The Law Commission of India’s recommendation that the government should check the so-called hate speech is a serious assault on the freedom of expression. Serious on several counts: the recommendation comes from an official body; the recommendation is to a government that is at odds with the idea of free speech; and the recommendation seeks to enlarge the scope of further curtailment of the right to freedom of expression.
In its 267th report released last week, the top law advisory panel to the government has suggested the insertion of new sections in the Indian Penal Code to curb “hate speech.” It has been defined as “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.”
Accordingly, the Law Commission “is of considered opinion” that new provisions needed to be added to the IPC. Keeping the necessity of amending the penal law, it has presented a draft amendment Bill to the government. The Criminal Law (Amendment) Bill, 2017 suggests insertion of new section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases).”
It is not that there are no laws to check hate speech. The commission goes on to list as many as 15 provisions in various pieces of legislation with bearing on hate speech. The Indian Penal Code, 1860, has several sections. These include Section 124A for sedition; Section 153A penalizing “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”; Section 153B for “imputations, assertions prejudicial to national-integration”; Section 295A penalizing “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs”; Section 298 for “uttering, words, etc., with deliberate intent to wound the religious feelings of any person”; and Section 505(1) and (2) for publication or circulation of any statement, rumor or report causing public mischief and enmity, hatred or ill-will between classes.
Then are provisions in the Representation of The People Act, 1951, the Protection of Civil Rights Act, 1955, the Religious Institutions (Prevention of Misuse) Act, 1988, the Cable Television Network Regulation Act, 1995, the Cinematograph Act, 1952, and the Code of Criminal Procedure, 1973, to curb hate speech.
And yet, the Law Commission has recommended more curbs on free speech. The existing provisions already militate against the letter and spirit of the Constitution. For instance, Section 298 of IPC says: “Uttering, words, etc., with deliberate intent to wound the religious feelings of any person.—Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both” (emphasis added).
Now, our Constitution does mention “reasonable restrictions” that government can impose on the right to freedom of expression. As a votary of absolute, limitless freedom of expression, I find these restrictions, introduced by way of the First Amendment in 1951, to be against the spirit of the Constitution. But, even as these restrictions are an affront to individual liberty and genuine democracy, these are themselves purported to be “reasonable.” In other words, these can be imposed only if there are reasonable grounds for harming national security, jeopardizing friendly relations with foreign countries, disturbing public order, offending decency or morality, contemning court, leading to defamation, or occasioning incitement to an offence. Nowhere is it mentioned in the First Amendment that offending the feelings or hurting the sentiments of somebody can be a ground for curtailment of the freedom of expression.
The grounds restricting the freedom of expression have to be reasonable, and not sentimental, not only because it is the Constitutional position but also because reasons can be objectively debated; sentiments can’t be. Unfortunately, our Supreme Court upheld the constitutionality of Section 295A in 1957. Even eminent jurists defend this obnoxious section. In an article in The Indian Express (June 25, 2006), former attorney general Soli J. Sorabjee wrote: “The yardstick [to determine whether or not something is scurrilous] is not the standards of hyper-sensitive and volatile minds but those of ordinary persons of normal sensibilities.”
This is an argument to shut the mind of a community or country to questioning, imagination, and innovation. Had Lord Bentick applied the yardstick of the minds “of ordinary persons of normal sensibilities,” he could not have banned suttee in 1829; in fact, this yardstick would have banished all social reform. Had Galileo been bothered about the sensibilities of ordinary persons, he would never have started his scientific journey. The march of civilization is predicated upon breaking the chains of ordinariness, hurting the sentiments of the tetchy, and offending the sensibilities of those who matter.
In a nutshell, the Indian nation, the Indian state, the eminent people of India, the grandees manning the Law Commission—almost everybody who is somebody in our country has undermined the concepts of individual liberty and freedom of expression. Free speech has been downgraded considerably over the decades because of hurt feelings, political expedience, or downright mischief. And few are bothered. Least of all the Law Commission.