DOES IT HURT? OR SHOULD WE CURTAIL YOU

Author: Mohammad Azhad Hasan, II year of B.B.A.,LL.B.(Hons.) from The NorthCap University Gurgaon Haryana

“Give me liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

~ Jhon Milton[1]

I may not have my own own voice but I might hurt you, I may not be visible but will impact you , I may be not be accurate but I will make you vulnerable, you don`t mind I have the power to destroy everthing comes in my may, you all need me, but you can`t control me, I am in your heart hand mind and mouth, regulate me before it`s too late. ( want to find me find me in your heart)

Speech is double edge weapon, it is comfort for some and disturbing to others. Categorically speaking speech in differentiated into it`s impact after it`s deliverance. Hate speech is on the main concer that india is facing right now, Twitter, Meta, Instagram all these social media platforms are flooded with immense hateful content targeting particular religion, group, indivisual which from it`s structure has resulted to serious damages in the democracy like ours.

Freedom of speech is the inherent right of every indivusal, that ensures freedom of expression. Reading Article 19(1)(a) “Freedom of Speech and Expression” which all the way provide fundamental right to speech and its propogation by necessary means. But this right is subject to reasonable restrictions as the state seems fit. It does not mean right to say whatever, whenever and whenever one beliefs. Romesh Thappar v. Sate of Madras Pantanjali Shastri CJ observed “Freedom of speech and of the press lay the foundation of all democratic organization, for without free political discussion on public education, so essential for the proper functioning of the process of popular government, is possible.”

“There cannot be no fraternity unless different religious communities are available to live in harmony” supreme court while hearing plea[2] to curb hate speech in the country on 21st October 2022. Court directed the government of Uttarakhand, Uttar Pradesh and Delhi to take sup moto cognizance of any hate speech without complaint from aggrieved party. This observation came at the time where there is growing menace of targeting and terrorizing Muslim community in India. The court directed relevant authorities to registered complaint under ss 153A, 153B, 295A and 506 of IPC.

Section 295A of IPC deals with deliberate and malicious intent of the accused to outrage the modesty of any religion or class, that can be through signs and visible representations shall be punished with a term which may extend to three years. Section 153A additionally includes acts that are done or gatherings which are organized or organizations that promote religious indifference among various communities and hold them liable. Referring to these sections which punishes hate speech but does not does not define it. so now the question comes what is hate speech? What effect it has on targeted audience? Till what extent we can regulate free speech?

“Freedom of speech does not protect you from the consequence of saying stupid shit.”

~ Jim C. Himes[3]

India does not have legislation or a provision in IPC which specifically define free speech. In Parvasi Bhalla Sangathan v. Union[4] of India apex court was restrained to penalize hate speech as it is not mentioned in any legislation in India and directed Law commission to maintain the separation of power.Referring to Black`s Law Dictionary Hate Speech is “Speech that carries no meaning other than the expression of hatred for some group such as particular race, especially in circumstances in which the communication is likely to provoke violence.”[5]

Canada (Human Right Commission) v Taylor test to determine hate speech was lad down by the apex court of Canada.

1. The deciding must necessarily apply hate speech “prohibition objectivity”, meaning what will be the reaction of the reasonable man if he is aware of the context and circumstances.

2. legislative term hatred and contempt must be interpreted as being restricted to those extreme manifestations of the emotions described by the word’s detestation and vilification.

3. The court must examine the affect of the expression as issue and deduce that was it directed to target particular audience.

To check the effectiveness of provision mentioned in IPC we need to look at statics of conviction and pungencies. As reported by IndiaSpend there has been 500 percent increase in the cases filled under section 153A between 2014 and 2020 but pendency in the police investigations have risen, when in 2015b police filled chargesheet in 80 percentage of the cases the pendency was 57 percentbut in 2020 when police filled chargesheet in 72.6 percent cases the pendency has increased by 65.4 percentage.[6] After chargesheet cases placedInfront of the court are higher comparing with 2015 where 91.4 percentage cases are filed before in 2020 there is a increase of 1.8 percent. Despite of increase in conviction rate there is substantial increase in the acquittals in 2017 only 15 people convicted but 108 were acquitted and in 2020 convictionincreased to 38 but acquittals also rose to 148. Pending Trial under Section 153A has increased from 1435 to 1869 almost double this shows the slow judicial process between 2017 to 2020.

“Cases filed under Section153A had one of the lowest conviction rates among other IPC crimes and one of the highest pendency rates” (NATIONAL CRIME RECORD BUREAU, 2022)

~ NCRB, confirmed by IndiaSpend and Business Standards.

Factors that need to be examined while strictly curbing Hate Speech:

• Revise definition of Section 153A, 153B and 295A.

• Critically evaluated definition of Hate Speech.

• Critical assessment of Convictions and Acquittals for Hate Speech.

• Current form of government and it`s ideological setup.

• Access to such information, circulation channels, social media backings.

• Revision of information Technology Act, 2000 critically on media related publication windows.

• Psychological analysis of accused and it`s audience.[7]

Stricter laws, rules, regulation and provision will not be sufficient to address the issue of hate speech, provisions coupled with feeling of fraternity among various groups, religions are touchstone to protect this largest standing democracy.

Concluding with Supreme Court observation “The Constitutio0n of India envisages Bharat as a secular nation and fraternity, assuring the dignity of the individual and the unity and integrity of the country are guiding principles enshrined in the Preamble. There cannot be fraternity unless members of the community drawn from different religi9on or castes are able to live in harmony.”[8](HATE SPEECH SUPREME COURT, 2022)

[1] English poet, 1667. [2] Shaheen Abdullah v Union of India 2022 (SC) 872 [3] American fantasy and Science Fiction writer. [4] AIR 2014 SC 1591 [5] Dr Farrukh Khan and Somy Mishra, Advocates on Record, Hate Speech: A contemplation in Indian Legal Regime. [6] National Crime Record Bureau, Report 2022 [7] Observation made in this paragraph are mine and they are subject to scrutiny. [8] Shaheen Abdullah v Union of India (SC) 872.