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Hate speech vs Free Speech

  • Posted By
    10Pointer
  • Categories
    Polity & Governance
  • Published
    25th Dec, 2021
Hate speech vs Free Speech

Introduction

  • Freedom has been viewed as a basic necessity for human beings to live a full and happy life. It is a cardinal virtue in a democratic nation.
  • Freedom in simple words is about the absence of constraints.
  • However, the mere absence of external constraints does not help. Freedom is also about expanding the ability of people to freely express themselves and develop their potential.
  • Both these aspect, the absence of external constraints as well as the existence of conditions for people to freely develop their true potential are equally important.

However, the increasing incident of hate speech is a worrisome situation. The rise is due to negligence, people misunderstood that freedom of speech does not mean that a person can speak whatever he/she feels right.

Origin of Freedom of Speech and Expression:

  • England’s Bill of Rights 1689 adopted ‘freedom of speech’ as a constitutional right and still in effect.
  • The French Revolution in 1789 adopted the Declaration of Rights of Man and of Citizen. This further affirmed the Freedom of Speech as an undeniable right. 
  • The Universal Declaration of Human Rights that was adopted in the year 1948 also states that everyone should have the freedom to express their ideas and opinions. 
  • In International human rights, the freedom of speech and expression is recognized in the International Covenant on Civil and Political Rights (ICCPR).

Defense of Freedom of Speech

Many great thinkers and writers have presented detailed arguments justifying the need for freedom in thought and expression

Essay on liberty by John Stuart Mill: The author offers reasons why freedom of expression is essential:

  • No idea is completely false- if we ban false ideas, we would lose the element of truth in them.
  • Only via a conflict of opposing views does the truth emerge.
  • We cannot be sure about the truth. Ideas that seem false today, may turn out to be true in future.

John Stuart Mills: John Stuart Mills Harm Principle- gives criteria on when freedom could be curtailed.

  • Freedom of speech must only be curtailed to prevent undue harm to others.
  • The harm must be serious in nature. In case of minor harm, only milder tools such as social disapproval must be used and not the force of the law. Eg playing loud music.
  • Only in serious cases of major harm must freedom be restrained. Else society must bear the inconvenience in the spirit of protecting freedom

Freedom of speech and expression in India (meaning and scope)

  • Freedom of Speech and Expression has been explicitly guaranteed by the Indian Constitution under Article 19. It is a Fundamental Right which all citizens of the country enjoy. This includes the:
    • right to freedom of speech and expression
    • right to assemble peacefully and without arms
    • freedom to form associations and unions
    • right to move freely throughout the territory of India
    • right to reside and settle in any part of the territory of India
    • right to practice and profession or to carry on any occupation, trade or business
  • The Right to freedom of speech and expression as per as Constitution of India means the right to express one’s own convictions and opinions freely.

Freely

The word “freely” means including by words of mouth, writing, printing, banners, signs, and even by way of silence.

  • Freedom of speech and expression means the right to express one’s own conviction and opinions freely by means of words of mouth, writing, printing, picture or any other mode. 
  • It thus includes the expression of one’s idea through any communicable medium or visible representations such as gesture, signs and the like. 
  • The expression connotes also publication and thus the freedom of the press is included in this category. The Freedom of the press is regarded as a species of which the freedom of expression is a genius.

Fundamental Rights:

The Fundamental Rights, defined in Part III of the Constitution, are considered to be the basic human rights of all citizens which is applied irrespective of race, place of birth, religion, caste, creed, or gender. They are enforceable by the courts, subject to specific restrictions. 

  • Preservation of FR’s: If any violation of fundamental rights, an aggrieved person can file a writ petition or public interest litigation against the same either before the High Court or Supreme Court under Article 226 and Article 32 of the constitution respectively.
  • Restrictions of FR’s:  Fundamental Rights are not absolute rights of the citizens and law can put an enforceable reasonable restriction on the fundamental rights of the Indian citizen. Every right guaranteed under the Indian constitution comes with a reasonable restriction.
  • The reason for restriction can be the advancement of SCs, STs, OBCs, women, and children; general public order; decency, morality, sovereignty & integrity of India
  • Major Fundamental Rights: The major fundamental rights guaranteed under the Indian Constitution are as follows:
    • Right to equality (Article 14-18)
    • Right to freedom (Article 19-22)
    • Right against exploitation (Article 23-24)
    • Right to freedom of religion (Article 25-28)
    • Cultural and educational rights (Article 29-30)
    • Right to constitutional remedies (Article 32)

Constitutionality and Importance of the Freedom of Speech: 

  • Reasonable Restrictions on Freedom of Speech:

Under Indian law, the freedom of speech and of the press does not confer an absolute right to express one's thoughts freely. Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain restrictions on free speech under following heads:

  • Security of the State
  • Friendly relations with foreign States
  • Public order
  • Decency and morality
  • Contempt of court
  • Defamation
  • Incitement to an offense
  • Sovereignty and integrity of India

Importance of Freedom of Speech:

The importance of Freedom of speech and expression is particularly immense in the Indian context where various gagging acts were in place under British rule and the freedom to express has been won after a long struggle.

  • Self- Fulfillment: Free speech is an integral aspect of each individual right to self-development and fulfillment. Restrictions inhibit our personality and its growth. 
  • Democratic Value: Freedom of speech is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process. It is regarded as the first condition of liberty. 
  • Pluralism: Freedom of speech reflects and reinforce pluralism, ensuring that different types of lives are validated and promote the self-esteem of those who follow a particular lifestyle.  The freedom of speech enables the discovery of truth, is crucial to the working of a democratic Constitution is an aspect of human self-fulfillment or autonomy.

Difference between hate speech and freedom of speech

  • The Indian Constitution, under Article 19(1)(a) provides the right to freedom of speech and expression.
  • However, under Article 19(2), the constitution also provides for the reasonable restrictions against free speech in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
  • Hate speech is considered a reasonable restriction on freedom of speech and expression.

Freedom of Speech and Sedition:

The offence of sedition, in India, is defined under Section 124-A of the Indian Penal Code as, “whoever by words either spoken or written, or by signs, or by visible representation or otherwise brings into hatred or contempt or excite or attempts to excite disaffection towards the government established by law in India shall be punished”.

Kanhaiya Kumar v. State of NCT of Delhi: In the recent case of Kanhaiya Kumar v. State of NCT of Delhi, students of Jawaharlal Nehru University organized an event on the Parliament attack convict Afzal Guru, who was hanged in 2013. The event was a protest through poetry, art, and music against the judicial killing of Afzal Guru. 

  • Allegations were made that the students in the protest were heard shouting anti-Indian slogans. A case therefore filed against several students on charges of an offense under Sections [124-A, 120-B, and 34]. 
  • The University’s Students Union president Kanhaiya Kumar was arrested after allegations of ‘anti-national’ sloganeering were made against him. Kanhaiya Kumar was released on bail by the Delhi High Court as the police investigation was still at nascent stage, and Kumar’s exact role in the protest was not clear.

Recent Incidences of Censorship/Restrictions/Violation of Rights of Media:

A number of incidences have occurred in India and world over sparking a debate about a balance between free expression and reasonable restraints on the same, especially in the context of media. Each case presents different intricacies and a one size fits all approach is not valid.

  • Cobrapost Case: In an allegation, it was found that the Cobrapost (A web portal) documentary allegedly involved in malpractices like the promotion of Hindutva Politics a and content criticizing leaders of Opposition parties including the Congress, BSP, SP and the JD(S) for money.
  • Delhi High Court in its single judge order, restraining web portal Cobrapost from making public a documentary on various media houses that were allegedly involved in malpractices like paid news, mass polarisation and accepting black money.
  • Charlie Hebdo Case: an attack on the office of Charlie Hebdo magazine by radical Islamists for publication of objectionable cartoons of Prophet Mohammed.
  • Perumal Murugan Case: Novelist Perumal Murugan’s work Madhurobhagan offended the sensibilities of many sections in Tamil Nadu. He had to give up writing altogether amidst threats to his life and safety of his family.
  • BBC Documentary: India’s Daughter- documentary over Delhi rape case was banned by the Government of India as it allegedly incited violence against women and showed India in poor light
  • Udta Punjab Controversy and Legal Opinions over Censorship: The case is clearly drawn between the need to censor movies vs the manner in which excessive censorship stifles creativity and freedom of expression. The movie had been under the censor’s scrutiny due to use of cuss words, references to drug trafficking and state of Punjab etc. The review committee of the CBFC had passed the movie with 13 deletions. 

Supreme Court on Freedom of Speech and Expression: Various Landmark Judgments

  • Maneka Gandhi v. Union of India: In a landmark judgment of the case Maneka Gandhi v. Union of India, the Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thoughts with others not only in India but abroad also.
  • Romesh Thapar v. State of Madras: In Romesh Thapar vs. the State of Madras, Chief Justice observed: "Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible."
  • Union of India v. Assn. for Democratic Reforms: The Supreme Court observed in Union of India v. Assn. for Democratic Reforms: "One-sided information, disinformation, misinformation, and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes the right to impart and receive information which includes freedom to hold opinions".
  • Indian Express v. Union of India: In Indian Express v. Union of India, it has been held that the press plays a very significant role in the democratic machinery. The courts have a duty to uphold the freedom of the press and invalidate all laws and administrative actions that abridge that freedom. Freedom of the press has three essential elements such as freedom of access to all sources of information, freedom of publication, and freedom of circulation.

The Government on Freedom of Speech:

Shyam Benegal Committee: 

Amidst great dissatisfaction among filmmakers over allegedly excessive censorship by CBFC, Shyam Benegal Committee was set up to lay down a holistic framework for certification of films. The committee was tasked to:

  • Lay down norms for film certification that take note of best practices in various parts of the world and give sufficient and adequate space for artistic and creative expression
  • Lay down procedures and guidelines for the benefit of the CBFC board to follow and
  • Examine staffing patterns with a view to recommending a framework that would provide efficient and transparent user-friendly services
  • Major Recommendation of the Committee: 
  • Film Certification Process: CBFC should only be a film certification body whose scope should be restricted to categorizing the suitability of the film to audience groups on the basis of age and maturity except in the following instances to refuse certification:
    • The applicant must specify the category of certification being sought and the target audience.
    • More specific categorization: the committee recommends that categorization should be more specific and apart from U category, the UA Category can be broken up into further sub-categories – UA12+ & UA15+. The A category should also be sub-divided into A and AC (Adult with Caution) categories.
  • Regarding CBFC: The Board, including Chairman, should only play the role of a guiding mechanism for the CBFC, and not be involved in the day-to-day affairs of certification of films.
  • The functions of the Board shall be confined to the duties defined in the existing CBFC rules
  • Given these limited functions, the size of the Board should be compact with one member representing each Regional Office. Therefore, the total composition of the Board should not be more than nine members and one Chairman.
  • Other Recommendations: Online submission of applications as well as simplification of forms and accompanying documentation.
  • Recertification of a film for purposes of the telecast on television or for any other purpose should be permitted.
  • Recent incidences of censorship/restrictions/violation of rights of media.

Punishment

  • Section 298 of the IPC, similarly, classifies the offence of uttering words with the deliberate intent to wound the religious feelings of any person.
  • Section153A and Section 153B of the Indian Penal Code, 1860 makes any act a punishable offense that incites or promotes disharmony or feeling of hatred between different groups or communities.
  • Likewise, Section 505 of the IPC, criminalises the act of delivering speeches that incite violence.
  • Sections 295A and 509A also have similar provisions.
  • The 123(3A) of the Representation of the People Act, 1951, also criminalises hate speech by election candidates.

What measures are required?

  • Responsibility: Responsible broadcasting and institutional arrangements as a result of consultations between social media platforms, media industry bodies, civil society and law enforcement are an ideal regulatory framework.
  • Effective laws and regulations: Laws with undefined parameters not only leave the enforcing authorities, but also those subjected to it with a number of doubts as to the extent of the law in question. Thus, effective law formulation is need of the hour.
  • Strong stand by State: Whenever hate speech thrives, the state should invoke the existing law judiciously in appropriate cases. It must also take a secular stand based on the rule of law and educate the masses.
  • Determination of accuracy of facts: Historically the most durable argument for a free speech principle has been based on the importance of open discussion to the discovery of truth.  If restrictions as speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinion. The best test of truth is a power of the thought to get it accepted in the competition of the market. The truth would emanate from a ‘free trade in ideas’ on the intellectual competition.
  • Laws for social media: Making strict laws for social media and online platforms is a must.
  • Australia and Germany have some of the strictest laws and regulation over social media wherein they have imposed fines and imprisonment for ‘inaction on extremist hate speech’ within tight time frames.
  • Simultaneously, the European Union has also established a code of conduct to ensure non-proliferation of hate speech under the framework of a ‘digital single market.’
  • The United Kingdom recently published a paper titled ‘Online Harms’ that establishes what it calls the ‘duty of care’.

Conclusion

India needs to have a strict law to stop hate speech in the country. Hate speech have serious implications on every sector of the country. Thus, it is imperative for the State to address this urgent issue at hand as the need of the hour and bring justice to the innocent lives that have been lost as a consequence of hatred spilling content online and to stop the innocent minds of the nation from being maligned by such offensive and hate generating content.