Abstract
The Constitution of India guarantees the right to freedom of speech and expression. Hate Speeches refer to a form of expression that promotes hatred and violence against a particular individual or a group of people or a community. Such speeches are based on stereotypes regarding religion, ethnicity, culture, race, colour, gender etc. Permitting absolute freedom of expression would create social outrage and bedlam. The Constitution of India sets multiple limitations on the exercise of this right to protect other citizens’ rights.
This Article is written by Ayushi Pragya from the O.P Jindal Global University. The article delves into the establishment of provisions for safeguards against hate speech and the extent of freedom bestowed upon the citizens.
Introduction
Article 19(1)(a) of the Indian Constitution guarantees all Indian citizens the right to freedom of speech and expression. This right is guaranteed not only by the Indian Constitution but also by international statutes such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms. Freedom of speech and expression is an important right in a democratic country like India. It empowers citizens to vocalise and express their dissent or assent to government policies and social issues.
Similarly, the press is an important part of democracy. The media can only function properly and legitimately if they have the freedom to criticise the government. They hold the responsibility to convey information from the government to the public without any bias. Article 19(1)(a) also encompasses the right of citizens to receive information.[1] This means that the media of the country hold the responsibility of transferring information from the government to the citizens in its true, original form. Right to expression and speech also includes the acceptance of different ideologies. Without the exchange of civilized discussions, the government will be able to suppress any ideology that it doesn’t associate with and can spread its own propaganda. In the absence of this fundamental right, the government would convert into a draconian power disregarding the wishes of the larger public.
Limitations on the freedom
The Constitution of India has put a limit on the exercise of this right. Article 19(2) imposes reasonable restrictions on this right in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency, or morality, or in relation to contempt of court, defamation, or incitement to an offence. These restrictions are placed so that a person does not affront the liberty of another individual. Hate speech refers to such abhorrent speeches that can incite many people to commit violence. These speeches are usually made with the prime intent of creating violence and mistrust among different communities.
Today, hate speech has become significantly prevalent in India. It is common to find an increase in hate speeches during pre-election months to polarise the public for mere votes. With the wide coverage of the internet in the country, hate speeches are also circulated in the form of Facebook groups, tweets, social media trolls, WhatsApp forwards etc. Media channels have also made deliberate attempts to disunite the community. At the onset of COVID-19 in March 2020, national media channels were hell-bent on blaming the Islamic community for the outbreak of the flu in India. Catchy slogans and provoking arguments were made to further the propaganda. The news-media outlets now exist to maximise viewership ratings rather than to provide a neutral point. Hate speech results in public unrest which in turn leads to the destruction of property, mob lynching and common people’s death.
The destruction of Babri Masjid in 1992 is one of the few examples of how hate speech can result in communal killings. Apart from these direct consequences of hate speech, structural discrimination takes place against the community for whom the hate speech was issued. For example, suppose a religious leader articulates a hate speech against a particular community in the locality. It is safe to assume that all the members of this community in the vicinity will be significantly disturbed by the other community members. They will find themselves on the receiving end of discrimination and exclusion from public spaces. Women of this community will additionally encounter sexual violence.
Hate speeches incite fiery physical confrontations rather than knowledgeable tolerant discussion. As a result, multiple sections of IPC and CrPC deal with the crimes of insult, hurt sentiments, and hate incitements in order to protect the rights of marginalised communities These sections apart from criminalizing the act also criminalize the attempt to commit such an act without any real harm being done. Section 153A, 153B, 295A, 298 and 505 of the Indian Penal Code (IPC) and Section 95 of the Criminal Procedure Code are a few provisions under which hate speeches are booked. For instance, section 295(A) of the IPC punishes acts that are deliberately done to provoke and outrage the religious feelings of a class of people.
In India, the concept of hate speech is based on the balance of ‘public order ’. Before the first amendment of the constitution, Article 19(2) did not include the restriction of ‘public order ’. Instead, Article 19(2) originally stated ‘undermines the security of the state or tends to overthrow the state’. It is evidentially clear that in the original form of article 19(2), the thresholds were set very high. Hence, in the Romesh Thapar case, the court rejected the government’s argument for restricting the right merely on public order.[2] However, in the first amendment, the legislation introduced "public order" as a ground for restricting the right to free speech.
In Ram Manohar Lohiya, the court further widened the meaning of public order to include public peace, safety, and tranquillity.[3] This wide interpretation of "public order" has allowed the state to curb most of the activities without any actual disruption taking place. This creates the danger of misusing the provisions to trifle the opposition by the state. The pre-colonial law on sedition is one of the State’s most misused instruments to crack down on any objection raised. It is common to find young college students being charged with the non-bailable sedition laws for condemning the government policies and actions. Recently a famous comedian Munawar Faruqui and four others were arrested for allegedly insulting Hindu gods and thus outraging religious feelings. This was an unprovoked attack by the right-wing Hindu nationalists. The Supreme Court granted bail because the allegations laid against him were vague thus showing that Faruqui was merely exercising his freedom of expression. There have been many such cases in recent times which goes on to show how the freedom of speech is being attacked. Vehement restrictions on the manner of speech and expression can cripple the critical thinking of the public and the right to scrutinize the administration.
Conclusion
With rights come responsibilities and hence the citizens are required to be reasonable and not misuse the rights conferred to them. The State is also expected to not misuse the provisions available to them. The right to freedom of speech and expression is subjective and not absolute in nature. Heavy clampdown with restrictive rights will destroy the purpose and functioning of a truly democratic country whereas totalitarian liberal stand would create public unrest. There is a need for a reasonable balance between the rights and duties of a citizen.
References
[1] Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294.
[2] AIR 1950 SC 124.
[3] AIR 1960 SC 633.
Alam Shahrukh. (2022). Hate Speech: What It Is and Why It Matters. The Wire.
Dembi, Divyanshu, Hate Speech under Article 19(1)(a): Conceptualising the Case for Constitutional Protection of Hate Speech under Indian Law (June 25, 2021). Available at SSRN: https://ssrn.com/abstract=3953373.
Mishra, Samarth & Shukla, Aditya. (2019). Balancing Freedom of Expression and Hate Speech: Case of India. 9. 1409-1419. 10.6084/m9.figshare.11345261.
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