Removing illegal hate speech- underscoring need for law.

“Everyone is in favour of free speech. Hardly a day passes without its being extolled, but
some people's idea of it is that they are free to say what they like, but if anyone else says
anything back, that is an outrage.”
-Winston Churchill

After decades of colonial rule in the country with highly restricted means of living, the
drafters of our constitution recognized the burden of our past and need to have certain set of
fundamental principles that will be held to the core of the Indian democracy. One such
fundamental right is the right to freedom of speech and expression which the constituent
assembly relayed utmost emphasis on. There were long held debates at the time of drafting in
which speakers like K.M. Panikkar, Syama Prasad Mookherjee, Thakur Das Bhargava and
others participated to debate on devising ways in which this right to free speech & expression
could be regulated, especially against ‘class hatred.’ The constitution, thus, recognizes the
need to restrict the liberties and regulate the fundamental rights. Hate speech falls under the
ambit of such restrictions placed under the fundamental right to speech & expression. In this
article, we will discuss how hate speech is a menace to society & why is there a need to have
a stringent law for its removal.

What is hate speech?

The legal definition of ‘hate speech’ differs from country to country as they differ in the
restrictions placed on freedom of speech & expression. Most countries recognize speech,
gestures, conduct, writing or specific displays that intend to humiliate, incite violence &
hatred against an individual or a community based on their race, gender, class, caste or sexual
orientation as hate speech. The council of Europe’s committee of member states on hate
speech has defined it as:
“the term ‘hate speech’ shall be understood as covering all forms of expression which
spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of
hatred based on intolerance, including: intolerance expressed by aggressive nationalism and
ethnocentrism, discrimination and hostility against minorities, migrants and people of
immigrant origin.”1

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In simple terms, hate speech can be defined as any speech that results in disturbing the social
order and the society at large. In the Indian context, the freedom of speech and expression is
defined in Article 19 of the Indian Constitution. Thus, ‘limits’ given in the constitution under
Article 19(2) is categorized as ‘hate speech;’ rather than arriving at a legal definition for the
same. Also, it is argued by many legal experts that in arriving for a specific definition for hate
speech can narrow down its scope and make it difficult to impose liability if new features of
it develop in the future.

Which laws exist to battle ‘hate speech?’

All democracies including India are actively working to remove hate speech from all domains
of public interaction. The ‘limits’ imposed under clauses (2) to (6) of Article 19 restrict the
freedom of speech if it is against the security of state, hampers the friendly relations with
foreign states, disrupts the public order or is against the decency & morality- defamation,
contempt of court or inciting an offence. Along with that, there are other legislations that
restrict hate speech under the Indian Penal Code,1860 (IPC):
 Section 153A 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 295A penalises ‘deliberate and malicious acts, intended to outrage religious
feelings of any class by insulting its religion or religious beliefs’.

Within IPC, further sections 153B, 298, 505(1) and 505(2) have also been referred to in
judgements by the courts for restricting ‘hate speech.’ The section 95 of the code of criminal
procedure, 1973 empowers the State Government, to forfeit publications that are punishable
under sections 124A, 153A, 153B, 292, 293 or 295A IPC. It should also be noted that certain
other provisions are also present- the Representation of the People Act, 1951, the Protection
of Civil Rights Act, 1955 and some others which have given restricting rights as well.
The defiance in defining ‘hate speech’ under the Information & Technology (IT) Act has also
contributed in having few regulatory provisions for online hate content. The section 66A of
the IT Act is the only provision which bleakly related to regulation of unfavorable content on
the internet. This section entails punishment for publishing online content for being ‘grossly
offensive’ and ‘menacing character’ but in the landmark judgement of Shreya Singhal V.
Union of India2 the Supreme Court declared the said section invalid as it failed to establish a
proximate relationship between the restriction imposed and the act taking place. The court
held that Section 66A imposes arbitrary and unreasonable standards for curtailing freedom of
speech online.

Why is there a need for a law on ‘hate speech?’

 Moral Aspect: Battling hate speech is very important for having a cohesive
environment and co-existence of different communities together. Hate speech against
certain groups results in muffling voices of individuals in the public discourse as they
feel intimidated to change their behavior or appearance in order to free themselves
from hate speech. On a moral note, it is unacceptable for individuals in a democracy
to be threatened for belonging to a certain ethnicity, caste or gender. This looming
danger on several groups, making them undesirable objects of hostility refers to the
intangible effects of hate speech underlining the need for having stringent legislations
regarding the same. Other than that, we have witnessed numerous times cases of
violence emerge out of provocation from certain gestures or displays. Such speech
which is able to incite violence and disrupt the public order must be criminally
sanctioned to curb spread of hate. The covid-19 pandemic has brought in an altogether
new challenge for hate speech jurisprudence in the country. The rapid spread of hate
material in the online domain and the lack of law for its curtailment has further
aggravated the matter. For example, in the early covid times in the country there was
a general agreement that the Indian Muslims were deliberately spreading the corona
virus. A wild hashtag ‘#Coronajihad’ spread across various social-media platforms
targeting a specific religion for spread of the deadly virus.

 Lack of Adequate Laws: Under the IT Act, nor is ‘hate speech’ defined neither is
there presence of a regulatory mechanism for online content. This absence of
regulations especially for politicians or celebrities, people with a higher stature and
louder voice can incite division within communities without having a danger of being
held liable. The major laws used for such cases are Sections 153A and 295A IPC but
have been inadequate in dealing with the specific threat posed by online hate content.

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AIR 2015 SC 1523
 In a 2017 Law Commission Report3, they have suggested an amendment to the Indian
Penal Code, 1860 and the Criminal Procedure 1973 wherein they want to add
provisions in the section 153B on ‘prohibiting incitement to hatred’ and in section 505
IPC ‘Causing fear, alarm or provocation of violence in certain cases’ accordingly
amending the first schedule of the CrPC. There is also a need to amend the IT Act and
incorporate the main essence of Section 153A in it.4 The report recognizes the need
for stricter penalties than already prescribed, majorly because of the rapid spread of
news to a wider audience. It also iterates on the need to criminalize the people
forwarding the content along with its originator.

 Comparative View: Another important factor to consider is the comparative view

regarding India and other global superpowers like France, Australia, USA, Singapore
and Germany. All these countries have either implied, qualified or express rights to
freedom of speech & expression. All these countries have certain obligations placed
on intermediaries (websites) for enforcing takedowns on content considered illegal by
the state. Especially in France, there are strict provisions. All terrorist or child
pornography content has to be taken down within an hour of notification issued by the
government. In Germany as well as France, any hate speech or ‘blatantly illegal
content’ has to be removed within 24-hours of notification issued by the government.
It has been observed that such strong legislations have made it easier to control the
spread of hate speech, especially from the online mode. Observation of techniques
used by other countries is important in collecting data and realizing how such
methods can be implemented and how it has helped in controlling its spread.5

What can we conclude?

We can easily deduce from the given information why is it important to control the spread of
‘hate speech’ and how its ill effects can be deadly. Every law comes with its own set of
drawbacks and in this case giving state control over how regulations can be placed could be
detrimental and lead to over exclusion of content going against the government. But still it is

3
Law Commission of India, 267th Report on Hate Speech (March 2017)
4
Rajya Sabha, Action taken by the Government on the recommendations/observations contained in the 176th
report on the functioning of the Delhi Police, by Department-related Parliamentary Standing Committee on
Home Affairs, 189th Report, December 12, 2015.

5
Archit Lohani, Countering Disinformation and Hate Speech Online: Regulation and User Behavioural
Change,
absolutely necessary for having a law to control ‘hate speech’ for peaceful co-existence of
society. Thus, we can conclude the need for having a law that regulates ‘hate speech’.