WHAT DO YOU MEAN BY HATE SPEECH?

The term hate speech in the simple language means that any statement that is against or is
violative to the religious beliefs, sentiments and faith of any person or a group of people in a
community or which is in contradiction with the race, caste, religion, sex, disability, place
of birth etc of an individual and is directly an attack towards the reputation of an individual.
Hate speeches mainly refer to the speeches that involve any act of promoting fear, danger,
violative actions, causing mental stress and tension in the mind of the person. There are
certain laws that have been mentioned in the Constitution of India so as to prohibit the
development of such kind of hate speeches and dispute among the people.

Hate speech and the freedom of speech and expression

Hate speech poses a challenge to the right to freedom of speech and expression. In
contemporary times, it is often used as a tool to gain popularity. It manifests itself into a
form that creates divisions in society by attempting to belittle specific groups of people
based on their religion, culture, ethnicity, race, gender, sexual orientation, disability,
language, occupation, ideology, appearance, etc. It runs contrary to the objective of the
fundamental right to free speech and expression that is to liberate people from all strata of
society. Hate speech often relies on and perpetuates stereotypes. Hate speech has been seen
to be used post-elections to cause anti-minority incitement and is often related to the politics
of violence and hatred.

The Constitution of India by law seeks to prevent the delivery of hate speech under the garb
of free speech and expression. It prohibits expressions that can be insulting to others.
According to Article 51A (h) of the Indian Constitution, citizens must develop scientific
temper, humanism, and the spirit of inquiry and reform. Various criminal laws in India also
penalize hate speech. In the case of Dr Das Rao Deshmukh v. Kamal Kishore Nanasaheb
Kadam, the appellant sought votes by using a poster that said: “teach a lesson to Muslims”.
The Supreme Court held that the poster cannot be justified as it threatens to arouse
communal feelings and create disharmony between the communities. It was offensive and
went against the secular structure of the country.

Facets of free speech

Freedom of press

The freedom of speech and expression as under Article 19 also includes the freedom of the
press. During the Constituent Assembly Debates, Damodar S. Seth argued that freedom of
the press should be explicitly included in the Article due to the present age where the press
holds immense value. However, it was decided that a separate provision for the same is not
required.
Right to Silence

The citizens’ right to stay silent has also been considered a part of the right to freedom of
speech and expression. In the case of Bijoe Emmanuel & Ors. v. the State of Kerala, the
court upheld the petitioner’s right to stay silent during the national anthem.

Right to report and broadcast

Under the freedom of speech and expression, citizens possess the right to circulate and
publish content. It also includes the right to broadcast information. They also have the right
to report proceedings of a court of law, this also ensures transparency.

The right to be informed

A citizen’s right to know, receive, and impart information as a part of their right to
information has also been recognized as a part of the freedom of speech and expression. In
the judgment of the Union of India v. the Association of Democratic Reforms, the court held
that the voters’ have the right to know about candidates.

Limits to freedom of speech and expression

The right to freedom of speech and expression is not absolute and has been reasonably
restricted by the Constitution of India under Article 19(2). The grounds for imposing these
restrictions are:

Sovereignty and Integrity of India

India gained its sovereignty after 200 years of colonial rule and established itself as an
independent state wholly responsible for its internal affairs. Hence, citizens have been
restricted to make statements that can harm this hard-earned sovereignty and hurt the
integrity of the nation. This ground was added in 1963 through the Constitution (Sixteenth
Amendment) Act to impose restrictions on individuals or groups that were instigating
secessionist movements in the country.

Security of the State

The government has the right to deny the freedom of speech and expression to protect the
security of the State. However, the threats against security must be an aggravated threat to
public order, such as rebellion, insurrection, waging war against the State, etc.

To maintain friendly relations with foreign states

In a globalized world with unequal power relations, maintaining positive relations with
neighbouring countries and other countries is significant. Hence, if a person’s freedom of
speech and expression threatens to hinder these relations or harms the country’s
international relations, it can be restricted. This is essential to curb malicious actions by
some to jeopardize the reputation of the country.

Decency and Morality

One’s speech and expression must be decent and moral. It should not go against the morals
of contemporary society. Restrictions on freedom of speech and expression imposed in the
interest of decency and morality can be found in Section 292 to Section 294 of the Indian
Penal Code, they deal with content that is deemed to be obscene. However, it must be noted
that standards of decency and morality evolve and change along with society and are not
static. The Hicklin test which originated in England is one of the tests to determine the
decency or morality of a publication by checking its effect on the most vulnerable members
of society.

Contempt of Court

The judiciary holds great value in a democracy and hence to maintain its stature and
preserve public trust in the institution, free speech and expression can be curbed. This is
important to ensure that the courts are not vandalized or jeopardized. Contempt of Court is
punishable under Article 129 and Article 215 of the Constitution by the Supreme Court and
High Courts respectively.

Defamation

Defamation is a criminal offence under Section 499 of IPC. The right to freedom of speech
and expression is not an ultimate license to defame another person and hinder their
reputation. Hence, the right to free speech and expression does not provide anyone with the
immunity to tarnish another person’s reputation in society. If defamation is committed in the
form of spoken words, it is called slander, if the same is committed in a permanent form,
written or printed, it is called libel.

In the case of Subramanian Swamy v. Union of India, the validity of Section 499
and Section 502 of IPC were challenged. While upholding the validity of these provisions,
the court stated that to protect the freedom of speech and expression, the reputation of
individuals cannot be “allowed to be sullied. It asserted that the right to freedom of speech
and expression is not absolute and has to follow a social interest. It also said that the right to
reputation is included under the right to life, granted by Article 21 of the Constitution.

HOW TO TACKLE HATE SPEECH LAWS IN INDIA?

In the context of discussing the tackling of hate speech laws, we need to understand that
Hate speech has been among the more complex issues with regard to the regulation of
technology. The complication of restraining hate speech has to do with a number factors
such as including the number of strong opinions in online speech, which are often offensive
to certain groups, the networking between individual and group rights, and the strain
between the values of dignity, liberty and equality. The range of actions which arise from
such uses of the law which even include the banning of various books, criminal proceedings
for political irony. Thus, it is difficult to tackle hate speech in a country with such a massive
population and with people of different backgrounds and culture and with almost countless
views and ideas which contradict with other groups of people and individuals. There are
laws that have been made for such atrocities and seeing to the wider view of this in for the
protection of the interests of the public at large the government is taking up actions to even
make these laws even more stringent.

CONCLUSION

“ To suppress free speech is a double wrong. It violates the right of the speaker, as well as
those of the hearer.” – Frederick Douglass

While the right to freedom of speech and expression is sacred to individual autonomy,
liberty, and democracy in the contemporary world, it cannot be absolute and indisputable.
With rights come responsibilities and hence it is the responsibility of the citizens to make
judicious use of their rights and use it for the right reasons. This will help protect the spirit
of the right. It has often been questioned as to how far the right to freedom and expression
be allowed and where one needs to draw the line to one’s liberty. We have heard the
principle that one’s right and freedom should not serve as another’s hindrance and
inconvenience. Our right is absolute only until it does not disturb our neighbour. Hence, we
can exercise our right to freedom of speech and expression as long as it is not hateful and
defamatory to another person or it incites violence in the country. Criticism is not just
allowed but is welcomed in a democracy, to strive to qualitatively improve our laws,
criticism is necessary. But, this criticism must be fair and should not act as a double-edged
sword that aims to express and create distress in the country. Due to the nature of this right,
some degree of subjectivity will always exist, yet it is hoped that the article was able to
make clear some boundaries of the freedom of speech and expression.