC, criminalizes speech that would hurt the religious sentiments of a person.
‘Deliberate intention’ is the necessary component to be proved by the victim or the community
whose religious feelings have been hurt or insulted by the accused. In comparison to Sections
295A and 298, the former is applicable to much graver instances of hate speech. Further, Section
298 applies only to speech against ‘any’ person, as opposed to a section or class of people3.

Section 505 of the IPC, criminalizes the publication or circulation of certain statements, rumours
or reports, intention of such statement or the effect of such a statement is to create mischief and
to upset the public tranquillity. Therefore, the text of Section 505 of IPC provides for a wider
scope and application. Whereas Section 502 is interpreted conservatively by the judiciary, such
interpretation falls under the ambit of reasonable restriction of public order as stated in Article
19(2) of the Indian Constitution. Section 505 of the IPC is direct to check and punish the
spreading of false and mischievous news intended to upset the public tranquillity.

Section 124A of the IPC talks about sedition and penalizes it stating that if any words written or
spoken promotes hatred or contempt disaffection against the government established by law is
said to be charged under Section 124A.

The Law Commission in its 267th report recognizes the discrimination faced by groups based on
‘sex, gender identity and sexual orientation’, such people facing discrimination should also be
provided protection under hate speech laws.

There are various famous case laws of which one is the case of Arundhati Roy, Hurriyat
leader Syed Ali Shah Geelani and others were booked under section 124A by Delhi Police
for their “anti-India” speech at a seminar in 2010, for advocating independence for the
clashed Kashmir region. The other famous case was in 2003 in which Praveen Togadia was
charged with sedition by the Rajasthan government. The charges impose an attempt “to
wage a war against the nation.”3

3A critical analysis of Media Law and hate speech (2022) NYAAYSHASTRA LAW REVIEW.
Nyaayshastra. Available at: https://hcommons.org/deposits/item/hc:46865/ (Accessed: January 31, 2023).
 CHAPTER 34

Election laws and hate speech

Section 123 of Representation of people act (RPA), 1951 deals with corrupt electoral parties.
Several sections of this Act prohibit candidates from engaging in fraudulent electoral practises
that could result in the annulment of an election if they were made in the name of the candidate's
religion, the election agent's religion, the opponent's religion, or the voter's religion. (ref:
Abhiram Singh v C.D. Commachen).

According to Section 123, it is corrupt electoral practise to urge someone to vote or not vote
based on their race, religion, caste, community, or language, or to use national symbols or
religious symbols to influence an election (3)4.

Promotion of hatred on the basis of a person's race, religion, caste, community, or language, or
using religious or national symbols as rallying points is prohibited under Section 123. (3A)

In the case of Abhiram Singh v C.D. Commachen, a seven-judge Constitution Bench held that
an election will be void if votes are sought in the name of the religion of the contestant 5.

4 How can hate speech be countered in India? (no date) Samajho Learning. Available at:
https://samajho.com/upsc/how-can-hate-speech-be-countered-in-india/ (Accessed: January 31, 2023).
5 Venkataramanan, K. (2023) Explained: What is 'hate speech,' and how is it treated in Indian law?, The

Hindu. Available at: https://www.thehindu.com/news/national/explained-what-is-hate-speech-and-how-is-

it-treated-in-indian-law/article64851585.ece (Accessed: January 31, 2023).
 CHAPTER 4

MEDIA LAW AND HATE SPEECH5

The Cinematography Act of 1952 regulates the showing of films and frames other regulations
giving the state the authority to take enforcement action against such a showing of films.
Sections 4 and 5B, as well as

A number of laws, including Section 7 of the Cinematography Act of 1952, provide the Board of
Film Certification the authority to forbid and control film screenings. Section 4 discusses the
analysis of the movie.

A film may not be certified for public exhibition, according to Section 5B, if the authority with
the authority to grant the certification believes that the film or any portion of it is against the
security, sovereignty, and integrity of the state, friendly relations with foreign states, public
order, decency, or morality, or contains defamation or court disobedience, or is likely to incite
the commission of any crime.

Penalties for violating this part are discussed in Section 7.

6 Venkataramanan, K. (2023) Explained: What is 'hate speech,' and how is it treated in Indian law?, The Hindu. Available at:
https://www.thehindu.com/news/national/explained-what-is-hate-speech-and-how-is-it-treated-in-indian-law/article64851585.ece (Accessed: January 31, 2023).
 CONCLUSION

Since there is no clear definition of what constitutes "hate speech" or "not hate speech," there has
been debate about the scope of free speech protections in our constitution. The term "hate
speech" is used in the context of this article to refer to any speech, writing, or behaviour that
attacks or employs disparaging or discriminatory language in relation to an individual or a group
based on who they are, that is, based on their religion, ethnicity, nationality, race, colour,
descent, gUnder numerous articles of the Indian Penal Code, encouraging communal strife or
feelings of animosity amongst diverse religious, racial, linguistic, or regional groups, castes, or
communities is considered the crime of hate speech. The CrPC has finished all the aspects
related to developing all the procedure for the criminalised offences in order to give the
procedural aspect.

The freedom of speech and expression has recently been greatly impacted by hate speech. Hate
speech results in public commotion and social unrest. We are forced to consider that we cannot
limit the scope of freedom of speech and expression as a result of the recent inclusion of the
LGBT population. This development also provides a future opportunity to broaden our thinking
in favour of a more liberal stance.

Under RPA, 1951, corrupt election methods by politicians are forbidden. To stop hate speech
and its future spread, strict restrictions are required.

Due to the widespread dissemination of false information across internet platforms in today's
society, the issue of hate speech has also increased on social media platforms. WhatsApp,
Facebook, and Twitter are just a few of the social networking platforms that are frequently used
to promote hate speech. Another major concern for social networking sites is trolls on social
media. Trolling is the act of defaming someone by publishing an inflammatory or offensive
message on social media.
 SUGGESTION:

Many suggestive measures have been taken by the law like :- Under the Prevention of Atrocities
Act, 1989, speech intended to denigrate and harm members of the SC or ST community by
anyone who is not a member of such communities is prohibited. The burden of proof rests with
the prosecution to establish what constitutes this crime. Speech posting on social media has
occurred despite some services, like twitter, forbidding it.

In a democracy, where everyone has the right to their own expression and viewpoint, freedom of
speech and expression are crucial. But instances of hate speech have significantly increased in
India over the past few years. Only a few media outlets transmit content that circulates across
numerous groups on a communal level. A person finds it challenging to communicate their
opinions due to the recent intense political pressure. Legislators occasionally abuse the law by
applying it to those they view as threats. It is done to suppress those who criticise and raise
issues with how the government operates.

Many of the legal restrictions on hate speech that are in place today date back to the days before
the Internet. Specialized law to control hate speech spread on the Internet and, notably, social
media, is urgently needed.

It is possible to make reference to the Australian federal law known as the Criminal Code
Amendment Act, 2019, which holds Internet service providers accountable if they know that any
obscene or violent content which is defined to include content that a reasonable man would find
offensive is accessible through the service they provide.

Political parties and the legislature should take disciplinary measures by suspending or expelling
any individuals involved in hate crimes or acts of hate speech. Such people and organisations
should face harsh disciplinary measures.Code of conduct: As part of its efforts to create a "digital
single market," the European Union has also adopted a code of conduct to prevent the spread of
hate speech.

It calls for cooperative, autonomous, inclusive regulation that adheres to global best practises for
content filtering and privacy rights while being tailored to local and cultural norms.In order to
address the problem of hate speech, the Law Commission of India proposed that new provisions
be added to the IPC
 BIBLIOGRAPHY

1.https://blog.ipleaders.in/hate-speech-india/#India_Penal_Code_and_hate_speech

2.https://hcommons.org/deposits/item/hc:46865/

3./a-critical-analysis-of-media-law-and-hate-speech.pdf.pdf

4.https://samajho.com/upsc/how-can-hate-speech-be-countered-in-india/