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Insights into Editorial: Is the freedom of speech absolute?

Context:

In the wake of the war cry targeting minorities at a religious congregation in Haridwar, it’s high time India recognised hate speech as the vilest affront and the greatest dishonour to the freedom of speech as conceived and cherished by the Indian Constitution.

 

Discussion of Hate Speech:

  1. In general, Hate Speech refers to words whose intent is to create hatred towards a particular group, that group may be a community, religion or race. This speech may or may not have meaning, but is likely to result in violence.
  2. The Bureau of Police Research and Development recently published a manual for investigating agencies on cyber harassment cases that defined hate speech as a language that denigrates, insults, threatens or targets an individual based on their identity and other traits (such as sexual orientation or disability or religion etc.).
  3. Hate Speech as defined by the 267th report of the Law Commission of India is “an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like”.
  4. Any attempt to casually pass off such demagogic claptrap under the political tapestry of free speech in an election-bound State (Uttarakhand) amounts to the denial of all that the Constitution of India represents.

 

The debates on limits to Free Speech:

As the Constituent Assembly deliberated on Article 13 of the draft Constitution, which would later become Article 19 in the enacted Constitution, intense apprehensions were expressed on the proposed proviso to Article 13 listing restrictions to the freedom of speech and expression. These restrictions finally became Article 19(2).

The proposed restrictions were resisted on the ground that these sought to rein in free speech and are not seen in the American Constitution, which had tremendously inspired members of the Constituent Assembly.

The laws enacted under the public order’ restriction included Section 153A, Section 153B, Section 295A and Section 502(2) of the Indian Penal code.

 

Present constitutional articles on Freedom of Speech and Expression:

Article 19(1) (a) of the Constitution of India states that, “all citizens shall have the right to freedom of speech and expression”.

The philosophy behind this Article lies in the Preamble of the Constitution, where a solemn resolve is made to secure to all its citizen, liberty of thought and expression.

The exercise of this right is, however, subject to “reasonable restrictions for certain purposes being imposed under Article 19(2) of the Constitution of India.

 

Under Indian Penal Code:

Sections 153A and 153B of the IPC: Punishes acts that cause enmity and hatred between two groups.

Section 295A of the IPC: Deals with punishing acts which deliberately or with malicious intention outrage the religious feelings of a class of persons.

Sections 505(1) and 505(2): Make the publication and circulation of content which may cause ill-will or hatred between different groups an offence.

 

The Supreme court Concern:

  1. In Pravasi Bhalai Sangathan vs Union of India & Ors.(2014) the Supreme Court said: Hate speech is an effort to marginalise individuals based on their membership in a group.
  2. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society.
  3. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact.
  4. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.
  5. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.
  6. On the proliferation of hate speech, the Supreme Court pointed out that the root of the problem is not the absence of laws but rather a lack of their effective execution.
  7. Therefore, the executive as well as civil society has to perform its role in enforcing the already existing legal regime.
  8. Effective regulation of “hate speeches” at all levels is required as the authors of such speeches can be booked under the existing penal law and all the law enforcing agencies must ensure that the existing law is not rendered a dead letter.
  9. Further, the Supreme Court requested the Law Commission of India to examine the issue.
  10. The 267th report of the Law Commission was of the clear opinion that new provisions in IPC were required to address the issue.
  11. It suggested the insertion of new Sections 153C (prohibiting incitement to hatred) and section 505A (causing fear, alarm, or provocation of violence in certain cases) to curb the menace of hate speech.
  12. Despite a draft Bill being annexed to the report, none has been presented to Parliament so far.
  13. Neither has the law been strengthened, nor the existing law strongly enforced. This sums up the citizens’ predicament

 

However, Importance and need of freedom of speech and expression:

The importance and need of the freedom of speech and expression can be understood from the following:

  1. In a democracy, the freedom of speech and expression is one of the prime liberties granted to the citizens.
  2. It forms a foundation for other rights granted to citizens, such as the freedom of the press.
  3. Freedom of the press, in turn, helps in inculcating a better-informed public and electorate.
  4. It ensures that citizens can express their opinions freely and also hold their political leaders accountable. Also, this freedom ensures that important information is legally shared and circulated among citizens.
  5. It also provides a platform to make the marginalized and minority voices heard.
  6. Issues that concern these groups can be highlighted and brought to the forefront by using the right to freedom of speech and expression.
  7. The freedom of speech and expression protects the creative license of artists and allows them to develop and share ideas freely.
  8. These can be academic writings, satirical work, theatre, cartoons, visual arts, and stand-up comedies.

The Constitution of India by law seeks to prevent the delivery of hate speech under the garb of free speech and expression. It prohibits expressions that can be insulting to others.

According to Article 51A (h) of the Indian Constitution, citizens must develop scientific temper, humanism, and the spirit of inquiry and reform. Various criminal laws in India also penalize hate speech.

 

Conclusion:

Several factors are to be considered while restraining speeches like the number of strong opinions, offensive to certain communities, the effect on the values of dignity, liberty, and equality.

Certainly, there are laws for such atrocities but a major part of work is still left.

Therefore, giving a proper definition to hate speech would be the first step to deal with the menace and other initiatives such as spreading awareness amongst the public is the need of the hour.