From: The Telegraph, October 31 , 2012
VERBAL FIREBOMBS
Hate speech, such as that allegedly indulged in by Raj Thackeray, is governed by an array of laws. But getting a conviction for this offence is an uphill task, |says V. Kumara Swamy
A Delhi court recently directed the city police to lodge a first information report (FIR) against Maharashtra Navnirman Sena (MNS) chief Raj Thackeray for his speech on August 31, 2012, in which he allegedly described migrants from Bihar as “infiltrators” and threatened to drive them out of the state.
This followed a complaint by Prem Shankar Sharma, a Delhi-based advocate, who says that Thackeray’s remarks constituted hate speech and that these were in violation of various sections of the Indian penal code (IPC). “What Thackeray said was a clear case of hate speech. And the Delhi Police have filed an FIR under 153A, 505(1) and 505(2) of the IPC and other provisions. I hope he will be prosecuted soon,” Sharma says.
While Section 153A criminalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”, Section 505(1) prohibits “statements conducive to public mischief”. Section 505(2), on the other hand, is against “statements creating or promoting enmity, hatred or ill-will between classes”. All these sections can be applied in the case of “words, either spoken or written, or by signs or by visible representations or otherwise”. Those found guilty under these provisions face imprisonment ranging from three to five years.
But even Sharma knows that a conviction under these laws is easier said than done. “The Delhi police filed an FIR on the directions of the court. But they say they are still examining the newspapers and news channels where Thackeray’s statements appeared. They may not move unless they get a go-ahead from their political masters,” Sharma says. According to Sharma, several cases have been filed against Thackeray in Bihar and Uttar Pradesh under the same sections.
Hate speech in India is seen in two contexts. One is related to communal and sectarian issues as was the case with Varun Gandhi’s alleged anti-minority speech during an election rally in 2009. The other is related to the politics of exclusion as in the case of Thackeray’s comments.
However, hate speech during elections — when the model code of conduct is in force — come under several sections of the Representation of Peoples Act, 1951. Under this the Election Commission of India can initiate proceedings against the accused. Hate speech at other times come under various sections of the IPC.
One of the biggest hurdles in getting a conviction for hate speech comes from Section 196(1) of the Criminal Procedure Code (CrPC), according to which offences punishable under 153A and 505(1) cannot be applied without the prior sanction of the central or the state government concerned.
“I have no doubt that what Thackeray said was in violation of Section 153A, and he should be prosecuted for it. But law enforcing institutions in this country will not be allowed to take the case to its logical end because of political intervention,” says Rajinder Sachar, a former Chief Justice of the Delhi High Court. For instance, Shiv Sena supremo Bal Thackeray, who was arrested for allegedly inciting violence against minorities in 1992 through his newspaper columns, was released after a court ruled that his arrest under Section 153A was not tenable as the police had not obtained prior sanction from the government.
A similar thing happened with Raj Thackeray in 2008 when he was arrested for giving a speech that allegedly incited violence. “In a way, the government of the day controls the levers as far as these sections are concerned,” says Gautam Thaker, general secretary, Peoples Union for Civil Liberties (PUCL), Gujarat chapter.
There have been efforts to do away with Section 196(1). For example, the Administrative Reforms Commission’s 7th report, titled “Capacity Building For Conflict Resolution”, recommended the “deletion of the provisions contained in Section 196 of the CrPC requiring prior sanction of the Union or State Government or the District Magistrate for initiating prosecution for offences under Sections 153A, 153B” and some other sections. But the government has not acted on the recommendation as yet.
Of course, governments do not always baulk at giving permission to move against those who indulge in hate speech. Experts point out that sometimes they do so with alacrity, particularly if the case is a non-serious one. “The Gujarat government was quick to apply these sections and sanction prosecution when Jaswant Singh’s book on Jinnah was published. Many cases against the minorities have also been filed under these sections for frivolous reasons. But more serious cases of violation have been ignored,” says Thaker.
Some say that a law against hate speech should not exist at all. As Girish Patel, senior advocate, Gujarat High Court, points out, “Ideally, we shouldn’t have laws governing free speech as is the case in the US and many other Western countries. But unfortunately, there are enough mischief makers who can take advantage of this freedom.”
Although Article 19(1)(a) guarantees the right of all citizens “to freedom of speech and expression”, this right is not absolute as it is in the case of the American or some other Western constitutions. Under the Indian Constitution, the right to freedom of speech and expression is subject to Article 19(2), which gives the state the power to make laws imposing “reasonable restrictions” upon freedom of speech and expression in the interests of the security, sovereignty and integrity of India, public order, “decency or morality” and others. And the Supreme Court has upheld this right of the government repeatedly.
Most legal experts agree, however, that laws against hate speech ought to be used with utmost discretion. “Laws on hate speech have to be used only when they are absolutely necessary. If the police are allowed to apply this law indiscriminately, there are greater chances of them being misused,” says Patel.
Apart from hate speech that is spoken or written, there is a lot of outpouring of hate on the Internet too. Besides the provisions discussed above, these also come under the purview of the Information Technology Act, 2000, and its rules. For instance, under Section 66A of the act, publication of material which “is grossly offensive or has menacing character”, or which is broadcast, despite being known to be false, for the purpose of “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”, is prohibited.
Most experts feel that the laws on hate speech ought to be toned up. “We need to improve the law on hate speech — there is no doubt about that,” says Sachar. However, no matter how watertight the law, it will always be a tricky matter deciding where free speech ends and hate speech begins.
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