Analysing Hate Speech and Hate Crimes in India

Introduction

In today’s world where internet has made the world accessible at fingertips it also has its darker side revolving around hatred and threats. As much as such hate and threat affects mentally its plays a significant role in our real life too. In India too, cases of trolling, cyber-bullying, doxing, online-harassment are increasing at a rapid pace leaving us in the need to robust legal mechanism dealing with the same.

What is hate speech?

‘Hate crimes are cruel expressions of narrow-mindedness and have a significant negative impact on the victim as well as the group they identify with. They have an impact on social stability and group cohesiveness. Therefore, a strong response is essential for both individual and communal security’[1].

It basically refers to speech which is intended to degrade a person based on their choices, appearance, culture, religion, race, sexual preferences, gender identity etc.

Understanding online hate and threat crimes

Online hate crimes involve the use of digital platforms to spread hate among individuals or groups of individuals. It basically refers to disseminating hatred, discrimination, or threats against individuals or groups based on characteristics such as race, religion, gender, sexual orientation, or ethnicity. These crimes can be categorized as given below;

1. Hate speech- It refers to the circulation of online content that promotes violence or hate against a specific group or individual. The hate is usually based on religion, race, gender, or sexual orientation. Generally, the target belongs to a marginalized community. Online hate speech includes not only online written material but also includes videos, and posters. Such hate speech often results in physical violence,mob lynching, etc.
2. Cyberbullying- Under this the digital platform is used to threaten, harass, or intimidate individuals. The target is usually bombarded with threatening messages or online humiliating content targeting the victims shared on digital platforms. Such content and messages affect the mental health of the victims, in severe cases even resulting in self-harm and suicide.
3. Doxing- Doxing refers to sharing private information about an individual on digital platforms without their consent. Such information may include the victim’s phone number, address, and other confidential information. Doxing may create a fearful environment for the victim often resulting in anxiety and depression. Such a crime is a severe breach of privacy.
4. Trolling-Trolling is somewhat similar to cyberbullying. Under this too, online disturbing or provocative messages in an online community with the intent to provoke or incite discussions.

Hate crime vis-à-vis Indian Penal Code

There are no specific provisions in the Indian Penal Code dealing with online hate crime but there are provisions dealing with hate crime and hate speech committed through any medium either online or offline. The prominent sections of the Indian Penal Code are enumerated below;

Section 153A- Promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony –

This section criminalizes the use of wordseither written or spoken, or any visual representation which in any manner promotes enmity between groups based on the above-mentioned grounds. This section was inserted in the Indian Penal Code in 1898, seeing the rise in the number of violence cases resulting from enmity between groups. Under the Bhartiya Nyaya Sanhita, the same offense has been prescribed under Section 196.

Section 153B- Imputations, assertions prejudicial to national integration-

According to this section, if any person by words either written or spoken or visual representation makes an imputation that a group of persons cannot owe allegiance to the Constitution because of them belonging to a specific religion, race, language, region, caste, or community or advice that such person should not be allowed to be citizens of India or accuses them of disturbing harmony or causing ill-will amongst people shall be punished with imprisonment which may extend to three years, or with fine, or with both. The same offense has been specified under Section 197 of the Bhartiya Nyaya Sanhita.

Section 499- Defamation- (section 356-Bharitya Nyaya Sanhita)-

According to this section whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person[2]. The section is not absolute it has its exceptions such as publication in good faith, publication of truth, etc.

Indian Constitution vis-à-vis Hate speech

While the Indian Constitution provides a right to free speech to individuals it is also their duty not to misuse that Right. The Preamble to the Indian Constitution declared India as a sovereign socialist secular democratic republic that grants its citizens the liberty of thought and expression. Since the preamble is non-justifiable in nature and is non-enforceable in court[3]. This liberty of thought has been expanded in Article 19 of the Indian Constitution which gives the citizens of India freedom of speech and expression but this right is not absolute it is subject to restrictions such as public order, morality decency, etc. Hate speech in this context is not only against the Constitution but there are specific provisions dealing with the same.

According to Article 19(1)(a), all citizens of India have freedom of speech and expression. This implies that an individual is free to express his thoughts and beliefs freely without offending others. The right includes the freedom to express on online platforms as well. This does not mean that this right gives a license to promote hate crimes. The court in Lowell v. Griffin[4]held that the right includes expression of one’s ideas through any communicable medium or visible representation such as gestures signs and like. Though the right has great significance it should be used cautiously and within the limits of law otherwise, it may attract punishment under various other legislations.

The Hate Crimes and Hate Speech (Combat, Prevention and Punishment) Bill, 2022

This bill was introduced with the objective all combating and preventing of Hate Speech and Hate crimes. The bill has a total of 13 section which are divided into seven chapters.

The bill contains several important definitions such as the definition of harm, hate speech and hate crime etc. The bill criminalizes various acts as criminal acts and prescribes punishments thereof. Such classification is contained Chapter II of the bill.

Section 3: Offence Of Hate Crime

Section 3 of the bill lays down the definition of hate crime which is as follows;

An act done to harm, incites harm, or promotes hatred due to prejudice or intolerance towards another person based on the victim's or their family member's characteristics, or their association with or support for a group with such characteristics, including:

• religion,
• race,
• caste or community,
• sex,
• gender,
• sexual orientation,
• place of birth,
• residence,
• language,
• disability, or
• tribe,

may be classified as the offence of hate crime.

Section 5: Offence Of Hate Speech

According to Section 5 of the bill, “whoever commits any of the acts herein enumerated below shall be guilty of offence of hate speech with a punishment of imprisonment for aterm which may extend to three years or fine up to five thousand rupees or both”.

Intentional publication of offensive materials-Intentionally publication, propagation or advocation of anything against any person which can reasonable construed to harm or incite harm or to promote hatred against a person on any of the following grounds;

1. religion,
2. race,
3. caste or community,
4. sex,
5. gender,
6. sexual orientation,
7. place of birth,
8. residence,
9. language,
10. disability, or
11. tribe;

Intentional distribution of offensive material-Intentional distribution or making available such material which can be construed as hate speech through electronic medium to the public or a specific person who can be considered a victim of hate speech.

Displaying offensive material- Intentional display or making available material known to be hate speech to a specific person who can be considered a victim of hate speech.

The section is not absolute it has exceptions such as bonafide artistic creativity, scientific or academic report and bonafide interpretation of religious materials.

The role of Judiciary

Although we still do not have a specific legislation dealing with hate speech and hate crime, the Indian judiciary has played its crucial role in ensuring that no crime ever goes unpunished. The judiciary in the case of PravasiBhalai Sangathan v. Union of India[5], though did not punish the convict because of unavailability of any legislation dealing with hate speech but it requested to Law Commission of India to look into the matter and make laws accordingly. Also, the judiciary by using its toolsof interpretation drawn the scope and extent of Free speech. For instance, in the case of Shreya Singhal v. Union of India[6] the court have distinguished between discussion, advocacy, and incitement and held that the first two were the essence of Article 19(1)[7].

Conclusion

Hate crimes are crimes of serious nature which are rapidly increasing in India. Though judiciary is very well performing its functions in discharging its duty but its hands are tied up by the law. Thus, an immediate and urgent step should be taken by the Parliament to enact and pass a specific legislation dealing with hate crimes and hate speech.

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[1]https://www.legalserviceindia.com/legal/article-8812-hate-crime.html

[2] Section 499 of the Indian Penal Code,1860

[3]Union Government Vs LIC of India, 1995

[4] 1938, 303 US 444

[5]WRIT PETITION (C) No. 157 OF 2013

[6]WRIT PETITION (CRIMINAL) NO.167 OF 2012

[7]https://www.drishtiias.com/daily-updates/daily-news-analysis/hate-speech-5