Threat to free speech, hate speech needs to be defined and contained

By: Sumit Saxena

New Delhi:  In liberal societies, free speech is one of the contentious issues, and often many people struggle to draw a distinction between hate speech and free speech.

And, many of whom who think hate speech constitutes freedom of expression and merely a perspective issue, do not consider that hate in speech diminishes tolerance.

The noxious language on various social media platforms is causing real-world violence, and only the pretenders would say — it does not metastasise into physical violence, rather some vested interests project free speech as hate speech to attempt to place limitations on freedom of expression.

Recently, the Supreme Court observed that hate speech is a poison, which damages the social fabric of the society and the political parties are making political capital out of it by drawing fissures in the society.

Citing the absence of a law to tackle the menace of hate speech, the apex court hinted at filling up the legal vacuum by passing orders and framing guidelines, as it did in the Vishaka case to deal with sexual exploitation at workplace.

The Election Commission of India (ECI) has told the apex court that hate speech has not been defined under any existing law in India. Police take recourse to Sections 153 (A), and 295, under Indian Penal Code, which deal with incitement and spreading of disaffection among communities.

The poll panel’s response came to a PIL by advocate Ashwini Kumar Upadhyay seeking a direction to the Centre to bring legislative measures to address hate speech and rumour mongering.

“In the absence of any specific law governing hate speech and rumour mongering during elections, the ECI employs provisions of the IPC and the Representation of People Act, 1951, to ensure that member of political parties or even other persons do not make statements to the effect of creating disharmony between different sections of society,” the ECI said.

The question which begs to be answered is what steps should be taken to contain the menace of hate speech when “free speech” is used as a cop-out and the pretenders seek concrete evidence to establish that the exercise of free speech has caused tangible harm. If clear guidelines are framed, it would clearly distinguish between free speech and hate speech.

Free speech is a bedrock value and it should be protected. However, it has to be held in tension with others, like all values, such as equality for effective functioning of a democratic society.

Then, there are trade-offs, which may be unpredictable and difficult to mitigate. But, could it mean that the lawmakers should stop treading a thorny path to find a solution to address hate speech?

The Law Commission, in its 267th report submitted to the central government in 2017, said: “Hate speech generally 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 (sections 153A, 295A read with section 298 IPC).


“Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”

To get the process started, this definition may help the law enforcement authorities to establish discernible differences between hate speech and free speech.

The Commission said hate speech poses complex challenges to freedom of speech and expression.

“The constitutional approach to these challenges has been far from uniform as the boundaries between impermissible propagation of hatred and protected speech vary across jurisdictions,” it said.

The Commission added that a difference of approach is discernible between the United States and other democracies.

In the United States, it noted, hate speech is given wide constitutional protection; whereas under international human rights covenants and in other western democracies, such as Canada, Germany, and the United Kingdom, it is regulated and subject to sanctions.

The Commission suggested various amendments in criminal law to penalise the offence of incitement to hatred and causing fear, alarm, or provocation of violence in certain cases.

Therefore, steps can be taken to protect speech which is critical of the government functioning and also to consider the risks involved in unchecked speech, which may need a mitigating mechanism.

The Centre could develop a consensus with the Opposition to design a framework to distinguish between a free-speech absolutist and a citizen exercising his right to free speech. This may be a tedious exercise, but it may bear fruits eventually.

Chalking out a mechanism to counter hate speech isn’t the road to perdition!


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