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When it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.
Supreme Court of India, Shreya Singhal v. Union of India,March 24, 2015.
The right to freedom of speech in a country is the quintessence of the basic civil rights and liberty enjoyed by the citizens of the country. However, some degree of restriction on individual liberty is must for peaceful, harmonious co-existence of people. But, the question arises- what degree of restriction? The roots of the tussle between the understanding of free speech and hate speech trickles down to this unanswered question, with layers of interpretations.
Article 19(2) of the Constitution guarantees freedom of speech and expression to all citizens of India. But, our forefathers who drafted the Constitution acknowledged that absolute liberty of speech and expression is not viable in a diverse nation like ours, harbouring multifarious believes, cultural practices and opinions.
Thus, clause (2) of Article 19, as subsequently amended by the Constitution (First Amendment) Act, 1951 and the Constitution (Sixteenth Amendment) Act, 1963, imposed reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of:
the security of the State and sovereignty and integrity of India,
friendly relations with foreign States,
decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
Hate speech has not been defined in any law in India. It can be understood loosely as- words disparaging and denouncing a person or group’s religious sentiments or dignity on the grounds of race, sex, colour, caste, creed etc. Certain provisions in Indian legal system prohibit select forms of speech as an exception to freedom of speech. Presently, in our country the following legislations have a bearing on hate speech:
Section 124A IPC penalises sedition.
Section 153A IPC penalises ‘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’.
Section 153B IPC penalises ‘imputations, assertions prejudicial to national-integration’.
Section 295A IPC penalises ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’.
Section 298 IPC penalises ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’.
Section 505(1) and (2) IPC penalises publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes.
These provisions are supplemented by the Information Technology Act 2000 and its Rules, which govern the electronic dissemination of ‘hate speech’.
The unclear dimensions of hate speech often result in the misuse of the freedom of expression. Also, conversely, the tag of hate speech can be arbitrarily accorded to a mere exercise of one’s right to voice their opinions. There is a very fine line of distinction between free speech and hate speech, as is evident from various cases, where the misinterpretation to Article 19 has hit hard on the fundamental human rights of people.
Media is rife with the news of arrests and assault on people for what people understand as hate speech. But, how to determine what constitutes hate speech?
The most common parameters cited by perpetrators responsible for the crackdown upon people voicing their dissenting opinions and criticisms is – act against morality. But, where is it defined? This concept of public morality varies from person to person, depending upon one’s culture and upbringing.
Another prominent defence for restricting free speech is the archaic law of sedition. In 2016, few students from Jawaharlal National University, Delhi, were arrested on the charge of sedition, on the pretext of inciting violence against the government and dishonouring the nation. The rally was organised to protest the hanging of Afzal Guru, which was a contentious issue throughout the country. We are however, not concerned with the propriety of the judgment, but the subversion of the right of expressing their opinions by the students. The question that needs to be asked is- whether the act had the potential to incite such disturbance so as to enable the entire country to rise up in revolt against the government? The students’ arrest thus reveals how divided the country remains over the meaning of tolerance and the imperative of legal protection of peaceful, if disfavoured, expression.
On September 8, 2012, political cartoonist Aseem Trivedi was arrested after a member of a political party complained that his cartoons mocked the Indian Parliament and the National Emblem. Such incidents happen when we tend to ignore the fact that humans are rational beings, and thus, tend to agree or disagree with the events going on around them. And they use the tool of speech to make their views known. Their views may seem immoral to X, while Y may conform with them. Their views may seem to be disrespectful to the sovereign to X, while it may be a digression from the conventional understanding or a new perspective of individual freedom.
Even the Criminal defamation laws are open to easy abuse, resulting in very harsh consequences, including imprisonment. The Tamil Nadu government alone filed 200 cases of criminal defamation in 5 years- which provides a fine example of how it can be used to supress dissent.
Electronic hate speech is also a concept in vogue these days, with news of arrest or castigation of people who post dissenting or criticising remarks on the government or politicians.
Amidst this political conundrum surrounding free speech and hate speech, coloured with communalism and nationalism, we often tend to misinterpret the two. The need of the hour is to take a rational approach towards understanding the consequences of the act, and not just the act itself. Action must not be taken only to appease a section of the community, or on the basis of elusive concept of morality. Judicial interpretations of the term ‘free speech’ and ‘hate speech’ must be studied, keeping in mind the underlying principles and the circumstances of the case at hand.
Ours is a popular democracy, in which there must be space for everyone’s opinions, which also is the right of every human being. A biased or prejudicial approach to the right of freedom of speech may lead to grave violation of the Fundamental Rights of citizens.
ABOUT THDE AUTHOR:
Kopal Tewary is an undergraduate student of BA LLB( Hons.) at Rajiv Gandhi National University of Law, Patiala. She has a knack for reading and prefers classics and historical fiction. Her areas of interest are International Humanitarian Law, HumanRights and Constitutional Law.
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