- Siddharth Narrain*
The 267th Law Commission Report on Hate Speech, recently submitted to the Law Ministry, is a mixed bag. On the one hand, it has, for the first time, analysed hate speech in a detailed manner, focusing on global jurisprudence, Indian law, and putting forward a strong and reasoned argument on why hate speech should be regulated. On the other hand, its recommendations have a very narrow focus, suggesting criminal law amendments, specifically the introduction of new provisions in the Indian Penal Code (IPC), and amendments to their corresponding provisions in the Code of Criminal Procedure (CrPC). A number of legal commentators have already responded to the amendments, raising important concerns on how the laws proposed by the Commission if enacted, will lower existing standards and free speech protections laid down by courts, and may be used to curb legitimate speech and dissent.
While I agree with these concerns, given the rampant misuse of existing IPC provisions such as sections 153A and 295A to target dissent and creative expression, I will focus on the main text of the report, which, in its attempt to reconcile concerns around liberty, equality, free speech and discrimination, puts forward very important legal distinctions that all of us must engage with.
Origins of the Report
The Law Commission’s Hate Speech report has its origins in the Supreme Court’s 2014 Pravasi Bhalai Sangathan judgment, a case dealing with speech that targeted interstate migrant workers. The Supreme Court in that case observed that India had enough laws to deal with the issue at hand, but the problem was the non-implementation of these laws. The Court suggested that the Law Commission look into the matter, and specifically suggested that the Law Commission study the issue of hate speech in the lead up to elections, to enable the Election Commission to deal with this issue. The present Law Commission, headed by Justice B.S. Chauhan, one of the judges who authored the Pravasi Bhalai Sangathan judgment, took up this matter on priority, and has come up with this detailed report.
Findings and Recommendations of the Report
The most important aspect of the 267th Law Commission Report on Hate Speech is that it goes into a detailed discussion on hate speech itself, a theme that has not been discussed much in Indian legal texts. The Commission draws upon academic legal writing in India and in comparative jurisdictions to lay out a map of the global debates around hate speech, the range of existing Indian laws that could be understood as hate speech laws, and the underlying tension between the right to liberty and the right to equality when it comes to legislating hate speech.
The Commission lists a number of laws that would broadly have a bearing on hate speech. These include provisions from the Indian Penal Code, 1860 The Code of Criminal Procedure 1973, the Representation of People’s Act 1951, The Protection of Civil Rights Act 1955, The Religious Institution (Prevention of Misuse) Act 1988, The Cable Television Network Regulation Act 1995, and The Cinematograph Act 1952.
Crucially, the Commission lays down a framework for the principles that need to be applied while dealing with hate speech, drawing upon developments in European and international law. The Commission stresses on the three-part test – 1) Is the interference prescribed by law? 2) Is the interference proportional to the legitimate aim pursued? 3) Is the interference necessary in a democratic society? These principles of necessity, proportionality and the requirement of limitations to free speech being prescribed by law and having a legitimate aim, underlie the ICCPR understanding of the freedom of speech, and the decisions of the European Court of Human Rights.
Along with this, the Commission also draws upon international developments to lay down the parameters that need to be taken into account while considering whether speech amounts to hate speech or not. These include how extreme the speech is; the requirement of incitement; the status of the author of the speech; the status of the victim of the speech; the potentiality and context of the speech. Perhaps, the most important of these parameters is the emphasis on the incitement standard, which the Commission endorses strongly. The Commission cites both the Supreme Court decisions in Shreya Singhal, which in the context of online speech, distinguished between ‘discussion’, ‘advocacy’, and ‘incitement’, and in Arup Bhuyan where the court held that mere membership of a banned organisation is not sufficient to impute criminality and that it has to be shown that the person incited violence or created public disorder.
The Legal Distinctions
While the Commission recommends that elements of intent and incitement must be included in any formulation of hate speech legislation, it distinguishes between incitement to violence, and incitement to discrimination, recognising both of these as factors that contribute to identifying hate speech. According to the Commission, even if speech does not incite violence, but perpetrates discriminatory attitudes it could amount to hate speech. This move has been justified by the Commission’s view that liberty and equality are complementary and not antithetical to each other. The Commission draws on the work of legal scholars such as Jeremy Waldron, who have argued that while purely offensive speech or hurt sentiments should not be regulated, there is a class of speech amounting to more than just hurt sentiments but less than actual physical injury that should be regulated in democracies. This category is speech that impacts the dignity of groups, undermining the implicit assurance that citizens of a democracy, especially politically disenfranchised minorities and vulnerable groups are placed on the same footing as the majority.
The example Commission uses to illustrate this is the exodus of around 50,000 persons belonging to the North East from cities such as Bengaluru and Pune in 2012. This exodus was the result of threatening SMSs, MMSs circulated at the time, and stray attacks on persons belonging to the North East in these cities. The Commission, however does not do justice to this example, and has not delved upon the specificities of speech on the internet, especially when it seems to be suggesting a broader understanding of incitement than the Shreya Singhal standard. There is a growing jurisprudence and global discussion around hate speech online, including the link to issues of intermediary liability, jurisdiction, and techno-legal developments, all of which would require a separate discussion, and could not possibly be covered in a general discussion on hate speech.
The internet and social media apart, the Commission is making an important intervention around the incitement to discrimination standard for hate speech. In his book, The Harm in Hate Speech Laws, Waldron uses a telling illustration. He asks the reader to imagine a situation where a Muslim family in the United States, post the 9/11 attack, steps out of their home to see large billboards all over the city that are talk about the threat of Islamic fundamentalism, or is Islamophobic. Recent reports of billboards that are being put up in cities in Uttar Pradesh, warning Rohingya and Bangladeshi refugees to leave Jammu or posters that appeared in a village in Bareilly district after the election results in the state asking Muslims to leave the area, clearly show us that far from being an exceptional situation, is fast becoming the new normal. The tension here is between the criminalisation of a swathe of speech in a situation where hurt sentiment and offensive speech are constantly produced by various local actors, and protecting the rights of vulnerable communities, ensuring that they are not scared into silence on the pretext of free speech.
The move to the incitement to discrimination standard is reflected in the framing of the proposed sections 153(C) and 505 (A) IPC, where the first part of the sections reflect an incitement to discrimination standard, and the second part reflect an incitement to violence standard. By suggesting an incitement to discrimination standard in the context of online speech, the Commission fails to do is to address the specificities of the Indian context. There is only a passing reference to the gross misuse of the existing provisions of law such as sections 153A and 295A IPC to curb dissent and artistic license. For those who have followed the manner in which these laws have been used to drag people to court, and silence actors through the threat of litigation, this is a glaring omission. One of the main concerns of free speech advocates has been how to institute more procedural safeguards to protect speech. This concern is reflected in the Bombay High Court’s decision in the cartoonist Aseem Trivedi’s case where the court suggested that certain safeguards be instituted to prevent the sedition law (section 124A IPC) from being misused.
The amendments to the IPC that have been suggested in the report have expanded on the categories covered by the law, in line with a contemporary understanding of hate speech, including hate speech based on sexual orientation, gender identity, and disability. By doing this, the Commission has positioned these amendments as in tune with global developments on this front. However, this does not address the worry that these amendments, by themselves, will be unable to address the problem of hate speech, as the use of the law will be determined by those in power, and by political calculations.
We know for instance that the Chief Minister of Uttar Pradesh, Yogi Adityanath faces a number of hate speech charges including a provocative speech in January 2007 that was followed by incidents of communal violence. (at the time was an elected MP from Gorakhpur). Now that he is Chief Minister a file seeking sanction for prosecution in a hate speech case against Adityanath has to be cleared by his government. Meanwhile critics of the Chief Minister, who have made comments, or posted morphed images of him online, who are being charged with the same set of laws, by the Uttar Pradesh police.
It is the dark irony of this situation that underlies my serious doubts on whether the amendments to the penal law suggested by the Commission were warranted, or can be viewed as a positive development. After all, hate speech laws are designed to be invoked by the government in power against those who violate the law, but the question is what happens when hate speech has the tacit support of those in power, or if it is the government itself that is producing hate speech?
*Siddharth Narrain is a Visiting Faculty at the School of Law, Governance and Citizenship, Ambedkar University, Delhi. He can be contacted at firstname.lastname@example.org.
 See for instance, Aman Lekhi, The Law Commission’s Curious Recommendations on Hate Speech, Bloomberg Quint (April 08 2017), https://www.bloombergquint.com/opinion/2017/04/08/the-law-commissions-curious-recommendations-on-hate-speech; CCG, NLU Delhi, Reviewing the Law Commission’s Latest Hate Speech Recommendations, Legally India (14 April 2017), http://www.legallyindia.com/views/entry/reviewing-the-law-commission-s-latest-hate-speech-recommendations; Aditya Bapat, The Law Commission’s Recommendations on Hate Speech: Be Fearful and Alarmed, The Huffington Post (12 April 2017), http://www.huffingtonpost.in/aditya-bapat/the-law-commissions-recommendations-on-hate-speech-be-fearful-a/.
 Pravasi Bhalai Sangathan v. Union of India, AIR 2014 SC 1591.
 Shreya Singhal v. Union of India, AIR 2015 SC 1523.
 Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.
 Law Commission of India, Report No. 267, Hate Speech 16 (March 2017).
 Jeremy Waldron, The Harm in Hate Speech (2012).
 Ashutosh Sharma, Quit Jammu: Billboards Target Rohingya, Bangladeshi Refugees, National Herald (7 February 2017), http://www.nationalheraldindia.com/news/2017/02/07/quit-jammu-billboards-target-rohingya-bangladeshi-refugees-to-throw-out-rohingyas-settled-for-decade-and-more.
 In This U.P. Village, Posters appeared Overnight asking Muslims to Leave, Huffington Post, 16 March 2017, http://www.huffingtonpost.in/2017/03/16/in-a-village-in-uttar-pradesh-posters-ask-muslims-to-leave-the_a_21897281/.
 William Mazzarella and Raminder Kaur, Censorship in South Asia: Cultural Regulation From Sedition to Seduction (2009).
 Prohibiting incitsement to hatred-
"153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe -
1. (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
2. (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.".
3. Insertion of new section after section 505. - In the Penal Code, after section 505, the following section shall be inserted, namely:- Causing fear, alarm, or provocation of violence in certain cases.
"505 A. 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".
 Sanskar Marathe v. State of Maharashtra, 2015 CriLJ 3561.
 The Law Commission’s report clearly distinguishes between hate speech and sedition as two distinct spheres, which is important since these two categories are often collapsed in public discussion. While both these laws do have a common history, hate speech has to do with speech targeting other persons or communities while sedition deals with the citizen’s relationship with the state.
 Shahnawaz Alam, How the SP and BSP helped Yogi Adityanath get away with his hate speeches, Business Standard (30 March 2017), http://www.business-standard.com/elections/uttar-pradesh-assembly-elections-2017/how-sp-and-bsp-helped-yogi-adityanath-get-away-with-his-hate-speeches-117033000148_1.html.
 Maulshree Seth, On Yogi Govt Table, File on Yogi hate speech case, Indian Express (23 March 2017), http://indianexpress.com/article/india/yogi-adityanath-uttar-pradesh-govt-table-file-on-yogi-hate-speech-case-orakhpur-radhamohan-das-agarwal-4581333/.
 Vinit, 22-Year Old Arrested in Noida for Facebook Post on Yogi Adityanath, Hindustan Times (24 March 2017), http://www.hindustantimes.com/noida/22-year-old-arrested-in-greater-noida-for-facebook-post-on-uttar-pradesh-cm-adityanath/story-mT44NjypbLGuTLYCu3oirM.html.