Media and Hate Speech vis-a-vis its Limitations

The Author, Sumedha Sindhu, is a Senior Partner at Lexidem & Rathi. She has done her LLM in International Dispute Resolution from National University of Singapore.

Introduction

Each time there’s a dispute on what amounts to hate speech it comes out with a different amount of degree with which it is to be interpreted. There are several factors that help in determining – ‘Whether an individual’s Right to Freedom of Speech and Expression is being interfered with or not’? Thus, in every case it is construed based on the severity and the reactions a particular instance of speech has had, or it may have from the public at large.

Hate Speech is defined[1] 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. The Right to Freedom of Speech and Expression is enshrined under Article 19(1)(a) of the Constitution of India; Article 19 of the Universal Declaration of Human Rights.

Article 19 of the Universal Declaration of Human Rights states[2]:

“Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”  

Article 19(2) of the Constitution of India curtails Hate Speech on the grounds of public order, incitement to offense, and safety of the State. The Supreme Court has settled the law[3] on the principle that public order was allied to public safety and considered equivalent to the security of the State. This was settled through the insertion of Article 19(2) in the First Constitution Amendment[4]. 

Article 10 of the ‘European Convention of Human Rights’ guarantees the right to freedom of expression, subject to certain ‘formalities, conditions, restrictions or penalties’ stipulated in clause 2 of this article. Article 17 of the Convention prohibits abuse of rights by ‘any State, group or person.’ The European Court of Human Rights (“ECHR”) has contributed immensely in developing jurisprudence on hate speech.

Hate Speech is penalized under Section 153A of the Indian Penal Code, 1860 which states that:

“Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. —

(1) Whoever—

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, 2[or] 2[(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the partici­pants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,] shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.—(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious wor­ship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]”

Legal Provisions on Hate Speech:

1. Constitution of India, 1950[5]:

Article 19(1)(a) states that all citizens of India shall have the right to freedom of speech and expression.  

2. The Indian Penal Code, 1860[6]: 

1. Section 124A IPC penalises sedition. It declares sedition to be a punishable offence, that is once any individualities to carry or engender hatred or disrespect or efforts to stimulate dissatisfaction towards the established lawful Government^[7]. 
2. 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’.
3. Section 153B IPC penalises ‘imputations, assertions prejudicial to national-integration’.
4. Section 295A IPC penalises ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’. The section's substantive validity was affirmed by this court in Ramji Lal Modi v. State of U.P^[8].
5. Section 298 IPC penalises ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’.
6. 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.

   C. The Code of Criminal Procedure, 1973[9]:

Section 95 empowers the State Government, to forfeit publications that are punishable under sections 124A, 153A, 153B, 292, 293 or 295A IPC.

Section 107 empowers the Executive Magistrate to prevent a person from committing a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably cause breach of the peace or disturb the public tranquillity.
Section 144 empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf to issue order in urgent cases of nuisance or apprehended danger. The above offences are cognizable. Thus, have serious repercussions on liberties of citizens and empower a police officer to arrest without orders from a magistrate and without a warrant as in section 155 CrPC.

4. The Representation of the People Act, 1951[10]: 

1. Section 8 disqualifies a person from contesting election if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression.
2. Section 123(3A) and Section 125 prohibits promotion of enmity on grounds of religion, race, caste, community or language in connection with election as a corrupt electoral practice and prohibits it.

   E. The Protection of Civil Rights Act, 1955[11]:

Section 7 penalises incitement to, and encouragement of untouchability through words, either spoken or written, or by signs or by visible representations or otherwise.  

6. The Religious Institutions (Prevention of Misuse) Act, 1988:

Section 3(g) prohibits religious institution or its manager to allow the use of any premises belonging to, or under the control of, the institution for promoting or attempting to promote disharmony, feelings of enmity, hatred, ill-will between different religious, racial, language or regional groups or castes or communities.

7. The Cable Television Network Regulation Act, 1995:

Sections 5 and 6 of the Act prohibits transmission or re- transmission of a programme through cable network in contravention to the prescribed programme code or advertisement code. These codes have been defined in rule 6 and 7 respectively of the Cable Television Network Rules, 1994.

8. The Cinematograph Act, 1952[12]:

Sections 4, 5B and 7 empower the Board of Film Certification to prohibit and regulate the screening of a film. 

1. Guidelines on Communal Harmony, 2008:

The "Guidelines on Communal Harmony, 2008" released through the Home Ministry, aims to deter communal commotions and, in event of such disruptions, steps to monitor it and measures to provide aid to the injured ones, including rehabilitation, are given therein. The comprehensive instructions were released to take preventive / remedial steps and to assign institutional obligations and implement the same. Specific modalities have been designed to resolve the problem that has been focused on stakeholder engagement.

Relevant Case Laws:

A series of instigating hate and derogatory speeches were made by several prominent elected officials and other political leaders for their self – interests that harm the constitutional values to discriminate and divide people on the lines of religion, class, and region. A Writ Petition was filed in public interest by Pravasi Bhalai Sangathan under Article 32 of the Constitution of India. In Pravasi Bhalai Sangathan v. Union of India[13], the Supreme Court dealt with a case where the petitioners prayed that the State should take peremptory action against makers of hate speech.

In Jafar Imam Naqvi v. Election Commission of India[14], the petitioners filed a writ petition challenging the vitriolic speeches made by the candidates in the election and prayed for issue of writ of mandamus to the Election Commission for taking appropriate steps against such speeches. Although, the Petition was dismissed on the grounds that a petition under Article 32 of the Constitution of India regarding speeches delivered during election campaign does not qualify as Public Interest Litigation and that the court cannot legislate on matters where the legislative intent is visible. 

In Amish Devgan v. Union of India[15], the Supreme Court recognised the principle of ‘variable context’ and the Supreme Court held that contextually “all speeches are not alike. This is not only because of group affiliations, but in the context of dominant group hate speech against a vulnerable and discriminated group, and also the impact of hate speech depends on the person who has uttered the words.”

In other words, the harm caused by speech is differentiated in terms of the material effect it has on the person or community targeted.

The Hon’ble High Court of Bombay in Sunaina Holey V. State of Maharashtra & Ors.[16] stated that:

“The right to express one’s views is a protected and cherished right in our democracy. Merely because the point of view of the Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view.”

Thus, indicating that in certain cases the views expressed by an individual may be harsh but that does not necessarily amount to Hate Speech as it does not satisfy the criteria laid under Section 153A of the Indian Penal Code, 1860.

Lately Hate Speech in the Media:

Recently, Mohammed Zubair has been in the media regarding a tweet made by him. He was arrested by the Delhi Police and had been in jail since 27^th June 2022 over a tweet made by him on the allegation of inciting communal violence.   

The subject matter in this case is of the tweet made by Mohammed Zubair. The Supreme Court ordered his release and stated that[17]:

“It is a set principle of law that power of arrests must be pursued sparingly. In present case no justification to keep him in continued detention and subject him to an endless round of proceedings in various courts. The Court having found that he has been subjected to a fairly sustained probe by Delhi Police, we see no reason to prevent his liberty further.”

Conclusion:

We are well aware that no constitutional right is absolute as every right gives way to interests that are more compelling. Thus, the fundamental right to freedom of speech and expression is a limited right but not in the strictest sense.

The Freedom and Rights that are granted to an individual cannot be used to cause incitement of any public criminal offence along with breaching public order may be brought under the ground of restriction under Hate Speech or limiting their Right to Freedom of Speech and Expression. Thus, Article 19(1)(a) cannot be misused to create disharmony in public or strengthening the people who challenge the integrity and unity of the nation by inciting or promoting any kind of violence. This invariably leads to State response and, therefore, those who indulge in promotion/incitement of violence to challenge unity and integrity of the nation or public disorder tend to trample upon liberty and freedom of others.[18]

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