NEW DELHI: The recent row over the alleged hate speech at the Dharam Sansad event and other incidents have sparked interest on how Indian laws deal with hate speech.
India prohibits hate speech through several sections of the Indian Penal Code, the Code of Criminal Procedure, and other laws which put limitations on the freedom of expression. Constitutionally, Article 19 gives all citizens the right to freedom of speech and expression but the said freedom of expression is subject to "reasonable restrictions" for preserving inter alia "public order, decency or morality".
Sections 153A, 153B, 295A, 298, 505 of the Indian Penal Code 1860 deal with speech or words that could create mischief, outrage religious beliefs or cause imputations to national integration.
The New Indian Express spoke to some lawyers to gain a fuller understanding.
"The legal position in India with regard to hate speech can only be termed as that of contradictory paradoxes and one of legal and judicial quandary. While there is no specific law against hate speech, there are specific provisions under the penal code and criminal procedure. However, when it comes to prosecution, the courts have taken a contradictory stand and most recently even gone to the extent of saying the speeches that clearly fall in violation of Section 295(A) of the Indian Penal Code if said with a smile cannot be tantamount to hate speech," advocate Salman Waris, Managing Partner of the Delhi-based law firm TechLegis Advocates & Solicitors said.
"In a Public Interest Litigation (PIL) filed by the Pravasi Bhalai Sangathan in 2013, the Supreme Court issued a notice to the central government on a petition seeking framing of guidelines to curb elected representatives from delivering hate speeches in pursuance of their political goals. However, in 2014, the Supreme Court dismissed a PIL by advocate ML Sharma seeking intervention by the court in directing the Election Commission to curb hate speeches. Dismissing the plea, the apex court said that it could not curb the fundamental right of the people to express themselves," he added.
Bharat Chugh, former Judge and an advocate at the Supreme Court of India says that there are limits to this right and as every right, this right also has a corresponding duty. Chugh explained the recent cases that dealt with alleged hate speeches.
He explains how the Uttarakhand High Court, while deciding the bail application of Jitendra Narayan Tyagi in the Haridwar hate speech case, looked into the far-reaching effect of hate speech and its possible impact on the society, rejected the bail application.
Chugh further refers to a recent case of TV journalist Amish Devgan where he had hosted and anchored a debate and several FIRs were filed against him for allegedly insulting a pious saint belonging to the Muslim community.
"...The court refused to quash the FIR but accepted the prayer of transferring all pending FIRs to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered under Sections 153B, 295A, 298 Indian Penal Code and 66F of Information Technology Act, 2000. The Court had observed that in regards to hate speech, the actual utterance of words or something more than thought is required and in case of publication, mere thought would not be actionable," Chugh said.
He elaborated how after the case of Pravasi Bhali Sangathan, the Law Commission was requested to examine the issues related to 'hate speech' and to recommend parliament to curb the menace of 'hate speech'.
The law commission then went on to submit its 267th report titled 'Hate Speech' in March 2017 where Draft Amendment Bill titled Criminal Law (Amendment) Bill, 2017, was suggested to be incorporated into the existing penal law.
"The suggestions included the need of insertion of Section 153C which punishes threatening/ advocating hatred on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe and Section 505A which punishes uttering words etc. in public intentionally on grounds of religion, race caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe," he said.
"However, one could argue that for a law meant to protect hate speech, Section 153C does not go far enough because it requires the incitement or injury or alarm before an offence is made out under the provision. A hate speech law should ideally punish a person for merely uttering certain phrases regardless of whether it results in an injury. For example, under the SC/ST Act referred to above the mere utterance of certain phrases can result in a conviction if such words cause “enmity, hatred or ill-will” against the members of such castes or tribes. There is no requirement to prove harm or injury being caused to such persons," Prashant Reddy T, Hyderabad-based lawyer said.