Features and Provisions of the Constitution

Hate Speech: Law Commission of India defines Hate Speech as an incitement to hatred primarily against a group of persons defined in terms of ethnicity, gender, sexual orientation or religious belief.

Hate speeches cannot be a part of the freedom of speech granted by the constitution. They are a threat to public order, harmony and the security of the state. Reasonable restrictions on speeches are in the best interests of the security of the people of India.

Why the restriction on Hate Speech?

• Communal Polarization: Hate speeches can divide people on ethnic, linguistic or religious lines that in the extreme forms can take the violent form. India being a multi-cultural society needs to take extra safeguard in preserving its plural unity and ensure secular spirit of Article 25, 14 and 15 are preserved
  • The Muzaffarnagar and Godhra riots were fueled by hate speeches creating communal chasms in the society
• Encouraging Separatist Tendencies: Hate speeches may also focus on creating an anti-national identity fueling centrifugal tendencies among people in a state. Such speeches threaten the sovereignty, unity and integrity of the country
  • Separatist speeches in Kashmir by the Hurriyat and demand for Khalistan in Punjab
• A culture of violence: Hate speeches invariably focusing on creating a culture of intolerance, violence and hatred for other. This poses a threat to law and order and threatens the spirit of democracy and civil society.
  • Rising instances of cow vigilantism and mob lynchings
• Safety of Minorities: Article 29 places special safeguards for minorities in the country. Hate speeches threaten to alienate minorities and bring a threat perception to minorities undermining the implicit assurance of equal footing to all citizens
• Dignity of Women: Hate speeches in public, private and cyber spaces threaten to outrage dignity of women by passing derogatory remarks the fundamental duties (Article 51(a)(e)) of the constitution asks to give up

Present Restrictions

1. Section 153(a) of IPC providing punishment for inciting enmity between different groups
2. Section 295(a) of IPC providing punishment for malicious intention of outraging religious feelings of any class of citizens

Difficult in Hate Speech Regulation

• Reach and Use of Social Media
• Establishing Need for Intent due to inherent subjectivity and need for discretion
• Balancing with Freedom of Speech and Expression granted by Article 19(a)
• Balancing with Right to Privacy identified in Puttuswamy vs Union of India case by SC
• Political Interference in security agencies preventing expeditious action

Committee Recommendations

Bezbaruah Committee: Hate speech offences targeted against North-East groups should be cognizable and non-bailable

T.K. Vishwanathan Committee:

• Institutional Capacity: Each state to have a Cyber Crime Coordinator and District Cyber Crime Cell
• Deterrence through Law
  • Section 153C: Prohibit incitement of hatred through online speeches on grounds of religion, tribe, caste, gender and sexual orientation
  • Section 505A: Prevent causing of alarm, fear or provocation of violence on grounds of identity
• Safeguard from Abuse: The offensive speech should be highly disparaging, abusive or inflammatory with need for intent from the perpetrator. This clause would protect innocent users of social media from arbitrary action.
  • This provision suffers from the ambiguity of concrete determination of what constitutes a hate speech

Law Commission

• Section 509A: Word, gesture or act intended to insult member of a particular race
• Grass-Root Level Efforts
  • Promote religious harmony through popular TV dramas
  • Involvement of religious heads to build empathy (Imam in Asansol)
  • Strategic interventions to monitor dissemination of hate speech and mob mobilization by social media (NETRA)

Way Forward

1. Determination of Hate Speech: The context in which a speech is made is vital to understanding the dangerousness of the speech.
2. Social Media Platforms’ Accountability: Social media platforms can be pro-active in removing hateful content using methods of artificial intelligence. A legislation to enforce their accountability can be brought in so that social media does not become an instrument of hate

Conclusion

As identified by the Supreme Court in Pravasi Bhalai Sangathan vs Union of India, hate speech must be viewed through the lens of Right to Equality.

Freedom of Press and Media

Media as an institution is known as the fourth pillar of democracy. It is an institution that creates a rights conscious citizenry and enforces the accountability of the people on the government.

A free press and media nurtures a vibrant democracy that is inclusive and responsible to its citizens. The constitution of India guarantees freedom of press implicitly under Article 19(a) of the constitution.

Question on rising restrictions on Media/ Attack on Media Persons

Introduction

India’s abysmally low ranking of 136/180 on the World Press Freedom Index Report is reflective of the lack of freedom the country’s press enjoys. The killing of Gauri Lankesh and arrest of Prashant Kanojia raise grave concerns regarding freedom of press from both the state and non-state actors.

Regulation on the Press and Media

Press Council of India: It is a statutory body formed by members of the press itself that looks into ethical issues involving the media.

News Broadcasting Standards Authority: Most of the private channels have set up NBSA that issues guidelines and is empowered to warn, admonish and punish channels for non-propriety.

Issues in Regulation and Way Forward

No Independent Regulator: The news climate of India has transitioned substantially into broadcasting from print. In such a climate given the rapid growth of digital technology, there needs to be an independent regulator on the lines of the PCI to regulate the conduct of broadcast media.

State Restrictions: The government has at times overstepped and censored the press from publishing details on sensitive matters.

Eg: Restriction of news related to National Socialist Council of Nagaland-Khaplang

Censorship

Justifications for Censorship

• Religious Sensitivity: Creative works including films and literature has a wide audience and has the ability to influence them on a large scale. In a religiously sensitive society like India, an absolute freedom for the creator may be misused to spread intolerance, hatred
  • Section 295A criminalizes creative work that deliberately intends to malign and outrage religious sensitivities
• Separatism: Literature and films if given a free hand may result in fueling separatist tendencies.
• Morality: Creative works have often been controversial for its depiction of immoral norms and values.

Why Censorship should be done away with?

• Freedom of Speech and Expression: Censorship impinges on a constitutionally guaranteed fundamental right which provides a writer, a painter or a filmmaker the right to creatively express his opinions and depiction of the society or history
  • The excessive censorship imposed on the film Padmavat
• Adequate Law and Order Machinery: The state is mandated to safeguard the fundamental right of the artist and possess the adequate resources to quell any intolerances or violence emanating from fringe groups
• Sensitize Society: It is the duty of the state to sensitize society to accept and accommodate differing views and dissent in a democracy
• Alienation: Censorship may alienate citizens from democratic forms of expression. This dilutes their political consciousness leading to loss of accountability.
• Right to be Informed: Censorship on media, literature and films also take away the right of an individual to be informed and empowered with knowledge. Excessive censorship creates a narrow view of the society, history and polity that is inadequate for a holistic understanding

Intolerance on Creative Works- Why?

Lack of Political Will: The state governments in many cases seem to be uninterested to protect the rights of the artists despite possessing adequate machinery for diffusing the tension and intolerance created by fringe groups

A cultural problem: Religion, Region and caste continue to be mainstream sensitive topics in India. When manipulated politically, a culture of intolerance is bred that seeps into various layers of our multi-ethnic society.

Vote Bank Politics: These fringe groups are at times supported by political parties on the pretext of vote bank politics despite them blatantly violating the freedoms of speech and expression

Poor Enforcement of Law and Orderà Impunity to the fringe groups that attack creative works

Eg: Karni Sena felt emboldened in their protest rallies against Padmavat due to inaction on part of the state machinery to arrest the perpetrators and enforce law and order

Conclusion

Many creative works especially films have evolved as soft targets for fringe groups invoking a demand for a ban based on regional, religious and moral sensitivities. The lack of political will on the part of the state to use the law and order machinery has eroded the vibrancy of our democracy that accepts different voices and opinions. The state must do more to protect these voices, after all, it is just a fringe.

Sedition Law:

                Section 124-A of the IPC criminalizes act of sedition defined as words written or spoken or visible representation that brings into hatred/ contempt/ disaffection towards the government established by law

Issues with Law

• Curbs Right to Dissent: Dissent is life-breath of democracy and the sedition law restricts constructive criticism of actions of the government. It can be seen as violative of Article 19 that ensures freedom of speech and expression of the citizens
• Arbitrary Abuse: Multiple governments post-independence have abused Section 124-A to silence civil society activists by using the law as a process punishment rather than meaningful persecution
• As per NCRB, in 47 cases of arrest, only 1 person is convicted of sedition

SC Observations

1. Kedarnath Singh Case: Sedition charges can be invoked only when there is incitement to disorder or violence
2. IndraDas vs the State of Assam: Sedition law is built on the delicate balance of national integrity and freedom of speech

Reforms Required

• Non-Cognizable offence to sever political interference in police
• The burden of Proof to rest on a prosecutor

Section 66-A of IT Act: It defines punishment for sending offensive messages through a computer or any other communication device where a conviction can fetch a jail term of 3 years

SC striking down Section 66A Reasons: The Supreme Court struck down Section 66 A as unconstitutional in the Shreya Singhal vs Union of India

• Impinges Freedom of Speech: Supreme court opined that the section excessively, disproportionately invades free speech under Article 19(1)(a) of constitution upsetting balance between such rights and reasonable restrictions
• Subjectivity of Law: SC advocated that what may be annoying or offensive to one may not be so to the other.

Right to Choose: It guarantees the right of personal autonomy regarding decisions one takes in her personal life as long as it is not a nuisance to society. In civil society, discussion on right to choose centres around dietary habits, choice of clothing, residence, religion and right of abortion

Prohibition vs Right to Choose

Right to Business Violation: Article 19(g) provides citizens the right to carry on trade or business. A prohibition of any product by the state infringes on the fundamental right of the citizens. It rekindles the debate on the conflict of DPSP and fundamental rights

Right of Choice: The consumers of a product or service that is banned in the state is deprived of her fundamental right to choose. The Patna High court has termed the prohibition of liquor in Bihar as unconstitutional as it deprives individual liberty enshrined in Article 21 of the Indian constitution

 The same can be said of the cattle meat ban in Maharashtra. Despite it being a part of the dietary habits of many in the State, the state passed a legislation banning the trade of cattle meat. The Supreme Court verdict in the Puttuswamy vs Union of India case had highlighted how dietary choices constituted apart of individual’s right to privacy guaranteed in Article 21 of the constitution.

Individual vs State: Prohibition of intoxicants comes from the logic that the consumption of such components are adverse on the health and morality of the individual and the society. However, a blanket prohibition curbs the individual’s right to determine what good life itself is.

Cattle Trade Notifications

  The Centre recently brought out notification banning the trade of cattle for slaughter. Lets look at the issues at hand:

• Federal Framework in Jeopardy: Agriculture and Livestock are state subjects as mandated by the Constitution. The center’s notification can be considered to be an infringement into the domain of state.
• Right to Personal Liberty: India’s states have diverse populations with diverse dietary habits. A one-size fits all rule does not fit the bill for such a diverse demography. The restriction of cattle for sale affects the choice or liberty of a consumer enshrined by Article 21 of the constitution
• Right to Privacy includes the choice of diet as observed in Puttuswamy case.
• Freedom to carry on trade enshrined in Article 19(g) of the Indian constitution is deprived

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Read Full GS Notes

Read Also National Education Policy

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Why such rules?

• Prevention of Cruelty to Animals: Practices like cutting ears, inappropriate slaughter and beating of animals are prohibited through the notification.
• Trafficking of Animals: The notification regulates trade near international borders with an aim to reduce instances of cattle smuggling