The conspectus within which the law on hate speech operates is very wide. The problem is that it acts as a tool in the hands of the Government to curb the freedom of a citizen

Post the unfortunate Pulwama terror attack, the country has witnessed a substantial increase in communal unrest. People have been using the safe space of social media to post comments that promote hate speech that has spread on the internet like cancer. It is highly unlikely that such voices will come down anytime soon in the foreseeable future. Whether people’s views are right or wrong is another matter for debate. The discussion at hand should be whether the rules as prescribed in the Constitution allow them to do so?

Article 19(1)(a) of the Indian Constitution provides every citizen of the country with the freedom to speech and expression. This is an inalienable right that forms the core of the democratic values. However, this freedom is not absolute and is qualified by restrictions listed under Article 19(2) of the Constitution. Upon a close reading of these limitations, one can come to the conclusion that despite the fact that hate speech is not listed as a direct exception, it does fall under other specified exceptions, including security of the state, public order and incitement to an offence. Therefore, a citizen has the Constitutional right to speech only until it takes the form of hate propaganda.

The Indian Penal Code (IPC) contains provisions that deal with the promulgation of hate propaganda. Section 153A condemns promoting enmity between different groups on the grounds of religion, race, place of birth, residence and language among others, and carrying out acts prejudicial to the maintenance of harmony. Section 295A provides for penal sanctions against acts that are intended towards outraging of religious feelings of any class by insulting its religion or religious beliefs.

Section 298 penalises any act, word or gesture with the deliberate intent to wound the religious feelings of any person. Section 499, explanation 2 provides for group defamation if the imputation of a word or act is against an identifiable

group or collection of people as distinguishable from the rest of the class or community. Section 505(1)(c) penalises acts that incite any class or community against each other.

The Cinematograph Act, 1952 under Section 5-B provides the film certification board with the power to deny any film certification if it, wholly or in parts, is against the interest of sovereignty and integrity of India, 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. Rule 6 and 7 of the Cable Television Networks Rules, 1994 prohibit the telecast of any programme or advertisement which promotes communal attitudes. Further, the Norms of Journalistic Conduct provide certain guidelines on the reporting of communal happenings.

While these are laws that may not directly deal with the issue of hate speech, the Supreme Court has read the Constitution in an elaborate manner so as to encompass such provisions within the limits of reasonable restrictions under Article 19(2). In the case of Ramji Lal Modi vs State of Uttar Pradesh, the apex court was faced with the issue of determining the Constitutional validity of Section 295A of the IPC. The argument was that Section 295A comes under Chapter 15 of the IPC, dealing with offences relating to religion and not Chapter 8, which deals with offences against public tranquility.

Therefore, offences relating to religion have no bearing on the maintenance of public order, or tranquillity and, consequently, a law creating an offence relating to religion and imposing restrictions on the right to freedom of speech and expression cannot claim the protection under Article 19(2).

However, the court applied a broad interpretation of the words “in the interest of” as given under Article 19(2). It stated, “A law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order. The right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order. These two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order.” Therefore, the court came to the conclusion that hate speech can be carved out as an exception under Article 19(2) under domains such as public order or security of the state.

Another important case concerning hate speech is Bilal Ahmed Kaloo vs State of Andhra Pradesh. The case related to a Kashmiri youth being booked under the IPC for allegedly inciting the people of Hyderabad to provide a violent reply to the acts committed by the Army on Kashmiri Muslims. In this case, the point of determination was whether this act of his constituted hate propaganda, would come under Section 153A or 505(2) of the IPC?

The Supreme Court in this case came to the conclusion that for the application of either Section 153A or 505(2), it is necessary that at least two such groups or communities should be involved. The court further stated that merely inciting feelings of one community or group without any reference to any other community or group cannot attract either of the two sections. This case also holds importance as it showcased the difference between Section 153A and 505. The apex court held that while Section 505(2) requires publication of the hate propaganda, Section 153A covers every case without the necessary requirement of publication.

It is important to note that the court has over time broadened the scope of hate speech under the law. In the case of Gopal Vinayak Godse vs Union of India, concerning the forfeiture of the book Gandhi-hatya Ani Mee (Gandhi-assassination And I) authored by Nathuram Godse, the issue revolved around Section 153A of IPC. The court read down the

Section to hold that in case of Section 153A, first, it is not necessary to prove that because the material under consideration, enmity or hatred, was in fact caused.

Second, the intention to promote hatred is not a necessary ingredient of the offence and if it is shown that the language of the text is such that it is of a nature calculated to promote feelings of enmity, then the person would be booked under the same. Further, a truthful account of history is no defence to the offence.

Therefore, it can be seen that the conspectus within which the law on hate speech operates is very wide. The problem that surrounds hate speech is that it acts as a tool in the hands of the Government to curb the freedom of speech of a person, the effect of which is that it leads to the failure of democracy in the country.

As it can be seen, if a person is not allowed to recount even the true facts of history, then it is a direct attack on the sacrosanct right of speech and expression.

Therefore, despite exercising necessary reasonable restrictions in matters of hate propaganda, it should not be stretched to such an extent as a result of which it

unjustly affects the right to speech of an individual.

(Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai)