By Sanchita Bera
The concept of ‘hate speech’ as an issue has garnered a lot of attention in the recent generation. Its increasing attention is because of various instigative communal holocausts with a tinch full of communal detesting crusades. To add on to these factors behind the rising flames of ‘hate speeches’, the media is actively playing its role in igniting communal disharmony, through its various mediums such as news channel debates, hot-spiced tag liners, newspapers, and most importantly the Internet Babaji that is the various social media platforms. The media has from time to time played a robust, indisputably disturbing, and radical role in fueling the hate speech campaigns, or other relatable activities through dynamic brainwashing or reckless reporting or disclosure. Another aspect of hate speech lies under Article 19(1)(a) which guarantees to its citizens of India, freedom of speech and expression, here comes the conflict between the freedom of speech versus hate speech, now what amount of free speech and what amounts to hate speech is the question. Because anything and everything can be considered as a “hate speech”, for example, expressing dissenting opinions against the Government or its policies may lead to ‘hate speech’ for the Government, but in reality, the right to raise voices is the very basic democratic right to the citizens, while instigating the public against religious sentiments, or categorizing people based on their wearable may seem to be ‘hate speech’, but for others, it might be ‘freedom of speech’ or better said ‘free speech’. The difference between ‘free speech’ and ‘hate speech’ is thin per se, because it is upon the public and the authorities to interpret the meaning of the said speech. All these issues have arisen in the absence of any proper law, provision, or judgment. This unavailability has escalated to a situation of fear amongst those who seem to uphold their opinions against the higher authorities. This article will take through the famous incidents of hate speeches, the provisions in India, the US, and the UK with regards to the hate speeches toppled with the Law Commission of India’s 267th Report on Hate Speech.
Meaning of Hate Speech
Hate speech means ‘any public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation (=the fact of being gay, etc.). Generally, 'hate speech 'refers to words whose intent is to create hatred towards a particular group, that group may be a community, religion, or race. This speech may or may not have any meaning, but is likely to result in violence. According to the Bureau of Police Research and Development, who had elucidated hate speech 'as a language that denigrates, insults, threatens, or targets and individual based on their identity and other traits (such as sexual orientation or disability or religion, etc.) in their handbook on cyber harassment which will guide the investigating agencies.
Famous incidents of Hate Speeches
The following are the famous incidents of hate speeches, which are indeed threatening to the man-kind, because such speeches, led to huge violence by one community towards the other:
Hitler’s popular hate speech operations or drives in the 1930s were to launch racist advocacy in Nazi Germany. He specially assigned Paul Joseph Goebbels one of the most genius personalities in ensembling promotions with the help of the press and other forms of broadcasting elements by exhaustively swirling up irrationality amongst the Nazis and the Third Reich and against the Jews through laying down a separate “Ministry of Propaganda and Public Enlightenment”. Many newspapers such as Der Sturmer sprightly took part in hate movements against the Jews, for instance, the said newspaper narrated the key features of jews as ‘always blonde and blue-eyed’ and how they were involved in carnal spanks on humane girls. This newspaper also accented cartoons highlighting the jews as Nazi’s misfortunes through the portrayal of thick-nosed, blubber-lipped. During this time, the newspaper, media, and other broadcasting teams were the real initiators of hate speeches and were instrumental in leading incitement of violence between the two communities, that is, the Nazis and the Jews.
Editor of Jyllands-Posten, one of the immensely popular newspapers of Denmark, addressed as many as 40 cartoonists to draw depictions of the Prophet. This came in after the 9/11 attack in New York which was accomplished by terrorists, ensuingly through the wave of Islamophobia, and another enormous hate ambush on the Muslim community across the globe. Out of those 40 cartoonists, only 12 agreed to draw and publish contentious cartoons. One of those cartoons sketched ‘Prophet Mohammed with a bomb in his turban’, while another cartoon limned ‘Prophet Mohammed standing on a cloud greeting dead suicide bombers with “stop, stop, we have run out of virgins”. These cartoons resulted in huge sparks of violence amongst the Muslim community, in various fragments of the earth. The cartoons saw an impact in India as well. India saw vicious oppositions and skirmish, while the U.P’s one of the Muslim Minister announced openly that he would reward an amount of Rs. 51 crore, to those who would behead the cartoonists of Jyllands-Posten newspaper.
Legal provisions concerning hate speech in India, the US, and the UK
In India, the following are the legislations that deal with hate speech:
a. The Indian Penal Code, 1860 (IPC):
● Section 124A of IPC: This section castigates for sedition charges (the famous sedition law)
● Section 153A of IPC: This section punishes for encouraging enmity amongst different groups purely based on religion, race, place of birth, residence, language, etc., and conducting prejudicial acts to maintain harmony.
● Section 153B of IPC: This section sentences for ‘any imputations, or assertions which are prejudicial to the national integration.
● Section 295A of IPC: This section chastises acts that are deliberate or malicious and intends to outrage the religious feelings belonging to any class through insults of their religion or their religious beliefs.
● Section 298 of IPC: This section castigates for words uttered with deliberate intention to wound any person's religious feelings.
● Section 505(1) and (2) of IPC: This section sentences for the publication or circulation of any statement, rumour, or report causing public mischief and enmity, hatred, or ill-will between the classes.
b. The Representation of The People Act, 1951:
● Section 8: This section disqualifies any person from contesting elections if he is convicted for indulging in acts amounting to the illegitimate use of freedom of speech and expression.
c. The Cable Television Network Regulation Act, 1995:
● Section 5 & 6 proscribes any transmission or re-transmission of a program through a cable network in contravention to the prescribed program code or advertisement code.
d. The Code of Criminal Procedure, 1973:
● Section 95: This section gives powers to the state government to forfeit publications that are punishable under sections 124A, 153A, 153B, 292, 293, or 295A of IPC.
● Section 107: This section gives powers to the Executive Magistrate to prevent a person from committing a breach of the peace or disturbing the public tranquillity or to do any wrongful act that may probably cause a breach of the peace or disturb the public tranquillity.
● Section 144: This section gives powers to the District Magistrate, a Sub-divisional Magistrate, or any other Executive Magistrate by the state government to issue an order in urgent cases of nuisance or apprehended danger.
The following are the Indian case laws on hate speech:
In the case of Bilal Ahmed Kaloo v. the State of A.P., the Supreme Court held that Section 153A and 505(2) cannot be attracted unless two communities are involved, also one community’s words or actions must incite another community because these section’s important ingredients were ‘promotion of enmity, hatred, or ill-will between various racial, religious, linguistic, or regional groups, castes or communities. Here, a Kashmiri youth was accused of inciting the public of Hyderabad towards taking up arms into their hands.
In the case of Babu Rao Patel v. State (Delhi Admn.), the Supreme Court states that Section 153A of IPC is not restricted to encouraging feelings of enmity only on grounds of religion, but can be extended to race, place of birth, language, etc. Here, a newspaper described Muslims as a “violent race”, “intolerant and blood-thirsty with the tradition of rape, loot, and murder”.
2. In the US, Congress is restricted from legislating any enactment that would stand as a barrier in the application of free speech by the U.S. Constitution’s First Amendment. The US has a doctrine that protects free speech. This doctrine is based upon two presuppositions: First, equality must be maintained in the exposition of ideas, and Second, the government has no right to distinguish between virtuous and substandard speech. This doctrine of the US to uphold freedom of speech is one of the hallmarks of the world. The US follows three tests to determine whether the speech in question is hate speech or not:
Placate and Outlook Bias: In the case of R.A.V. v. City of St. Under Minnesota’s Bias Motivated Crime Ordinance, a cross was burned in the lawn of the black family household by the solicitor. The US Court held placate based speech would not be protected by the US Constitution’s First Amendment, also the Ordinance was declared as valetudinarian because the ordinance has prohibited ‘fighting words’ which would hurt any person’s race, color, creed, religion, or gender. Here, in this case, the court for the first time laid down Placate and Outlook Bias as one of the tests to determine ‘hate speech’.
Differentiating behaviour and articulation: In the case of Wisconsin v. Mitchell, the court upheld the difference between any unlawful behaviour and meagre free articulation but validating a statute that punishes hate crimes.
Examination to certify speech as hate speech: In the case of Schenck v. the United States, the court held that the utterance must certify explicit and existing danger, to be held as hate speech. In Brandenburg v. Ohio, the court stated that the State cannot be allowed to restrict espousal from the use of force or excuse of violation of law in matters of free speech and press, the only exception available with the State is when the espousal is to incite violent or lawless crimes.
3. In the UK, blasphemy laws that would examine and thwart any sort of ethnic or pious hatred have been replaced by The Racial and Religious Hatred Act of 2006 and hence is no more a criminal offence. In the case of R. v. Chief Metropolitan Stipendiary Magistrate, ex p Choudhury, the court declared that the blasphemy laws would protect only one religion that is, Christianity, and the judiciary would not interfere into the same, or extent common law of blasphemy upon other religions. Here, in this case, the prosecution failed to prove that the book The Satanic Verses tried to create tension amongst the Muslims and other classes of citizens, due to lack of sufficient evidence. Both the author and the publisher could not be prosecuted either under the blasphemy law or the sedition law.
India being a diverse country with sundry religions, languages, races, castes, and places of birth, it is very easy to incite the public with the slightest speeches. Sometimes, a specific community is incited with a single word uttered by chance, and other times the incitement is man-made, meaning thereby, intentional creation of violent situations. It is very difficult to determine what would amount to 'hate speech and what would amount to 'free speech', the difference is divided by a thin string. The situation worsens when there is no test to determine 'hate speech' neither there are any laws for the same. Because this absence has been utilized by those who want to gain benefits, through the violence between two or more communities, just like the Britishers taught us 'Divide and Rule Theory'. The Supreme Courts have also in many instances, tried their best to bring out a way to determine 'hate speech', but in vain. Also, another factor works here, in the name of 'hate speech', that is easily targeting those voices who are raising dissenting opinions. Framing their speeches as 'hate speech' is the simplest form of submerging any dissenting opinions or point of view. It is high time to frame tests to determine and distinguish between 'hate speech and 'free speech' because few are misusing or altering freedom of speech as hate speech and vice versa.
 Meaning of Hate Speech, CAMBRIDGE DICTIONARY, (July 06, 2021, 11:22 AM) https://dictionary.cambridge.org/dictionary/english/hate-speech  Defining Hate Speech, DRISHTI, (July 06, 2021, 11:26 AM) https://www.drishtiias.com/daily-updates/daily-news-analysis/defining-hate-speech  MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW, 401-402 (2d ed. 2015)  Hate Speech, LAW COMMISSION OF INDIA REPORT NO. 267, 9-11 (July 07, 2021, 11:17 AM), https://lawcommissionofindia.nic.in/reports/Report267.pdf  MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW, 406-407 (2d ed. 2015)  MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW, 412 (2d ed. 2015)  Hate Speech, LAW COMMISSION OF INDIA REPORT NO. 267, 29-32 (July 07, 2021, 11:17 AM), https://lawcommissionofindia.nic.in/reports/Report267.pdf  MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW, 406 (2d ed. 2015)
Author- Sanchita Bera
The Maharaja Sayajirao University of Baroda, Faculty of Law, Vadodara.