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Disagreement or hate speech: war between constitution and hate speech laws
Nikhil Padha12/4/2019 10:16:04 PM
Legal framework on Hate Speech in India. A patch work of law governs hate speech in India. Although the term "hate speech" is not actually used, several statutes which criminalize speech convincible fall under the umbrella of hate speech. The bulk of hate speech is regulated by Indian Penal Code (IPC), under which several complains about hate speech are filed. However other statutes such as Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act)1989, also criminalize certain category of hate speech . Medium -specification of speech takes place through statutes like Cinematography Act of 1952and the cable TV regulation act of 1995 (Cable TV Act). In addition to substantive law , procedural law like the criminal procedure code , which is used to pre censor certain category of speech . Other lawss such as Custom Act of 1962 may also be used to prevent the circulation of publications. The part of the IPC that describe speech that falls in the category of hate speech include section 153A ,295, 295A, 298 all of which their origin dating back to the colonial pre constitution era. Some parts of the section 295A , were added to the response to particular incidents, where other parts of IPC like Section 153A, have been amended many times. The Hate Speech Law Contained with the IPC has been subject to the multiple constitutional challenges and has survived, albeit with certain qualifications. For Example, prosecution under section 295A will be legitimate only if speech has a calculated tendency to breach public orders.
There are other special statutes that criminalizes hate speech directed at certain groups. For Example, The Scheduled Castes and The Scheduled Tribes (Prevention of atrocities act) of 1989 deals with the speech directed at certain groups from specific caste groups that have a history of facing discrimination and violence . Procedural Law contained in Code of Criminal Procedure (CRPC) is very influential. The CrPC uses methods that maybe described as pre-censorship or prior restraint. For example , Section 95 of CrPC can be used to prohibit the circulation of written material. This law is used by the Nagaland Government to ban Dan Brown's book "Da Vinci Code" , three years after its release .
Adding to the patchwork of law governing hate speech in India are regulations such as Indian Election Law that cover "promoting enmity or hatred" during elections. Election law targets corrupt practices and promotion of enmity or hatred during election. Candidates may be disqualified from running for office if they are found violating such laws. The laws described above, each have their own history and priorities , ranging from maintenance of public order to prevention of discrimination.
India's hate speech law has been criticized for encroaching on freedom of expression. For Example Human Right Watch Report states that India's hate speech laws do not meet the International freedom of expression standard set by the International Covenant on Civil and Political Rights. The report argues that broadly defined hate speech offenses in India allow for "arbitrary and abusive application of law and creates an unacceptable chill on the discussion on issues relating to race and religion". The part of Indian Constitution that arguably enables hate speech law, despite the constitutionally guaranteed right to freedom of expression, is the article 19(2) "public order " exception to the right to freedom of expression.
In 1957, the Supreme Court declared in RamJi Lal Modi vs State Of U.P , that section 295A of Indian Penal Code was constitutional , specifically because it fell within the "public order" exception to the right to freedom of expression . In Ram Ji Lal Modi vs State Of U.P , section 295A was challenged on the grounds on being overly broad. The court interpreted the phrase "in interest of" in Article 19(2) to mean that the public order exception was wide, extending beyond regulation of public disorder to incidents with a tendency to cause public disorder. The court recently read public order narrowly in the land mark case of Shreya Singhal. The Supreme court went to find section 66A of Information Technology Act overly broad and vague, and held that it infringed the right to freedom of expression.
While policy makers and other state actors seems focus on the potential violent affects of certain kind of hate speech, litigants have expressed contradictory concern about hate speech. Some citizens have petition the Supreme Court for increased regulation of hate speech laws while other advocate for decriminalization of hate speech. One resolved case, Pravasi Bhalai Sangathan v union of India & others sought stricter regulation of hate speech since the petitioner saw existing legal mechanism as inadequate. The court referred the issue raised in the petition to the law commission of India for its consideration. The other case, Subramanian Swamy v Union of India & others seeks a remedy that might erode the legal framework for hate speech. This is the case in which petitioner has asked the court to find section 153A and 295A unconstitutional. Section 153A criminalizes the promotion of disharmony or feeling of enmity , hatred or ill will between different communities , while section 295A criminalizes "insults" to religion . Together these two cases illustrated the conflicted relationship between hate speech laws and article 19(2)(a) of Indian Constitution.
Response to the online Hate Speech - State uses strategies such as social media labs, help lines like the one setup by Mumbai Police , Internet Shutdowns and counter speeches are employed as a result, multiple Indian States have cut citizens access to the Internet, Including Broadband, mobile or both when faced a public order problem . But this long term internet shutdown effects economy, business , enterprises, education ,etc that rely exclusively on online models for their survival.
Hate speech is a serious problem in India with its ongoing communal and caste related tensions. It is clear that hate speech law is outdated and affects a wider ranges of speech then is necessary. The law has a detrimental effect n the freedom of expression, since it is often misused by the state to intimidate speakers. It is therefore necessary to study not just the immediate, but also the second order effect of law on hate speech.
Section 153A of IPC, have been invoked to harass , humiliate and clamp down on artistic expression and free speech. The constitutionality of penal provisions to hate speech , have been challenged in the supreme court by Subramanian Swamy, who faces cases related to hate speech in courts across the country for his provocative , anti-minority statements. While it is increasingly clear that there is an urgent need to clarify, either through directives to police or legislative amendments , that certain category of speech should be exempt from this section perhaps category such as academic speech , historical research, etc. It is the time we pause to think about rational of these laws. Courts need to re appropriate and nurture their strand, and for this there must be a genuine commitment to the value of speech that comes with a commitment to preventing the circulation of narrow that would genuinely falls under the category of dangerous speech. Everything outside this sphere needs to freed from the shackles of the criminal law . Additionally, hate speech doctrine needs to recognize the claim of truth as an important criterion if not as an absolute defense. Until we move in this direction, democratic debate in India will continue to remain hostage to hackler's veto, and freedom of speech and expression will remain a vision that we can sight but never quite grasp.
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