Former leader of Kerala Congress (M) PC George recently said that restaurants run by Muslims in the state should be avoided as they serve tea with a certain "drop that causes impotence". "By sterilising men and women, they [Muslims] hope to seize the country," said George, who was booked later under Section 153A of the Indian Penal Code.

Cases filed under this section registered a sixfold or almost 500% increase in seven years — 323 cases in 2014 to 1,804 cases in 2020 — according to the National Crime Records Bureau (NCRB). But this section in the IPC deals with 'promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language' and not hate speech itself. India in fact does not have an exclusive legislation that deals with hate speech.

While there doesn't exist a universal definition of hate speech, most developed countries recognise it as an exception to free speech. In the UK, Section 18-29 under the Public Order Act 1986 deals with acts intended or likely to incite or stir up racial hatred. In Canada, Section 319 of the Criminal Code of Canada, 1985, penalises public incitement of hatred.

Similarly, in South Africa, Section 16 of the South African Constitution guarantees freedom of expression, but this freedom is subject to limitations like propaganda for war, incitement of imminent violence or advocacy of hatred. Unlike these countries, hate speech in the USA is a legally protected fundamental right to free speech under the First Amendment and this forbids the US government from making law prohibiting the exercise of free speech.

Hate speech has not been defined in any law in India and continues to remain a matter of live debate in the country. In fact, the Law Commission of India, in its March 2017 report, wrote that "new provisions in IPC are required to be incorporated" to address the issue of hate speech.

Legal Provisions Around Hate Speech

While there is no specific law that defines hate speech, there are select legal provisions or sections in the IPC that prohibit certain forms of speech with exception to free speech.

IPC Section

What it Constitutes

124A

Sedition

153A

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'

153B

Imputations, assertions prejudicial to national-integration'

295A

Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs'

298

Uttering words, etc., with deliberate intent to wound the religious feelings of any person'

505 (1) and (2)

Publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes.

Sarim Naved, a Delhi-based Supreme Court lawyer, told FactChecker that these sections are not exclusively designed for hate speech. "Technically, we do not have laws criminalising hate speech. What we have are laws which criminalise the act of promoting enmity between communities, statements against national integration, defamation and so on," said Naved.

Apart from the IPC, following are the other legislations that had provisions relating to hate speech:

- Representation of the People Act, 1951 disqualifies a person from contesting election if they are convicted for misusing freedom of speech and expression.

- The Protection of Civil Rights Act, 1955 penalises encouragement of untouchability through words (written or spoken), signs or visible representations.

- Religious Institutions (Prevention of Misuse) Act, 1988 prohibits the promotion of disharmony, feelings of enmity, hatred, ill-will between different religious, racial, language or regional groups or castes or communities.

- The Cable Television Network Regulation Act, 1995 and The Cinematograph Act, 1952 deal with preventing and regulating online transmission of any information that is intended to spread hate.

Cases Rise Manifold

Cases filed under IPC Section 153A (promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language) saw almost a sixfold increase between 2014 and 2020, according to NCRB data.

While 2014 (323 cases) saw the least number of cases in the seven years, the year 2020, with 1,804 cases, saw the highest. In 2020, Tamil Nadu (303) registered the highest number of cases under this section, followed by Uttar Pradesh (243), Telangana (151), Assam (147) and Andhra Pradesh (142).

Similarly, cases filed under Section 153B (imputations, assertions prejudicial to national-integration) increased more than six times — from 13 in 2014 to 82 in 2020.

Moreover, the conviction rate of cases under Section 153 was as low as 20% in the five years between 2016 and 2020. In 2016, 15.3% of cases ended in convictions, while in 2020, the conviction rate has risen a little to 20.4%.

"Most cases are magisterial trials, and magistrates in these cities are heavily overworked. In places like Noida, such cases go up to 150 per day," said Naved. He also attributed the low conviction rate to lack of evidence and high proportion of pending cases in courts for long periods of time.

In the four years between 2017 and 2020, cases filed under IPC Sections 295-297, which deal with insults against religious beliefs of an individual or community, saw a decrease by 3.2%. However, there was a 16.5% increase in these cases in the last year — 1,459 in 2019 to 1,749 in 2020.

Cases related to Section 505 (publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes) increased almost six times in four years — 257 cases in 2017 to 1,527 in 2020.

This shows that India lacks any exclusive legislation that criminalises those hate speeches that do not incite violence or a penal offence. "Hateful speech in itself must be criminalised to target those who are operating in a planned way within these gaps in laws," Naved concluded.

Nidhi Jacob