The Vicious Side of Freedom of Speech
An essay on "The Vicious Side of Freedom of Speech" by Kashvi Jindal & Abhinav Sharma is an in-depth analysis of what hate speech is and how is it different from defamation, the ground situation in the largest democracy of the World-India, and how the minds of the youth of our nation are being influenced by a few powerful people for their own advantage and at the loss of the nation's integrity, and also a brief look into what must be done to counter such situations.
An essay on "The Vicious Side of Freedom of Speech" by Kashvi Jindal & Abhinav Sharma is an in-depth analysis of what hate speech is and how it is different from defamation, the ground situation in the largest democracy of the World-India, and how the minds of the youth of our nation are being influenced by a few powerful people for their own advantage and at the loss of the nation's integrity, and also a brief look into what must be done to counter such situations. Since the implementation of the Constitution of India, the right to freedom of speech and expression has been guaranteed to every citizen in India, and since that time, there have been numerous incidents of threatening or abusing or defaming a person in the name of exercising this particular right. This has led to a significant issue in the current scenario where hate speech usage has been rapidly growing, especially through social media.
In today's world, everyone knows about freedom of speech and expression. We live in a time where everyone advocates strongly in favour of freedom of speech and expression as an essential part of a vibrant democracy, a right that is guaranteed to everyone across the world. But in all of this, we have failed to see something notorious hiding in plain sight. In the modern era we are living in, each and every person, irrespective of their age group, has access to some sort of a source of media be it newspapers, news channels, or social media. From covering individuals in film, music, or sports industries to campaigns, rallies, or any other political gatherings, the media covers it all. It is a place where one can either become a celebrity from nothing and also a place where a celebrity can become nothing.
But it is also the place that gives an individual the power to influence others. Every day when we read newspapers, we come across at least one piece of news against these celebrities, which brings hatred or enmity between people. For example, trolls on various social media platforms. Recently, Ranveer Singh shared some pictures of his nude photoshoot. What did trolls do to him? Bringing down his reputation? Yes. Shared Opinion? No. Criticized him? Again Yes. Between What is wrong and What is right there are two aspects – Opinion and Criticism which is very important in our lives but what about the enmity and hatred we are spreading? If we talk about political leaders, we see one blaming others always on television, Twitter, and various other means. What is this? What do they do? People are spreading hatred between two religions, people of different castes, and communities in the name of opinion and criticism. Through this essay, we will understand the difference between Hate Speech and Defamation and how hate speech is dealt with in India.
Hate Speech and Defamation
Hate speech has become a topic of debate in India. Hate speech refers to the usage of threatening or abusive speech or writing that demonstrates prejudice towards a certain group, often on the basis of race, religion, or sexual orientation. In recent years, there has been a growing number of hate speeches in political rallies, religious meetings, and in daily life. Almost every day in the news, we hear about the usage of hate speech by some individuals either through media channels or through one of the most preferred means in today's time, i.e., social media. Not only this, we come across various issues of hate speech in the life of a common man. For example, discrimination against people of lower caste, people belonging to different religions or races or gender with the purpose of inducing enmity or hatred between aforesaid groups. It leads to marginalization, stereotyping, and discrimination.
International Convent on Civil and Political Rights (ICCPR) has defined hate speech as-
'any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law'.
Hate speech can be in different forms: it can be direct or indirect; veiled or overt; single or repeated; backed by power, authority, or threat, or not and can be delivered orally, in writing, on the internet, or in the form of a tangible thing. We can clearly see this in the real world, wherein at every political rally or any kind of communal meeting, the speakers have used words that can provoke enmity among groups. In the Lakhimpur Kheri violence election case, a political activist, Varun Gandhi, was booked under the charges of the Indian Penal Code, 1860, and the Representation of People's Act, 1951 for inflicting communal disharmony among groups through his speech. We talk about freedom of speech in daily life but when we come across such events the question that arises in our mind is whether these freedom rights given by the Constitution of India provided to the citizens really curtailed.
We can see here that in the name of freedom, people are abusing the rights guaranteed by the constitution of India. India, the world's largest democracy, is a country that has people from multiple castes, cultures, and religions, whose history is filled with numerous incidents relating to communal disharmony and where people are quite passionate about their cultures and beliefs, even a small comment can ignite the religious passion contained in the people which can divide the nation.
Reputation is dearer in every man's life. The person's reputation inspires him/her to reach great heights and achieve all those things they ever wanted. It gives them a spark as it acts as a motivation for them. Defamation is a law that is for the protection of one's reputation, honour, and dignity. If we talk about the freedom of speech and expression in the Constitution of India, Article 19(1)(a) provides for the same for every citizen of India. However, it imposes certain 'reasonable restrictions ' as on its exercise under Article 19(2). Defamation is one such clause under Article 19(2). It is as important as the right to live with dignity under article 21 of the Constitution. Also, in the cases of Dr. Mehmood Azam v. State of Chhattisgarh & Ors., Nilgiris Bar Association v. TK Mahalingam & Anr. and Smt. Kiran Bedi & Jinder Singh v. The Committee of Inquiry & Anr., a person's reputation was considered a personal right under Article 21 of the Constitution. Thereafter, article 19 was also recognised as a subject of reputation under the law.
In India, Defamation can be a civil and criminal offence. The civil offence is an uncodified law in India prevailing through various judgments, and the criminal offence is mentioned under section 499-section 502 of the Indian Penal Code, 1860. In a landmark case of defamation, Subramanian Swamy v. Union of India (Ministry of Law), the court upheld the constitutionality of criminal defamation under Sections 499 and 500 of the Indian Penal Code, 1860. In this judgment, the court also observed that the right to reputation is a part of 'dignity' under Article 21 of the Constitution of India.
Now that we have an understanding of what hate speech is and what defamation is, we should get an understanding of how hate speech is different from defamation. Defamation is all about injuring the reputation of a person and hate speech is a form of speech, gesture, or conduct that promotes violence, hatred, or enmity between people of diverse groups on the basis of race, caste, religion, sex, residence, place of birth, language, or any of them. The rules of both hate speech and defamation might be different. However, they have a common purpose: to be an executive as in the forms of government, to keep track of the freedom of speech and expression provided under Article 19(1)(a) of the Constitution of India.
Hate Speech and Defamation
In India, there are various cases of hate speech occurring every day, out of which most of the cases are related to religious hate speech. Due to the huge population and wide diversity in India, there are many people who belong to the extreme side of their religions and advocate the supremacy of their religion. These people try to influence as many people as they can towards their cause, leading to an increasing divide among people of different religious backgrounds. One such instance can be, the recently delivered hate speech cases in a religious gathering in Haridwar, Uttarakhand. In the month of December 2021 during a dharma sansad (religious assembly) a few Hindu ascetics made certain hateful comments which called for the genocide of Muslims in order to achieve ethnic cleansing. This led to an outrage among various groups and organizations as this was not just a case of hate speech but an open call to eradicate an entire religion.
An FIR was registered against the accused under sections 153(A) and 295(A) of the Indian Penal Code,1860. A similar incident happened in the nation's capital in just a few days from the previous incident. To overlook such instances, hate speech provisions are found in three different chapters of the IPC, "Of Offences Relating to Religion", "Of Offences Against the Public Tranquillity" and "of Criminal Intimidation, Insult and Annoyance". Section 295A of the Indian Penal Code was designed to precisely target comments intended to incite religious sentiments by insulting religion or religious beliefs.
Politics involves a tone that promotes social prejudices in the nation for electoral votes. Political leaders often in their speech include such abusive and derogatory statements which incite violence, enmity, and hatred in the environment. They often post comments which divide people and lead to favoritism. Now-a-days, politicians at their rallies talk more about religions and castes than the development of the nation. They try to hypnotize people in such a way that instead of focusing on important issues they focus on how to defame other religions and castes. In the past few years, many such cases have been reported all over the country where politicians have used hate speech against a particular community. One such case can be seen in a political rally held in Delhi during a sensitive time. At that time, Delhi was witnessing a massive protest against the CAA (Citizenship (Amendment) Act) when a political rally was held where slogans were raised promoting violence while Union Minister was addressing the people present there. During this time along with anti-CAA protests, the Delhi elections were also being held and many other reports of hate speech were reported at that time.
Later on, the capital witnessed widespread violent riots which also turned communal. However, no action was taken against any person in regard to hate speech. Similarly, many reports of political leaders from different parties have made derogatory and abusive speeches against various groups.
The main three sections which talk about the prohibition of committing hate speech in electoral rallies or any other event held by the political leaders in the Representation of People's Act, 1951 are Section 8, section 123(3A), and section 125. In the case of Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte & Ors. , the court held that all those words that can instigate feelings of enmity or hatred between different people are forbidden in election campaigns. We can point out that the court strongly opposed the use of hate speech in politics.
Caste system and India are two lifelong best friends since ancient times. One cannot leave another. So should we get inspired by them? Let's form the opinion through some discussion. The Caste system has divided people among various sections of society based on factors like lifestyle of a person, birth and background etc. making them upper-caste and lower-caste. It has led to discrimination and a superiority complex. The caste system in Hinduism has been divided into four categories according to Manusmriti (ancient old religious theory). They are Brahmin, Kshatriyas, Vaishyas, and Shudras with Brahmin being the most superior and Shudras being the least. Dalits have faced such a kind of inferiority that they were not even considered in the caste system made by the Brahmin. Even after 75 years of independence, the practice of the caste system has not perished instead has taken a new form of hate speech.
One instance of this case is that a person named Vinod Nagar belonging to a Lower caste was employed as a driver to meet his livelihood. He was constantly being insulted by some people by calling him 'chuda-chamar'. They also threw dirty water at him in the name of cleansing him. Thereby, attracting charges under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The question that arose under this case was whether calling a person 'chuda-chamar' amounts to a crime under a section or not. The court upheld the judgment in the affirmative saying that calling a person 'chuda-chamar' to Scheduled Caste or Scheduled Tribe is insulting them and hurting their sentiments. The court in this case dealt with the hate speech relating to the caste system and recognized insult as a form of hate speech disturbing public morality.
You must have heard about the instances of religious, caste and political hate speech. But have you ever heard of hate speech caused by the reason of misogyny? If not this section of the essay is for you. The word 'Misogyny' has been defined as hatred of, aversion to, or prejudice against women in Merriam-Webster's Dictionary. Women have faced pressure from men in India, as the social perspective is patriarchal. Women have faced a lot of discrimination and neglect in various aspects. To overlook this and make our society less patriarchal, various laws have been introduced such as The Protection of Children from Sexual Offenses (POCSO) Act, 2012, and The Sexual Harassment at Workplace Act, 2013. At various stages of her life, they face various misogynistic comments that take the form of hate speech. Examples of this are slut shaming, criticizing women that they are not capable of doing something, etc.
At the time of starting of Covid-19, we came across one famous case of Bois locker room. In this case, some boys created a group on Instagram in which boys of the group shared some censored pictures of the girl disregarding the image of the woman and in an attempt to insult them. They also used to talk about them in a lewd way. Some screenshots of the same went viral and the Delhi Commission of Women take suo moto cognizance of the same. This is a case in which some girls were slut shamed and faced misogynistic comments. This is a full-fledged example of misogyny in society.
Conclusion and Solution
There is a very fine line between freedom of speech and expression and the malicious act of hate speech, and we can clearly see how after so many times, people have crossed the line in the name of freedom of speech and expression which has led to causing distress to others. Instead of respecting the right provided by the constitution, numerous people in numerous instances have made such speeches that threaten the whole integrity of the nation, just for their personal gain and to become an overnight sensation. The problem of countering of hate speech does not lie with the judicial system but with the whole nation. There is already a sufficient number of laws regarding hate speech that deals with almost every aspect of hate speech and has clearly defined punishment like the imprisonment of different durations, being bailable or non-bailable, or imposition of a fine.
The problem lies with balancing freedom of speech and expression and curbing hate speech, implementing such laws, and the different attitudes towards different cases. A lot of times there have been instances of not reporting such crimes or not registering a complaint, especially in cases of powerful and influential people like politicians. We come across various instances of hate speech where politicians use a lot of hate speech, but they are not prosecuted for the same. They get away with all the cases against them. We say the right to equality is available to all citizens but where it is? This leads to a sense of freedom and power in them induced through the fear they spread to the general public which makes them commit these acts again and again. There should be a reform in which they get prosecuted for any offence they commit.
These laws must be seriously implemented to lessen the use of hate speech. Not only politicians but all the people responsible for causing hate speech should be prosecuted so that the sentiments of all the victims are not hurt. The Judiciary has also interpreted the definition of hate speech from case to case. Thus, it is quite difficult to interpret and decide whether a particular speech comes under hate speech. Thus, balancing rights and responsibility has become quite difficult for our jurisdiction, leading to people taking advantage of and indulging in these malicious activities. The first solution to curbing hate speech can be to report and register these crimes dutifully, consistently, and undeviating as this will make a person think thousand times before doing such an act.
Another way is that along with more stringent laws, there should also be a much more equitable approach towards the cases as, if there is a more of perspective approach, then it can lead to a favourable judgment in one case and an unfavourable in another of the same kind. Solutions like these are much more effective and beneficial to counter hate speech instead of making more laws and cluttering an already cluttered judicial system, innovative solutions like these are the need of the hour as they will decide the course of our nation's integrity in the future.
Through this essay, we have seen how one person hurts another just for their gain and how the judiciary has been trying to manage the rights of the people and the responsibility it has since our nation's independence. It is not the job of the judiciary or the government to curb hate speech through their judgments or by bringing in new laws, but it is the responsibility of the citizens of the nation to make themselves considerate enough as to not indulge in these activities for personal gains at the cost of our nation. And even so, we should not think of it because we belong to the same nation, but we should think of it because at the end of the day we are all humans and should be considerate enough not to hurt others, knowing very well that the same thing can happen to us too.
1. Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte & Ors., AIR 1996 SC 1113
2. Dr. Mehmood Nayyar Azam v. State of Chhattisgarh & Ors., AIR 2012 SC 257
3. Nilgiris Bar Association v. TK Mahalingam & Anr., AIR 1998 SC 398
4. Smt. Kiran Bedi & Jinder Singh v. Committee of Inquiry & Anr., AIR 1989 SC 714
5. Indian Penal Code, 1860, Available Here
Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams