By Rabia Mohamed Ismail Abdul Rahim, NUALS, Kochi.

In 2005, the Supreme Court in Shreya Singhal v. Union of India struck down Section 66A of the Information Technology Act, which penalised the sending of offensive messages through computer resource or other communication services, thus leading to leniency with regard to laws governing penalisation for the delivering of hate speeches.

The Law Commission of India, earlier in March this year, in its Report No. 267, recommended tougher norms for discouraging hate speech. The Report suggested that new provisions be added to Indian Penal Code in order to criminalize the making of speeches inciting hatred and those causing fear, alarm, and provocation of violence. The panel headed by the former Supreme Court Judge, B. S. Chauhan, in their 53-page Report, expressly stated that the incorporation of such IPC provisions was necessary to address the issue of hate speech. This Report suggested the provision of “watertight compartments to deal with various acts related to hate speech”.

The Report defines Hate Speech as an expression which is likely to cause distress or offend other individuals on the basis of their association with a particular group or incite hostility towards them. There is no general legal definition of hate speech, it 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 with the intention to cause fear or alarm, or incitement to violence.

Report No. 267 commences with an introduction of the background of the Right to Freedom of Speech. It discusses the debate at the time of drafting a Constitution with respect to the inclusion and wording of the provision guaranteeing and reasonably restricting the right to free speech. The Report discusses the existing provisions against hate speech in India and it goes on to elaborate on the tests adopted by other countries to detect the presence of a hate speech, it discusses the Impact of Hate Speech on Freedom of Expression and the types of hate speeches which include Racial and Religious Hate, Homophobia, Negationism and Threat to Democratic Order. It identifies criteria for limiting of Hate Speech through analysis of decisions of the different State jurisdictions, which include the extremity of the speech, incitement by the speech, the status of the author of the speech, status of the targeted audience, potentiality and context of the speech. It reviews the penal law, distinguishes sedition from hate speech, suggests non legal measures to address hate speech. It has proposed a bill for further amendments in the Penal code and the Code of Criminal Procedure.

To tackle hate speech and the spread of hatred and incitement online, an Expert Committee was also constituted by the Central Government. This Committee would, under the Chairmanship of the former Lok Sabha Secretary General, Mr. T. K. Vishwanathan, assist the Government to establish a legal framework to deal with the issue of hate speech and other cyber crimes on the Internet. The Committee, consisting of members from the Law Ministry, CBI and Ministry of Home Affairs, was tasked to study and examine the existing scenario with respect to cyber crimes, domestic and international cyber legislations and suggest amendments as was considered fit. The intention was to strengthen the fight against cyber crimes, and the Committee was welcome to come up with any suggestions to facilitate the same from the investigation, prosecution and judiciary angles.

The Report by T. K. Viswanathan’s Expert Committee was submitted to the Government in the last week of September, 2017.

Relying on the Law Commission Report on physical hate speech, tweaking it a bit to hate speech via electronic medium, this Report suggested that Section 78 of the IT Act needs to be substituted and Section 153 and 505A of the IPC needs to be amended. 

It was suggested that, Section 78 primarily ‘dealt with capacity building’ and needs to be relooked at with a view to sensitize the officers.

78. Power to investigate offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a police officer not below the rank of Inspector shall investigate any offence under this Act.”

The Report suggested that it is necessary to sensitize all law enforcement agencies and give them some support with electronic expertise, computer-forensics and digital-forensics of which, they are not aware. Under Section 78 of the IT Act, an Inspector or a Police Officer above that rank, is empowered to investigate offences. The Committee has recommended that each State should have a State Cyber Crime Coordinator who should be an officer not below the rank of Inspector General of Police.

In absence of capacity building, the Report suggests the formation of cybercrime coordinators to prevent abuse, in every District as well as State. The Committee has also suggested that each district should have a District Cyber Crime Cell headed by an officer not below the rank of Sub-Inspector of Police.

Report No. 267 had also suggested the insertion of two new sections in the Indian Penal Code, which are,

153 C. Prohibiting incitement to hatred– Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –

(a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.

505 A. Causing fear, alarm, or provocation of violence in certain cases-Whoever in public, intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence, against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both.”

The Report by the Expert Committee suggested amendment of both these Sections. The amendment to Section 153-C was for it to include “in communication, spoken or written words, signs, visible representation, information, audio, video, or combination of both, transmitted, retransmitted through any telecommunication service, communication device or computer resource”

The third recommendation is to amend Section 505A of the IPC to include the punishment of up to a year or fine of Rs. 5,000 or both of a person or group who intentionally use means of communications to cause fear, alarm or provoke violence.

The Report also suggests the insertion of Sections 25B and 25C in the Code of Criminal Procedure, which would in turn create the posts of a State Cyber Crime Coordinator and District Cyber Crime Cell, respectively.

TK Viswanathan stated that, in the absence of Section 66A, women are being targeted with a lot of abuse and other humiliations and hate speech is rampant, however, it is more important to criminalize these acts, like most other countries and hence it was agreed upon to not suggest the re-introduction of the provision.