Speech Inciting Violence & Judicial Response

Introduction

In recent years, speeches of communal hatred and inciting violence have become a major concern in India, with political parties using the common man to spread hateful and divisive messages. Communal hatred is a serious issue and since India has a diverse population with many different ethnic and religious groups. Therefore, tensions between these groups have become a breeding platform for speeches inciting violence and disturbing public tranquility. The communal tension and political polarization, during the 1990s particularly in the wake of the Ram Janmabhoomi-Babri Masjid dispute, was massively utilized by political leaders and activists by speeches that fueled communal unrest leading to riots and violence. With the rise in social media, speech inciting violence is easier and widely spread leading to concerns about its impact on communal harmony and social cohesion. The evolution of speech inciting violence in India has been shaped by historical, political, and social factors.

Over the course of time, there have been numerous instances of speeches inciting violence carried out in the guise of freedom of speech and expression. Such speeches propagated by political leaders exemplify their exclusionary agenda and provide fertile ground for incitement to violence. The issue is not the non-existence of laws against such speech but rather, the lack of effective and fair implementation of these laws. The laws restricting speech inciting violence and hatred are often selectively applied. The solution to this issue needs to be materialized without creating a chilling effect on freedom of speech and expression.

Defining the Speech Inciting Violence

'Speech Inciting Violence' does not have a legal definition. Speeches, writings, acts, signs, and representations that promote violence and spread dissension amongst communities and groups are considered ' Speech Inciting Violence,' according to the legal framework in India.

In its 267th Report, the Law Commission of India brought together the links of hate speech and the speech inciting violence. It explains: “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 ... Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”[1]

Hate speech is generally defined as a restriction on free speech that aims to prevent or prohibit communication that exposes a person, a group, or a segment of society to hatred, violence, ridicule, or indignity. The meaning of hate speech, in contemporary times, has travelled beyond merely offensive speech; it encompasses speech that is insulting, derogatory, discriminatory, provocative, or even such that it incites and encourages the use of violence or results in violent backlashes. It results in disturbing the harmony and order in society at large. But more importantly, speech inciting violence becomes a particularly heinous type of hate crime causing direct physical and psychological harm to the victims of hate crime. It affects its victims in intangible ways leading to a chilling effect on the victims' right to free speech and expression, resulting in exclusion from participation in the democratic process and public discourse.[2]

To sum up, we might start to think about ‘speech inciting violence’ as a concerted politics of discrimination and respond to it as a constitutional tort. In fact, where ‘speech inciting violence and hatred’ is a system of marginalization, there is a lot to be said for strategic silences too, from people in responsibility. If not abetment, it is an abdication of their constitutional duty of care at the very least. Incitement is not always meant to lead to physical violence; it is in itself violent in its persistent stigmatizing and calls toward exclusion. ‘Speech inciting violence & hatred” does not refer to offensive or foul-mouthed speech directed at a people, or even to vitriolic complaints directed at the government. It is speech that can cause actual material harm through the social, economic, and political marginalization of a community.

International human rights law developed a three-part test[3] that determines whether a particular type of speech should be curtailed or not. The following standards should be satisfied before curtailing human rights:

Prescription by law: as per this rule, the restriction imposed must be prescribed by law. The means by which the right is curtailed should be passed through the appropriate procedures and through explicit provisions of the law.


Legitimate aims: The measure must directly satisfy a legitimate aim.


Necessity and proportionality: there must be a need for such a measure. The restriction cannot be imposed for any reason. There should be an urgent need to restrict any rights. Also, the restriction must not do any more damage to the right than is necessary to meet its aim.

Legal Remedies 

Shakespeare asks a pertinent question that resonates even today: “The tempter or the tempted, who sins most?”[4] In the law on sedition, the Supreme Court of India made it clear that the one inciting violence is the guilty person. Ergo, the tempter sins most.

In India, speech inciting violence is prohibited based on religion, ethnicity, culture, or race. Most importantly and primarily as follows:

The Indian Penal Code, 1860

  • Section 124A IPC penalises sedition.
  • Section 153A IPC penalises ‘the promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony.
  • Section 153B IPC penalises ‘imputations, and assertions prejudicial to national integration.
  • Section 295A IPC penalises ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
  • Section 298 IPC penalises ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person.
  • Section 505(1) and (2) IPC penalise the publication or circulation of any statement, rumour, or report causing public mischief and enmity, hatred, or ill-will between classes.

 

The Representation of the People Act,1951

  • According to Section 8 of the Act, a person shall be disqualified from contesting the election if he is convicted of including in acts amounting to the illegitimate use of freedom of speech and expression.
  • Section 123(3A) and Section 125 prohibit the promotion of enmity on grounds of religion, race, caste, community, or language in connection with an election as a corrupt electoral practice and prohibit it.

 

The Protection of Civil Rights Act, 1955

  • Section 7 penalises incitement to, and encouragement of untouchability through words, either spoken or written or by signs or by visible representations or otherwise.

 

The Religious Institutions (Prevention of Misuse) Act,1988

  • Section 3(g) prohibits a religious institution or its manager from allowing the use of any premises belonging to, or under the control of, the institution for promoting or attempting to promote disharmony, feelings of enmity, hatred, ill-will between different religious, racial, language or regional groups or castes or communities.

 

The Cable Television Network Regulation Act, 1995

  • Sections 5 and 6 of the Act prohibit transmission or re-transmission of a programme through a cable network in contravention of the prescribed programme code or advertisement code. These codes have been defined in rules 6 and 7 respectively of the Cable Television Network Rules, 1994.

 

The Cinematography Act, 1952

  • Sections 4, 5B and 7 empower the Board of Film Certification to prohibit and regulate the screening of a film.

 

The Press Council of India Act, 1978

  • Under Section 14 the Press Council of India has the ‘power to censure’, on the basis of complaints made against newspapers or news agencies for offending journalistic ethics and public taste, among others, or even otherwise.
  • In addition, the Press Council (Procedure for Inquiry) Regulations, 1979 lays down the rules on the Inquiry Committee’s powers and functions. As a result of the composition and the objects and powers, the Press Council of India functions as a quasi-judicial adjudicatory body.

 

The Code of Criminal Procedure, 1973

  • Section 95 empowers the State Government, to forfeit publications that are punishable under sections 124A, 153A, 153B, 292, 293, or 295A IPC.
  • Section 107 empowers the Executive Magistrate to prevent a person from committing a breach of the peace or disturbing the public tranquillity or to do any wrongful act that may probably cause a breach of the peace or disturb the public tranquillity.
  • Section 144 empowers the District Magistrate, a Sub-divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government on this behalf to issue the order in urgent cases of nuisance or apprehended danger. The above offences are cognizable. Thus, it has serious repercussions on the liberties of citizens and empowers a police officer to arrest without orders from a magistrate and without a warrant as in section 155 CrPC.

Barring the legal provisions stated above, the 267th Law Commission Report gave recommendations to insert Section 153C and 505A in the Indian Penal Code to deal with ‘Hate Speech’. Section 153C stated in brief that ‘whoever on grounds of religion, race, caste, community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe use gravely threatening words will be punishable for imprisonment for a term which may extend to two years and fine up to Rs 5000 or with both’. Whereas Section 505A stated in brief that ‘whoever in public intentionally on the same above stated grounds display any writing, sign or other visible representation which is gravely threatening or derogatory shall be punished with imprisonment for a term which may extend to one year and with fine up to Rs 5000 or with both’.[5]

This essentially creates a tangled web of legal provisions dealing with one or the other form of speech inciting violence which makes it nearly impossible to comprehend exactly what extent of a speech is banned within the Indian jurisdiction.

Existing Lacunae

The legal framework employs a variety of methods to curb speech inciting violence and hatred in India. Primarily the law, as we have seen in the preceding section, makes it a crime to utter certain types of speech. This crime is punishable by imprisonment of varying durations, with or without a fine. Most of these provisions are also cognizable as well as being non-bailable and non-compoundable. In effect, this makes the legal provisions very stringent with serious implications. Apart from this, as per the medium of propagation i.e., print, television, or internet, hateful content is banned, censored, or leads to shutdown of the host site. In the case of print, the authorities under the criminal procedure code have the power of seizure of the material in question as well.

However, the regulation of speech inciting violence has proven to be a challenging endeavour. The restrictions on the speech inciting violence are contested because of its clash with the freedom of speech and expression. There is a very thin line between freedom of speech and its regulation with reasonable restrictions. The restrictions on speech inciting violence and hatred often trample on the absolute freedom of speech and expression.

In its aggravated form, speeches inciting violence and hatred have led to horrendous crimes as recently witnessed in India, such as communal riots, and a series of violent clashes between religious communities all arising as a result of inflammatory speech propagated by divisive groups. Incidents of gruesome killings were widely reported wherein ‘hate’ for another group/community took a particularly perverse form of violence in the form of mob lynching.  In these situations, words were employed in their most dangerous form, "…as weapons to ambush, terrorize, wound, humiliate and degrade” individuals and groups. In light of the obvious harm that speech inciting violence causes, it is time to go beyond the current framework and look for best practices that can be adopted to address the problem of speech inciting violence in addition to the legal framework.

Some of the crimes resulting from the speech inciting violence may be covered and prosecuted under the provisions of the Indian Penal Code, relating to public nuisance, or disorder, but they still do not constitute ‘speech inciting violence’, which is a system of sidelining the minorities or making them feel threatened. There are enough instances of social, economic, and political marginalization of targeted communities in the aftermath of sustained hateful discourses, but by the time this violence gets the attention of the central media and judicial authorities, the harm done is beyond assessment.

The assessment of the consequences of these speeches inciting violence and hatred is often done by the police authorities in a biased manner without application of the principles laid down by the judiciary as part of the interpretation of these crimes and their legal remedies. The law enforcement authorities prefer to assess criminal harm based on the number of persons offended, inconvenienced, and thus incited. The police authorities restrict themselves to the traditionally understood and limited scope of the provisions of the Indian Penal Code and do not apply any variable context as they respond to the offenders of provocative speech. They ought to look at the impact created by the speech of the offender and the position of the offender to understand the said impact. The punishment to each of these offenders ought to be meted out keeping in mind the deterrent theory. This becomes necessary because the harm in speech inciting violence is so widespread that it travels beyond the obvious and pervades the human psyche to leave behind permanent damage that outlasts the physical. Therefore, the approach to tackling speech inciting violence needs to evolve as a more nuanced and sophisticated response that can begin to tame the multi-headed Hydra monster form that speech inciting violence has become today.

It might be argued in all earnestness by the police that anti-majoritarian speech is conceivably provocative to more people and therefore more likely to incite violence, and hence more dissenters and more members of minority groups say, Muslims, Christians, Dalits, and tribals find themselves in jail for having provoked enmity or disharmony. Law enforcement and the lower courts continue to rely on subjective assessments of the “good faith” of the speakers. They seem to respond to similar speeches/ turn of phrase, differently, depending upon their own arbitrary appraisal of the potential for harm by the speaker.

Despite an elaborate framework of law and policy the cases of hate crimes resulting from the speech inciting violence continue to grow. The rampant increase in hate crimes is not due to a laid-back law but rather, due to the flawed implementation of these laws. India has always faced huge barriers to the implementation of laws when it comes to the battle of majority versus minority. The balance required to uphold the freedom of speech and expression along with a check on the speech inciting violence is the greatest hurdle to justice in hate crimes. The challenges in regulating speech inciting violence and hatred require a better unambiguous legal framework since the consequences of the speech inciting violence and hatred are irreversible. The harm that speech inciting violence propagates is not only deleterious but has extremely dangerous consequences. The exposition of the existing legal framework works in a limited sphere. There is no scope for repairing the damage that speech inciting violence does to the society at large nor is there space for victim rehabilitation or any means of redressal. It is the need of the hour, therefore, to look beyond the rigors of criminal law in search of an answer to an effective response to speech inciting violence.

Judicial Response

The famous American judge Louis Brandeis once stated that as long as there was time for “counter-speech", the remedy for unpleasant speech was more speech and not an enforced silence.  Around the same time, Mahatma Gandhi wrote that assemblies of citizens should be allowed to discuss even revolutionary projects, with the state stepping in only when there was an actual outbreak of violence.

Both men were committed to the idea of autonomy at the front and centre of any understanding of free speech, and the relationship between the state and the individual. However, there are situations of diminished autonomy wherein the State has to step in, holding the position of doctrine of parens pateriae to punish and control speech inciting imminent lawless action and for the welfare and communal harmony of all. Although such circumstances are not a frequent occurrence, the courts have the duty to scrutinize deeply, the need for the state to intervene thereby curbing the freedom of speech and expression. The discernment and setting up of a balance between freedom of speech and expression and restrictions to speech inciting violence have now become a matter of established judicial wisdom in the Indian constitutional landscape.

In the context of restrictions formulated on the basis that certain kinds of speech will lead to violence or actual destruction, the issue for consideration has taken the form of a “proximity" inquiry: that is, at what stage of the causal connection between speech and violence can the state act?

Genesis: Ram Manohar Lohiya v. State of Bihar[6]

Lohia’s case is one of the most important free speech judgements in the Supreme Court’s history. It marked a decisive break with a jurisprudence that the court had developed in the 1950s.

At the turn of the 1950s, Ram Manohar Lohia, the famous socialist leader, was prosecuted for doing just that: exhorting citizens not to pay their taxes. The applicable law was a colonial statute that prohibited the kind of speech that Lohia engaged in, and its constitutionality was challenged before the Supreme Court. The state argued that even something as innocuous as a call not to pay taxes could be a “spark" that would one day set the country ablaze in the flames of revolution. The court, however, rejected this argument. It held that the state must establish a “proximate" or “imminent" connection between speech and violence, and not merely rely upon hypotheticals or remote possibilities.

Advancement: S. Rangarajan v. P. Jagjivan Ram[7]

It was only in 2011—more than 50 years after Lohia’s case—that the doctrine of proximity began to have an actual impact. The SC refined Lohia’s test in the intervening years in S. Rangarajan vs. P. Jagjivan Ram, wherein, it said that the relationship between speech and public disorder must be like that of a “spark in a powder keg". The direct and clear danger test to curtail the freedom of speech was propounded in this case, i.e., the anticipated danger should not be remote, conjectural, or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest.

Speech Inciting Violence & Need for Law Commission: Pravasi Bhalai Sangathan v. Union of India[8]

The Supreme Court of India in the case of Pravasi Bhalai Sangathan v. Union of India, remarked that ‘the idea of discrimination lies at the heart of hate speech’. Its impact is not measured by its abusive value alone, but rather by how successfully and systematically it marginalizes a group of people. The Supreme Court realized that the issue of speech inciting violence deserves deeper scrutiny by the Law Commission of India to consider, if it deems proper, defining the expression of ‘hate speech’ and make recommendations to parliament to strengthen the election commission to curb the menace of speech inciting violence irrespective of whenever made. It was emphasized in the instant case that the right to freedom of expression ‘may at times have to be subjected to reasonable subordination to social interests, needs, and necessities to preserve the very core of democratic life – preservation of public order and rule of law.

Distinction Established: Shreya Singhal v. Union of India[9]

In the famous Shreya Singhal v. Union of India judgement, the Supreme Court struck down Section 66A of the Information Technology Act, which criminalized “grossly offensive" or “menacing" online speech. Drawing together various threads from previous judgements, the court distinguished between “advocacy" and “incitement" and held that only the latter could be constitutionally prohibited.

At the heart of the distinction is the philosophical idea that as autonomous individuals, we are all entitled to receive and listen to speech, evaluate it for its merits, and decide for ourselves whether we agree with it. The state disrespects the autonomy of individuals when it takes that decision upon itself, and blocks access to speech on the grounds that individuals might, on listening to it, come to hold wrong views, or do illegal things.

Principle of Variable Context: Amish Devgan v. Union of India[10]

The Supreme Court in the case of Amish Devgan v. Union of India has recognized the principle of ‘variable context’ and held that contextually “all speeches are not alike. This is not only because of group affiliations, but in the context of dominant group speech inciting violence against a vulnerable and discriminated group, and also the impact of speech inciting violence depends on the person who has uttered the words.” In other words, the harm caused by speech is differentiated in terms of the material effect it has on the person or community targeted.

Light in the Tunnel: Kaushal Kishor v. State of Uttar Pradesh[11]

In a significant development, Justice V. Ramasubramanian, of the Constitution Bench wrote the majority judgement on behalf of himself, and Justices S. Abdul Nazeer, B.R. Gavai, and A.S. Bopanna highlighted that a statement by a minister would be actionable as a constitutional tort if such a statement leads to an act or omission by officers of the state resulting in harm or loss to a person or citizen. “A mere statement made by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, may not constitute a violation of the constitutional rights and become actionable as constitutional tort. But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort.

Notably, Justice B.V. Nagarathna took a different stand with respect to the liability of a minister under constitutional tort law for a disparaging or derogatory statement affronting the fundamental rights of a person or a citizen. While her colleagues on the bench held that damages could be sought for such ministerial statements, not made in an official capacity, provided that such a statement resulted in any act or omission by state officers leading to harm or loss, Justice Nagarathna highlighted the practical difficulty of permitting such statements to, as a norm, be challenged before constitutional courts exercising their writ jurisdiction. She emphasized that “Every citizen of India must consciously be restrained in speech and exercise the right to freedom of speech and expression under Article 19(1)(a) only in the sense that it was intended by the framers of the Constitution, to be exercised. This is the true content of Article 19(1)(a) which does not vest with citizens' unbridled liberty to utter statements that are vitriolic, derogatory, unwarranted, have no redeeming purpose, and which, in no way amount to a communication of ideas. Article 19(1)(a) vests a multi-faceted right, which protects several species of speech and expression from interference by the State. However, it is a no-brainer that the right to freedom of speech and expression, in a human-rights based democracy does not protect statements made by a citizen, which strikes at the dignity of a fellow citizen. Fraternity and equality, which lie at the very base of our Constitutional culture and upon which the superstructure of rights is built, do not permit such rights to be employed in a manner so as to attack the rights of another.”

Breakthrough: Shaheen Abdulla v. Union of India[12]

To tackle the growing menace of hate crimes, especially against minorities, the directions issued by the Supreme Court to curb speech inciting violence in the instant case has been a breakthrough in upholding the preambular goals of liberty, equality, and fraternity that are the foundational values embedded in our Constitution. The Supreme Court directed all States/UTs to register suo motu FIRs in offenses such as Section 153A, 153B, 295A, and 506 of IPC, etc., without any complaint being filed and action be taken irrespective of the religion of the maker of the speech so that the secular character of Bharat as envisaged by the Preamble is preserved. The Apex Court made it clear that the failure to take action against incidents of speech inciting violence - irrespective of the religion of the maker of such speech – would be contempt of court. While issuing this set of interim directions to curb speech inciting violence, it was observed, “There cannot be fraternity unless different religious communities are available to live in harmony.”[13]

Conclusion and Way Forward

It is important for governments and courts to maintain equilibrium in granting free speech and protecting citizens from dangerous speech. Under International Human Rights Law, there is no universal definition of hate speech or speech inciting violence, as the concept is still widely disputed with regard to freedom of opinion and expression, non-discrimination, and equality. There needs to be a lucid definition of speech inciting violence to enforce the laws without arbitrariness and according to the provisions of established law. The Judiciary must promote clear interpretations of speech inciting violence. Responsible speech is the essence of the liberty granted under Article 21 of the Constitution. One of the greatest challenges before the principle of autonomy and free speech principle is to ensure that this liberty is not exercised to the detriment of any individual or the disadvantaged section of society. In a country like India, with diverse castes, creeds, religions, and languages, this issue poses a greater challenge.

In conclusion, addressing speech inciting violence in India requires a multifaceted and comprehensive approach that considers legal frameworks, education, media literacy, and societal engagement. The rampant spread of speech inciting violence has the potential to fuel hatred, erode social cohesion, and undermine the democratic fabric of the nation. To combat this issue effectively, Indian authorities and the Judiciary should strengthen and enforce existing legislation that prohibits speeches inciting violence, while also ensuring that such laws do not infringe upon the fundamental right to freedom of expression. This can be achieved by establishing robust mechanisms for monitoring and reporting incidents and implementing swift and impartial legal processes to hold perpetrators accountable.

Education plays a vital role in preventing speech inciting violence and hatred. Schools and educational institutions should prioritize promoting inclusivity, diversity, and respect for different cultures and religions. Integrating media literacy programs into the curriculum can empower individuals to critically analyze and challenge speech inciting violence in the digital space. The media also has a responsibility to play a constructive role. Journalists and media organizations should adhere to professional ethics and strive to provide balanced and unbiased reporting. They should avoid sensationalism and actively counter speech inciting violence by promoting tolerance, understanding, and dialogue.

Societal engagement is crucial in fostering a culture of tolerance and respect. Civil society organizations, religious leaders, and community groups should collaborate to promote interfaith harmony and social cohesion. Initiatives that encourage dialogue, understanding, and empathy can go a long way in bridging divides and countering speech inciting violence. Furthermore, technology companies and social media platforms should take proactive measures to identify and remove content of speech that incites violence while respecting the principles of free expression. Collaboration between these platforms and the government can help in developing effective policies, guidelines, and tools to address speech inciting violence and hatred online.

Ultimately, combating speech inciting violence requires a collective effort from all stakeholders, including the government, civil society, educational institutions, media organizations, and individuals. By working together to create an environment that values inclusivity, diversity, and respect, India can build a society that upholds the principles of democracy, harmony, and social justice for all.

Footnotes

[1] Law Commission of India, Report No. 267, “Hate Speech”, March 2017.

[2] Parliamentary Assembly, Council of Europe, Recommendation 1805 “Blasphemy, religious insults and hate

speech against persons on grounds of their religion” (2007)

available at :http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17569&lang=en

[3] UNHRC,“General Comment 34” One Hundred and Second Session July 11-29, 2011 (July 21, 2011)UN Doc CCPR/C/GC/34, para 22; United Nations Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities”, Forty First Session (1984) “Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights” (Sept. 28, 1984) Annex UN Doc E/CN.4/1984/4 para 17(hereinafter Siracusa Principles);

[4] Angelo in Measure for Measure available at Tempter or Tempted? - myShakespeare.me

[5] Legal Researcher, “An Indian law on hate speech: The contradictions and lack of conversation”, available at: https://cjp.org.in/an-indian-law-on-hate-speech-the-contradictions-and-lack-of-conversation/

[6] Ram Manohar Lohiya v. State of Bihar, AIR 1966 SC 740

[7] S. Rangarajan v. P. Jagjivan Ram, 1989 (2) SCC 574

[8] Pravasi Bhalai Sangathan v. Union of India, AIR 2014 SC 1591

[9] Shreya Singhal v. Union of India, AIR 2015 SC 1523

[10] Amish Devgan v. Union of India, 2021 SCC Online Del 3353

[11] Kaushal Kishor v. State of Uttar Pradesh, 2023 Livelaw SC 4

[12] Shaheen Abdulla v. Union of India, W.P.(C) No. 940 / 2022

[13] 2022 LiveLaw (SC) 872 Shaheen Abdullah

 

Please include:  [AS1]

NBSA NBF channels for remedies

 

Press Council of India Act, 1978:

remedies through inquiry committees for violations of Norms of Journalistic Conduct.

 

can we mention latest developments on the topic [AS2]

  1. Munirathna Naidu - Election commission

The Karnataka candidate who made incidiary statements and capitalised it to win the elections to become an MLA