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Journalism of Courage
A Supreme Court bench comprising of Justices K M Joseph and Hrishikesh Roy, in interim directions on Friday (October 21), directed the police chiefs of Delhi, Uttar Pradesh and Uttarakhand to take “immediate” suo motu action against any hate speech, by lodging criminal cases without waiting for formal complaints.
The bench was hearing a petition which called attention to the speeches delivered at a Virat Hindu Sabha organised by the VHP’s Delhi unit and other Hindu organisations in the Capital on October 10, and other similar petitions seeking action following hate speeches against Muslims at some Dharam Sansad events.
The court warned authorities that “any hesitation to act in accordance with this direction will be viewed as contempt of court and appropriate action shall be taken against the erring officers”.
While India does not have a formal legal framework for dealing with hate speech, a set of provisions of the Indian Penal Code (IPC), loosely defining hate speech, are invoked. These are primarily laws to deal with offences against religions.
Section 295A & others
Section 295A of the IPC defines and prescribes a punishment for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
“Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both,” the section reads.
Section 295A is one of the main provisions in the IPC chapter to penalise religious offences. The chapter includes offences to penalise damage or defilement of a place of worship with intent to insult the religion (Section 295); trespassing in a place of sepulture (Section 297); uttering, words, etc, with deliberate intent to wound the religious feelings of any person (Section 298); and disturbing a religious assembly (Section 296).
The state often invokes Section 295A along with Section 153A, which penalises promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony and Section 505 of the IPC that punishes statements conducing to public mischief.
Section 66A of the Information Technology Act, that punishes sending offensive messages through communication services is added when such speech is made online.
The broad, vague terms in the laws are often invoked in its misuse. Lower conviction rates for these provisions indicate that the process — where a police officer can arrest without a warrant — is often the punishment. Critics have pointed out that these laws are intended for the state to step in and restore “public order” rather than protect free speech.
Origins of the law
Section 295A was brought in 1927. In his book Offend, Shock or Disturb, lawyer Gautam Bhatia writes that the antecedents of Section 295A lie in the “communally charged atmosphere of North India in the 1920s”. The amendment was a fallout of an acquittal under Section 153A of the IPC by the Lahore High Court in 1927 in Rajpaul v Emperor, popularly known as the Rangila Rasool case.
Rangila Rasool was a tract — brought out by a Hindu publisher — that had made disparaging remarks about the Prophet’s private life. Cases against the first pamphlet, filed under Section 153A, were dismissed by the Punjab and Haryana High Court, which examined the question whether targeting religious figures is different from targeting religions.
When a second, similar piece was published, it raised tensions. While the magistrate had convicted the publisher Rajpaul under Section 153A, the Lahore High Court held that a “scurrilous and foul attack” on a religious leader would prima facie fall under Section 153A — although not every criticism.
This debate in interpretation prompted the colonial government to enact Section 295A with a wider scope to address these issues.
Later cases
In 1957, the constitutionality of Section 295A was challenged in Ramji Lal Modi v State of Uttar Pradesh. The Supreme Court upheld the law on the grounds that it was brought in to preserve “public order”. Public order is an exemption to the fundamental right to freedom of speech and expression and the right to religion recognised by the Constitution.
In a 1960 ruling, in Baba Khalil Ahmed v State of Uttar Pradesh, the Supreme Court said that “malicious intent” of the accused can be determined not just from the speech in question but also from external sources.
In 1973, in Ramlal Puri v State of Madhya Pradesh, the Supreme Court said the test to be applied is whether the speech in question offends the “ordinary man of common sense” and not the “hypersensitive man”. However, these determinations are made by the court and the distinction can often be vague and vary from one judge to the other.
In Baragur Ramachandrappa v State of Karnataka, a 2007 decision of the Supreme Court, “a pragmatic approach” was invoked in interpreting Section 295A. The state government had issued a notification banning Dharmakaarana, a Kannada novel written by award-winning author P V Narayana, on the ground that it was hate speech, invoking a gamut of provisions including Section 295A. The pragmatic approach was to restore public order by “forfeiture” of a book over individual interest of free speech.
