Freedom of Speech and Expression in India: Principles, Restrictions, and Laws
Introduction
- Freedom of speech and expression is guaranteed by Article 19 of the Indian Constitution, but it is not an absolute right. The government can impose reasonable restrictions on freedom of expression in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, or incitement to an offence.
- The Indian Penal Code/Bharatiya Nyaya Sanhita criminalises certain forms of speech, including promoting enmity between different groups based on religion, race, place of birth, residence, language, etc., as well as deliberate and malicious acts intended to outrage the religious feelings of any class of citizens.
- The Indian government has used laws to ban books and movies and to charge individuals with sedition, defamation, and hate speech. The right to freedom of speech and expression is subject to reasonable restrictions imposed by duly enacted laws and not by executive action.
Freedom of Speech According to Indian Laws
- In India, freedom of speech and expression is protected by Article 19(1)(a) of the Indian Constitution. However, this constitutional right is not absolute and is open to reasonable restrictions as specified in Article 19(2). The Indian government has the authority to impose restrictions on freedom of speech and expression in the interest of
- Sovereignty and integrity of India
- Security of the State
- Friendly relations with foreign States
- Public order
- Decency or morality
- Contempt of court
- Defamation
- Incitement to an offence
Speech Considered as Offenses
- Sedition: Speech that aims to incite hatred or contempt toward the government of India or instigate violence against it is prohibited under section 124A of the IPC/152 of BNS.
- Promoting Enmity Between Different Groups: Section 153A of the IPC/196 BNS prohibits the promotion of enmity between different groups based on factors such as religion, race, place of birth, residence, language, etc.
- Defamation: Sections 499 and 500 of the IPC/356(1), 356(2) of the BNS criminalize defamation with definitions, and provide that anyone can complain of an offense.
- Obscenity: Section 292 of the IPC/294 BNS prohibits obscene speech.
- Outraging Religious Feelings: Acts that are intended to outrage the religious feelings of any class of citizens, deliberate and malicious, are prohibited under section 295A of the IPC/ 299 BNS.
- The Punishment for Hate Speech is Delineated as
- Section 153A IPC/196 BNS: Under Section 153A IPC/196 BNS, hate speech is considered a criminal offense, constituting the promotion of communal disharmony or the incitement of hatred between different religious, racial, linguistic, or regional groups or castes or communities. The penalties for violating hate speech laws in India may include imprisonment for up to three years, a fine, or both.
- Section 295A R/w Section 298 IPC/Section 299 R/w 302 BNS: This section criminalizes deliberate and malicious acts aimed at outraging the religious feelings of any class of citizens in India. This includes acts perpetrated through spoken or written words, signs, visible representations, or any other means that insult or attempt to insult the religion or religious beliefs of that class. The penalties may include imprisonment for up to three years, a fine, or both.
Hate Speech in India
- In the 267th Report of the Law Commission of India, hate speech is defined as "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 to cause fear or alarm, or incitement to violence."
- Hate speech in India refers to language or actions that foster discrimination, animosity, or disdain towards individuals or groups based on various aspects of their identity, such as religion, caste, ethnicity, gender, sexual orientation, or political affiliation. Examples of hate speech in India include:
- Speech that fosters hostility between different groups based on religion, race, place of birth, residence, language, etc.
- Intentional and malicious acts aimed at outraging the religious sentiments of any class of citizens in India, whether through spoken or written words, signs, visible representations, or other means, which insult or attempt to insult the religion or religious beliefs of that class.
- Speech that encourages violence and lawlessness.
- Speech that endeavours to provoke disharmony or animosity, based on religion, race, place of birth, residence, language, caste, or community, among various religious, racial, linguistic, or regional groups, or castes or communities.
Social Media Platforms Encounter Numerous Obstacles in Managing Hate Speech
- Legal Accountability: Entities like Facebook, Twitter, and Instagram are shielded from legal liability for user-generated content under safe harbour provisions of the IT Act, 2000 (section 79), making it difficult to hold them responsible for the material posted on their platforms. At the same time, the users who post such content are held accountable for such acts.
- Identification and Prosecution: Law enforcement agencies struggle to identify and prosecute offenders due to the immense volume and rapid dissemination of content on social media platforms.
- Subjectivity in Defining Hate Speech: Defining what constitutes "hate speech" is a subjective endeavour and may sometimes overlap with the realm of free speech, complicating the task of content moderation.
- Diversity and Multilingualism: India's diverse population and multitude of languages introduce complexity in enforcing hate speech regulations.
- Government Oversight: Proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, by the Indian government could impose additional obligations on platforms to trace the origin of private messages and monitor communications proactively.
- Transparency and Accountability: Social media platforms have faced criticism for their lack of transparency and accountability in content moderation, as well as their reluctance to engage with Indian authorities to address concerns regarding hate speech and misinformation.
- Balancing Free Speech and Regulation: Striking a balance between regulating hate speech and preserving free speech rights presents a significant challenge for social media platforms operating in India.
Conclusion
The regulation of hate speech involves various complexities, such as legal liabilities, difficulties in identification and prosecution, subjective definitions of hate speech, linguistic diversity, and government oversight. These challenges require a nuanced and collaborative approach involving social media platforms, law enforcement agencies, the judiciary, government bodies, and civil society. A comprehensive regulatory framework must be developed through transparent and accountable processes, maintaining a delicate balance between regulation and protection of fundamental rights. Constructive dialogue and responsible use of technology can facilitate the creation of a digital environment where freedom of expression is respected and hate speech is effectively addressed. To know more, contact us.
