Hate speech poses complex challenges to freedom of speech and expression. The Supreme Court realised this before asking the Law Commission for recommendations to arm the Election Commission with laws to combat hate speech “irrespective of whenever they are made”.
In March 2017, the Law Commission, led by former Supreme Court judge, Justice B.S. Chauhan, recommended inserting two new provisions in the IPC, including speech that instills “fear or alarm” in the listeners, probably goading them to violence.
The Criminal Law (Amendment) Bill, 2017 suggested by the Commission proposes to add Section 153C (prohibiting incitement to hatred) and Section 505A (causing fear, alarm, or provocation of violence in certain cases) in the IPC and make the necessary changes in the Criminal Procedure Code.
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The Commission defines hate speech as 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.”
Laws across jurisdictions treat hate speech differently. This is because the fine line between what constitutes hate speech and the constitutionally protected freedom of speech and expression vary from country to country.
The Law Commission in its 267th Report on ‘hate Sseech’ compares how the U.S. gives a wide berth to hate speech while international human rights covenants and other Western democracies like Canada, Germany, and the U.K. regulate it and subject it to sanctions.
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The Commission refers to hate speech as an expression likely to cause distress, offence or incite hostility towards a particular group. The global disparity in the treatment of hate speech, the Commission reasons, may be because they apprehend that setting a standard for determining unwarranted speech may lead to suppression of free speech and expression.
The proposed Bill punishes incitement to hatred under Section 153C IPC with imprisonment for a term which may extend to two years, and fine up to ₹5000, or with both. The punishment for an offence committed under Section 505A is imprisonment for a term which may extend to one year and/or fine up to ₹5000, or both.