25th February, 2023 POLITY AND GOVERNANCE
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Context: The Supreme Court granted interim bail to a politician, who had been arrested for alleged hate speech by Assam Police under IPC sections including 153A, 505, and 295A.
- Multiple FIRs registered against him across different states mentioned offences ranging from criminal conspiracy, imputations, and assertions prejudicial to national integration to promoting enmity between religions. The FIR mentioned;
- Section 153B(1) (Making imputations, assertions prejudicial to national integration).
- 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs).
- 500 (Defamation).
- 504 (Intentional insult with intent to provoke breach of the peace).
- Many politicians and law experts have criticised these laws for restricting free speech and misusing the legal processes for political purposes.
Section 153A of the Indian Penal Code (IPC)
- Section 153A of the IPC penalizes “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”.
- These offences are punishable with imprisonment up to 3 years, or with a fine, or with both.
- Before Independence: The provision was not in the original penal code and was introduced in 1898. At the time of the amendment, promoting class hatred was a part of the English law of sedition, but was not included in the Indian law.
- After Independence: In the ‘Rangila Rasool case’, the Punjab High Court pardoned the Hindu publisher that had made negative remarks about the private life of the Prophet, and had been charged under Section 153A.
- Along with Section 153A, Section 505, which penalizes “statements conducing to public mischief” was also introduced.
- In 1969, the offence was widely amended to enlarge its scope to prevent communal tensions. The offence was also made cognizable, which means a police officer can arrest without a warrant.
- Data from the National Crime Records Bureau (NCRB) show that the rate of conviction for Section 153A is very low.
- 1,804 cases were registered in 2020, six times higher than the 323 cases in 2014. However, the conviction rate in 2020 was 20.2%, suggesting that the process often becomes the punishment.
- The registration of multiple FIRs across different states drains the resources of the accused to secure legal representation.
Safeguards against misuse
- Sections 153A and 153B require prior sanction from the government for initiating prosecution. But this is required before the trial begins, and not at the stage of preliminary investigation.
- In 2014, the Supreme Court laid down a set of guidelines in the Arnesh Kumar v State of Bihar case to curb indiscriminate arrests.
- As per the guidelines, for offences that carry a sentence of less than 7 years, the police cannot automatically arrest an accused before investigation.
- In 2021, the Supreme Court said that the state will have to prove intent for securing a conviction under Section 153A.
- The Court stated that “Words used in the alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view”
- Hate speech can be defined as “Any kind of communication; in speech, writing or behaviour that attacks or uses derogatory or discriminatory language concerning a person or a group based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factors.”
- It is an act of using threatening words or Signs within the hearing or Sight of a person to create fear.
- It has become one of the biggest challenges to the rule of law and our democratic structure.
- Hate speech is a serious global challenge; Recently Facebook, in its Transparency Report, disclosed that it ended up taking down 3 million hateful posts from its platform while YouTube removed 25,000 posts in one month alone.
- The criminal law or the Constitution does not define hate speech.
- Hate Speech is the root of many forms of violence that are being committed.
- One of the most visible effects of hate speech is growing electoral mobilization along communal lines.
- It not only negatively affects human rights values but also affects the socioeconomic development of the nation and also undermines constitutional values.
- Hate speech has reached a systemic presence in the media and the internet, from electoral campaigns to everyday life.
- Abusive speech directed against minority communities, disinformation campaigns on TV channels and Social Media, trolling and fake news are becoming the new normal.
- In 2019, the Supreme Court criticized the Election Commission, dubbing it “toothless” for not taking action against candidates engaging in hate speech during the election campaigns.
Provisions under Present laws to deal with Hate Speech
- There are many laws to curb hate speech.
- Sections 153A, 295A and 298 of the Indian Penal Code, criminalize the promotion of hostility between different groups of people on grounds of religion and language.
- Section 125 of the Representation of People Act states that any person during an election campaign promoting feelings of hostility and hatred on grounds of religion and caste is punishable with imprisonment up to 3 years and a fine or both.
Suggestions to curb the menace of Hate Speech
- Monitoring and analyzing hate speech trend
- Authorities must recognize, monitor, collect data and analyze hate speech trends.
- Addressing root causes, drivers and actors of hate speech
- Government should adopt a common understanding of the root causes and drivers of hate speech to take relevant action to best address and/or mitigate its impact.
- Government should also identify and support actors who challenge hate speech.
- Engaging and supporting the victims of hate speech
- Government should show solidarity with the victims of hate speech and enforce human rights-centred measures which aim at countering hate speech and the escalation of violence.
- Promote measures to ensure that the rights of victims are upheld, and their needs addressed, including through advocacy for remedies, access to justice and psychological counselling.
- The government must also engage private sector actors, including social media companies, to address and counter hate speech, encouraging partnerships between government, industry and civil society.
- Raise awareness about respect for human rights, non-discrimination, tolerance and understanding of other cultures and religions, as well as gender equality, including in the digital world.
- We should promote intercultural, interfaith and interreligious dialogue and mutual understanding.
- Citizens' support must be used to address, counter and mitigate the impact of hate speech, as well as counteract its bearing, without restricting the right to freedom of expression.
- Hate speech must be condemned and the law must take action. It must be treated as a violent act.
- The Law Commission recommended the introduction of new provisions within the Indian Penal code that specifically punish provocation to violence in addition to the existing ones.
- Addressing hate speech requires a coordinated response that tackles the root causes and drivers of hate speech, as well as its impact on victims and societies more broadly.
- Tackling hate speech is the responsibility of all – governments, societies, and the private sector, starting with individual women and men. All are responsible, all must act.
- Hate Speech promotes hatred and rift in our society; it hurt the socio-economic development of the country and also goes against the secular spirit of the Indian Constitution.