By: Diya Vaishnav and Nihal Deo |
Recently, Union Minister Mr. Anurag Thakur and BJP MP Mr. Parvesh Verma received a ban of 72 hours and 96 hours respectively from campaigning for the Delhi Elections. The reason behind the same was the ‘Hate Speech’ that they delivered in their respective rallies in Delhi. While Mr. Thakur urged the crowd in a rally to shout “Goli Maaro (gun down the traitors)”, Mr. Verma claimed in a rally that those who are protesting at Shaheen Bagh against the new Citizenship Law will one day enter the houses and rape sisters and daughters.
In December 2015, Azam Khan, a senior minister under the U.P government, condemned the RSS workers and stated that they are “homo-sexuals”. In reaction to this, Kamlesh Tiwari, the then Chief of the Hindu Mahasabha, made an offensive statement, against Prophet Mohammed. This led to a Muslim rally against Kamlesh Tiwari, which nastily turned into the Kaliachak Riots. The uncontrolled propaganda and rise of hate crimes, mainly originating due to hate speeches, persuades us to inquire into the causes behind the utterance of hate speeches, and what lies at the psychological level, insisting one to indulge into a disposition, filled with hatred.
HATE SPEECH AND ITS CAUSES
Black’s Law Dictionary defines Hate Speech as “Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.”
To decide whether a speech (in any form) amounts to Hate Speech or not, the effect of words must be judged from standards of a reasonable, strong minded, firm and courageous man, and those of weak and vacillating minds, not of those who scent danger in every hostile point of view.
It seems that negative stereotypes are leading us to think of other individuals as inferior and less worthy of respect, thus expressing this notion through propaganda filled with hate. The reason why negative stereotypes occur is because of the systems of oppression- discriminatory structures, institutions and norms deeply embedded in the fabric of the society, or when a group identity is affirmed, through a distinction between “us” and “them”. Stereotypes are the ways of reinforcing an identity or an “ism” to give higher identity to “our” group over “their”.
Further, the stubbornness to stick to a particular ideology and not allow any other one to co-exist or to out-rightly refuse any alternate thought, leads to intolerance and bigotry, which echoes its parochialism through hate speech. Hate speech doesn’t have to be explicitly hateful, it might be rooted in “love”- love for self’s country, community, religion, or group identity. This love is so confined to one’s own, and develops into fanaticism that it denies any other contrary free thought.
Another reason giving voice to the Hate Speech is the sense of superiority of oneself over another and thus the urge for dominance over the other groups or communities. This feeling of superiority or having an upper-hand over another, leads to the brewing of haughtiness, which in turn boils down to hatred and expresses itself through hate speech. The Nazis, and their belief of the Nordic Aryan blood being the supreme, led to hateful terror upon others - the torture meted out to the Jews is a form of an extreme incitement and hate crime, having its origin in the instigation brought about by the Nazi leaders.
The prejudice towards another community, arising out of false notions and misconceptions based on myths, leads to the development of bias and stereotypes against a particular group, leading to strong contempt. This contempt is mutually shared by the whole group, against another, leading to an upsurge of hate and a strong demand to oust the other.
HATE SPEECH AND FREEDOM OF SPEECH
The Constitution of India provides freedom of speech and expression to the all citizens of India. It is recognized as one of the most essential features that free democratic country must provide. However, the said right comes with certain reasonable restrictions as well. The critics of restricting freedom of speech often argue that it would amount to taking away the liberty of an individual. However, under the guise of exercising intrinsic right, many perpetrate the crime of hate speech, giving rise to an air of distrust, and terror. It must be understood that liberty is there for everyone. If in the name of free speech, a Hate Speech is given which marginalizes the certain persons then liberty of those is taken away.
In 267th Report of Law Commission of India, it was stated that “Liberty and equality are contemporary and not antithetical to each other. The intention of having freedom of speech is not to disregard the weaker sections of society but to give them equal voice. The intent of equality is not to restrain this liberty but to balance it with the necessities of a multicultural and plural world, provided such constraint does not unduly infringe on the freedom of expression. Thus, incitement to not only violence but also to discrimination has been recognized as a ground for interfering with freedom of expression.”
LAWS REGULATING HATE SPEECH
Sections 153A and 153B of Indian Penal Code, 1860 make any act a punishable offence that incites or promotes disharmony or feeling of enmity or hatred between different religious or racial or linguistic or regional groups or castes or communities. The objective of having such a provision was “to check fissiparous communal and separatist tendencies and secure fraternity so as to ensure the dignity of the individual and the unity of the nation”.
Section 295A of Indian Penal Code, 1860 provides for punishment for any act done by anyone with deliberate and malicious intention to outrage the religious feelings of any class of the citizens, insults or attempts to insult the religion or the religious beliefs of that class of citizens. Under S. 295A what is required to constitute an offence, is presence of both, namely, the intention must be deliberate and malicious. However, the Supreme Court in Ramji Lal Modi v. State of Uttar Pradesh held that “Section 295A makes crime only grave types of conduct involving abuse to religion or religious beliefs. The provision does not punish every act of, or attempt to, insult religious beliefs of a class of citizens, but only those aggravated forms of abuse to religion which are executed with the deliberate and malicious intention of outraging the religious feelings of a class of citizens.” It is important to note that section 295A is restricted to offending the feelings of Indian Citizens only, while the one doing that offending act may be a citizen as well as non-citizen.
Under Section 298, punishment is prescribed for any act committed with deliberate and malicious intention of hurting the religious feelings of any person. Thus, it is restricted to protect the hurting of any religious feeling only, however, unlike Section 295A, it protects any person, whether citizen or non-citizen.
Section 505(1) and 505(2) makes the making, publishing or circulating of any statement or rumour an offence, which is likely to incite any class or group of persons to commit any offence against other class or group of persons, or promotes or is likely to promote feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. In Section 505(2), words “whoever makes, publishes or circulates” cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, any person, making a statement that may attract section 505, would be held liable without any publication or circulation.
One important feature of sections 153A and 505(2) of IPC is that there must be at least two groups or communities involved. A mere abuse of the feeling of a community or group without any reference to any other community or group, cannot attract either of the two sections.
In Criminal Procedure Code, 1973 as well there are provisions related to such acts. Section 95 gives power to State Governments to forfeit any publications that are offence under sections 124A, 151A, 153B, 292, 293, or 295A of Indian Penal Code, 1860. Section 107 gives power to Executive Magistrate to prevent a person from committing any act that may disturb the peace and tranquility of the society.
Section 8 of Representation of People’s Act, 1951 puts a bar on a person, from contesting election, who has been convicted of illegitimate use of freedom of speech and expression. Sections 123(3A) and 125 prohibit the promoting of animosity on the grounds of religion, race, caste community or language in reference to election and terms it, as corrupt electoral practices.
CONCLUSION
Hate Speech is the starting point in the chain of marginalizing and putting a particular class of persons under the fear of threat. If it is protected in the name of freedom of speech and expression then it will lead violation of principles on which a free and democratic country is built on. One can throw his/her arms only to the extent they do not hit anyone else.
When it comes to the law of hate speech responsible for inciting communal passions, the fundamental reality in India is not the abuse of the law, but persistent refusal to enforce it. Proper measures should be taken to prevent the spread of Hate Speech. State’s prime objective should be to provide a secular, pluralist and multicultural environment so that there is harmony and peace which aids free interplay of ideas in order to promote growth and development.
The article was originally published on the Criminal Law Studies Blog of NLU- Jodhpur. Authors are the students of Gujarat National Law University, Gandhinagar.