PAPER- I : CONSTITUTIONAL LAW –ARTICLE 2 #MARCH 2017
FUNDAMENTAL RIGHTS: FREEDOM OF SPEECH AND EXPRESSION : ARTICLE 19:
HATE SPEECH - LAW COMMISSION REPORT NO 267.
WHAT IS HATE SPEECH :
“Hate speech = any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.
Black’s Law Dictionary # Definition = “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.
EFFECT OF HATE SPEECH : Hate speech can have following societal impact:
It marginalises individuals based on their membership in a group.
It seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society.
AFFECTS THEIR PARTICIPATION IN DEMOCRACY : Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.
ABUSE OF FREEDOM OF SPEECH UNDER 19(1) (a) – IS HATE SPEECH :In Ramesh v. Union of India, AIR 1988 SC 775 # the effect of the words must be judged from the standards of reasonable, strong-minded person and not those of weak minds.
Freedom of Speech and Expression is an important right but subjected to reasonable restrictions enunciated under Article 19(2) of the Indian Constitution.
Hate speech has the potential to provoke individuals and society to commit acts of terrorism, genocides and ethnic cleansing.
It is an “incitement to hatred” against a particular group of persons marginalised by their religious belief, sexual orientation, gender, etc.
HATE SPEECH AND CONSTITUTION OF INDIA : Hate speech is against the spirit of Articles 14, 15, 19, 21 read with Article 38 of the Constitution and further is in derogation of the fundamental duties under Article 51-A (a), (b), (c), (e), (f), (i), (j) of the Constitution.
Hate/derogatory speech has not been defined under any penal law.
SUPREME COURT DIRECTION TO LAW COMMISSION : Supreme Court of India had asked the Law Commission of India to define hate speech and make recommendations to the Parliament to curb the menace of “hate speeches” . Which led to : REPORT NO : 267 : Law Commission of India report : Titled Hate Speech, to the Central Government for its consideration, on March 23.
Report headed by Former Supreme Court judge, Justice Balbir Singh Chauhan.
RECOMMENDATIONS : He called for action from the government and Parliament.
DEVASTATING EFFECTS OF HATE SPEECH :
a) CAN AFFECT RIGHT TO LIFE : “Indisputably, offensive speech has real and devastating effects on people’s lives and risks their health and safety. It is harmful and divisive for communities and hampers social progress. If left unchecked, hate speech can severely affect right to life of every individual,” the Commission warned.
b) NOT DEPENDANT ON “INCITEMENT TO VIOLENCE” TEST :
“Incitement to violence cannot be the sole test for determining whether a speech amounts to hate speech or not. Even speech that does not incite violence has the potential of marginalising a certain section of the society or individual,” the report said.
It pointed out that in the age of technology, the anonymity of Internet allows a miscreant to easily spread false and offensive ideas.
“These ideas need not always incite violence but they might perpetuate the discriminatory attitudes prevalent in the society. Thus, incitement to discrimination is also a significant factor that contributes to the identification of hate speech,” it said.
WAY FORWARD :
It drafted a new law — The Criminal Law (Amendment) Bill, 2017 — inserting new Sections to fortify democracy against hate speeches.
Section 153C, which penalises incitement to hatred .
Section 505A, which for the first time makes ‘causing fear, alarm, or provocation of violence in certain cases’ a specific criminal offence’ and also provides a punishment of one year imprisonment or ₹5,000 in fine or both.
Section 153C punishes a guilty person with two years’ imprisonment or ₹5,000 in fine or both.
Criterion to judge hate speech : The context of the speech, the status of the victim, the status of the maker of the speech and the potential of the speech to create discriminatory and disruptive circumstances.
Social remedy : sensitising and educating the public on responsible exercise of speech.
IMPLEMENTATION IS THE PROBLEM : Since following laws prohibit hate –speech but still it is of less help. Identifying the root cause : The root of the problem is not the absence of laws but rather a lack of their effective execution.
STATUTE AND PROVISIONS :
1. Indian Penal Code, 1860 : Sections 124A, 153A, 153B, 295-A, 298,505(1), 505(2)
2. The Representation of People Act,1951 : Sections 8, 123 (3A), 125
3. Information Technology Act, 2000 & Information Technology Intermediaries guidelines) Rules, 2011 : Sections 66A, 69, 69A ; Rule 3(2)(b), Rule 3(2)(i)
4. Protection of Civil Rights Act, 1955 : Section 7