Pawan Khera Arrest | Section 153A: its use and misuse

Feb. 25, 2023

Why in News?

The Supreme Court granted interim bail to Pawan Khera, chairman of the media and publicity department of the All-India Congress Committee, who had been arrested for alleged hate speech by Assam Police earlier.

What’s in today’s article?

Hate Speech (Meaning, Legal Provisions, Court’s Judgements, Guidelines, Suggestions, etc.)

About Hate Speech:

Hate speech covers many forms of expressions which advocate, incite, promote or justify hatred, violence and discrimination against a person or group of persons for a variety of reasons.
It poses grave dangers for the cohesion of a democratic society, the protection of human rights and the rule of law.
If left unaddressed, it can lead to acts of violence and conflict on a wider scale.
In this sense hate speech is an extreme form of intolerance which contributes to hate crime.

Article 19 and Hate Speech:

Article 19(2) of the Constitution guarantees freedom of speech and expression to all citizens of India.
This article is subjected to certain restrictions, namely, 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.
Provisions in clauses (2) to (6) of Article 19 authorizes the State to restrict the exercise of the freedom guaranteed under the article.

Legal Provisions of Hate Speech:

Hate speech has not been defined in any law in India.
However, legal provisions in certain legislations prohibit select forms of speech as an exception to freedom of speech.
Indian Penal Code (IPC) Provisions –

Under Section 153A of IPC, ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.
Section 505 of IPC makes it an offence to making “statements conducing to public mischief”.

Section 8 disqualifies a person from contesting election if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression.

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

Section 3(g) prohibits religious institution to allow the use of any premises belonging to 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.

Important Judgements:

In Pravasi Bhalai Sangathan v. Union of India, the Supreme Court held that the implementation of existing laws would solve the problem of hate speech to a great extent.
In Jafar Imam Naqvi v. Election Commission of India, the petitioners filed a writ petition challenging the vitriolic speeches made by the candidates in the election.
It prayed for issue of writ of mandamus (an order from a court to government official ordering them to properly fulfill their official duties) to the Election Commission for taking appropriate steps against such speeches.

However, the Court dismissed the petition on the ground that the petition under Article 32 of the Constitution regarding speeches delivered during election campaign does not qualify as public interest litigation.
It also said that the Court cannot legislate on matters where the legislative intent is visible.

Guidelines Issued by Supreme Court to curb Misuse of Legal Provisions w.r.t. Hate Speech:

In Tahseen Poonawalla vs Union of India (2018), the Supreme Court had issued comprehensive guidelines to the Union and State Governments regarding prevention of mob violence, lynching.
Again, in Kodungallur Film Society case (2018), directions were issued to control vandalism by protesting mobs.
Major guidelines include –
- Fast-tracked trials,
- Victim compensation,
- Deterrent punishment,
- Disciplinary action against lax law-enforcing officials,
- Nodal officers to be appointed to take note of hate crimes and register FIRs across the nation.

Suggestions:

The Law Commission has proposed that separate offences be added to the IPC to criminalize hate speech more specifically instead of being subsumed in the existing sections concerning inflammatory acts and speeches.
Similar proposals to add sections to the IPC to punish acts and statements that promote racial discrimination or amount to hate speech have been made by the M.P. Bezbaruah Committee and the T.K. Viswanathan Committee.
At present, the Committee for Reforms in Criminal Laws, which is considering more comprehensive changes to criminal law, is examining the issue of having specific provisions to tackle hate speech.

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