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By: Manisha Chauhan, Advocate

Black’s Law Dictionary defines Hate Speech” as “speech that carries no  meaning other than the expression of hatred for some group, such as a particular  race, especially in circumstances in which the communication is likely to provoke  violence.” Juxtaposes, Article 19(1) (a) of the Constitution of India states that “all citizens shall have the right to freedom of speech and expression”. However, the exercise of this right is subject to “reasonable restrictions” for specific purposes being imposed under Article 19(2) of the Constitution of India. Existentially, the  Grounds on Which this Freedom Can be restricted under Clause (2) of Article 19  of the Indian constitution under the following heads: 

 I. security of the State, 
II. friendly relations with foreign States 
III. public order, 
IV. decency and morality, 
V. contempt of court, 
VI. defamation, 
VII. incitement to an offense, and 
VIII. sovereignty and integrity of India. 

For the protection of the general public concerning the freedom of speech and the speech which moves beyond the limited circumferences of freedom of speech and expression as envisaged by the constitution of India, the law concerning the protection of hate speeches is either negligible or very limited. Emphatically,  there is a growing animosity created by way of hate speeches, which is in vogue and has remained unabated, which in turn is revolving around and will soon have a domino effect on society and in so far as online hate speeches and the immediate removal of contents the law utter silent. Besides the broad powers of the Apex  Court in India, the Powers of the lower Judiciary and the rules are not explicitly defined for the purpose before the objectionable content gets conflagrated. In contrast, the question remains Word “Hate Speech” is defined nowhere. The international Law on Hate speeches can be well found in Article 4 of the  International Convention on the Elimination of All Forms of Racial  Discrimination.

Moreover, Articles 19 and 20 of the International Covenant on Civil and Political  Rights proscribe any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law. So, the protection isn’t merely restricted to protection from physical violence once it has erupted. Still, the security to ensure the sanctity and feeling of life free from fear of persecution and protection of fundamental rights as prescribed and solemnly affirmed by the Constitution. Nevertheless, there seems a concord on certain sections of the criminal jurisprudence, such as Section 124- A (Sedition) in the Penal Code, 1860, etc., that should be removed as they do not align with Constitutionally guaranteed rights. Imperatively, besides the Penal Code,  1860 (“IPC”) and the Cinematograph Act, 1952, the unambiguous legislative policy and regulatory laws on hate speeches have led harm of hate speech to go astray with temerity and impunity. 

Additionally, the stance of the Supreme Court on Hate Speech is not that comprehensive; therefore, no such categoric ruling is on the point of hate speech and guidelines to curb it. However, the Hon’ble Supreme Court had applied the ‘bad tendency doctrine’ of American Jurisprudence, whereby the test determines whether the restriction was reasonable and whether the free speech or acts could be prohibited if they were likely to affect the welfare of the public adversely. The US Supreme Court in Schenck v. United States (1919), had laid down the ‘clear and present danger test to determine the reasonability of the restriction, whereby the restriction would be reasonable only if the speech or action constitutes a clear and present (and not remote) danger to state security or public order. Furthermore,  in The U.S. Supreme Court, Dennis v. United States (1951), a ‘balancing’ test was adopted. Consequently and in contemporary times, the U.S. Supreme Court,  In Brandenburg v. Ohio (1969), the ‘clear and present danger’ test was expanded,  and the ‘imminent lawless action’ test was laid down by the U.S. Supreme Court,  which the court has followed since then. The above test prescribes, “The constitutional guarantees of free speech and free press do not permit the state to forbid or proscribe advocacy of the use of force or law violation, except where such advocacy is directed to inciting or producing imminent lawless action”.  Supreme Court adopted the decision in Brandenburg v. Ohio in Sri Indra Das v.  State of Assam (2011) and Arup Bhuyan v. State of Assam (2011); therefore,  Brandenburg has become the law of the land. 

Nevertheless, the India Penal Code, 1860, which inter-alia includes Sections 117,  120B, 153A,153B, 290A, 295A, 298, 500, 504, 505, 506, and in Criminal  Procedure Code, 1973 inter-alia includes Sections 95, 96, 107, 144, 151, 178,  196. Additionally, Section 91 of the Civil Procedure Code, 1908, wherein a suit for declaration and injunction or such other relief as may be appropriate to challenge any public wrong and undoubtedly the other supplementary procedures can be indeed exercised in its aid. 

We cannot be oblivion of the fact that the growing virtual world has become boundaryless, and the internet is a source of knowledge globally. However,  equally, there are faux pauses to the internal; it disseminates the information much more quickly than otherwise and has an extraordinary effect on day-to-day life. So, therefore, the laws must be updated with the contemporary virtual environment to curb it before it is too late. Imperatively, the French Government has passed a landmark law to fight online hate speech that will oblige social media networks to remove offending content within 24 hours and create a new button to enable users to flag abuse. In July 2019, the National Assembly of  France passed a bill to enforce the rules to limit hateful content online. Similarly,  in Germany, as proscribes under Section 130 of the Agitation of the People, Hate speech or “incitement of popular hatred” (Volksverhetzung) may be punishable if against segments of the population and in a manner that is capable of disturbing the public peace, including racist agitation and antisemitism. 

Additionally, early this year, the German Cabinet approved a bill that requires social networks like Facebook and YouTube to report hate speech to the police, and Social media companies are already required to delete harmful content in Germany within 24 hours. The said law extends to multiple forms of hate speech, including far-right propaganda, graphic portrayals of violence, murder and rape threats, or posts indicating that someone is preparing a terrorist attack. Also, the distribution of child sexual abuse images is covered under the bill. The United Kingdom has also defined “what are online hate and its ramifications”. 

Therefore, to conclude, Indian laws much needed to revisit hate speech and, on top of it, sufficiently define laws to curb online hate speech and the requirement of necessary action within 24 hours and remove objectionable items forthwith and to fix responsibility thereof further.