This article on ‘Hate Speech Laws In India: All You Need to Know‘ was written by Ananta Kashyap, an intern at Legal Upanishad.
Freedom of thought is essential for achieving wisdom, and freedom of speech is necessary for achieving public liberty. Both of these rights belong to every individual, so long as they do not infringe on the rights of others. A quote from Ben Franklin: (1722)
The importance of a person’s right to express themselves freely has been debated at length for many years. Human rights are discussed, and then basic rights are discussed. In India, the right to freedom of expression is guaranteed under Article 19(1) of the Constitution. Free speech, however, has gradually been hampered by the State due to concerns about libel, sedition, and hate speech.
Hate speech: Meaning and Concept
Hate speech encompasses any statement or reference that conveys an unpleasant level of animosity against a certain person, group of people, ethnicity, religion, etc. The phrase “hate speech” does not seem to be legally defined in any Indian statutes; rather, it has evolved from the broader societal environment in which it has emerged and now typically refers to any kind of expression that is rejected by a subset of the population.
According to Black’s Law Dictionary, “hate speech” is defined as “utterances made for no other reason than to demonstrate hatred for any group, such as a certain race,” especially when such utterances are made in a context where they are likely to encourage violence.
The Supreme Court of India determined in the landmark case Pravasi Bhalai Sangathan v. Union of India not to prosecute hate speech since there is no provision for the punishment of hate speech in any of India’s pre-existing legislation. A similar clause does not exist in Indian law, which is why the court issued this ruling. To sidestep the thorny issue of judicial overreach, the Supreme Court sent the subject to the Law Commission for further inquiry and report. The major rationale for the shift of responsibility to the Legislative Branch is this very fact.
Canada (Human Rights Commission) v. Taylor provided the following definition of hate speech:
Three primary instructions should be followed.
- The ban on hate speech must be administered consistently and without bias by the judicial system. The question for the courts is whether or not a reasonable person would interpret the speech as exposing the protected group to hatred based on what they know about the context and the facts.
- Legislative references to hate, hatred, or contempt, must be taken to mean only the most extreme forms of negative emotion, such as disgust or revulsion. This prevents the dissemination of hateful rhetoric that might lead to discrimination or other bad outcomes but fails to elicit sufficient levels of revulsion, delegitimization, and rejection.
- The examination should focus on the effect of the speech on the issue, especially on the question of whether or not it is likely to generate enmity towards the person or group that is the object of the remark.
It is not enough that the ideas being communicated are repugnant to justify limiting their speech, and it is immaterial whether or not the creator of the communication is meant to promote hate or discriminatory treatment. The important thing is to think about the goals of the legislation, which are to minimize or do away with prejudice and figure out how the phrase is likely to affect the people who hear it.
The above quotation was stated in the case Pravasi Bhalai Sangathan v. Union of India. The Court referred to and analyzed the many laws now in effect in India that govern hate speeches, and it came to the following conclusion: the statutory provisions, and particularly the criminal law, gives suitable remedies to decrease the issue of hate speeches. Therefore, a harmed party should seek the remedy provided by the law.
The problem stems not from a lack of regulations but rather from a failure to effectively enforce existing restrictions. As a result, the existing legislative system requires effective enforcement from both the executive branch and civil society.
A recent example of this is the case of Amish Devgan v. Union of India and Others, in which the petitioner, while holding a discussion, had portrayed Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as Amarkantak Chishti aya… Amarkantak Chishti aya… looters Chishti aya… us.
This case focused on numerous essential facets of the law to decide what constitutes hate speech and how it should be punished. It was decided how to interpret Section 153A of the Indian Penal Code, which addresses the propagation of hostility between communities and the commission of activities that are detrimental to harmony.
To decide the FIRs that had been filed against Amish Devgan, the Supreme Court looked at the legality of the FIRs. The petitioner was granted temporary protection by the Supreme Court even though his request to have the FIRs quashed was denied. This was due to the petitioner’s apologies, which said that he did not aim to propagate hate, and his cooperation with the inquiry.
The case of Vinod Dua then followed, using the earlier case of Amish Devgan as its basis. According to many First Information Reports (FIRs), Vinod Dua has made seditious statements against the government. The judge granted him immunity from arrest on sedition charges while the investigation based on the FIR continued. When determining what constituted hate speech and how it should be punished, this judgment was equally crucial. The importance of free speech, including criticism, was emphasized heavily in this case.
In light of the above-mentioned excerpts from the referenced judgments, it is clear that communication directed towards a particular group or person may be considered hate speech, regardless of whether or not the speaker intended to cause emotional distress. Since we place no weight on purpose, we cannot bring the relevant sections of the Indian Penal Code into this debate. This is due to the fact that criminal law rests on the concept of men’s rea, sometimes known as criminal intent.
After it, the Constitution of India was all that remained. The only solution is to provide a new ground for Article 19(1) protests: speech that is racist or xenophobic. Jeremy Bentham’s utilitarianism, on which our Indian Constitution is based, is also emphasized. The goal of this concept is to increase people’s happiness as much as possible.
The single most significant aspect in determining one’s degree of pleasure is the freedom to speak and express oneself, which must therefore include the freedom to criticize. Both favourable and negative comments may be made in this way. If criticism has the intended or unintended consequence of offending a certain group, it may be considered hate speech. The freedom of speech guaranteed by Article 19 will be seriously compromised, however, if we just consider the potential emotional fallout.
- SC directions on hate speech: How courts have read IPC Sec 295A, other provisions, Indian Express, 22 October 2022, available at: https://indianexpress.com/article/explained-law/hate-speech-ipc-sec-295a-supreme-court-8224954/
- An Indian law on hate speech: the contradictions and lack of conversation, CJP, 14 November 2022, available at: https://cjp.org.in/an-indian-law-on-hate-speech-the-contradictions-and-lack-of-conversation/
- S Hasthisha Desikan, Legal Regulation of Hate Crimes in India: A Look at the Current Regime and its Shortcomings 4(5) IJLMH (2021)