Do Indian Courts Face A Dilemma in Interpreting Hate Speech?

The deafening uproar of hate speeches in India has left us with no option but to ponder deeply over the ongoing debate on “hate speech” versus “free speech.” The penal laws in India seem to tackle the issue with required severity, keeping in mind the fundamental rights. The confusion arises when courts display their helplessness in interpreting what hate speech is. Their helplessness stems from the fact that limiting “hate speech” within a definition of few words would also, inadvertently, act as a restriction on the revered fundamental right to speech. After many deliberations by courts, it seems simply impossible to define hate speech in a way that is not unduly vague, overboard and counterproductive. We are thus left at the mercy of black letter law in place, which, according to the apex court, is sufficient to deal with the issue, if enforced properly. 

One can classify “hate speech regulatory laws” as those concerning the conduct of people during elections, that is, the Representation of the People Act (RPA), 1951 and Sections 153A, 295A and 505(c) of the Indian Penal Code (IPC).

When is Hate Speech a Criminal Offence?

Section 153A of the IPC criminalises and punishes making statements, speeches or acts which have the effect of disturbing public tranquillity or law and order by promoting enmity, creating fear or alarm between classes of people on the basis of difference in religion, caste, language or place of birth. Section 505 of the IPC, on the other hand, criminalises making statements, reports or rumours that encourage members of the armed forces or a police officer to refuse to perform his duty, encourage a person to commit offences against the state or disturb public tranquillity and incite persons to disturb public tranquillity. 

In Bilal Ahmed Kaloo v State of Andhra Pradesh (1997), the court highlighted the difference between the two provisions. The common ingredient in both the offences is promoting the feeling of enmity, hatred or ill will between different religious groups, castes or communities. Mens rea is an equally necessary postulate for both. The main distinction being that, while publication of the words or representation is not necessary under the former, it is sine qua non under Section 505. It concluded that, for the application of Sections 153A and 505(2) of the IPC, the arousal of hatred or incitement against a group is a prerequisite. In other words, till the impugned speech or representation fails to create a conflict between two different classes, these sections are not attracted. 

Section 295A of the IPC, which criminalises the act of insulting religious belief with the deliberate intent to “outrage religious feelings of a class of citizens,” was discussed in Ramji Lal Modi v State of Uttar Pradesh (1957). Section 295A does not penalise any and every insult or attempt to insult the religion or the religious beliefs of a class of citizens, but only those with the intention of outraging the religious feelings of the class. The report of the select committee preceding the enactment of Section 295(A) stated that the purpose of the section was to punish persons who indulge in wanton vilification or attacks upon the religion of any particular group or class, or upon the founders and prophets of a religion (Law Commission of India 2017). It, however, emphasised that 

“an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made.” 

Therefore, the committee recommended that the words “with deliberate and malicious intention” be inserted in the section.

Representation of People Act, 1951, Model Code of Conduct and Hate Speech

Hate speeches during elections are regulated by the RPA, 1951 and the Model Code of Conduct (MCC). Part VII of the RPA classifies hate speech as an offence committed during elections into two categories: corrupt practices and electoral offences. 

Corrupt Practices: The principal distinction between these two categories of proscribed acts is that, while a wrong committed under corrupt practice can be brought before the courts only at the end of elections by way of an election petition filed in accordance with the provisions of Article 329(b) of the Constitution, an electoral offence can be taken cognisance of and proceeded with as soon as the offence is committed as per the provisions of the Code of Criminal Procedure (CrPC). Article 329(b) holds that an election can be called into question only by way of an election petition. While conviction for a corrupt practice entails civil disabilities, like disqualification from voting and contesting elections for a certain period, conviction for electoral offence attracts criminal liability like imprisonment for a term which may extend to three years, or fine, or both.

The relevant provisions regarding hate speech in the RPA are Sections 8, 8A, 123(3), 123(3A) and 125. Section 8(1)(a) disqualifies a person from contesting in elections if they are convicted for indulging in acts amounting to the illegitimate use of freedom of speech and expression, that is, if that person was convicted under Sections 153A and 505 of the IPC.  

Sections 123(3) and 123(3A) deal with what would amount to corrupt practice, since this is one of the grounds for declaring election to be void under Section 100(b) of the RPA and also leads to disqualification under Section 8A. 
Section 123(3) of the RPA states that any appeal made by a candidate or their agent or by any other person to vote or refrain from voting for any person on the ground of their religion, race, caste, community or language or the use of national symbols will be a corrupt practice. Further, Section 123(3A) condemns promotion of enmity between different communities for the furtherance of the prospects of the election of a candidate or for prejudicially affecting the election of any candidate. 

In Abhiram Singh v C D Commachen (Dead) by Lrs and Ors (2017), the Supreme Court observed that Section 123(3A) was introduced to provide that the promotion of or an attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, etc, would constitute a corrupt practice where it was indulged in by a candidate, their agent or by any other person with the consent of the candidate or their election agent for furthering the election prospects of the candidate or for prejudicially affecting the election of any candidate. It widened the ambit of the corrupt practices by the inclusion of the words “for any person on the ground of his”. In the case of hate speeches made by the leader of the party, the candidate cannot be held liable for the same, but the candidate can be held vicariously liable for the actions of their agent.

In Pravasi Bhalai Sangathan v Union of India and Ors (2014), the Court did not go beyond the purview of existing laws to penalise hate speech, as prayed by the petitioners, as that would amount to “judicial overreach.” It observed that the implementation of existing laws would solve the problem of hate speech to a great extent, as laying down a definite standard might lead to the curtailment of free speech.

Electoral Offence: Section 125 of the RPA states that any person who promotes or attempts to promote feelings of enmity between different classes shall be punishable, with imprisonment for a term which may extend to three years, or fine, or with both. The court, in Ebrahim Sulaiman Sait v MC Muhammad and Anr (1980), observed that the act that is called a corrupt practice in Section 123(3A) is also what constitutes an electoral offence under Section 125. However, to attract Section 123(3A), the act must be done by the candidate or their agent or any other person with the consent of the candidate or their agent, and for the furtherance of the election of that candidate or for prejudicially affecting the election of any candidate. Under Section 125, on the other hand, any person who is guilty of such an act is punishable, and the motive behind the act is not stated to be an ingredient of the offence.

Model Code of Conduct: Apart from the RPA, 1951, the conduct of political parties and candidates is also regulated by the MCC. It is a set of guidelines evolved with the consensus of political parties, issued by the Election Commission of India (ECI). In the realm of the hate speech debate, the MCC assumes significance because Item 1 (General Conduct) of the MCC prohibits parties and candidates from making any appeals to caste or communal feelings for securing votes. Further, no party or candidate can indulge in any activity that may aggravate existing differences or create mutual hatred or cause tension among different castes, communities, religious or linguistic groups. In contrast to the RPA, the MCC provisions are for the guidance of both candidates as well as political parties. Since the MCC does not have statutory status, no legal consequences can follow from the breach of its provisions. 

In recent times, the role of the ECI has come under the scanner owing to its failure to check repeated violations of the MCC and in ensuring a level playing field for all political parties. A petition was filed by a non-resident Indian, Harpreet Mansukhani, highlighting the increase in hate and divisive speeches in the name of religion in the 2019 Lok Sabha elections (Rajagopal 2019).  

The Court observed that the ECI has no power, except to send a notice to the offending candidate, and if the candidate replies, send them an advisory. If the violation of the MCC still persists, all the ECI can do is file a criminal complaint. Therefore, it becomes imperative to provide legislative backing to the MCC so as to ensure strict implementation of its provisions, which will help in curbing electoral hate speech effectively and immediately. In the absence of any effective enforcement mechanism, the Election Commission is merely a hapless spectator to the blatant violation of the philosophy and spirit of the model code (Patni and Kaumudi 2009).

Conclusions

It is said that it is better to have no law than to have a law improperly enforced. Laws with undefined parameters not only leave the enforcing authorities, but also those subjected to it with a number of doubts as to the extent of the law in question. While the apex court did not provide a definition, it did make its stance clear, through various cases by upholding the constitutionality of legislation concerning hate speeches. One has to be aware of and pay due consideration to above-discussed regulations. While a rise in the instances of violence following hate speeches may, to some degree, be attributed to the speakers, it is equally important for the voters as well as the media to be aware and discern deliberate attempts to sway sentiments.