“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[1]
The fundamental right of the“ freedom of speech and expression”[2] is considered the sine qua non of a democracy. However, certain restrictions have been placed restraining the exercise of this right under Article 19(2)[3] of the constitution. The court in the case of Vinod Dua vs. Union of India (UOI) and Ors. has highlighted the fact that it also “owes a duty to draw a clear line of demarcation between the fundamental right that is guaranteed under Article 19(1)(a) and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of the security of the State and public order”[4]. India over the past few decades has been a victim of the increasing rate of such hate crimes[5]. The term “Hate Speech” has not been given a specific definition in Indian Law[6]. However, the term can be defined 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 based on whom they are, in other words, based on their religion, ethnicity, nationality, race, color, descent, gender or other identity factor”[7]. Recent data on the offences against public tranquillity reveal that the cases have increased by 12.4% in 2020 over 2019[8]. Various legislations have been introduced into the legislation to curb the issue. They include section 124, 153 A , 295A, 298, 505 IPC, section 95 ,107 ,144 CrPC.
Section 153A IPC
The ultimate objective of Section 153A IPC is to prevent breaches of the public tranquillity which occur as a consequence of excited feelings of enmity between classes of people. In the wake of the rising number of violence affecting public tranquillity involving mutual abuse and recrimination, section 153A IPC was incorporated in the year 1898 by the IPC (Amendment) Act 1898[9]. The original section was subject to amendment in the year 1969[10]. The amendment was made to bolster the legislation, and provide enhanced punishment especially if the offences under section 153A IPC and section 505 were made in place of worship and to make these offences cognizable[11]. Punishment for the offence of section 153A IPC may extend up to a term of three years with a fine[12]. If the offence is committed in a place of worship, punishment may extend to five years and a fine[13]. Promotion or attempt to promote disharmony, feeling of hatred, ill-will or hatred by words spoken, signs, visible representation or otherwise between religious, racial, language , caste or community on the ground of religion, race, place of birth residence, language, or regional group or caste or communities are the essential ingredients of the section[14]. “Men’s rea” or “mental intention” to create any ill will or feeling of hatred is a required ingredient under section 153A IPC[15]. Mere publication without any intention to cause any ill will or hatred feeling is not sufficient criteria for section 153A IPC[16]. In Gopal Vinayak Godse vs. The Union of India and Ors[17] it was held that to charge someone under section 153A IPC, “one cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning”.The court emphasized that the article read as a whole and not out of context must create the impression that it is likely to promote ill will and hatred among the communities[18]. In Lalai Singh Yadav vs. State of Uttar Pradesh[19], an application was filed to quash the government’s order to forfeiture of a book titled “Samman ke liye dharm parivartan Karen”. The book was a compilation in Hindi of speeches made by Dr.Amebdkar exhorting the scheduled castes to throw off the shackles of caste tyranny by repudiating the Hindu religion and adopting Buddhism instead. The notification remarks that several passages in the book promote the feeling of disharmony and ill-will[20]. The Allahabad High court by setting aside the impugned order held that “rational criticism of religious tenets, couched in restrained language, cannot amount to an offence either Under Section 153-A”[21].
Conclusion
In the case of Pravasi Bhalai Sangathan v. Union of India[22], the supreme court directed the law commission to analyze and make recommendations on the issue of hate speech. As a result, the 267th Law commission Report on hate speech dealt seriously with the various aspects of the crimes. A few notable recommendations of the report include the incorporation of section 153 C [23], 505A IPC[24]. Various judgments laid down by the judiciary as the “custodian” and ” guardian” of the fundamental right gives its citizen clear pictures of the difference between “freedom of speech and expression” and the aspect of its violations.
Author(s) Name: AGNES SABU (GOVERNMENT LAW COLLEGE , TRIVANDRUM)
References:
[1] Universal Declaration of Human Rights 1948, art. 19
[2] The Constitution of India, art. 19 (1)(a)
[3] The Constitution of India, art. 19(2)
[4] Vinod Dua vs. Union of India (UOI) and Ors, [2021] , AIR 2021 SC 3239 , para 28.6.1
[5] Tanmay Sinha & Deepika Gupta, ‘Hate crimes, a rising menace’( 2018 ) IJLMH < https://articles.manupatra.com/article-details/Hate-Crimes-A-Rising-Menace > accessed on April 25, 2022.
[6] Law Commission of India, Hate Speech (Report 267 ) Para 2.3
[7] United Nations, United Nations Strategy and Plan of Action
<https://www.un.org/en/genocideprevention/documents/UN%20Strategy%20and%20Plan%20of%20Action%20on%20Hate%20Speech%2018%20June%20SYNOPSIS.pdf > accessed on 24 April 2022
[8] National Crime Records Bureau Report, Crimes in India (2020) Table – 1A.4
[9] PSA Pillai, Criminal Law (14th edn, LexisNexis 2021)
[10] Criminal and election laws ( Amendment ) Act 1969, s 2
[11] Criminal and Election laws (Amendment ) Act 1969, Statement of objects and reason
[12] Indian Penal Code 1860 ,s 153A
[13] Ibid
[14] Supra, note 9
[15] The State of Bihar v. Ghulam Sarwar and Another, [1966] , CriLJ 281
[16] Bilal Ahmed Kaloo v. State of A.P [1997] (7) SCC 431
[17] Gopal Vinayak Godse vs. The Union of India and Ors [1971], AIR1971Bom56
[18] Joseph Bain D’Souza and Another v. State of Maharashtra and Others, [1995] , CriLJ 1316
[19] Lalai Singh Yadav vs. State of Uttar Pradesh, [1971] ,CriLJ 1773
[20] Ibid.
[21] Ibid
[22] Pravasi Bhalai Sangathan v. Union of India, [2014], 11 SCC 477
[23] “153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe – (a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person to cause, fear or alarm; or (b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”
[24] “505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory; (i) within the hearing or sight of a person, causing fear or alarm, or; (ii) with the intent to provoke the use of unlawful violence, against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.
