Explainer | What Every Voter Should Know - The Law On Hate Speech By Electoral Candidates

With every polling phase that has passed, the ongoing election season is witnessing increased anticipation - to know who will form the Government and decide the fate of the Country for the next five years. The influence of technology & social media has certainly overpowered the old days when election campaigns were attended physically. What however stays intact is the power of speech. Whether expressed on the field or online, an electoral candidate's greatest tool to communicate with the voters is the freedom of speech and expression.But, can every kind of speech be considered an acceptable form of campaigning by the Election Commission of India (ECI) and the public at large? This explainer simplifies from scratch the much-talked-of issue of 'hate speech' this election, and the law on hate speech delivered during election campaigns by party leaders and political members. Is 'Hate Speech' Legally Defined? Presently there is no statutorily prescribed definition of 'Hate Speech' in the Indian Legal System. However, a loose understanding of the expression means any speech that may incite hatred directed towards a certain class of individuals. Prominently, the Law Commission's 267th Report on Hate Speech explained the term 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. Interestingly, the Report also suggests certain parameters which Courts across different International jurisdictions have identified, these are - (1) the extremity of the speech; (2) incitement; (3) the Status of the Author of the speech; (4) the Status of victims of the speech; (5) Potentiality of the speech; (6) Context of the speech. Often, the Judiciary and Law Commission have expressed its apprehension to devise a straight-jacketed formula on what would constitute hate speech and what would not. This essentially springs from the apprehension of unknowingly constraining the fundamental right to freedom of speech and expression as enshrined under Article 19(1)(a). However, the Fundamental Right to Freedom of Speech and Expression is not absolute and can be curtailed on three major grounds under the constitutional limitations - (1) Public Order; (2) Incitement to offence; and (3) security of the State. Interestingly, the Apex Court has fragmented expression in 3 forms - discussion, advocacy and incitement. In the decision of Shreya Singhal v. Union of India, while declaring S. 66 A of the IT Act (Punishment for sending offensive messages through communication service)as unconstitutional, the Supreme Court observed that while an expression in the form of a discussion or advocacy is protected under Article 19, incitement is not. So any expression which eventually starts as a discussion or advocacy but leads to incitement cannot be protected within the contours of Freedom of Speech and Expression. The notion of 'incitement' as discussed in Arup Bhuyan v. State of Assam(2011) applied the test of "imminent violence". In the said case, the Supreme Court refused to accept the criminality of a person for merely being a member of a banned organisation unless such a person has incited people to violence or caused public disorder by violence or incitement to violence. However, it may be noted that recently a 3-judge bench led by Justice MR Shah had overruled the decision in Arup Bhuyan while upholding the constitutional validity of section 10(a)(i) of the Unlawful Activities (Prevention) Act 1967(penalty for membership in unlawful association). More so, the 2020 decision of the Supreme Court in Amish Devgan v. Union of India held that persons of influence ought to exercise more responsibility in their speech having regard to their reach. The Court while refusing to quash the FIR against the remarks made by News Anchor Devgan on the channel News 18 on the Sufi Saint Moinuddin Chishti, observed that the purpose of incriminating hate speech was (1) protecting the dignity of an individual; (2) ensuring political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender etc. The judgement further observed that 3 interconnected elements can be employed to define 'hate speech' -(a) content-based: express use of words and phrases considered offensive in general (objective standards applied) ; (b) intent-based: the speaker's intention was to directed to promoting only hatred, violence or resentment amongst different classes (element of subjectivity in deciphering intent); (c) harm-impact: assesses the consequences of the said speech towards the targetted victim community either in form of violence, low self-esteem, economic/social subordination, duress etc. "Only when they are present that they produce structural continuity to constitute 'hate speech'", the Court said. A detailed breakdown of the judgement can be read here. How hate speech is dealt with in the context of election campaigns ...

Explainer | What Every Voter Should Know - The Law On Hate Speech By Electoral Candidates

Anmol Kaur Bawa

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