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The Law Commission’s Curious Recommendations On Hate Speech

The Law Commission’s report on hate speech does quite the opposite of what it sets out to achieve.

(Source: BloombergQuint)
(Source: BloombergQuint)

The Law Commission of India, in its 267th Report, has suggested amendments to the Indian Penal Code, 1860 (IPC) to curb hate speech. It has recommended addition of Section 153C (prohibiting incitement to hatred) and Section 505A (causing fear, alarm, or provocation of violence in certain cases) to the Indian Penal Code. There are consequential amendments recommended to the Code of Criminal Procedure, 1973 (CrPC).

In his letter to the Law Minister forwarding the Report, the chairman to the Law Commission cited the Supreme Court judgment in Pravasi Bhalai Sangathan that the issue of hate speech “deserved deeper consideration”.

Supreme Court On Hate Speech

Interestingly the Supreme Court in the Pravasi Bhalai Sangathan case had declared that

the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of “hate speeches”.

It required that:

“the person aggrieved must resort to the remedy provided under a particular statute” saying that “the root of the problem is not the absence of laws but rather a lack of their effective execution. The executive as well as civil society has to perform its role in enforcing the already existing legal regime.”

According to the court, “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.”

The “statutory provisions and the penal law”, which according to the Supreme Court provided “sufficient remedy” to curb hate-speech, include several provisions in the IPC and provisions in Representation of People’s Act, Civil Rights Act, Unlawful Activities (Prevention) Act and other enactments; all of which deal with different aspects of hate speech.

Astonishingly, however, the Law Commission now states that:

“Hate speech has been manipulated by many in different ways to achieve the ulterior motive under the garb of such right and the law courts in absence of clear provisions in IPC are not able to prosecute hate speech charges brought before them with success.”

The report thus contradicts the Supreme Court’s observation that “penal law provides sufficient remedy to curb the menace of free speech” and without suggesting amendments to those provisions of the Penal Code that are not “clear”, it suggests additions to the IPC and CrPC.

The incongruity becomes more glaring because Justice Chauhan, who is now the Chairman of the Law Commission, rendered the Supreme Court judgment in the Pravasi Bhalai Sangathan case.

The additions suggested by the Commission, moreover, contradict the existing law on hate speech and the ensuing confusion will do little to “curb the menace of hate speech” - which is the declared reason for the report.

Hate Speech: Existing vs Suggested Provision

Existing Provision

Section 153A, an existing provision dealing with hate-speech, makes words spoken or written or signs or visible representations or other ways of creating disharmony or feelings of enmity, hatred or ill-will between religious, racial, language or regional groups or castes or communities punishable with imprisonment which may extend to three years or fine or both.

It is not necessary, to attract Section 153A, that the words are “within the hearing and sight of a person” and it is also not necessary for the prosecution to further establish that the writer had the intention to promote such hatred. Even if a question of intention were to arise, the words themselves would be conclusive; it would not be necessary to further prove that there was such intention behind the words.

Proposed Provision

Section 153C, which the Commission has recommended addition of, says whoever on grounds of religion, race, caste, community, gender etc. uses “gravely threatening” words, signs and visible representation, “within the hearing or sight of a person” and the “intention” to cause fear or alarm or advocates hatred that causes incitement to violence is punishable with imprisonment up to two years and fine up to Rs 5,000 or both.

Promoting “enmity” on ground of religion under Section 153A is bound to cause fear and alarm as stipulated in Section 153C but words creating enmity, hatred or ill-will – requirement of Section 153A) may or may not be “threatening”, and need not be spoken “within hearing or sight of a person” and there is no need to further prove intention behind those words as is required by Section 153C.

Threatening words which cause fear and alarm – to which Section 153C applies – can be covered by Section 153A too, for creating disharmony or ill-will.

Suggested Provision Does Quite The Opposite Of What It Aims To Achieve

While under the existing law the words alone, without proof of intention or requirement of hearing and sight, are enough, Section 153C for the same situation adds three distinctive requirements and also prescribes a less rigorous punishment.

In any event, there is no guideline to identify “threatening words” and to distinguish them from “gravely threatening” ones, nor even any proximate relationship with the offence of incitement to hatred or violence as to constitute threat to public order or disturb public tranquility.

Moreover “words” creating enmity, hatred or ill-will between different groups on grounds of religion, race, language, residence etc. can be punished under the existing law without the said words being required to cause “incitement to violence” but Section 153C makes the said “incitement to violence” a requirement for prosecution if intention to cause fear or alarm is not present (intention, as already stated, is not required under Section 153A and “words” alone are sufficient).

Besides, Section 153C makes advocating “hatred” as cause of violence but “hatred” (which is also used in the marginal note) remains undefined!

There are similar problems with Section 505A that the Commission has recommended the addition of.

Omissions In The Law Commission's Report

There is another compelling aspect that requires mention. While holding, as already mentioned above, that the existing provisions provided sufficient remedy for dealing with hate speech, the Supreme Court, in Pravasi Bhalai Sangathan case observed:

However, in view of the fact that the Law Commission has undertaken the study as to whether the Election Commission should be conferred the power to derecognise a political party disqualifying it or its members, if a party or its members commit the offences referred to hereinabove, we request the Law Commission to also examine the issues raised herein thoroughly and also to consider, if it deems proper, defining the expression “hate speech” and make recommendations to Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made.
Supreme Court Order In The Pravasi Bhalai Sangathan Case

Yet the 267th Report, has not dealt with the issue and merely recommended that the Model Code of Conduct framed by the Election Commission prohibit any kind of speech which promotes enmity between classes. The Model Code of Conduct comes into force immediately on the announcement of the election schedule but the Law Commission was expected to deal with the issue of hate speech “whenever it was made” that is even prior to that date.

Thus, while the recommendations suggested are suspect, we still have to wait for the expected suggested recommendations.

Aman Lekhi is a Senior Advocate at the Supreme Court of India and writes on constitutional and commercial law issues.

The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.