In News: A Supreme Court bench directed the police chiefs of Delhi, Uttar Pradesh and Uttarakhand to take “immediate” suo motu action against any hate speech, by lodging criminal caseswithout waiting for formal complaints.
While India does not have a formal legal framework for dealing with hate speech, a set of provisions of the Indian Penal Code (IPC), loosely defining hate speech, are invoked. These are primarily laws to deal with offences against religions.
IPC Sec 295A & others:
Section 295A was brought in 1927 and is one of the main provisions in the IPC chapter to penalise religious offences.
The chapter includes offences to penalise damage or defilement of a place of worship with intent to insult the religion (Section 295); trespassing in a place of sepulture (Section 297); uttering, words, etc, with deliberate intent to wound the religious feelings of any person (Section 298); and disturbing a religious assembly (Section 296).
The state often invokes Section 295A along with Section 153A, which penalises promotingenmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony and Section 505 of the IPC that punishes statements conducing to public mischief.
Section 66A of the Information Technology Act, that punishes sending offensive messages through communication services is added when such speech is made online.
Judicial references:
In 1927, Rangeela Rasool case, examined the question whether targeting religious figures is different from targeting religions.
While the magistrate had convicted the publisher Rajpaul under Section 153A, the Lahore High Court held that a “scurrilous and foul attack” on a religious leader would prima facie fall under Section 153A — although not every criticism.
This debate in interpretation prompted the colonial government to enact Section 295A with a wider scope to address these issues.
In 1957, the constitutionality of Section 295A was challenged in Ramji Lal Modi v State of Uttar Pradesh
The Supreme Court upheld the law on the grounds that it was brought in to preserve “public order” – an exemption to the fundamental right to freedomof speech and expression and the right to religion recognised by the Constitution.
In a 1960 ruling, in Baba Khalil Ahmed v State of Uttar Pradesh, the Supreme Court said that “malicious intent” of the accused can be determined not just from the speech in question but also from external sources.
In 1973, in Ramlal Puri v State of Madhya Pradesh, the Supreme Court said the test to be applied is whether the speech in question offends the “ordinary man of common sense” and not the “hypersensitive man”.
In Baragur Ramachandrappa v State of Karnataka, a 2007 decision of the Supreme Court, “a pragmatic approach” was invoked in interpreting Section 295A.
The state government had issued a notification banning Dharmakaarana, a Kannada novel written by award-winning author P V Narayana, on the ground that it was hate speech, invoking a gamut of provisions including Section 295A. The pragmatic approach was to restore public order by “forfeiture” of a book over individual interest of free speech.
Concerns:
The broad, vague terms in the laws are often invoked in its misuse.
Lower conviction rates for these provisions indicate that the process — where a police officer can arrest without a warrant — is often the punishment.
these laws are intended for the state to step in and restore “public order” rather than protect free speech.
