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Explained | What is ‘hate speech’, and how is it treated in Indian law?

Do existing laws cover inflammatory and provocative talk? Should the provisions be made more stringent?

January 02, 2022 03:10 am | Updated 01:11 pm IST

He is declaring and announcing something important. He is full of spirit, emotion, and clenching his fist while shouting with the loudspeaker.

He is declaring and announcing something important. He is full of spirit, emotion, and clenching his fist while shouting with the loudspeaker.

The story so far : A recent religious conclave held in Haridwar witnessed inflammatory and provocative speeches by proponents of Hindutva, many of them leaders of religious organisations. Reports say many of the speakers called for organised violence against Muslims and hinted at a Myanmar-type ‘cleansing campaign’. There was a threat that if the government resisted the formation of a ‘Hindu Rashtra’, there will be an ‘1857-like’ revolt against the state. Political parties and concerned citizens have termed these as ‘hate speech’ and demanded legal action against those involved in the propagation of hate and violence.

What is ‘hate speech’?

There is no specific legal definition of ‘hate speech’. Provisions in law criminalise speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.

The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like ... Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”

In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.

How is it treated in Indian law?

Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.

Under Section 153A, ‘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’, is an offence punishable with three years’ imprisonment. It attracts a five-year term if committed in a place of worship, or an assembly engaged in religious worship or religious ceremonies.

Section 505 of IPC makes it an offence to making “statements conducing to public mischief”. The statement, publication, report or rumour that is penalised under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity; or is intended to incite or incites any class or community to commit an offence against another class or community. This attracts a jail term of up to three years. Under 505(2), it is an offence to make statements creating or promoting enmity, hatred or ill-will between classes. Under subsection (3), the same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.

What has the Law Commission proposed?

The Law Commission has proposed that separate offences be added to the IPC to criminalise hate speech quite specifically instead of being subsumed in the existing sections concerning inflammatory acts and speeches. It has proposed that two new sections, Section 153C and Section 505A, be added.

Its draft says Section 153C should make it an offence if anyone (a) uses gravely threatening words, spoken or written or signs or visible representations, with the intention to cause fear or alarm; or (b) advocates hatred that causes incitement to violence, on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe. It proposes a two-year jail term for this and/or a fine of ₹5,000 or both.

Its draft for Section 505A proposes to criminalise words, or display of writing or signs that are gravely threatening or derogatory, within the hearing or sight of a person, causing fear or alarm or, with intent to provoke the use of unlawful violence against that person or another”. It proposes a prison term of up to one year and/or a fine up to ₹5,000 or both.

Similar proposals to add sections to the IPC to punish acts and statements that promote racial discrimination or amount to hate speech have been made by the M.P. Bezbaruah Committee and the T.K. Viswanathan Committee. At present, the Committee for Reforms in Criminal Laws, which is considering more comprehensive changes to criminal law, is examining the issue of having specific provisions to tackle hate speech.

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