The dichotomy of hate speech and free speech

Roshan Dusad

(kdusad28@gmail.com)

Recently, while hearing a petition on hate speech the Su preme Court stated that hate speeches are sullying the country's atmosphere and needs to be curbed. In fact, today the country is witnessing instances of hate speeches every now and then. There is much debate all over the country with reference to hate speech, freedom of speech and relevant laws. Hate speech is often being justified citing the freedom of speech and expression. There is a thin line between freedom of speech and hate speech, transgressing which leads to a different sort of meaning altogether. It is necessary to understand both the terms to strike a fair balance between the two concepts.

According to the Cambridge English Advanced Dictionary, "hate speech" is a public speech that encourages hate or violence towards a particular person or group based on ideas such as religion, caste, class, race, sex etc., which tends to excite violence or disharmony in the society. "Free speech", on the other hand, is the freedom of individuals, group or community to communicate their opinions, ideas, principles without any fear of retaliation, censorship and legal action. Freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution of India as a fundamental right with limitations under Article 19(2) of the Constitution. There is a dichotomy between free speech and hate speech. In order to determine whether a particular speech is hate speech or free speech the context of the speech is to be determined. The idea behind free speech is to promote plurality of opinions whereas hate speech becomes an exception to it. The challenge that exists in freedom of speech is not to exercise it in ultimate liberty, where it is detrimental to certain sections or groups in the society. The right to freedom of speech is a fundamental one according to the universal declaration of human rights under the United Nations Charter. But the debate around defending free speech advocators from violence and hatred is equally fundamental yet complex. The reason for such growing hate speeches in the country is primarily due to the feeling of superiority complex against others, stereotypes, belief in stringent ideology, inequality, political and religious extremism. The social media which is a boon for our progress has helped to amplify hate speeches time and again.

With regard to hate speech, India does not have any legal definition to it but has a few provisions in law which prohibits certain speeches, writings and actions. The Indian Penal Code of1860 provides various provisions relating to hate speeches. This include criminalization of acts that could promote "enmity between different groups on grounds of religion" and "deliberate and malicious acts, intention to outrage religious feelings of any class by insulting its religion or religious beliefs" (153A, 153B IPC). Section 295A of Indian Penal Code deals with punishing acts which "deliberately or with malicious intention outrage the religious feelings of a class of persons". Sections 505(1) and 505(2) of the said code make the publication and circulation of a content which may cause ill-will or hatred between different groups a punishable offence. With regard to hate speech of electoral nature, Section 8 of the Representation of People's Act, 1951 (RPA) prevents a person convicted of the illegal use of the freedom of speech from contesting an election. In the same way Sections 123(3A) and 125 of the RPA bar the promotion of animosity on the grounds of race, religion, community, caste, or language in reference to elections and include it under corrupt electoral practices.

The issue of hate speech has often come up with the judiciary in India where courts have condemned hate speech. In the context of discussing the limits of free speech and what may tantamount to hate speech, the Supreme Court (SC) held in 2020 regarding a controversial statement made by a news anchor, that in a speech "historical truths must be depicted without in any way disclosing or encouraging hatred or enmity between different classes or communities". In Shreya Singhal versus the Union of India case, issues were raised relating to the fundamental right of free speech and expression guaranteed under Article 19(1) (a) of the Constitution, where the Court differentiated between discussion, advocacy, and incitement in a speech. Similarly in Arup Bhuyan versus the State of Assam, the court held that merely an act cannot be used to punish, unless an individual resorted to violence or inciting any other person to violence. In S Rangarajan versus P Jagjivan Ram, it was held that freedom of expression cannot be suppressed unless the situation so created is dangerous to the community/ public interest but the danger should not be remote, conjectural or far-fetched. There should be a proximate and direct nexus with the expression so used in speech. In 267th report, the Law Commission even recommended to the government to add separate provisions to the Indian Penal Code (IPC) to specifically criminalize hate speech. Accordingly in 2014, the Bezbaruah Committee proposed amendment to Section 153C of IPC for "promoting or attempting to promote acts prejudicial to human dignity", to be made punishable and section 509A IPC, where "word, gesture or act intended to insult member of a particular race" be punishable. Similarly, the Viswanathan Committee in 2019 proposed inserting Sections 153C (b) and Section 505A in the IPC for incitement to commit an offence on grounds of religion, race, caste etc. Many legal experts have welcomed the move but a few expressed concern over the proposed amendments, as hate speech is already criminalized in the laws of the country, it require only the executive to enforce them.

In the present society, free speech has itself become a source of contention as its founding principle, "freedom of expression", has often been called into question. The reason behind this, unfortunately, is that free speech and freedom of expression have been besieged by political correctness and selective morality. On top of that, its preachers in India indulge mostly in whataboutery and appeasement of a particular ideology and religious institution which has made it extremely difficult to sustain a balanced way to approach hate speech and free speech to deal with sensitive issues among the people. What it has turned into is a slanging match, resulting in mass polarization and intolerance.

The most efficient way to deal with the hate speech is to educate people about the principles of love and peace and address the problem as an individual one in the global forum. The public authorities must be critical towards those for dereliction of the duty of care and also for non-compliance with courts' orders by not taking action to prevent vigilante groups from inciting communal disharmony and spreading hate among citizens. Separate laws should only be introduced taking pros and cons into consideration. In essence, free speech should not only be something we rely on, but it should also be part of what we fight for and defend, with the avoidance of hate speech.