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Report No. 267

Prohibiting Advocacy of Hatred138

6.27 Freedom of speech and expression has been established as a key freedom required for sustaining democracy. However, with every right comes responsibility; and therein, is the need for a limitation on the right to freedom of speech and expression so as to prevent the destructive and regressive effect it could have. The founding fathers of our Constitution were cognisant of the history and the need to highlight the responsibility attached to freedom of speech and expression. Thus, there is a need to convince and educate the public on responsible exercise of freedom of speech and expression.

6.28 The Constitution in its working, however, required amendments to article 19 so as to add several new grounds of restrictions upon the freedom of speech and expression; initially, under the Constitution (First Amendment) Act, 1951 followed by the Constitution (Sixteenth Amendment) Act, 1963. The new grounds of restrictions added were (i) friendly relations with foreign states (ii) defamation or incitement to an offence (iii) the sovereignty and integrity of India (iv) security of State (v) decency and (vi) contempt of court.

6.29 In pursuance of the aforesaid constitutional provisions, certain provisions such as section 153A, section 153B and section 295A, were added in IPC to deal with particular category of offences which fall in general expression of hate speech. In IPC those provisions of hate speech fall under the categories of Offences Relating to Religion, Offences Against Public Tranquillity and Criminal Intimidation, Insult and Annoyance.

Section 124A penalises sedition, 153A penalises promoting enmity among groups on various grounds and doing acts prejudicial to maintenance of harmony, section 153B penalises imputation assertions prejudicial to national integration, and section 295A penalises malicious acts intended to outrage religious feelings which supplement section 298 which relates to uttering words with intent to wound the religious feelings. Section 505 deals with statements conducing to public mischief.

6.30 The reading of above provisions make it clear that there is no water tight compartment to deal with the various acts relating to hate speech which generally overlap. In a particular situation hate speech may become sedition. In the case of Kedar Nath Singh v. State of Bihar139, the Supreme Court upheld section 124A IPC as constitutionally valid, following the view of the Federal Court in Niharendu Dutt Majumdar v. Emperor140 and did not accept the interpretation given to it by the Privy Council in Emperor v. Sadasiv Narain Bhalerao141.

In Niharendu142 the Federal Court held that "public order or the reasonable anticipation or likelihood of public disorder" was the gist of the offence of sedition and that in order to be punishable under section 124A, - "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that was their intention or tendency". The Supreme Court in Kedar Nath Singh143 interpreted section 124A to mean that an utterance would be punishable under this section only when it is intended or has a reasonable tendency to create disorder or disturbance of the public peace by resort to violence.

6.31 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.

6.32 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. A difference of approach is discernible between the United States and other democracies. In the United States, 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.

6.33 In view of the above, the Law Commission of India is of considered opinion that new provisions in IPC are required to be incorporated to address the issues elaborately dealt with in the preceding paragraphs. Keeping the necessity of amending the penal law, a draft amendment bill, namely, The Criminal Law (Amendment) Bill, 2017 suggesting insertion of new section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases) is annexed as Annexure-A for consideration of the Government.

A BILL further to amend the Indian Penal Code, and the Code of Criminal Procedure, 1973 Be it enacted by Parliament in the Sixty-eighth Year of the Republic of India as follows:-

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