LAW AND POLITICS ON HATE SPEECHES, HATE CRIME AND SEDITION by - Vineet Pratap Singh
LAW AND POLITICS ON HATE SPEECHES, HATE CRIME AND
SEDITION
Authored by - Vineet Pratap Singh
Without
Freedom of Thought, there can be no such Thing as Wisdom and no such Thing as
public Liberty, without Freedom of Speech which is the Right of every Man, as
far as by it, he does not hurt or control the Right of another and this is the
only check it ought to suffer, and the only Bounds it ought to know.
- Benjamin
Franklin (1722)
INTRODUCTION
We have liberty in the shape of
fundamental rights as citizens of a democratic India. These freedoms enable us
to live freely, without artificial impediments or unreasonable limitations. However,
an over appropriation of fundamental freedoms and liberties leads to disorder
and terror in society.
Freedom of speech and expression and
the right to express oneself have been hot topics for many years. From human
rights to fundamental rights, the discussion continues. In India, Article
19(1) of the Indian Constitution guarantees the right to free speech. But
as time went on, the State began to restrict free speech in the form of hate
speech, sedition, and defamation, which in turn led to hate crimes.
The right to freedom of speech and
expression is granted to all people by Article 19(1)(a)(1) of the Indian
Constitution, but when misused, it can result in the occurrence of “hate
speech”, which can have terrible consequences like hate crimes. Consequently,
reasonable limitations on the right to freedom of speech and expression are
justified by the need to protect India’s sovereignty and territorial integrity,
as well as the nation’s overall security.
Any sort of speech or reference that
expresses a specific level of animosity towards another person, group of
people, etc. is considered hate speech. However, it is a phrase established out
of social context and typically refers to any speech that a specific segment of
the community deems unworthy of it. The term “hate speech” has not been
explicitly defined in any of the Indian laws.
With the advent of the internet and
social media, the impact of mass communication quickly increases. In other
circumstances, these speeches or texts cause a disturbance and have a
significant impact on a big number of individuals in the form of hate crimes
against a certain community or group and sedition against those who have
opposing views by the time law enforcement agencies step in. In light of recent
events involving Mohammed Zubair and Nupur Sharma and the controversy they
caused in India, it is necessary to examine the subtleties of this phrase and
how it is used or more accurately misused.
WHAT IS
HATE SPEECH?
In India, hate speech
is nothing new. According to reports, in 1990, certain mosques in Kashmir
broadcast lectures intended to incite hatred towards Hindus, which led to their
departure from the Kashmir Valley’s Muslim majority.
According to Black’s
Law Dictionary, Hate Speech is, “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”.
Hate speech is defined as any
communication that targets someone or a group primarily on the basis of their
religious identity and employs derogatory, insulting, or discriminatory
language, including dog-whistling, with the intention of reaching a large
audience.
Hate speech can be defined as an
idea, an offence, something that violates human dignity and worth, or something
that reduces tolerance in society. Hate speech is not protected by the
constitution. It defies constitutional morality in public discourse and is
something different. Hate speech in modern India also reveals a low level of
politics, particularly communal politics. The Indian Penal Code of 1860,
as well as other special statutes like the Representation of the People Act
of 1951 and the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act of 1989, contain specific provisions that deal with
specific situations that are referred to as offences, which may also include
instances of hate speech.
In India, there is currently no
statute that clearly defines hate speech. However, the Hon’ble Supreme Court
distinguished between three types of speech - discussion, advocacy, and
incitement in the case of Shreya Singhal v. Union of India[1].
It was decided that a speech can only be restricted on the basis of the
exceptions listed in article 19(2) when it crosses the incitement threshold.
Article 19(1) mandates that all other forms of communication be protected, even
those that are hurtful or unpopular. Therefore, the fundamental element in
establishing whether a restriction on free speech is constitutional is “incitement”.
In Babu Rao Patel v. State of
Delhi[2],
the Supreme Court discussed the effects of hate speech on society as a whole.
The Supreme Court did not punish hate speech in the well-known case of Pravasi
Bhalai Sangathan v. Union of India[3]
since it is not prohibited by any of India’s pre-existing laws. However, in
order to refrain from entering the realm of judicial activism, the Supreme
Court asked the Law Commission to handle this matter. This is the main reason
the Legislature was given control of the situation.
A recent example is the case of Amish
Devgan v. Union of India and Ors.[4] wherein
the petitioner, while hosting a debate, had described Pir Hazrat Moinuddin
Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as aakrantak Chishti
aya... aakrantak Chishti aya... lootera Chishti aya... uske baad dharam badle. Supreme Court[5]
refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in
one of his shows but has granted interim protection to him against arrest
subject to his joining and cooperating in investigation till completion of the
investigation.
In order to determine how hate speech
should be understood, this case concentrated on a number of important legal
requirements. The Indian Penal Code’s Section 153A, which deals with
inciting hostility among communities and engaging in behaviour that undermines
harmony was construed.
As part of its decision regarding the
FIRs brought against Amish Devgan, the Apex Court also considered the FIRs
legality. Despite the fact that the petitioner’s request to have the FIRs
dismissed refused, the Apex Court granted him temporary protection in exchange
for his apology and cooperation with the investigation.
The case of Vinod Dua[6],
which used Amish Devgan’s case as a citation, came after that. Vinod Dua was
the subject of several FIRs for allegedly making seditious remarks towards the
government. The Supreme Court nullified it on the grounds that the statement
amounted to disapproval and that Section 124A[7]
was not violated, and it provided him immunity from arrest for sedition while
the inquiry went forward in accordance with the FIR. The interpretation of hate
speech was greatly influenced by this case. The main issue in this case was
free speech, which included criticism.
REPERCUSSIONS
OF HATE SPEECH TO HATE CRIMES
On January 30, 1939, Adolf Hitler
addressed the Reichstag in a speech that called for the eradication of
“European Jewry” from the planet, marking the sixth anniversary of his
appointment as chancellor of Germany. Nazis had carried out widespread
atrocities in Europe two years earlier. Hitler, unfortunately, was a by-product
of the same culture that for ages had persecuted Jews through hate speech and
hate crimes, which subsequently helped the Nazis rationalize the systematically
eradicating of Jews.
As organised hate speech rallies have
started to appear in many parts of northern India under the fictitious name of
“Dharm Sansad”, they have taken centre stage in India’s legal-political
conversation. Hate Grips the Nation, a book commemorating the 20th
anniversary of the Gujarat massacre, just published a report on India’s
increasing occurrences of hate speech and hate crimes. It demonstrates how
anti-minority incidents, primarily targeting the Muslim and Christian
minorities, have been rising alarmingly quickly throughout India. In eight
years, 2017 saw the most number of cases ever reported. The primary
perpetrators of hate speech and hate crimes in India seem to be Hindutva
organisations.
According to this definition, hate
crimes are violent assaults committed against the person or property of a
person or group of people because of their religion. 53 persons were killed in
communal violence in northeast Delhi in February 2020[8],
with 35% of the victims being Muslims. A hardline Hindutva leader named Yati
Narsinghanand Saraswati had already made hateful statements that had the power
to inspire people before the tragedy.
There are increasing instances of
hate speech (61.6%) and hate crimes (38.4%) directed at Muslims[9].
The year-by-year research demonstrates that Muslim hate crimes have gradually
overtaken Muslim hate speech, which illustrates how hate speeches have sparked
Muslim hate crimes in India.
The incidence of hate crimes (96% in
the case of the Christian community) is larger than the rate of hate speech
(4%). Even while the percentage of hate crimes against Christians appears to be
larger than the percentage of hate crimes against Muslims, Muslims continue to
have a higher numerical value. A total of 878 instances of hate speech and hate
crimes have been reported throughout India, with more than half of those
incidents occurring in Uttar Pradesh, Delhi, Madhya Pradesh, Maharashtra, and
Gujarat.
More over half of these attacks
occurred in October 2022, with 29 hate crimes against Muslims occurring alone
during the holiday season. Weekly demonstrations against namaaz took place in
Haryana throughout the month. They culminated in a Govardhan Puja that was held
on land that had previously been used for namaaz and included chants of the
now-famous “goli maaro” slogan. Given that they purposefully imposed the
exclusion of Muslim bodies from a public venue, these have been recorded as
hate crimes.
In addition, the Navratri season was
used as justification by Hindutva organisations to close down meat markets and
commit a spree of crimes against Muslim-owned businesses. Only in the month of
October, there were 11 instances where threatening orders were given or meat
stores were forcibly closed in Gurugram, Faridabad, Chhindwara, Bulandshahr,
Palwal, Saharanpur, and Gautam Buddh Nagar. These closures were primarily the
fault of Hindutva organisations like the Samyukta Hindu Sangharsh Samiti, Hindu
Gauraksha Dal, Bajrang Dal, and the Hindu Vahini, with specific people like Ved
Nagar and Jeet Vashishth actively participating.
Six cases of Hindutva organisations
damaging churches, disrupting celebrations, and in one case threatening a
school with legal action for “forcing children to dress as Santa” occurred on
Christmas Eve and Christmas Day throughout these six states. The VHP and
Bajrang Dal also damaged a catholic school in Madhya Pradesh earlier in the
month of December 2021.
The United Nations Human Rights
Office in their ‘Citizens Against Hate’ report explained that in the second term
of the Modi led government and various state governments passed laws, including
the controversial Citizenship (Amendment) Act, 2019, and the reading
down of Article 370[10]
in Kashmir and anti-minority laws such as the anti-conversion law (named
ironically ‘Right to Freedom of Religion’ in Karnataka) which is more commonly
known as the “love jihad” law, since these incidents of systematic
discrimination against minorities gave law enforcement and vigilante groups
free reign to target members of the minority population, it is vital to note
that activists who spoke out against these laws would be imprisoned on charges
of sedition.
Recent incidences of communal
violence during the Ram Navami and Hanuman Jayanti festivals across India are
evidence of the influence of hate speech by well-known members of the national
ruling party and Hindutva organisations.
Such a phenomenon is difficult to
comprehend, especially when hatred is expressed by a powerful organisation.
People who raise their voices in opposition to these horrible atrocities are
accused of sedition and charged with hate speech and its consequences, which
are almost same across languages, countries, and cultures. People have
occasionally been referred to historically as “insects”, “vermin”, or “threats”
which is comparable to the Indian context.
INEFFICACY
OF EXECUTIVE TOWARDS HATE CRIMES
In their practical handbook on hate
crime laws, the Office for Democratic Institutions and Human Rights of the
Organization for Security and Cooperation in Europe defines a hate crime as a
crime committed with a bias purpose. A hate crime can be any type of criminal
offence, including murder, violent abuse, damage to property, and much more. An
individual who committed a crime with a bias motive selected their victim based
on a protected trait, such as race, ethnicity, religion, caste, or another
comparable group. Official statistics on hate crimes in India might be
challenging to verify because they are occasionally not made public. However,
according to data from Amnesty International, there were 619 hate crimes
against Dalits between 2015 and 2019, 196 against Muslims, 31 against Adivasis,
29 against transgender individuals, and 18 against Christians. “Halt The Hate”
initiative of Amnesty International records crimes committed in India against
Dalits, Muslims, Adivasis, and transgender individuals.
Recent events in the nation that
received a lot of media attention were the killing of Pehlu Khan by vigilante
gau rakshaks and the killing of Junaid Khan, which also had a communal motive.
There is more to the police’s involvement as facilitating agents in crimes with
racial or ethnic motivations than apathetic indifference or tacit approval.
In response towards the outrage that
followed these incidents, the SC issued many directives for the police to
follow when dealing with hate crimes in Tehseen S. Poonawalla v. Union of
India and Ors.[11]
These include the speedy filing of FIRs, the establishment of task forces by
high-level nodal officers in each district, and the filing of cases for hate
crimes under Section 153A of the Indian Penal Code 1860, which makes it
unlawful to incite animosity between various racial, religious, and ethnic
groups based on factors such as place of birth, residence, language, and so
forth. The cited instances are not outliers. They stand in for the way that
society as a whole views racist violence against marginalised communities.
INVIGILANCE
OF EXECUTVE TOWARDS SEDITION
The provision of Sedition under
Section 124 A of the Penal Code, on the other hand, has been used arbitrarily
by the executive by making use of the vague and overly broad terms of their
provisions. This is in stark contrast to the government’s and police’s
approach, which has been grossly insufficient in handling cases involving hate
crimes in India. According to the National Crime Records Bureau’s (NCRB)
report, the number of cases filed under Section 124A of the Indian Penal Code
1860, increased by 165% during the same time period.
This is what has led to a resurgence
of the discussion around the validity of India’s sedition statute. Recently,
applications seeking the Hon’ble Supreme Court’s revocation of Section 124A
have been submitted on the basis that it violates people’s basic rights. Due to
the provision’s ambiguity and the inclusion of words like “contempt”, “hatred”
and “disaffection”, which do not have a defined range, almost any criticism of
a government action can be included under the section's purview. This is due to
the fact that the authorities would have a lot of leeway in deciding what would
constitute a seditious purpose or an act or utterance that may potentially
disturb the peace.
This clause has been arbitrarily
invoked in recent times to accuse journalists, students, and authors of
criticising the executive’s acts. Disha Ravi[12]
was accused under this section because of her suspected participation in an
online toolkit for the Indian farmers’ movement. According to the authorities,
she was connected to Pro-Khalistan activists and that toolkit was seditious in
character since it would spark disturbance. It was noted that no sedition
wrongdoing was committed because there was no proof linking her activities to
the subsequent mayhem.
DISTINGUISHING
SEDITION FROM HATE SPEECH
Additionally, it’s important to
distinguish between hate speech and sedition. The distinction between sedition
and the offences covered by Chapter VIII (which include features of hate
speech) is that sedition directly harms the State, whereas hate speech damages
it indirectly by upsetting the peace in the community.
Sedition should be differentiated
from inciting class hatred, according to a Select Committee considering the
Bill in 1897 when changes to section 124A of the IPC were being considered. It
concludes as it appears to us that the offence of inciting class hatred varies
from the offence of sedition against the State in many significant ways.
It belongs more fittingly in the
section on offences against public peace and quiet. The core of the offence is
that it predisposes classes of individuals to activity that may disrupt the
peace of the community as it only directly affects the Government or the State.
There are likely historical reasons for this offense’s classification as
seditious libel in England. It has nothing to do with rational reasoning.
The sovereignty, integrity, and
security of India as well as the State must be threatened by the challenged
remark for it to be considered sedition. Expressions inciting hostility toward
the State should not be covered by the proposed provision on hate speech
because they are already a separate offence under section 124A. Additionally,
under section 153B IPC, accusations or claims that are harmful to national
cohesion are illegal.
CONCLUSION
Although maintaining Section 124A
(sedition) of the Indian Penal Code, 1860 constitutional validity, the Supreme
Court’s Kedar Nath’s case[13]
decision restricted the provision’s application. According to the ruling,
encouragement to violence or a propensity for causing public disorder must
exist for a sedition offence to be considered valid. Unfortunately, in the
modern era, this clause is now being flagrantly misapplied by law enforcement
organisations, who are using it to restrict people’s freedom of speech and
expression. The executive branch, on the other hand, appears to have a rather
lenient approach against hate crimes, notwithstanding a recent rise in their
frequency. Recent rulings on hate speech by the Indian Supreme Court include Tehseen
S. Poonawalla against the Union of India (2018)[14],
Kodungallur Film Society versus the Union of India (2018)[15],
and Amish Devgan versus the Union of India (2020)[16].
A clear line is drawn between hate speech and hate crimes in the Amish Devgan
ruling. It is doctrinally outstanding and jurisprudentially sound.
These aforementioned are examples of
how the problem of combating hate speech has been tackled outside of the bounds
of the current legal system. It has been successful in both cases thanks to the
victims and speakers direct and active participation, whether online or in
person. Additionally, by bringing everyone to the negotiation table, it could
help start the process of repairing the damage done by hate speech. In the
event of hate speech, resorting to alternative dispute resolution methods would
give both sides a forum for dialogue and a potential resolution outside of the
formal constraints of the court system. The distinguishing feature of these
methods is that, in contrast to criminal anti-hate speech legislation, they do
not restrict an individual's freedom of expression. In reality, counter-speech
promotes more uplifting discourse in reaction to statements that incite hatred
or violence. This prevents it from acting as a barrier to the free exchange of
ideas in the “marketplace of ideas”, which is to be preserved as sacred in
today’s liberal democracies.
Therefore, we must
establish a separate classification. We must understand that hate speech is not
protected speech. Else to put it another way, hate speech does not have the
same protection as free speech under Article 19(1)(a) of the Constitution, or
it should be understood that expressing one’s beliefs and thoughts openly
should not constitute seditious activity. This difference is important. Hate
speech is not protected under the constitution. It is different, it violates
constitutional decency in public discourse, and punishing someone for sedition
because of their opinions on government officials is an infringement on their
constitutional rights. As it is well said by the Supreme Court of India that “Freedom
& rights cannot armour those who promote & incite violence”.
[1] AIR
2015 SC 1523
[2] 1980
AIR 763
[3] AIR
2014 SC 1591
[5] https://www.scconline.com/blog/post/2020/12/08/freedom-rights-cannot-armour-those-who-promote-incite-violence-15-notable-excerpts-on-hate-speech-from-supreme-courts-verdict-in-amish-devgan-case/
[6] Vinod
Dua v. Union of India, 2021 SCC OnLine SC. 414
[7]
Indian Penal Code, 1860
[8]
The Hindu newspaper.
[9]
Ibid.
[10]
Constitution of India.
[11] (2018)
9 SCC 501.
[12] Disha
A. Ravi vs State (Nct Of Delhi) & Ors. 2021 SCC OnLine Del 822.
[13] Kedarnath
Singh v. State of Bihar AIR 1962 SC 955.
[14] Tehseen
S Poonawalla v. Union of India and Ors. (2018) 9 SCC 501.
[15] Kodungallur
Film Society v. Union of India,2018 SCC OnLine SC 1719