Post-colonial India has earmarked in the Preamble of its Constitution that the nation is Sovereign, Socialist, Secular, Democratic, Republic, Justice, Liberty and Equality. The term democracy has grown to the extent that for running a government, to win the elections, the proposed representative of the people of India contesting for election took free license to discriminate any group, defame any set of people and even to the extent to express hatred towards a particular group in open without hesitation. Once this desert was in thirst of freedom; now it is spilling back to ocean.
The scope, demand and utility of hate speech arise often a year towards elections and wholly shuts on the final day of election campaign. Hate speech is not just limited to this. Whenever an issue arises in the state or at central level the same hate speech works. It is to look that whether hate speech resolve the issue on which the hate speech sprouted out. In fact democracy thrives on disagreements provided they do not cross the boundaries of civil discourse.
WHAT EXACTLY IS HATE SPEECH?
Indian Law has no definition for hate speech. But the meaning of the term can be carved from various acts recognized as offences such as sedition, promotion of enemity between different groups on grounds, imputations and assertions prejudicial to national integration, deliberate and malicious act based on religion, sex, race, place of birth etc.; rumour or report causing public mischief under the Indian Penal Code; acts disqualified under several legislations such as the Representation of the People Act, 1951, provisions penalizing incitement to and encouragement of untouchability under the Protection of Civil Rights Act, 1955 etc. Drawing from the available sections and essence intending to portray hate speech; it is expressly targeting a particular group based on geography, religion, sex, place of birth or any other discriminating factor, for the purpose of winning or achieving the target socially, economically and politically.
WHY HATE SPEECH HAS WIDE SCOPE IN A DEMOCRATIC SOCIETY?
In a democratic system of governance, it is “for the people, of the people and by the people”. Theoretically, democracy is a dividend of utilitarianism but the practice have put shrugs on the theory rather than giving wings. Democratic system of governance shows green card for representation of the people and public interest governance in consonance with the public laws of the land. Public laws are for protecting the public interest and whoever wins the public interest would survive and be empowered to decide the governance for the future.
Winning public interest in the modern times is tedious hence crafting dummies to make the people believe and trust that the government which hails in future would actually meet the public interest. India is a country with multiple political parties where the two to three are strong enough to grow and secure monopoly in any near future. Hence there exist a tough competition to win the hearts of many through winning the public interests across the nation.
Since achieving every single public interest is cumbersome; pointing towards the flaws of ruling party which may or may not have a religious back up and flaming the emotions of the public at large through continuous hate speech was a trend in early nineties and the immediate years of second millennium. Hate speech was therefore procuring a wide scope with respect to democracy in India.
TREND TO OFFENCE: JOURNEY
As the ruling party and the opposition gave thrust on hate speech and rending unfulfilling promises to the public, the parties started achieving governance for some period. Afterwards the public intensified their protests for hate speech and raised their grievances to the court of law, the judiciary recognized the actual need for preventing and implementing penalties for hate speech.
The judicial intervention can be remarkably traced initially in the landmark case of Brij Bhushan v. State of Delhi in 1950 where it was opined for constitutional amendment to insert public order as a ground under art. 19(2).
Thereafter in Ram Manohar Lohiya v. State of Bihar [1966], the apex court portrayed observance of three concentric circles that is law and order with widest radius, followed by public order and finally the security of the state. On hate speech the law and order is undoubtedly affected due to the aggressive emotions raised between people and the consequential riots and protests. Due to the same, there occurs loss of public order and hence it extends higher probability to challenge and affect the security of the state. Hence the three concentric circles are achieved. Once the security of the nation and the law and order of the state gets affected by a trend, it will have to demarcate as an offence under appropriate law and the punishment shall be implemented. The Lohiya case was stood on violation of grounds under article 19(2) of the Indian Constitution.
Ramji Lal Modi v. State of U.P is another milestone to identify the defects of hate speech which was a trend during those days. But in Ramesh v. Union of India, the court indulged that a movie that intends to impart a message of peace cannot be considered to violate 19(1) (a) just on the ground that it shows fanaticism and violence in order to express the futility of such acts.
In 2014 vide case Pavasi Bhalai Sanghatan v. Union of India the Supreme Court requested the law commission to examine the issues raised pertaining to hate speech and make recommendation to the Parliament to strengthen the Election Commission to prevent hate speech in that respect.
The tremor of hate speech was spread throughout the nation in a modernized manner during the historic judgment in Shreya Singhal v. Union if India [2015], where the Supreme Court held section 66A is unconstitutional. The court analyzed this case and has drawn differences between discussion and advocacy from incitement and held that it is the essence of article 19(1) of the Indian Constitution.
It can be seen that the judiciary is crafting and winding wires of restriction in accordance with technology, modernization in the society and public perspective.
UPDATING LAWS BY HATE SPEECH LAW REPORT
penalizing hate speech in pre-law commission report can be checked in a flash of time. The Indian Penal Code 1860 is the document that penalizes several aspects contributing to hate speech. Section 124A penalizes sedition. Section 153A penalizes promotion of enmity between different groups on the ground of religion, race, place of birth, residence, language etc. and doing acts against the maintenance of harmony. Section 153B penalizes imputation and assertions prejudicial national integration. S.295A penalizes deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion and religious beliefs. In addition sections 298 and 505 cover difference aspects of hate speech. Apart from the Penal Code, section 8 of the Representation of People’s Act, 1951 disqualifies a person from contesting election if he is convicted for acts amounting to illegitimate use of freedom of speech and expression. Section 123 and section 125 prohibits promotion of enmity on grounds of religion, race, caste, community or language in connection election as a corrupt electoral practice and prohibits it. Section 7 of the Protection of Civil Rights Act penalizes encouragement of untouchability through words, signs or visible representations. Section 3(g) of the Religious Institution Prevention of Misuse Act 1988 prohibits use of place under religious institution for creating disharmony, feelings of enmity etc. Further sections 95, 107 and 144 empowers District Magistrate and state government to take measure on actions contributing to hate speech which are recognized as offences under the Penal Code.
Post Pravasi Bhalai Sanghatan case, a committee was constituted by the Law Commission to study the issues on hate speech under the chairmanship of Justice B.S. Chauhan. The Committee suggested amendment of Indian Penal Code and Code of Criminal Procedure which are incorporated in 2017 criminal law amendment. Let’s look at a glance on the same. Section 153C and 505A is inserted which deals with prohibiting incitement to hatred and causation of fear, alarm or provocation of violence in certain cases purporting to hatred. Amendment of 1st Schedule of the Cr.P.C has been made in the criminal law amendment.
IS HATRED NO MORE IN DEMOCRATIC INDIA?
No. It is there but in indirect form. It can be noted that the parties are now keen on spitting hate to a particular individual and therefore the defamation cases are increasing in the political sphere. In fact laws are not only the factor that can prevent hate speech, it is the mannerism of the system and the attitude of people in the parties who use hate speech tool must change. When the present situation is looked telescopically, I find that a new trend is emerging in democracy for winning the chair of governance. It is nothing but doing a part of promise which is made during the election campaign, rather than to throw spears of hatred to each other. The present trend is benefiting a few section of the society at least.
