JUNE 8, 2021

REGULATING ONLINE HATE SPEECH

An Indian context

Bushra Mohammad, Natasha Choudhary and Ahmad Ali

Hamdard institute of legal studies and research
1

Contents
ABSTRACT..........................................................................................................................................2
INTRODUCTION................................................................................................................................3
WHAT IS HATE SPEECH?................................................................................................................4
INDIAN CONSTITUTION AND HATE SPEECH.............................................................................4
LEGAL PROVISIONS GOVERNING A HATE SPEECH.................................................................6
INDIAN PENAL CODE AND HATE SPEECH..........................................................................................6
SECTION 124A.............................................................................................................................6
SECTION 153A.............................................................................................................................9
SECTION 153B...........................................................................................................................11
SECTION 295A...........................................................................................................................14
SECTION 298.............................................................................................................................15
SECTION 505(1) and (2).....................................................................................................16
THE CODE OF CRIMINAL PROCEDURE AND HATE SPEECH..............................................................17
ELECTION LAW AND HATE SPEECH.....................................................................................................17
o Section 123 (3) RPA 1951.........................................................................................17
o Section 123 (3A)..........................................................................................................18
PREVENTION OF ATROCITIES ACT AND HATE SPEECH....................................................................18
THE RELIGIOUS INSTITUTIONS (PREVENTION OF MISUSE) ACT, 1988............................................19
MEDIA LAW AND HATE SPEECH..........................................................................................................20
The Cinematograph Act 1952............................................................................................20
The Cable Television Network Regulation Act, 1995...........................................24
CYBER LAW AND HATE SPEECH.......................................................................................................25
HIV/ AIDs ACT AND HATE SPEECH..................................................................................................27
REFORMS............................................................................................................................................27
CONCLUSION...................................................................................................................................30
REFRENCES.....................................................................................................................................32
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ABSTRACT
The worldwide web is a platform that ensures safety and anonymity for everyone
despite their religion, sex, colour, gender, etc., which creates a safe environment for
each and individual in the entire world. This anonymity also paves the way for hate
speech as well. Hate speech is a type of speech intended to incite hatred based on
race, religion, ethnicity, other factors, and violence between different populations.
Hate speech starts hatred among minorities and stokes regional, religious, and
ethnic sentiments. People in positions of power use hate speech to instigate
violence. Hate speech that disrupts communal harmony and causes strife is
prohibited under Indian law. The concept of reasonable restriction comes into play
when it comes to the prohibition of hate speech. As a result of the argument, two
opposing viewpoints emerge limitations vs. freedom of speech and expression.
Article 19(1) of the Indian Constitution guarantees freedom of speech and
expression, but Article 19(2) imposes reasonable limitations based on public order,
morality, and decency. When these opposing viewpoints are brought before the
courts, even the Supreme Court in India has shown a reluctance to stop such
communally charged remarks. Even if a court order prohibiting hate speech is
issued, it is frequently issued too late, sometimes after the writing is on the wall, and
thus has no deterrent impact. Using extensive research methods, this paper a)
explains the concept of hate speech, b) evaluates diverse legal provisions which
address hate speech in India, and c) explores non-legal solutions to the issues.

Keywords: Hate Speech, Hatred, Harmony, Democracy, Constitution of India

INTRODUCTION
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"No one is born hating another person because of the colour of his skin, or his
background, or his religion. People must learn to hate, and if they can learn to hate,
they can be taught to love, for love comes more naturally to the human heart than its
opposite."1
During the communal riots in Muzaffarnagar in 2013, which resulted in the deaths of
over sixty individuals and the displacement of hundreds, social media was said to
have contributed a crucial part in spreading misinformation and propaganda. In this
context, a viral video of two men being hacked to death was spread across the
internet, mislabelled as a film of Hindus being killed by a Muslim mob. In Pune, a
Muslim man was lynched by a mob after modified images defaming iconic politicians
were circulated and linked to him.

State governments in India have taken to disabling Internet services, especially

mobile data services, in response to threats of violence. For example, in June 2016,
the Indian Government shut down the Internet in Haryana, fearing potential violence
arising from ongoing protests. Internet shutdowns are becoming commonplace –
there have been thirty-nine incidents since January 2015. The likely reasons for the
shutdowns ranged from apprehensions about provocative social media rumors
related to the recovery of cow carcasses to prevent cheating during a public
government-administered exam. Many of these justifications offered for Internet
shutdowns fall within the umbrella of online hate speech or incitement to violence.

Hate speech is a severe concern in the Republic of India. However, Indian law does
not use the phrase "hate speech." Different forms of what may arguably be called
hate speech are covered in various Indian statutes. This paper outlines preliminary
issues that we noted while conducting a detailed study of hate speech laws in India.
It teases out some of the major concerns that arise in the context of both online and
offline hate speech, especially speech as a potential incitement to violence.

This paper covers a broader range of what might be called hate speech and extends
to speech that may not act as a potential incitement to violence. The report offers a
more nuanced and detailed picture of the Current State of affairs and the
conclusions drawn and recommendations made. We begin this paper by discussing
online hate speech as incitement to violence in India and then outlining the current
legal framework used to cope with hate speech. Since the legal framework has
provided regulation against hate speech, this briefing paper discusses these laws
and examines their impact. This paper also discusses strategies other than
criminalization used to respond to online hate speech in India. We focus on
constitutional efforts at tackling the problem of hate speech.

WHAT IS HATE SPEECH?

Hate speech, or inflammatory speech, has always resulted in censorship throughout history. The
definition of hate speech has been ambiguous, but usually narrow and tailored to the interests of
1
Nelson Mandela (1994)
4

the ruling power of the state. The definitions of “hate speech” typically depend on the cultural and
moral ethos of any society; when societies have been well-defined, for example through
geography, it was relatively easier to reach a consensus on such a definition. This was because
that definition would only be enforced in a certain area by an enforcing authority that was known
and respected, or feared, by everyone in that area.

The rise of the internet, a global means of communication, has stripped away such geographical
boundaries. While this has led to rapid technological growth through the cooperation of people
from all over the world, it has also set up very peculiar questions of law and its enforcement. The
very definition of “hate speech”, already ambiguous, was made even more so when made
applicable to anything written on the internet, since it could be created by anyone, anywhere in
the world, posted to a server anywhere in the world, and be accessed by (or targeted at) anyone,
anywhere in the world. This paper seeks to identify a possible solution to this conundrum within
the specific context of India.

There is no international legal definition of hate speech, and the characterization of what is
‘hateful’ is controversial and disputed. In the context of this document, the term hate speech is
understood as any kind of communication in speech, writing or behaviour, that attacks or uses
pejorative or discriminatory language with reference to a person or a group on the basis of who
they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent,
gender or other identity factor. This is often rooted in, and generates intolerance and hatred and,
in certain contexts, can be demeaning and divisive.

Rather than prohibiting hate speech as such, international law prohibits the incitement to
discrimination, hostility, and violence (referred to here as ‘incitement’). Incitement is a very
dangerous form of speech because it explicitly and deliberately aims at triggering discrimination,
hostility, and violence, which may also lead to or include terrorism or atrocity crimes.

Hate speech that does not reach the threshold of incitement is not something that international
law requires States to prohibit. It is important to underline that even when not prohibited, hate
speech may to be harmful. Addressing hate speech, therefore, requires a coordinated response
that tackles the root causes and drivers of hate speech, as well as its impact on victims and
societies more broadly.

INDIAN CONSTITUTION AND HATE SPEECH

Various judgments have very liberally interpreted the fundamental right of freedom of speech and
expression. But at an equivalent time, a reasonable restriction has been imposed on this
fundamental right, misuse of which could fall into the ambit of hate speech. Freedom of speech and
expression is an internationally recognized right where various principles are made to uphold its
validity through the framework provided by International human rights law which recognizes both
the right to freedom of speech and expression and therefore the duty of the states to ban speech
which advocates hatred. For instance, the Universal Declaration of Human Rights was accepted by
the United Nations General Assembly in 1948.

Freedom of Speech and Expression is protected as a fundamental right within the Lengthiest
Constitution i.e. Constitution of India under Article 19(1)(a) which states as all citizens shall have the
right to freedom of speech and expression.

However, under Article 19(2), an reasonable restriction has been put forth by the Indian constitution
where the word reasonable should strike a balance between the utilization and misuse of this
freedom. According Article 19(2) of the Indian constitution, it says as follows:
5

“Nothing in Article 19(1)(a) shall influence the operation of any existing law, or prevent the State
from making any law, in thus far intrinsically law imposes reasonable restrictions on the exercise of
the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,
the security of the nation, friendly relations with foreign States, public order, dignity or morality or in
relation to contempt of court, defamation or instigation to an offence.”

In cases where restriction doesn't fall under the ambit of Article 19(2), it must be reasonable.
Exceptional circumstances are often viewed within the spectrum of reasonability but it can't be
reviewed in each circumstance as a general pattern. The test of reasonableness must be applied to
each individual statute impugned, since the Supreme Court has found that no abstract standards are
often made applicable to all or any or any cases. (Ref: Row (n. 10); Virendra v. State of Punjab, AIR
1957 SC 836)

The phrase “In the interest of” in Article 19(2) has been pertaining to the restriction imposed on this
right while protecting the country’s sovereignty, integrity, security, and its relations with other
states’ creating few exceptions to the entire freedom of speech and expression.

SC held an anticipatory action, or prior restraint on speech is permissible as long as it meets the
wants of Article 19. (Ref: Babulal Parate v. the State of Maharashtra, 1961 SCR (3) 423)

Along with other exceptions notified in Art 19(2), public order has been an exception that has been
given a liberal interpretation in various judgments given by constitutional benches. This exception
brings into its ambit all the activities which will possibly cause public disorder regardless of any
actual disruption whether caused by such activity or not. If no law deals with public order directly, it
might be read as “in the interest of” public order (Ramji Lal Modi Vs. State of UP, Public order has
been further read to mean ‘public peace, safety, and tranquillity’. (Reference; Lohia-I (n. 19), para
11)
The constitution of India guarantees 6 freedoms to all citizens under Article 19 (1).

Article 19 (1) (a) grants the freedom of speech and expression to all citizens. Freedom of speech
is not only the safeguard to people’s liberty in a democratic government, but it is also a vital
element of nearly every other form of freedom. Thus, it has been rightfully said by Chief Justice
Dipak Misra, “freedom of speech is the mother of all other liberties.”

The essence of free speech is the right to express one’s views and opinions at any issue through
any medium i.e., by words of mouth, writing, printing, picture, film, movie etc. Not only this, but it
also includes the right to receive information through the same mediums. For the smooth
functioning of a democracy where it is the people who rule, free speech ensures that the people
are able to put forward their ideas, demands and opinions without having to fear any grave
consequences.

While all of this is true to every extent, there are also limitations to this right. Free speech should
not act as a hindrance to maintenance peace in society and also to an individual’s right to live a
dignified and peaceful life. Which is why, the Constitution of India has imposed certain limitations
to Article 19 (1) (a) under Article 19 (2). It states that the State may make a law imposing
“reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the
interest of” the public on the following grounds:

1. Security of State
6

2. Friendly relations with foreign states

3. Sovereignty and integrity of India.

4. Defamation

5. Incitement to an offense

6. Public Order

7. Decency or morality

8. Contempt of Court

LEGAL PROVISIONS GOVERNING A HATE

SPEECH

INDIAN PENAL CODE AND HATE SPEECH

SECTION 124A
It has been part of the political dialogue in India since the days of freedom struggle, and the term
sedition was never a new term. This law has led to the arrest of the Father of the Nation and his
political advisor, Bal Gangadhar Tilak. Section 124-A of the Indian Penal Code, 1860 has been
referred to as sedition, which is very closely related to treason, an offense against the state. The
law was initially drafted in 1837 by Thomas Macaulay, the British historian-politician, but was
inexplicably omitted when the IPC was enacted in 1860. Section 124A was inserted in 1870 by
an amendment introduced by Sir James Stephen when it felt the need for a specific section to
deal with the offense. It was one of the many draconian laws enacted to stifle any voices of
dissent at that time.

Section 124A states2:

"Whoever by words, either spoken or written, or by signs, or by visible

representation, or otherwise, brings or attempts to bring into hatred or contempt,
or excites or attempts to excite disaffection towards, 3*** the Government
established by law in 4[India], 5*** shall be punished with 6[imprisonment for
life], to which fine may be added, or with imprisonment which may extend to three
years, to which fine may be added, or with fine."
Sedition is defined as an offense committed when "any person by words, either spoken or
written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into
hatred or contempt, or excites or attempts to excite disaffection towards the government
established by law in India." Disaffection includes disloyalty and all feelings of enmity. However,
comments without exciting or attempting to excite hatred, contempt, or disaffection will not
constitute an offence under this section. Statements expressing disapprobation of the

2
Ins. by Act 27 of 1870, s. 5 and subs. by Act 4 of 1898, s. 4, for s. 124A.
3
The words "Her Majesty or" omitted by the A.O. 1950. The words or the Crown Representative ins. after the word "Majesty" by the A. O. 1937 were
omitted by the A. O. 1948.
4
The words British India have successively been subs. by the A. O. 1948, the A. O. 1950 and Act 3 of 1951, s. 3 and the Sch., to read as above.
5
The words or British Burma ins. by the A. O. 1937 and omitted by the A. O 1948.
6
Subs. by Act 26 of 1955, s. 117 and the Sch., for transportation for life or any shorter term (w.e.f. 1-1-1956).
7

Government's measures to obtain their alteration by lawful means, without exciting or attempting
to excite hatred, contempt, or disaffection, do not constitute an offense under this section.

This section can be applied to censor hate speech as "sedition" falls under hate speech; both the
terms have similar meanings. A line should be drawn when using this section between hate
speech censorship and hate speech limitation. Sedition is a non-bailable offence. Punishment
under Section 124A ranges from imprisonment up to three years to a life term, to which a fine
may be added. A person charged under this law is barred from a government job. They have to
live without their passport and must produce themselves in the court at all times as and when
required.

Every case of sedition has a joint defence that the action was done in pursuance of Article 19(1)
(a). i.e., It was his freedom of speech under which he said those statements. But what people are
not aware of is Article 19(2), which states that a speech or an act should not be something that
can invoke or incite violence against the state. If something is capable of causing unrest in the
nation, it cannot be defended by using Article 19(1)(a). Such an act that incites others to destroy
the unity and integrity of the nation will be termed as sedition and not free speech.

Section 124A of the IPC has its utility in combating anti-national, secessionist, and terrorist
elements. It protects the elected Government from attempts to overthrow the Government with
violence and illegal means. The continued existence of the Government established by law is an
essential condition of the stability of the state. If contempt of court invites penal action, contempt
of Government should also attract punishment. Many districts in different states face a Maoist
insurgency, and rebel groups virtually run a parallel administration. These groups openly
advocate the overthrow of the state government by revolution. Against this backdrop, the
abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in
some highly publicized cases.

Section 124A is a relic of colonial legacy and unsuited in a democracy. It is a constraint on the
legitimate exercise of constitutionally guaranteed freedom of speech and expression. Dissent
and criticism of the Government are essential ingredients of robust public debate in a vibrant
democracy. They should not be constructed as sedition. The right to question, criticize and
change rulers is very fundamental to the idea of democracy. The British, who introduced sedition
to oppress Indians, have themselves abolished the law in their country. There is no reason why
India should not repeal this section. The terms used under Section 124A, like 'disaffection,' are
vague and subject to different interpretations to the whims and fancies of the investigating
officers. IPC and the Unlawful Activities Prevention Act have provisions that penalize "disrupting
the public order" or "overthrowing the government with violence and illegal means." These are
sufficient for protecting national integrity. There is no need for Section 124A. The sedition law is
being misused as a tool to persecute political dissent. A broad and concentrated executive
discretion is inbuilt into it, which permits the blatant abuse. In 1979, India ratified the International
Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized
standards for the protection of freedom of expression. However, misuse of sedition and arbitrary
slapping of charges are inconsistent with India's international commitments.

LANDMARK CASES:
Jogendra Chundra Bose (Queen-Empress vs. Jogesh Chundra Bose) 7

The initial cases that invoked the sedition law included numerous prosecutions against the
editors of nationalist newspapers. The first among them was the trial of Jogendra Chandra Bose
in 1891. Bose, the editor of the newspaper, Bangobasi, wrote an article criticizing the Age of
Consent Bill for posing a threat to the religion and its coercive relationship with Indians. His
writing also commented on the negative economic impact of British colonialism. Bose was
prosecuted and accused of exceeding the limits of legitimate criticism and inciting religious

7
(1892) ILR 19 Cal 35
8

feelings. The judge rejected the defense's plea that there was no mention of a rebellion in his
article. However, the proceedings against Bose were dropped after he tended an apology.

The Queen Empress vs. Bal Gangadhara Tilak 8

Ironically, some of the most famous sedition trials of the late 19th and early 20th century involved
Indian nationalist leaders. Of these, Tilak was charged with sedition on two occasions. The first in
1897 for the speeches that allegedly incited the violent behaviour of others, which resulted in the
death of two British officers. He was convicted and released on bail in 1898, and in 1909 he
again prosecuted for the seditious writing in the newspaper Pubjab Kesari, but he was
rereleased.

Kedar Nath Singh vs. the State of Bihar 9

This landmark case was the first case of sedition after independent India. The constitutional
bench of 5 Supreme Court judges clearly stated that seditious speech and expression may be
punishable only if the speech is incitement to "violent" or "public disorder." The Supreme Court
addressed the constitutionality of sedition. In upholding the law, the court found that the state
needed this power to protect itself. Moreover, it added a significant caveat that "a person could
be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency
to create public disorder or cause disturbance of public peace." The court held that "a citizen has
a right to say or write whatever he likes about the Government, or its measures, by way of
criticism or comment, so long as he does not incite people to violence against the Government
established by law or to create public disorder."
The Supreme Court reaffirmed these necessary safeguards in September 2016 and ruled that all
authorities must adhere to them.

Balwant Singh and ANR vs. the State of Punjab 10

The accused raised the slogan "Khalistan Zindabad" outside the cinema hall just after the
assassination of Prime Minister Indira Gandhi. The Supreme Court said that the slogan raised by
the accused had no impact on the public. Two individuals casually raising slogans could not be
said to be exciting disaffection towards the Government. Section 124A would not apply to the
facts and circumstances of this case.

Aseem Trivedi vs. the State of Maharashtra 11

Controversial political cartoonist and activist Aseem Trivedi was arrested on charges of sedition
in 2010 for allegedly negatively insulting the National Emblem, having replaced the lions with
rabid wolves during the Anna Hazare protest.

Shreya Singhal vs. Union of India 12

In the famous 66A judgment, the Supreme Court drew a clear distinction between "advocacy"
and "incitement," stating that only the latter could be punished. Therefore, advocating revolution,
or advocating even violent overthrow of the state, does not amount to sedition unless there is
incitement to violence, and more importantly, the incitement is to 'imminent violence.

8
(1917) 19 BOMLR 211
9
1962 AIR 955, 1962 SCR Supl. (2) 769
10
(1995) 3 SCC 214
11
Cri.PIL 3-2015
12
AIR 2015 SC 1523; Writ Petition (Criminal) No. 167 OF 2012
9

According to the Law Commission of India's August 2018 consultation paper, it is time to rethink
or repeal Section 124A of the Indian Penal Code that has to do with sedition. The Law
Commission had rejected a repeal proposal in its 39th report (1968). A panel of experts proposed
in its 42nd report (1971) that the definition of this section be expanded to include 'disaffection'
against the Constitution, the legislature, and the judiciary, as well as the Government established
by law. According to the Law Commission's recent consultation paper on sedition, invoking 124A
would only criminalize acts committed with the intention to disrupt public order or overthrow the
Government through violence and illegal means.

Democracy is based on the right to express oneself. Expressions of ideas that are at odds with
the Government's policy of the day should not be considered sedition. The Law Commission has
rightly said, "an expression of frustration over the state of affairs cannot be treated as sedition."
The pre-and post-Independence times will be the same if the Government is not open to positive
criticism.

National integrity must be protected, of course. Section 124A is unlikely to be repealed too soon,
given both the legal opinion and government support for the law. It should not, however, be
misused to stifle free speech. The caveat given by S.C. in the Kedar Nath case can prevent the
misuse of the law.

SECTION 153A
This section states13:
"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 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, (or)

(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".

The main aim of the Section 153 A is to punish individuals who indulge in wanton vilification or
attacks upon the religion, race, place of birth, residence, language, etc., of any particular group or
class or upon the founders and prophets of a religion. This section's jurisdiction is widened to
promote disharmony, enmity, or feelings of hatred or ill-will between different religious, racial,

13
Constitution of India, Indian Penal Code
10

language, or regional groups or castes or communities punishable. The offence of moral turpitude is
also covered in this section.
This is a cognizable offense, and the punishment for the same may extend to three years, or with a
fine, or with both. However, the sentence of the crime committed in a place of worship is enhanced
up to five years and fine.
Ingredients of Section 153A:
 The Act promotes enmity between different groups on religion, race, birth, residence,
language, caste, community, or any other group.
 Acts prejudicial to maintaining harmony between different groups or castes or communities
if the acts disturb public tranquillity.
 Acts causing fear or alarm or a feeling of insecurity among members of any religious, racial,
language or regional group or caste or community by use of criminal force or violence
against them.

CASE LAW:
Patricia Mukhim v. the State of Meghalaya 1 4
On March 25, 2021, the Supreme Court of India quashed the First Information Report filed under
section 153A, section 500, and section 505(1)(c) of the Indian Penal Code, 1860, against Patricia
Mukhim, a renowned journalist and Padma Shri awardee. The appellant contended that the
disputed Facebook post was made without the intention of inciting enmity between the two
communities: tribals and non-tribals and promoting communal disharmony. Instead, the brutal
attack on non-tribals was highlighted in the Facebook post to call for suitable action against the
culprits. The judges accepted this contention and ruled that the appellant's plea calling for the
equality and protection of non-tribals living in the State of Meghalaya could not be categorized as
hate speech. The judges further reiterated that the disapprobation of governmental inaction could
not be branded as an attempt to promote hatred between different communities. Free speech
should not be stifled by implicating people in criminal cases unless such an address affects
public order.

The court stated that in the said post,

"There is a distinct portrayal of an alleged skirmish between two groups, one, group
allegedly consisting of tribal youths and the other group consisting of non-tribal youths."

The court further observed,

"What can be deduced is that there is an attempt to make a comparison between the
tribals and non-tribals vis-a-vis their rights and security and the alleged tipping of the
balance in favour of one community over the other."

Given the above deduction, the court opined that the same would fall on the mischief of Section
153 An IPC as it seeks to promote disharmony or feelings of enmity, hatred, or ill-will between
two communities.

Supreme Court's decision in Babu Rao v. State15 was cited wherein it was observed that,

"…It is seen that S. 153 A (1) (a) is not confined to the promotion of feelings of enmity
etc. on the grounds of religion only as argued by Shri Sen but takes in promotion of
such feelings on other grounds as well such as race, place of birth, residence,
language, caste or community…."
14
(1980) 2 SCC 402
15
(1980) 2 SCC 402
11

The bench stated that in the instant matter, it could be said that the said Facebook post sought to
create a divide to the cordial relationship between the tribal and non-tribal living in the State of
Meghalaya, even alluding to the role of the State machinery as being bias in this regard.

Hence, the court held that prima facie appears that a case under Section 153 An IPC is made out
against the petitioner.

The court refrained from going into Sections 500 and 505 IPC; however, the said provisions read
conjointly with Section 153A IPC would attract Section 155 (4) of CrPC.

No merit was found in the instant petition for exercising powers under Section 482 CrPC.

SECTION 153B
This section is mentioned in the Constitution as follows:
[153B. Imputations, assertions prejudicial to national integration. —

(1) Whoever, by words, either spoken or written or by signs or by visible representations

or otherwise, —

(a) makes or publishes any imputation that any class of persons cannot, by reason of their
being members of any religious, racial, language or regional group or caste or
community, bear true faith and allegiance to the Constitution of India as by law
established or uphold the sovereignty and integrity of India, or

(b) asserts, counsels advises, propagates, or publishes that any class of persons shall, by
reason of their being members of any religious, racial, language or regional group or
caste or community, be denied or deprived of their rights as citizens of India, or

(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of
any class of persons, by reason of their being members of any religious, racial, language
or regional group or caste or community, and such assertion, counsel, plea, or appeal
causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between
such members and other persons, shall be punished with imprisonment which may extend
to three years, or with fine, or with both.

(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.]

This section punishes imputations and assertions, which are prejudicial to national integration,
and it was added by the Criminal Law (Amendment) Act, 1972. Like the preceding section, this
also has three parts (a), (b), and (c) under subsection (1) and also a sub-section (2). Sub-section
(1) (a) says that whoever by spoken or written words, or by signs, or by visible representations or
otherwise makes or publishes any imputation that any class of persons cannot bear true faith and
allegiance to the Constitution of India as by law established or uphold the sovereignty and
integrity of India, because of their being members of any religious, racial, language or regional
group or caste or community shall be punishable under this section. Sub-section (1) (b) penalizes
anyone who by spoken or written words, or by signs, or by visible representations, or otherwise
asserts, consents, advises, propagates, or publishes that any class of persons shall be denied or
deprived of their rights as citizens of India, because of their being members of any religious,
12

racial, language or regional group or caste or community. Sub-section (1) (c) punishes anyone
who by spoken or written words, or by signs, or by visible representations, or otherwise makes or
publishes any assertion, counsel, plea or appeal concerning the obligation of any class of
persons by reason of their being members of any religious, racial, language or regional group or
caste or community, and such a thing as mentioned above causes or is likely to cause
disharmony or feelings of enmity or hatred or ill-will between such members and other persons.
In each of the abovementioned categories, the punishment prescribed is up to three years, or
fine, or both. Under sub-section (2), if an offence falling under any of the abovementioned
categories is committed in any place of worship or in any assembly engaged in the performance
of religious worship or religious ceremonies, the punishment of imprisonment may extend up to
five years, and the offender shall also be liable to fine.

While section 153-A of the Code deals with the offence of promoting enmity between different
groups on grounds of religion, race, place of birth, residence, language, caste or community, or
any other basis whatsoever, and doing acts prejudicial to maintenance of harmony, etc. Section
295-A with the offence of deliberate and malicious actions intended to outrage the religious
feelings of any class by insulting its religion or religious beliefs; Section 153-B deals with the
crime of imputations and assertions, which are prejudicial to national integration.

Jamaat-E-Islami Hind and Ors. v. Union of India 1 6

Jamaat-e-Islami-Hind is an all-India organization that was established in the year April 1948.
They claim that their main objective is to profess a political, spiritual, and secular power; they
also believe that the god is one with universal brotherhood. They claim that whatever Activities
they performed by the association are done to promote and accomplish their objective.

On December 10, 1992, the official gazette declared notification issued on the same date by the
Ministry of Home Affairs under Section 3(1) of the Unlawful Activities (Prevention) Act, 1967.

This notification is stated that Jamaat-e-Islami hind is an unlawful association under Section 5 of
the Unlawful Activities (Prevention) Act 1967. Because Shree Sirajul Hasan was the head of the
association called a meeting at Delhi where he stated that the matter of separation of Kashmir
from India was inescapable; in other words, they are in favour of the separation of Kashmir from
India. They further start questioning the supremacy of the country's unity and integrity.

But this fact was denied by the appellant and said that the Government of India took it wrongly. A
writ request was likewise recorded notwithstanding the said intrigue, in the other option, for a

16
1995 SCC (1) 428, JT 1995 (1) 31
13

presentation that the arrangements of the said Act and the Rules surrounded thereunder are
unlawful and ultra vires a portion of the fundamental rights ensured in the Constitution of India.

This judgment was given by justice Jagdish Saran Verma; in this case, the Supreme Court held
that the Unlawful Activities (Prevention) Act, 1967 is constitutional; that why the writ petition was
dismissed because it challenged the constitutionality of the Act. The order dated 11-4-1994 by
the Tribunal affirming the Central Government's presence that the Jamaat-E-Islami-Hind is an
"unlawful affiliation" is not economical under law. If we talk about the present situation of the
association, it is divided into many segments, and now they are also involved in terrorist
activities.

The Court of India's judgment was given in which they declared that the Unlawful Activities
(Prevention) Act is constitutionally valid, and the notification which stated Jamaat-e-Islami hind is
an unlawful association was declared invalid by the court.

I agree with the point of reasonable restriction that I mentioned above, but I have different points
of view regarding dismissing the decision of the tribunal board and start questioning the
functioning of the tribunal court because I think that the tribunal board performs all the functions
as per prescribed by the Act.

State of Karnataka v. Paster P. Raju 1 7

The accused was charged with having committed the offence of instigating Hindus to convert to
Christianity. The Supreme Court held that the previous sanction of the Central Government
under section 196 (1-A), Code of Criminal Procedure, 1973 to prosecute him is necessary only to
take 'cognizance' by the court. Bar of sanction will not apply against registration of criminal cases
or instigation by the police agency.

The police arrested him and produced him before the magistrate, who remanded him to judicial
custody following section 167, Code of Criminal Procedure, 1973. Passing of Order of remand
will not amount to the taking of 'cognizance.'

The amendment should be made in IPC section 153 C to include in communication "spoken or
written words, signs, visible representation, information, audio, video, or combination of both,
transmitted, retransmitted through any telecommunication service, communication device or
computer resource."

17
Appeal (crl.) 814 of 2006
14

SECTION 295A
Section 295A states:

"[295A. Deliberate and malicious acts intended to outrage religious feelings of

any class by insulting its religion or religious beliefs.—Whoever, with deliberate
and malicious intention of outraging the religious feelings of any class of [citizens
of India], [by words, either spoken or written, or by signs or by visible
representations or otherwise], insults or attempts to insult the religion or the
religious beliefs of that class, shall be punished with imprisonment of either
description for a term which may extend to 4[three years], or with fine, or with
both.]."
The object of Section 295-A is to punish deliberate and malicious acts intended to outrage the
religious feelings of any class by insulting its religion or religious beliefs. This section only
punishes an aggravated form of insult to faith when it is perpetrated with the deliberate and
malicious intention of outraging the religious feelings of a class.
Ingredients of Section 295-A:
 The accused must insult or attempt to offend any class of India's religion or religious
beliefs.
 The said insult must be with a deliberate and malicious intention of outraging the religious
feelings of the said class of citizens.
 The said insult must be by words, either spoken or written, by signs or by visible
representation or otherwise.
 The offence under Section 295-A is cognizable and a non-bailable and non-
compoundable violation.
 The police have the power to arrest a person charged under Section 295-A without a
warrant.

Recently, the Madhya Pradesh police registered a First Information Report ("FIR") against two
Netflix executives for certain kissing scenes featured in the web series 'A Suitable Boy,' which
allegedly hurt religious sentiments as they were shot in a temple premise. The Madhya Pradesh
Home Minister, Narottam Mishra, publicly stated that the FIR, lodged on a complaint filed by a
functionary of the ruling party at the Centre and by the said state, named Ms. Monika Shergill,
Vice President, Content (Netflix), and Ms. Ambika Khurana, Director, Public Policies (Netflix) as
being responsible.

It was widely reported that the FIR is registered under Section 295-A of the Indian Penal Code,
1860 ("IPC"). Such complaints can be lodged anywhere in the country at the instance of
purportedly aggrieved complainants, and there have been instances of States not being averse
to registering multiple FIRs on identical or similar allegations.

In 1957, a Constitution Bench of the Supreme Court upheld the constitutionality of the said
Section in Ramji Lal Modi vs. the State of U.P. The court held that Section 295A
18

IPC does not penalize any and every Act of insult to or attempts to insult any religion or the
religious beliefs of a class of citizens. The court cautioned that only those acts of insults or
attempts to such an insult could be penalized under this provision which is perpetrated with the
deliberate and malicious intention of outraging the religious feelings of that class. The court
further clarified that the provision would only apply to such aggravated forms of insult to religion
calculated to disrupt the public order. Additionally, the intention to offend the Indians citizens of a
particular faith must both be deliberate and malicious and must be meant for the Indian citizens
of that class. In 2017, the Supreme Court provided succour to acclaimed Indian cricketer M.S.

18
1957 AIR 620, 1957 SCR 860
15

Dhoni when he was charged under the said provision for a painting carried on the main page of a
business magazine and his photo with the caption "God of Big Deals."

In Secy. Ministry of Information and Broadcasting, Govt. of India vs. Cricket

Assn. of Bengal 1 9 , the court widened the scope of the fundamental right of speech and
expression to include the right to educate, inform and entertain and to the right to be educated,
informed, and entertained. The court opined that the former is the right of the telecaster and the
latter that of the viewers.

In Kartar Singh vs. State of Punjab 2 0 (cases dealing with a constitutional challenge to the
TADA laws), the Supreme Court warned that vague laws not only trap the innocent by not
providing fair warning but also impermissibly delegate essential policy matters to police officers
and judges for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary
and discriminatory application. More recently, in Shreya Singhal vs. Union of India, the Apex
Court observed that vague expressions, in the sense that there is no manageable standard by
which a person can be said to have committed an offence, present difficulties as even judicially
trained minds may come to diametrically opposite conclusions on the same set of facts.

Therefore, the outrage of an individual citizen concerning certain online content which is, in
his/her subjective judgment, objectionable and punishable under Section 295A IPC will have to
be judiciously balanced by the authorities with the rights of not only the accused persons but also
that of viewers entitled to access such content by choice. Presently, under Section 196(1)
Cr.P.C., such judicial scrutiny is deferred until the stage when a Court is required to take
cognizance of such an offence under Section 196(1) Cr.P.C.

SECTION 298
Section 298 of the Indian Penal Code states that “Whoever, with the deliberate intention of
wounding the religious feelings of any person, utters any word or makes any sound in the hearing of
that person or makes any gesture in the sight of that person or places, any object in the sight of that
person, shall be punished with imprisonment of either description for a term which may extend to
one year, or with fine, or with both.”

Since the beginning of time, communalism in India has oftentimes been the root cause of violence
and bitterness among people across the country. It has been a recurrent source of violence and riots
during which people of all faith have to go through immense suffering. A person’s communal identity
and religious faith is something that is very personal to them and in a secular country like India, they
find their place within the miscellany of religions. However, a communalist who has based their
political identity around religion and believes that religious identity is something that overrides
everything else, might find it strenuous to live in a diverse society like that of India. Communalists
are willing to kill, rape and loot members of other communities if it meant that it would redeem
their pride and protect their own community’s interests. One such devastating incident occurred in
Gujarat in 2002.

On the fateful day of February 27, 2002, a train filled with Hindu pilgrims was returning from a
religious ceremony that had taken place in Ayodhya at the site where the Babri Masjid once stood.
The train took a stop near the Godhra station, a town that had been prone to religious violence.
Sometime later, a tussle occurred between the passengers of the bus and the residents of the town.
Things quickly escalated and under unknown circumstances the train caught on fire and 59
passengers that had been trapped inside the train, died a painful death. The following day, a state-
wide bandh was called by organisations led by the Vishwa Hindu Parishad in order to protest against
19
1995 AIR 1236, 1995 SCC (2) 161
20
1961 AIR 1787, 1962 SCR (2) 395
16

the killings. Despite such strikes being declared as unconstitutional, the state government did not
attempt to put a stop to it. The media outlets and local newspapers were quick at their feet to state
that the fire had been an arson committed by Muslims who had conspired with the ISI to attack the
Hindus of Gujarat. The damage had been done and attacks on Muslims began and spread like
wildfire. These attacks continued for more than two months during which, an estimate of more than
1,000 people had lost their lives. According to the New York Times, “about 1,000 people, mostly
Muslims, are killed. Some 20,000 Muslim homes and businesses and 360 places of worship are
destroyed, and roughly 150,000 people are displaced.”

A baseless claim with no rigid proof had been successful in instigating one of the most intense
communal riots in Indian History.

SECTION 505(1) and (2)

Section 505 of the IPC criminalizes the publication or circulation of certain statements, rumours, or
reports, the intention of such statement or the effect of such a press release is to make mischief and
to upset the general public tranquillity. Hence, the text of Section 505 of IPC provides for a broader
scope and application. Whereas Section 502 is interpreted conservatively by the judiciary, where
such interpretation falls under the scope of reasonable restriction of public order as specified in
Article 19(2) of the Indian Constitution. Section 505 of the IPC is direct to see and punish the
spreading of false and mischievous news intended to upset the general public tranquillity.

Section 124A of the IPC talks about sedition and penalizes it stating that if any words written or
spoken promote hatred or contempt disaffection against the govt established by law is claimed to be
charged under Section 124A.

The Law Commission in its 267th report recognizes the discrimination faced by groups based on ‘sex,
identity and sexual orientation’, such people facing discrimination should even be provided
protection under hate speech laws.

There are various famous case laws of which one is that the case of Arundhati Roy, Hurriyat leader
Syed Ali Shah Geelani, etc. was booked under section 124A by Delhi Police for his or her “anti-India”
speech at a seminar in 2010, for advocating independence for the clashed Kashmir region. The
opposite famous case was in 2003 during which Praveen Tog Adia was charged with sedition by the
Rajasthan government. The charges impose an effort “to wage a war against the state.”

THE CODE OF CRIMINAL PROCEDURE AND

HATE SPEECH.
CrPC provides the procedures to be followed for the administration of criminal code. Few sections of
CrPC that provide procedures to be followed in cases when hate speech is criminalized, which are
discussed.

Sections 95 and 96 of the CrPC authorize the government to issue a legitimate order to forfeit any
‘book, newspaper or document’ as per the rules given by judiciary after its broad interpretation,
such publication should hold matter, the publication of which is punishable under various sections of
17

IPC such as Sec. 124A, Sec. 153A, Sec. 153B, Sec. 292, Sec. 293, and Sec. 295A of the Indian Penal
code 1860. Once the forfeiture order is issued, an inquiry and seizure order under section 100 of
CrPC should be obtained from the magistrate so as to execute a forfeiture order. Under Section 96 of
CrPC, an appeal can often be filed to challenge the forfeiture order.

Section 95 authorizes the government to censor the publications. Orders passed under this section
also can be reviewed by application under Section 96.

Section 196 is a procedural safeguard that protects frivolous prosecution for ‘hate speech’ offenses
that will disturb public peace and tranquillity and is considered as serious and exceptional in nature.
A court takes cognizance to decide the stage at which prior sanction from authorities is required.

Section 144, which allows the issuance of temporary orders in urgent cases of nuisance or
apprehended damage. This section has been famous to suppress speech by getting used repeatedly
by the varied state government to order internet shutdown and ban films. A written order on merits
under Section 144 provides a speedy remedy in cases when imminent danger is suspected.

Section 178 comes into play where the offense is completed across multiple jurisdictions by the
publication of hate speech at multiple locations.

Section 151 of the CrPC provides power to the state to arrest an individual without a warrant so as
to stop hate speech during this case which may be a cognizable offense. Section 107 of the CrPC
gives power to a magistrate to execute the upkeep of peace with the assistance of individuals who
will be required for implementing such bonds. Sections 151 and 107, provide preventive powers to
the state. Though in real-world preventive arrests are quite substantial criminal arrests.

ELECTION LAW AND HATE SPEECH

o Section 123 (3) RPA 1951
The Representation of the People Act was passed by the Parliament in 1951under the
provisions of Article 327 of the Constitution. The RPA provides for the conduct of
elections to the Houses of Parliament and Houses of Legislature. It also lays down the
criteria under which a person could be qualified or disqualified as a member of either
house.
Section 123 of the RPA lists certain actions and practices that have been deemed as
corrupt, among which is the use of hate speech and the attempt to appeal to people or
create prejudice against an opposing candidate through the use of National, Religious or
Linguistic symbols, etc. In order to curb the use of the same by a candidate, this section
has laid down provisions under clause 3. It reads as follows:
Section 123 - The following shall be deemed to be corrupt practices for the purposes of
this Act: —
Section 123 (3) –
“The appeal by a candidate or his agent or by any other person with the consent of a
candidate or his election agent to vote or refrain from voting for any person on the ground
of his religion, race, caste, community or language or the use of, or appeal to religious
symbols or the use of, or appeal to, national symbols, such as the national flag or the
national emblem, for the furtherance of the prospects of the election of that candidate or
for prejudicially affecting the election of any candidate”
Basically, this prohibits any candidate from using religion, language, or caste as criteria
to earn votes during elections.
18

o Section 123 (3A)

“The promotion of, or attempt to promote, feelings of enmity or hatred between different
classes of the citizens of India on grounds of religion, race, caste, community, or language, by a
candidate or his agent or any other person with the consent of a candidate or his election agent
for the furtherance of the prospects of the election of that candidate or for prejudicially affecting
the election of any candidate.”

Despite the existence of such provisions, politicians do not back away from making controversial
statements during and post elections that often hurt the sentiments of the common people and
also in many cases, stir up hatred towards a particular community.

In a very controversial tweet, BJP MLA Kapil Mishra was seen spreading communal hatred, but
he maintained that he was trying to raise awareness on the need for population control.
Regardless, the tweet was taken down by Twitter for violation of its community guidelines. In the
tweet he had written: “If you want pollution to come down, then you should reduce these
firecrackers and not the ones burst on Diwali" along with a picture of an elderly man wearing a
taqiya and several children along with women in burqa, waiting in a queue.

On another instance, Mishra had also tweeted about the anti CAA protests being carried out in
Delhi saying, "They want to cut off 35 lakh people by blocking the roads. Is this the way to
protest against anything? We will not allow the area to be turned into Shaheen Bagh”. Moreover,
as a response to these protests, he asked people to gather at Maujpur Chowk to support the new
citizenship law. In December of 2019, he led a march in Delhi in support of CAA. Later, a video
from that march surfaced on social media in which Mishra could be heard chanting the infamous
slogan — “desh ke gaddaron ko, goli maaro s*alo ko”. This slogan went on to become a recurring
phrase being thrown at people who dared to speak against the BJP government. While
campaigning for the 2020 Delhi elections, Union Minister Anurag Thakur had also encouraged
people to chant the slogan as a result of which the Election Commission had him banned from
campaigning for 72 hours. Another politician named Paresh Verma, who is a BJP MP, had
promised that he would demolish all mosques in his constituency that were built on government
land if his party came to power in Delhi.

PREVENTION OF ATROCITIES ACT AND HATE

SPEECH.
The Prevention of Atrocities Act, 1989 is an Act of the Parliament of India enacted to ban
discrimination, prevent atrocities (atrocity means an act of brutality), and hate crimes against
schedule castes and schedule tribes. The Act is popularly referred to as the SC Act and ST Act, the
Prevention of Atrocities Act, or just the Atrocities Act. After recognizing the continuing gross
indignities and offenses against Scheduled Castes and Tribes, the Parliament passed the 'Schedule
Castes and Schedule Tribes (Prevention of Atrocities) Act 1989 or in other words, it means speech
directed by a person who himself is not a member of SC or ST community towards the SC and ST
community to demean them and hurt them is prevented from occurrence under the Prevention of
Atrocities Act, 1989. The prosecution will need to prove the ingredients of such a criminal offense.
Social media has been utilized to post speeches which are prohibited by few platforms like Twitter.
19

Thus, objectives of the Act clearly emphasized delivering justice to those communities through
proactive efforts to enable them to live their life in a society with dignity and self-esteem and
without worrying or violence or suppression from the dominant castes, also to urge over from hate
speech which they face. The practice of untouchability, in its overt and covert form was made a
cognizable and non-compoundable offense, and strict punishment is provided for any such offense.

SC/ST Prevention Act is “one of the foremost important pieces of legislation for the protection of
Dalits”, section 3 (1) of the Act as a provision ripe for misuse. This section which is mentioned
penalizes any individual who “intentionally insults or frighten with intent to humiliate an individual
or group of a Schedule Caste or a Schedule Tribe in anywhere within public view.”

THE RELIGIOUS INSTITUTIONS (PREVENTION

OF MISUSE) ACT, 1988

Section 3 (g) of this act states:

"Prohibition of use of religious institutions for certain purposes. —No religious

institution or manager thereof shall use or allow the use of any premises
belonging to, or under the control of, the institution:

(g) for the doing of any act which promotes or attempts to promote disharmony
or feelings of enmity, hatred or ill-will between different religious, racial,
language or regional groups or castes or communities."

Arun Shahpur vs. the State of Karnataka 2 1

The court stated in this case:

"Where any religious institution or manager thereof contravenes the

provisions of section 3, section 4, section 5 or section 6, the manager and
every person connected with such contravention shall be punishable with
imprisonment for a term which may extend to five years and with fine which
may extend to ten thousand rupees."

As it is alleged that the temple premises were used for an unlawful purpose prohibited under
Section 3 of the Act, for promotion and propagation of the political activity; the temple authorities
appear to have not been sought to be prosecuted, but the defendants sought to the charged as
the "persons connected with such contraventions."

MEDIA LAW AND HATE SPEECH

The Cinematograph Act 1952
Cinema has opened up to new possibilities and debatable themes in the social and political arenas.
With the rapid technological advancement, it is easy to abuse the wonders of technology and
portray hurtful themes to social conformations, and in extreme cases, these portrayals might even
incite violence.

21
16 December 2020
20

The Cinematograph Act, 1952, ensures that films fulfil the objectives prescribed by law. In the Act is
a provision for the establishment of a Central Board of Film Certification. This is the regulatory body
in India that issues a certificate to the makers of films for public exhibition. Once the board has
examined a movie, the board can:

 Sanction the film for unrestricted exhibition.

 Sanction the film for public exhibition limited to adults.
 Direct such modifications and excisions in the movie before sanctioning the film to
any of the above.
 Refuse to approve the film for exhibition ultimately.

One of the first cases where the issue of censorship of film was raised is K.A. Abbas v the Union
of India 2 2 , where the Supreme Court of India considered the vital question related to pre-
censorship of cinematography concerning the freedom of speech and expression guaranteed under
India's Constitution. It was held by Hidayatullah, C.J, that censorship of films which includes pre-
censorship was constitutionally lawful. He added that unjustified restrictions on freedom of
expression by the board should not be exercised.

In the case of S. Rangarajan v Jagjivan Ram 2 3 , Supreme Court faced a similar question and was
of the view that 'if the exhibition of the film could not be validly restricted under Article 19(2), risk of
procession and demonstration was not a valid ground to suppress the same.' The Supreme Court
added that it was the state's duty to protect the freedom of expression.

The Supreme Court of India, in giving its judgment in the case of Bobby Art International v Om
Pal Singh Hoon, 2 4 believed that a film must be judged in its entirety. The court added that where
the film's theme is to condemn violence and degradation, scenes of expletives to advance the
message, which was the primary intention of the film, are permissible.

1. Section 4
This section states the following:

(1) Any person desiring to exhibit any film shall in the prescribed manner make an
application to the board for a certificate in respect thereof, and the board may,
after examining or having the film examined in the prescribed manner, --

(i) sanction the film for unrestricted, public exhibition: 25* * *

26
[Provided that, having regard to any material in the film, if the board is of the
opinion that it is necessary to caution that the question as to whether any child
below the age of twelve years may be allowed to see such a film should be
considered by the parents or guardian of such child, the board may sanction the
film for unrestricted, public exhibition with an endorsement to that effect; or]

(ii) sanction the film for public exhibition restricted to adults; or

22
1971 AIR 481, 1971 SCR (2) 446
23
1989 SCR (2) 204, 1989 SCC (2) 574
24
1996 4 SCC 1
25
The word "or" omitted by s. 4, ibid. (w.e.f. 1-6-1983).
26
The proviso added by s. 4, ibid. (w.e.f. 1-6-1983).
21

27
[(iia) sanction the film for public exhibition restricted to members of any
profession or any class of persons, having regard to the nature, content, and
theme of the film; or]
28
[(iii) direct the applicant to carry out such excisions or modifications in the film
as it thinks necessary before sanctioning the film for public exhibition under any
of the foregoing clauses; or]

(iv) refuse to sanction the film for public exhibition.

(2) No action under 29[the proviso to clause (i), clause (ii), clause (iia), clause (iii)
or clause (iv)] of sub-section (1) shall be taken by the board except after giving an
opportunity to the applicant for representing his views in the matter.

This section provides for the inspection of the film before releasing in the cinema; this
inspection helps in preventing any portrayal that might lead to incitement, violence,
or bitter feelings between communities. However, the board should draw the line
between censorship of severe issues and portraying scenes that incite hatred or create
an unstable and violent environment.

CASE LAWS:
In Edara Gopi Chand vs. Union of India and Ors . 3 0 Where there was a petition to
inquire the certificate of the film “Grand Masti,” the court held:

“While drawing our attention to the provisions of Section 4(1)(i) of the

Cinematograph Act, 1952, Section 5 of the Cable Television Networks
(Regulation) Act, 1995 and Rule 6(1)(o) of the Cable Television Networks Rules,
1994, Shri Gaurav Kumar Bansal, the learned counsel appearing for the petitioner
reiterated the contention in the petition that the re-certification of the film from
„A‟ to „V/UA‟ is highly arbitrary, illegal and in violation of the provisions of the
Cinematograph Act, 1952.”

In light of the history of why a film has been banned, or parts of it are censored, the main categories
for why the same is done are as follows:
Sexuality: Due to the rigid social structure in Indian society, a medium that portrays sexuality
regardless of the form, if it has not been fathomed by the society and is addressing a social
stigma, is banned because it might have the effect of undignified morals of Indians.

Politics: The description of an allegorical political scene, directly or indirectly, is banned by the
authorized party to it. Overt political overtones are not appreciated by the Government and
hence is a common reason why certain films are entirely forbidden, or such scenes are censored
or removed.

Communal Conflict: Under a heterogeneous nation like India, if a film incites or spurs any type
of communal conflict, it is censored. The aim is to avoid the consequences such a film would
have on the audience it intentionally or unintentionally targets. If the state believes that a movie
would open a window for riots by a community for how they have been portrayed in the film, the
same is banned by the board or censored.
27
Ins. by s. 4, ibid. (w.e.f. 1-6-1983).
28
Subs. by s. 4, ibid., for clause (iii) (w.e.f. 1-6-1983)
29
Subs. by Act 49 of 1981, s. 4, for "clause (ii), clause (iii) or clause (iv)" (w.e.f. 1-6-1983).
30
W.P. © No. 5203/ 2013 and CM No. 11658/2013
22

Incorrect Portrayal: Sometimes, a situation arises where a well-known personality object to his
depiction in a medium exhibited and consequently goes for censoring it. For more clarity, in a
case where the medium is biographical, and the person on whom it is based does not approve of
the authenticity of the film, there have been times when the person has sued for the medium not
to be released or be edited and removed upon approval of such person.

Religion: Religion does not appreciate any type of defiance or disobedience towards the values
it proliferates. Hence, any medium which directly or indirectly distorts any aspect of the religion,
including its preaching, values, idols, to name a few, is highly criticized and, therefore, censored.

Extreme Violence: Indubitably, the portrayal of excessive gore and violence may meddle and
disturb the human mind. Viewing such scenes may have a negative psychological effect on the
mind. If the board of a similar opinion that such a scene through any medium may have an
underlying negative impact on the viewer, contrary to the entertainment or knowledge such
scene tries to bestow, the same may be banned, edited, or censored board in the public interest.
1. Section 5B
This Section States:

“(1) A film shall not be certified for public exhibition if, in the opinion of the
authority competent to grant the certificate, the film or any part of it is against
the interests of 31[the sovereignty and integrity of India] the security of the state,
friendly relations with foreign States, public order, decency or morality, or
involves defamation or contempt of court or is likely to incite the commission of
any offence.

(2) Subject to the provisions contained in sub-section (1), the Central Government
may issue such directions as it may think fit setting out the principles which shall
guide the authority competent to grant certificates under this Act in sanctioning
films for public exhibition.”

CASE LAW:
In People for Ethical Treatment of Animals (PETA) & ANR. Petitioners Vs. Union
of Indi and Ors. S . the court stated:
32

“Consistent with the provisions that are enunciated in Guideline 2(iii)(c) of the
Guidelines framed by the Central Government under sub-section (2) of Section 5B
of the Cinematograph Act, 1952 and Rule 21(3)(bb) of the Cinematograph
(Certification) Rules, 1938, the Central Board of Film Certification shall hereafter
in all cases where an applicant for certification of a film for the public exhibition
states that animal has been used in the shooting of a film, require the production
states that an animal has been used in the shooting of a film, require the
production of a certificate from the Animal Welfare Board of India certifying that
the provisions of the Performing Activity (Registration) Rules, 2001, have been
compiled with. Such a certificate shall be filed with the application for
certification of a film for public exhibition.”
2. Section 7
This Section states:

31
Ins. by s. 6, ibid. (w.e.f. 1-6-1983).
32
W.P(C) No. 23480/2005
23

33
[(1) If any person--

(a) exhibits or permits to be exhibited in any place--

(i) any film other than a film which has been certified by the board as suitable for
unrestricted, public exhibition or for public exhibition restricted to adults 34[or to
members of any profession or any class of persons] and which, when exhibited,
displays the prescribed mark of the board and has not been altered or tampered
with in any way since such mark was affixed thereto,

(ii) any film, which has been certified by the board as suitable for public exhibition
restricted to adults, to any person who is not an adult, 35* * *

[(iia) any film which has been certified by the board as suitable for public
exhibition restricted to any profession or class of persons, to a person who is not
a member of such profession or who is not a member of such class, or]

(b) without lawful authority (the burden of proving which shall be on him), alters
or tampers within anyway, any film after it has been certified, or

(c) fails to comply with the provision contained in section 6A or with any order
made by the Central Government or by the board in the exercise of any of the
powers or functions conferred on it by this Act or the rules made thereunder,
36
[he shall be punishable with imprisonment for a term which may extend to three
years, or with fine which may extend to one lakh rupees, or with both, and in the
case of a continuing offence with a further fine which may extend to twenty
thousand rupees for each day during which the offence continues:

Provided that a person who exhibits or permits to be exhibited in any place a

video film in contravention of the provisions of sub-clause (i) of clause (a) shall be
punishable with imprisonment for a term which shall not be less than three
months, but which may extend to three years and with fine which shall not be
less than twenty thousand rupees, but which may extend to one lakh rupees, and
in the case of a continuing offence with a further fine which may extend to
twenty thousand rupees for each day during which the offence continues:

Provided further that a court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a term of less
than three months, or a fine of less than twenty thousand rupees:]

[Provided further that] notwithstanding anything contained in section 29 of the

Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any
Metropolitan Magistrate, or any Judicial Magistrate of the first class specially
empowered by the State Government in this behalf, to pass a sentence of fine
exceeding five thousand rupees on any person convicted of any offence
punishable under this Part:

33
Subs. by s. 4, ibid., for sub-section (1).
34
Ins. by Act 49 of 1981, s. 11 (w.e.f. 1-6-1983).
35
The word "or" omitted by s. 11, ibid. (w.e.f. 1-6-1983).
36
Subs. by Act 56 of 1984, s. 3, for certain words (w.e.f. 29-8-1984).
24

[Provided also that no distributor or exhibitor or owner or employee of a cinema

house shall be liable to punishment for contravention of any condition of
endorsement of caution on a film certified as "UA" under this Part.]

(2) If any person is convicted of an offence punishable under this section

committed by him in respect of any film, the convicting court may further direct
that the film shall be forfeited to the Government.

(3) The exhibition of a film, in respect of which an "A" certificate 37[or a "S"
certificate or a "UA" certificate] has been granted, to children below the age of
three years accompanying their parents or guardians shall not be deemed to be
an offence within the meaning of this section.

In Union of India vs. Mahadeolal Prabhudayal (1965) 38

court stated the following:

“Emphasis has been placed by learned counsel for the petitioner on Section 7 of
the Act which provides for penally for exhibiting any film in respect of which
certification under the category ‘A’ has been granted. The bar in regard to an
exhibition of films is, therefore, obviously dependant on the certification of that
particular film. In other words, the bar is correlated with the certification of films
in a particular category.”
In India, the basis on which a film is censored or banned has been traditional norms. That being
said, what is censored today, may not be censored tomorrow. The socio-economic dynamics of a
country are continually evolving. Hence, all regulations must try to adapt to the same. The
Constitution of India guarantees freedom of speech and expression with justifiable limitations on
certain expressions like contempt of court, morality, and decency, the security of the state, public
order, incitement to an offence, defamation, etc., and rightly so.

The Cable Television Network Regulation Act, 1995

In the digital era, Cable Television is the discussion of the everyday. In every single corner of the
nation, individuals use it and communicate with it. Urbanites benefit from appreciating the digital TV
has spread its wings with the outcomes that there has been a heedless mushrooming of satellite
telecom companies everywhere throughout the nation because of accessibility of signs of outside TV
stations through satellites. The projects being anticipated on the satellite stations were
overwhelmingly western. They were strange to our way of life and lifestyle in the beginning. On
these digital telecom companies, Parts of bothersome projects and commercials are also screened
with no dread of being checked. To check this propensity, it has been viewed as essential to control
satellite TV stations' activity to achieve consistency in their operation. The legislation for Cable
Television Networks was introduced.

On September 29, 1994, an Ordinance titled the Cable Television Networks (Regulation) Ordinance,
1994 was proclaimed by the President to accommodate the guidelines regarding the activity of
digital TV stations in the nation. The Ordinance was re-proclaimed by the President on January 17,
1995. To supplant the said Ordinance, a Bill was presented in the Parliament, passed by both houses.
The broadcasting was strictly under the jurisdiction of the state until the Cable Television Networks
(Regulation) Act, 1995, was introduced in India. In the early 1990s, the Indian Government was
caught unprepared for cable networks and satellite broadcasting. The Government couldn't monitor
the transmission and diffusion of TV through international satellites.
37
Ins. by Act 49 of 1981, s. 11 (w.e.f. 1-6-1983).
38
1965 AIR 1755, 1965 SCR (3) 145
25

1. Section 5
The section states the following:

“Programme code. —No person shall transmit or retransmit through a cable

service any programme unless such programme is in conformity with the
prescribed programme code. 39* * * * *”
2. Section 6
The section states the following:

“Advertisement code. —No person shall transmit or retransmit through a cable

service any advertisement unless such advertisement is in conformity with the
prescribed advertisement code. 40* * * * *”
The object of the Act was to manage the ‘aimless mushrooming of satellite broadcasting
companies. The absence of authorizing system for link administrators; brought about many link
administrators, broadcasting programs with no guidelines. The Act planned for controlling the
substance and activity of link systems. This was because of the accessibility of signs from
outside broadcasting companies utilizing satellite correspondence. The entrance to remote
telecom companies was viewed as a “social attack” as these stations depicted western culture. It
additionally needed to set out the “duties and commitments in regard of the nature of
administration both in fact too content insightful, utilization of materials ensured under the
copyright law, presentation of uncertified movies, and insurance of supporters from hostile to
national communicates from sources antagonistic to national interests.” Section 5 and Section
6 of the Act manage notice code and program code. Every single link administration ought to be
in similarity with the codes.

CYBER LAW AND HATE SPEECH

There is a common belief that the internet is a democratic space where people are finally free to live
without the constraints of their real lives, and usually, this is true. The internet has allowed
communication and information sharing on unprecedented levels and has afforded many
opportunities to experiment with fluid identities, meet new people, and create alternative personas.
However, what is happening online is still very much rooted in the offline world, including
prejudices. Gender-based abuse faced by women, sexual minorities, and gender rights activists
online often mirrors experiences in the offline world.

When a woman steps out into the street, gender-based harassment appears to be Part and parcel of
that experience. Because she is in a public space – a space that is not meant to be hers. London-
based journalist Laurie Penny writes,

‘A woman’s opinion is the mini-skirt of the Internet.’ If women wearing revealing

clothing on the streets are seen as ‘asking for it’ – ‘it’ is the range of harassment
and violence they may face – similarly, it seems that just using your voice as a
woman in the virtual world (also a public space), is ‘asking’ for the abuse you
receive. Your voice is gendered, and your gender is unwelcome.’

39
The proviso omitted by Act 36 of 2000, s. 3 (w.e.f. 1-9-2000)
40
The proviso omitted by s. 4, ibid. (w.e.f. 1-9-2000).
26

Gender-based abuse online often targets the most visible marker of gender – the female body. As a
result, women face a lot of abuse dealing with images, including instances of images being circulated
without permission, photographs being morphed, or non-consensual sexual videography.

Women face abuse with being made to feel uncomfortable or inadequate in male-dominated spaces
such as technology forums, threats of violence, threats against family members or children,
harassing mentions of sex, and rape threats. These threats are largely designed to silence women, to
tell them that they are in a space that is not theirs. The strategies women adopt for dealing with the
abuse vary from person to person and depending on how severely the incident is perceived.
Strategies can include ignoring it, blocking the abuser, reporting the abuser, taking them on directly,
or as a last resort, going to the police. Some women may even close down their accounts or pages to
respond to the threats and go entirely offline. Like with street sexual harassment, however, ignoring
the problem does not make it go away.

People are fighting back in unique and often coordinated ways. One example of a collective fight
against sexism online is the development of the Twitter hashtag #MeToo , where people who face or
witness sexist abuse on Twitter can collectively respond to the perpetrator and help create a more
gender-equal environment online.

When women venture out into public spaces, they threaten a patriarchal balance that wants them to
work inside the home and do jobs that do not pay. In the case of Praagaash band members, it was
not the immediate family who objected to their decision. They had been very brave in allowing them
to sing and play music. But the families became worried for the safety of their girls after they got to
know about the sheer volume of abusive and sexually violent threats that were issued to them. This
is only an extension of sexual harassment and assault being used as weapons to silence women into
oblivion in the offline world. The consequences that this sexist abuse can have in the online world
are yet to be fully studied. Self-censorship is very clearly one.

After the Fatwa issued by Grand Mufti of Kashmir, which the band Pragaash seems to have accepted,
the issue has become excessively politicized, and it may be best to respect their decision and give
them some breathing space. The State police have taken cognizance of the threats issued to the girls
on Facebook and registered a case against several users that they claim to have identified. The case
was registered under Section 66A of the IT Act and Section 506 (criminal intimidation) of the Ranbir
Penal Code (the equivalent of the Indian Penal Code in the state of Jammu & Kashmir). On December
31, 2012, the Jammu & Kashmir police cracked the first cyberstalking case, following which the
complainant thanked the J&K police. Section 66A has been helpful in these cases but whether these
developments will help make the internet a less threatening space for women needs to be carefully
determined.

HIV/ AIDs ACT AND HATE SPEECH

Section 4 of the Act states:

“No person shall, by words, either spoken or written, publish, propagate,

advocate or communicate by signs or by visible representation or otherwise the
feelings of hatred against any protected persons or group of protected persons in
general or specifically or disseminate, broadcast or display any information,
advertisement or notice, which may reasonably be construed to demonstrate an
intention to propagate hatred, or which is likely to expose protected persons to
hatred.”
27

This section can be used to protect the LGBTQ community from hate speech or a worse hate crime.
The LGBTQ community is always faced with hatred on the online platform and is the butt end of
various slurs and disgusting jokes. Many other minority communities are made fun of and laughed
at, as well as various communities to hate crime. As mentioned earlier, these minority communities
can invoke various legal provisions in the Constitution of India to protect themselves from hate
speech.
Apart from the criminal framework to fight the menace, several non-legal measures can also be
taken to tackle the problem. This includes counter speech, alternative dispute resolution
mechanism as prevalent in Australia, as well as certain strategies as endorsed by the Law
Commission of India, which are deemed pertinent because of the peculiar demography such as:

• Use of television to bring across the message of harmony among communities,

• Influential figureheads of religion, widely respected to spread and harbor the message

of harmony among communities

• Social media intermediaries to become more vigilant in the content that they

disseminate

• Sensitisation of the masses to stop the spread of rumours and hateful messages.

REFORMS
A contextualizing of how hate speech manifests itself is key to developing a broad understanding of
the issue and creating nationally and culturally relevant responses. However, single-country
perspectives find parallels across different parts of South Asia and often resonate across national
borders.

The question of political manipulation and gain is crucial to any discussion around free speech.
Speaking from the floor, Assistant Professor at National Law University (Delhi) Chinmayi Arun
outlines the necessity of ‘mapping power relations’ because how hate speech plays itself out – both
online and offline – has to do with wider discrimination issues, marginalization, and power. As we
have seen in the above examples, the law for hate speech may also often become a tool for
oppression when used by a ruling majority against its minority citizens. Therefore, it is essential to
consider how measures and initiatives outside the law can combat hate speech and foster non-
discriminatory spaces.

Following the commotion that surrounded the Indian Government’s recent orders to block Internet
content and restrict the use of SMS, FICCI organized in Delhi, on September 4, a panel discussion on
“Legitimate Restrictions on Free Speech Online.” The intention was to start a wider dialogue on how
the Indian Government can improve its responses to instances of hate speech. Secretary of the
Department of Telecom, Mr. R. Chandrashekhar, who was among the panellists, seemed to take the
opportunity most seriously: he specifically asked the audience to focus their comments on
suggestions for improvement they might have. Moreover, his excellent summary at the end of the
event made amply clear that he had listened very closely indeed to the provided feedback.

While the term “reasonable restrictions” is used widely, its meaning all too often remains obscured.
Contrary to what seems a widely held belief, the content of such restrictions is not something that
can simply be decided upon in a national debate, nor, for that matter, in a debate on national
28

television. Rather, the parameters of “reasonable restrictions” are laid down in international human
rights instruments to which India is a signatory. It is commendable that article 19(2) of India’s
Constitution is fully compatible with international law. It is essential that other Indian laws, too, are
tested for such compatibility and adapted where such compatibility proves to be lacking (as is
arguably the case with the Intermediary Guidelines Rules 2011, or IT Rules, for example).

In addition, greater thought needs to go into the thresholds that need to be crossed for blocks and
bans to be instituted and for criminal action to be taken; there needs to be clear evidence that such
actions are necessary and proportional. Where such thresholds are not crossed, actions other than
censorship or criminal prosecution should be considered, including greater public dialogue.

Internationally, incitement to violence is, for example, among the thresholds that are widely
considered essential for censorship or criminal prosecution to be legitimate. Therefore, a newspaper
article that simply seeks to inform about a violent situation would rarely be an appropriate target for
censorship. A clear and present danger of violence and the extent to which the speech is public
(including the size of the audience it reaches) are generally also considered of great importance. A
Facebook group with 68 members is unlikely to have the same impact as a YouTube video watched 8
lakh times.

Determining whether a restriction is reasonable and whether certain thresholds have been crossed
is a difficult and delicate. Traditionally, in India as elsewhere, this important role has been the
prerogative of the courts, which have on various occasions differed from (State) government(s) on
the appropriateness of specific instances of censorship. Seeing the particular challenges, the internet
poses, it is accepted that the Government may require tools to respond at short notice. However, to
assure that different interests are indeed carefully balanced, the continued involvement of the
judiciary in such decisions at some point in time is vital. The current situation, where censorship can
be purely administrative or executive, is not befitting a democratic country. Courts should be
reinserted into the process, either to approve administrative decisions or to review them. The IT Act
and appropriate rules should be amended accordingly.

Without judicial review or approval, it seems unlikely that doubts regarding Internet censorship by
the Government will ever be fully laid to rest.

To settle any doubts, it is further crucial that the Government’s efforts at censoring the internet are
transparent. The Government should itself make known which content has been censored and why.

Transparency would allow the Indian people to understand how a law that potentially affects them
dramatically is applied in practice. At present, the Indian Government is denying them that
opportunity. This makes it impossible for people to challenge censorship in the courts if they believe
it is inappropriate. Ironically, it also makes it impossible for people to adapt their behaviour to the
supposedly being set standards even if they want to. Such situations should not arise in a
democracy. Moreover, as with all our recommendations, the state itself also has an important stake
in transparency, as transparency can only contribute to legitimacy. And where censorship has
legitimacy, it has far greater chances of actually achieving what it set out to do.

Unfortunately, at present, section 16 of the Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009, demands confidentiality rather than
transparency. This section should be replaced by a more appropriate one at the earliest.
29

At present, two sections of the IT (Amendment) Act, 2008, allow for government censorship: section
69A and section 79. However, only the former specifically addresses government censorship (the
latter is about intermediary liability and unfortunately allows everybody to become a censor
potentially). To increase the perceived legitimacy of government censorship, it is therefore
recommended that only section 69A and its attendant rules be drawn on by the Government and
any of its officials. The IT Act should be amended accordingly.

This is particularly important because the safeguards provided for under section 69A, while also in
need of improvement, are much more stringent than those included under section 79. As long as the
Government and its officials can draw on section 79, the safeguards provided under section 69A are
thus effectively rendered meaningless.

Especially in an emergency, it is important to assess after the fact to what extent censorship has
been instrumental in reaching the goals that it was intended to achieve. This cannot simply be
presumed but should be established through in-depth research.

Let us hope the Government will act on these and many other excellent suggestions that were made,
including the importance of drastically reworking the Intermediary Guidelines Rules, on which we
have earlier commented here.

It would be an overstatement to call such comments “hate speech,” but they are problematic.

The Delhi Public School MMS Scandal, the relentless abuse that Tamil singer Chinmayi Sripada had to
deal with, the rape and murder threats that were given to Meena Kandasamy, and, most recently,
the vile abuse that Kashmiri female rock band Pragaash received online pose inconvenient questions
to free speech activists. Female journalists are called whores, bitches, and sluts for simply reporting
on certain issues; female bloggers are stalked, abused, and threatened for their opinions.

These concerns have been raised time and again. In the earlier years of the internet, messages
containing pornographic images and vulgar words seem to have been more common, but these
would be simply dismissed as isolated events. Even though there could have been trends, the
number of instances was probably too low or the occurrences too scattered for these trends to be
detected. With an increasingly connected cyberspace and a vibrant community of Indians on Twitter
and Facebook, these trends have become more and more visible, enough to draw patterns and
conclusions. The responses to women’s opinions on the internet go beyond ‘criticism’; many of
these are a mix of sexist and sexually explicit content aimed at making them uncomfortable and,
perhaps, ashamed [of having expressed an opinion and, thus, having ‘invited’ abuse]. It is not
unusual for any conversation to discuss the woman’s body and sexuality.

The law is indeed, at times, the last resort. But other mechanisms are needed to fight “everyday”
harassment, abuse, and misogyny. At the same time, the internet is a space that is evolving. We are
yet to understand the implications of online abuse fully. The strategies that we devise to deal with
online abuse will be only as good as our understanding of the underlying phenomenon.

CONCLUSION

In India, with its ongoing communal and caste-related tensions, hate speech is a serious
problem. We can all agree that hate speech law is outdated and affects a much broader range of
speech than is necessary. Incitement to violence often fails to be prevented by law, and speakers
with the ability to do so are not punished. Due to the remedy and strategy provisions of the law
30

and institutional failure, this is the case. Laws affecting freedom of expression have a detrimental
effect since they are often misappropriated by the state or used to intimidate speakers. To fully
comprehend the impact of hate speech laws, it is necessary to examine their immediate effects
and their second-order effects.

India has hate speech issues offline, as well as online. It seems that social media is causing a
serious threat to Indian society regarding incitement to violence. After years of negotiating with
online platforms in other jurisdictions, the Indian Government has shut down the internet to
prevent incitement. As a blunt instrument, it has a disproportionate impact on legitimate speech.
While counter-speech is also used, it is not clear whether it is effective. Researchers are not
provided with data on the propagation of rumours and hate speech on social media to compare
those samples with the rise in violence to determine whether speech is associated with violence.
Researchers can conduct data-driven studies of the relationship between online hate speech and
the escalation of violence since social media companies freely provide data such as circulation
rate and geographical data.

A comprehensive report by the Centre for Communication Governance on Indian hate speech
legislation will identify and analyse the components. The report will be followed by a series of
consultations, which will feed a second detailed report on the direct and indirect effects of hate
speech laws. Among the changes we hope to identify are those that would allow the state and
other actors to respond more effectively to hate speech while limiting the law's impact on
legitimate speech. However, it is impossible to precisely study the effects of hate speech in India
without the consent of global companies that own social media and other platforms that perform
a major gate-keeping function in its circulation. This solution is by no means perfect; it requires
the active participation of the public, which may be difficult to achieve.

However, a voting system and a sliding scale could lead to all online users becoming aware of
the nature of hate speech and its effects. The vastness of the country, its numerous cultures,
languages, and geographical disparities, make it very difficult for one country to understand what
another part of the country sees as offensive or highly offensive. By using this online tool,
citizens would be able to self-educate and self-awareness relating to this topic. The result may
be less hate speech offline since this kind of sensitization would allow people to self-regulate
their speech.

The online portal can also establish a general theme or consensus on topics that are considered
hate speech by the public after a few years of use. In doing so, a clearer definition of hate
speech would emerge, and perhaps interesting trends in public opinion and the increasing
sensitivity of the public towards offensive online material might emerge.

In any country, hate speech is a major problem. Global access to free online material has made
this problem even worse. By educating anyone, anywhere in the world, or in a specific country,
the internet can also serve as a counter to hate speech regarding the need to be less offensive.

To sum up everything mentioned above, we need a balanced approach to hate speech on an

online platform, it is difficult but not impossible. The government in recent years is seen targeting
people with certain ideologies and it is quite unfair that actual hate mongers are allowed to roam
free, whereas innocent civilians who want a change in the country and follow legal procedures to
criticize the government are thrown behind bars. Moreover, despite the heavy criticism against
Section 66A it is still in use reported as of 6 th July 2021. The law was struck down on 25th March
2016 in the Shreya Singhal case. Sadly, it is a Zombie provision which is still used despite its
irrelevancy by police officers to this date. We as citizens demand the balance of legal criticism
31

and hate speech and the balance of the government’s powers to take down hate speech. We
can only hope for the best changes in the days to come.

REFRENCES
Chinmayi Arun, N. N. (2016 ). Preliminary Findings on Online Hate Speech and the Law in India.
Research Publication No. 2016-19, 15 .

India, C. o. (1951 ). THE REPRESENTATION OF THE PEOPLE ACT. 67 .

India, G. o. (1947 ). Constitution of India . Delhi .

India, L. C. (2017 ). Report No.267. Delhi : Government of India .

Modh, K. S. (n.d.). Controlling Hate Speech on the Internet: The Indian Perspective. Leiden University,
10.
32

Narrain, S. (2016). Hate Speech, Hurt Sentiment, and the (Im)Possibility of Free Speech. Economic &
Political Weekly, 119.

Sharma, I. (2019). Contexualising Hate Speech: A Study of India and Malaysia. Journal of
International Studies, 12 .