"There is a fine line between free speech and hate speech. Free speech encourages debate whereas hate speech incites violence" - Newton Lee, Counterterrorism and Cybersecurity: Total Information Awareness

This quotation is a constant reminder of how easily hate speech overlaps with the idea of freedom of expression. Over the past few months, the challenge of separating hate speech from the Indian citizen’s right to ‘Freedom of Expression’ has increased tremendously. Recently, several citizens including journalists, political party leaders and activists have been charged with hate speech, inflammatory speech and sedition. On one hand, offended plaintiffs file complaints due to hurt caused to their sentiments by the comments of the accused people. On the other hand, the defendants perceive it as a violation of their right to Freedom of Speech. 

In the light of recent incidents in India, a crucial question arises. Should hate speech be incorporated as a part of Freedom of Speech, or should hate speech be legally regulated? 

In order to scrutinise the idea of ‘free, hate speech’, it is important to distinguish between the two ideas of hate speech and free speech. 'Freedom of Expression or Speech' is a principle supporting the idea of an individual or a community articulating their opinions and ideas freely. It ensures such freedom “without the fear of retaliation, censorship, or legal sanction.” On the other hand, hate speech is clearly defined by the Cambridge Dictionary as a "public speech that expresses hate or encourages violence towards a person or a group based on something such as race, religion, sex, or sexual orientation”.

To get a sense of how hate speech is treated by legislation, we must take a look at a few examples. While hate speech is not a legal term in some countries, victims of hate speech may seek redressal under civil law, criminal law, or both in other nations. For instance, in the United States, hate speech is constitutionally protected. On the contrary, de jure, freedom of expression is promised in North Korea but there is no de facto right to free speech as asserted by Amnesty International, a human rights group. 

In India, hate speech is regulated. While ‘Freedom of Speech and Expression’ is a fundamental right of the Indian Constitution, under Article 19(2) "reasonable restrictions" can be imposed on this right. This is in order to protect "the 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".

Hurdle of Hate 

Hate speech is a threat to humankind because words have the power to influence people to take action. It causes instability and agitation across the society. It can lead to reduced motivation, lower tolerance, emotional trauma or in extreme cases, depression. Raising this concern, Joyce Arthur, a Canadian activist, in an article titled 'Should Hate Speech be a Crime?' underlines the importance of hate speech legislation. She elucidates that hate speech needs to be regulated as it has a huge impact on people’s dignity and human rights. Hate speech is often derogatory to the sentiments of a particular caste, creed, sex or religion as it is often rooted in stereotypes, prejudices and personal experiences which may be an inaccurate perception of the group or community as a whole.

A product of hate speech is hate crime. Hate crimes are dangerous as they jeopardise amity in society, instigate precarity among communities, and foster a sense of animosity in the democracy. In the technological era, hate speech over social media causes a tremendous amount of intolerance and violence leading to hate crimes. For instance, the perpetrator of the 2019 New Zealand mosque shootings killed 49 Muslims at prayer and sought to broadcast the attack on YouTube. In Germany, a correlation was observed between anti-refugee Facebook posts by the Alternative for Germany party and increasing attacks on refugees. In India, the recent case of Delhi violence due to hate speech and rumors on social media is also another instance. 

Hate Speech in India 

While 2020 has been a relatively inactive year for India in terms of business and functioning of institutions, the story is very different when it comes to hate speech laws. Starting from January 2020, there have been 10+ cases involving charges for sedition and hate speech. Among journalists, Arnab Goswami, Amish Devgan and Vinod Dua are a few who  have faced FIRs or First Information Reports against them. On one hand, Amish Devgan was accused of injuring religious sentiments on his show. On the other hand, Goswami and Dua faced charges for criticising the State in different forms. FIRs against Goswami have been filed in relation to his questioning opposition leader Sonia Gandhi regarding mob lynching in the Palghar district of Western India. And Dua has been charged with sedition for a Youtube broadcast wherein he said that the State failed to implement the lockdown. Sharjeel Imam, an Indian activist, has been charged with sedition, hate speech and promoting religious antagonism for his speeches against the Citizenship Amendment Act. 

These diverse cases point out that it is also challenging and important to define specifically what can be categorized as hate speech. A striking point has been stated in one of the articles in Indian Express. It says that out of the ten hate speech cases that were scrutinised, including the ones mentioned above, the cases where the State and the petitioner contended on the same side, relief was provided. However, in six cases, where the State was accused, no relief was granted to the petitioner. A ‘telling pattern’ of this sort indicates a fresh challenge of violation of the right to equality before the law. 

Another aspect of this is the regulation of hate speech over social media. While trolling is only the tip of the iceberg, Facebook has recently faced challenges concerning hate speech rules. The Wall Street Journal has accused Facebook of having failed to apply hate speech regulations on content posted by a BJP leader from the state of Telangana. Three other party leaders’ posts have also been overlooked. A great initiative to combat such challenges is Facebook’s Oversight Board. The Oversight Board is an entity vested with the power to moderate and make independent decisions regarding content over social media sites like Facebook and Instagram. Its purpose is the protection of Facebook users. Hate speech and cases related to ‘political bias’ are within the purview of the board. 

Watershed Verdicts 

The 1962 Indian Supreme Court judgement in Kedar Nath Singh vs State of Bihar is a landmark judgement concerning the right to Freedom of Expression. The defendant faced charges of sedition and inciting public mischief due to a criticism of the then ruling party, the Indian National Congress in his speech. The defendant argued that the provisions on sedition in the Indian Penal Code (IPC) violated the right to Freedom of Expression under Article 19(1)(a) of the Indian Constitution. The Court asserted that these were not under the purview of “reasonable restrictions” under Article 19(2). It explained that the phrase “Government established by law” under section 124A is different from the criticism of a political party or political leaders. Yet sedition continues to be criminalised under the IPC. However, its provision has been narrowed down to only criminalise expression that intends to jeopardize public order and peace through violence, thereby protecting the right to freedom of expression. 

Another remarkable judgement in the field of online free speech is Shreya Singhal vs Union of India (UOI). Two women were arrested under Section 66A of the Information Technology Act, 2000 for ‘posting allegedly offensive comments on Facebook’. As per the section, any person who sends “grossly offensive information” or information “to cause insult, injury or ill will” can be punished. These women filed a petition arguing that Section 66A was constitutionally invalid on the grounds of violation of the right to freedom of speech. In 2015, the Supreme Court declared Section 66A to be unconstitutional and it was struck down. This was because Section 66A was not recognized as a “reasonable restriction” under Article 19(2). Thus, this was a turning point for online free speech. These landmark judgements are useful to cite in cases relating to hate speech and freedom of expression for stronger established arguments. 

The above-mentioned arguments and instances indicate that hate speech needs to be tackled through a balanced approach. While the right to freedom of expression needs to be upheld, hate speech intending to cause violence, disturb public order and promote unrest can prove to be detrimental for humankind. A study by the Pew Research Center reveals that 67% and 27% of people in the United States and Asia-Pacific, respectively, agree with free hate speech. Nonetheless, as the saying goes, “Hate begets more hate”, hate speech causes a vicious cycle of hatred that has no end. Thus, to balance respectful and considerate free speech without hampering the true essence of the Freedom of Expression, regulation of hate speech and uniform implementation of such rules is the need of the hour.