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Report No. 267

Chapter - VI

Review of Penal Law

"[T]hat the law shall be certain, and that it shall be just and shall move with the times."

-Lord Reid, Judge as Law Maker 112

6.1 It is difficult to define hate speech as any ambiguity in a definition may allow intrusion into freedom of speech and expression. The erstwhile section 66A of the Information Technology Act, 2002 which was struck down in Shreya Singhal113 is an example wherein the vagueness of the legal provision led to misuse of the law. The precision of law is one of the grounds adopted by ECtHR in adjudging the legality of restriction imposed by the State. Hence, any attempt to define hate speech must meet the aforementioned parameters.

6.2 Incitement to violence cannot be the sole test for determining whether a speech amounts to hate speech or not. Even speech that does not incite violence has the potential of marginalising a certain section of the society or individual. In the age of technology, the anonymity of internet allows a miscreant to easily spread false and offensive ideas. These ideas need not always incite violence but they might perpetuate the discriminatory attitudes prevalent in the society. Thus, incitement to discrimination is also a significant factor that contributes to the identification of hate speech.

6.3 The term "hate speech" has been used invariably to mean expression which is abusive, insulting, intimidating, harassing or which incites violence, hatred or discrimination against groups identified by characteristics such as one's race, religion, place of birth, residence, region, language, caste or community, sexual orientation or personal convictions. However, in international human rights law, it is defined by article 20 of the ICCPR.

The inherent dignity and equality of every individual is the foundational axiom of international human rights. It is, therefore, perhaps not surprising that international law condemns statements which negate the equality of all human beings. Article 20(2) of the ICCPR requires states to prohibit hate speech. Advocacy of national, racial or religious hatred that constitutes incitement to discrimination or hostility is prohibited by law. Under the common law system, such speech had been treated as 'sui generis' that is, 'outside the realm of protected discourse'.

6.4 One of the recent examples of such rumour mongering is the case of the Northeast exodus in the year 2012. Up to 50,000 citizens belonging to the Northeast moved from their residences across India, back to the North-eastern states.114 This was triggered because of the circulation of false images of violent incidents that took place in Myanmar several years ago. These were projected to be images from the Assam riots of 2012.115 This resulted in creation of panic across the country as other groups started targeting people from Northeast living in other parts of India. The police authorities responded with a complete internet shutdown.

6.5 Hate speech has the potential of provoking individuals or society to commit acts of terrorism, genocides, ethnic cleansing etc. Such speech is considered outside the realm of protective discourse. Indisputably, offensive speech has real and devastating effects on people's lives and risks their health and safety. It is harmful and divisive for communities and hampers social progress. If left unchecked hate speech can severely affect right to life of every individual.

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