Friday, 17 May, 2024
By: Yash Gupte
The court emphasised the need to safeguard the country's secular nature. The court went so far as to highlight the precise criminal statutes that should be used to prosecute hate speech offenders. Image Source: IANS
The Supreme Court said that “The judges are apolitical and not concerned with Party A or Party B and the only thing they have in mind is the Constitution of India.”
The Supreme Court on April 28, 2023 directed the states to suo moto register FIRs on the incidents of hate speech and proceed against the violators without waiting for someone to lodge a complaint. A bench comprising of Justice KM Joseph and BV Nagarathna ruled that all hate speech makers, regardless of their religion, would be subject to the court's order. The court emphasised the need to safeguard the country's secular nature. The court went so far as to highlight the precise criminal statutes that should be used to prosecute hate speech offenders. They are found in the Indian Penal Code (IPC) Sections 295A (deliberate and malicious acts intended to outrage religious feelings) and 153A (promoting enmity between different groups on the basis of religion), 153B (imputations, assertions prejudicial to national integration) and 505 (public mischief).
The highest court further stated that hate speech is "capable of affecting the secular fabric of the country" after labelling it a serious violation. Several petitions alleging crimes involving hate speech were being heard in court. The state of Maharashtra was asked to respond to a complaint of contempt for allegedly failing to take action against hate speech before the bench. The Director Generals of Police in the states (DGPs) were directed by the bench to inform their subordinates about the court order so that “appropriate action in accordance with the law will be taken at the earliest”. According to the court, any reluctance on the part of police personnel to follow the directive will be seen as contempt.
The Supreme Court also said that “The judges are apolitical and not concerned with Party A or Party B and the only thing they have in mind is the Constitution of India.” The Apex Court had earlier expressed its concerns over the rising instances of the hate speech in the country. The Supreme Court termed the State ‘impotent’ for failing to take action against the rising instances of hate speech incidents across the country and made it loud and clear that the toxicity could be ended only when politics and religion are segregated from the national discourse. Justice KM Joseph expressed his anger during the hearing when he said, “State is impotent, state is powerless; it does not act in time. Why do we have a State at all if it is remaining silent?”
In the past few years, the country has seen a phenomenal rise in hate speeches cutting across political and religious lines. India does not have a specific law that defines hate speech, there are select legal provisions or sections in the law that prohibits speech, text or any publication that incites hatred between any community and groups.
Based on the information provided in the National Crime Records Bureau’s (NCRB) Crime in India (CII) report, there has been a six-fold increase in hate speech crime in the country. While 2014 (323 cases) saw the least number of cases in the seven years, the year 2020, with 1,804 cases, saw the highest. Tamil Nadu had the highest number of cases (303), followed by Uttar Pradesh (243), Telangana (151), Assam (147) and Andhra Pradesh (142).
If we take a look at cases filed under Section 153B (imputations, assertions prejudicial to national integration), we can see a six-fold increase from 13 in 2014 to 82 in 2020. Although cases filed under IPC Section 295-297 (insults against the religious beliefs of an individual or community) saw an overall decrease by 3.2 percent. However, there was a 16.5 percent increase in these cases in the last year – from 1,459 in 2019 to 1,749 in 2020. Cases registered under Section 505 (which deals with hateful publication) increased almost six times in four years – 257 cases in 2017 to 1,527 in 2020.
Apart from the increase in the new cases, the number of pending cases with the police has also gradually increased. In 2016, a total of 903 cases were pending trial in courts, which further increased to 2736 by the end of 2020. The conviction rate of cases under Section 153 was as low as 20 percent in the five years between 2016 and 2020. In 2016, 15.3 percent of cases ended in convictions, while in 2020, the conviction rate had risen to 20.4 percent.
As mentioned before, the absence of a uniform hate speech makes a citizen vulnerable to several hate speech laws pertaining to the case. The Unlawful Activities Prevention Act is one of them. The primary objections to the Amendment are under Section 35, in addition to the categorisation of organisations as terrorist organisations, extended the power to include within its scope the categorisation of individuals as terrorists as well. With the recent amendments, several individuals have been slapped with UAPA in the name of engaging in acts of hate crimes, physical violence as well as communally charged speeches by the members of political parties. This includes journalist Siddique Kappan and students Umar Khalid and Sharjeel Imam among several others.
According to the data, 2019 witnessed the highest number of cases under the act. One of the major reasons behind this was the nationwide protests organized against the Citizenship Amendment Act (CAA), 2019. Large number of activists, protestors and students were arrested under the UAPA during the protests in 2019. 2018 also came as a year with high number of cases under UAPA with the registration of 1182 cases. In 2020, 814 cases were registered under the unlawful activities prevention act. Maximum cases were registered in the UT of Jammu and Kashmir (289), Manipur (157), Assam (95), Jharkhand (86) and Uttar Pradesh (83).
Hate speech has been a problem in India for decades. But the scale of the problem has accelerated in recent years, with Indians being regularly bombarded with hateful speech and polarising content. The issue of hate speech has often come up before India's courts. But the judiciary has mostly been wary of imposing restrictions on free speech. In 2014, while hearing a petition which asked the Supreme Court to issue guidelines to curb hate speeches made by political and religious leaders, the court recognised the adverse impact these could have on people but refused to go beyond the scope of existing laws.
In its report submitted to the government in 2017, the commission recommended adding separate provisions to the Indian Penal Code to specifically criminalise hate speech. Data of the last five years highlights multiple challenges as far as cases related to ‘hate speech’ are considered. While we enjoy our constitutional right of freedom of speech, it’s high time we draw a fine line where freedom of speech ends and inciting hatred begins.
