Recent incidents of hate speech had made it an important subject matter for UPSC Law Optional Mains 2018
WHAT ACTUALLY 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.
WHO GAVE THIS DEFINITION ? The law Comission
Practical example of hate speech : If A has created a meme creating hatred against a schedule caste person and shares in whats app to her friends – with intention to cause unrest and terror in society : Then she is guilty of hate speech.
THE VERACITY OF HATE CRIMES :
Hate crimes are particularly serious : Why ? It is because of their potential to provoke panic.
Such crimes pose a very stiff challenge in a democratic society.
Creates community clash : They may be isolated, they may be the handiwork of individuals acting on their own, but by positioning one group (religious, racial, ethnic, gender) against another, the impact of these crimes spills into the wider community.
Hate speech poses complex challenges to freedom of speech and expression.
THE REMEDY :
Given by whom ? The Law Commission
Headed by : The former Supreme Court judge, Justice B.S. Chauhan.
When ? In March 2017
What was the recommendation ? They recommended inserting two new provisions in the IPC, including speech that instills “fear or alarm” in the listeners, probably goading them to violence.
What is the bill name ? The Criminal Law (Amendment) Bill, 2017
What are the sections to be added ? The commission proposes to add
Section 153C (prohibiting incitement to hatred) and
Section 505A (causing fear, alarm, or provocation of violence in certain cases
What are the Acts amended ? The IPC and make the necessary changes in the Criminal Procedure Code.
POINT TO NOTE : Laws across jurisdictions treat hate speech differently.
WHY ? This is because the fine line between what constitutes hate speech and the constitutionally protected freedom of speech and expression vary from country to country.
WHAT IS THE PUNISHMENT PROPOSED ? Under
Section 153C IPC with imprisonment for a term which may extend to two years, and fine up to Rs. 5000, or with both.
The punishment for an offence committed under Section 505A is imprisonment for a term which may extend to one year and/or fine up to Rs. 5000, or both.
AN INTERNATIONAL EVENT : Germany’s Parliament last week passed a landmark law to hold Internet companies accountable for illegal, racist, slanderous material on their social media platforms, requiring them to remove such content within a specified timeframe, or face fines up to 50 million euro.
Why we read about Germany ?
Simply because to know, where does India stand on the regulation of such content at a time when its society in general, and social media in particular, is polarised on several issues?
How does the situation in Germany compare with that in India?
THE THEN LAW : Section 66A of The Information Technology Act, 2000
WHAT IT DID ? It made it a criminal offence to share content that was “grossly offensive or has menacing character” or information that was known to be “false”, but had been shared persistently to cause “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”.
PUNISHMENT : A conviction was punishable with up to three years in jail and a fine.
IT HAS BECOME A DEAD LAW NOW : Repeated misuse of the section to harass and intimidate, however, provoked the Supreme Court to declare, in March 2015, Section 66A to be unconstitutional.
THE CRUCIAL DIFFERENCE : But even when Section 66A was in force, it was the individual who was under scrutiny, not the social network — as the law in Germany now does.
UPSC Perspective of hate speech :
Hate speech has two aspects :
Its constitutional perspective – thus can find place in Paper 1 of UPSC Law Optional Mains
Its IPC perspective it can appear in Paper 2 also
QUESTION 1 : A persistently shares an information that was known to be “false”, to cause “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, Whether A has committed as offence ? If yes kindly explain regarding the same.
PERSPECTIVE : IPC perspective : PAPER 2
How to approach this question ?
Introduction : These are wordings from 66A of IT Act – thus start with it and then say how it is repealed.
Body : Discuss whether A has committed a crime – at the absence of 66A and is there any IPC section punishing it – important – discuss the latest proposed amendment brought in for hate speech. ( Refer module 3 of Contemporary legal development of Lawxperts Notes )
Conclusion : Conclude whether A has committed the crime and sight some previous incidents ( Some legal current affairs that you have read from January , August 2017 current affairs magazine by lawxperts )
Question 2 : Explain what constitutes hate speech and the constitutionally protected freedom of speech with recent cases and events and further how such hate speech menance is tackled by our government.
Perspective : Constitutional law perspective : PAPER 1
How to approach this question ? It is a complex question – kindly read it twice and break it up into simple question.
Reason : So that you would not miss to answer any part of the question and you plan your answer in lucid way.
Introduction : Start with definition of hate speech and concept of freedom of speech Art: 19(1) (a)
Body : Here link freedom of speech and hate speech – do not forget to link them via reasonable restriction placed under clause (2) art 19 ( Refer module 2 of constitutional law Lawxperts notes) . Draw difference between them by using recent cases and events ( Refer monthly legal magazine by lawxperts )