LatestLaws.com LatestLaws.com Centre for Communication Governance, National Law University, Delhi Sector 14, Dwarka New Delhi 110078 Published in April 2018 Design Suchit Reddy J Editing Shruti Vidyasagar Kshama Kumar © National Law University, Delhi 2018 All rights reserved The research was funded by the John D and Catherine T MacArthur Foundation, USA. The views expressed in the report are those of the authors and not of the Foundation. LatestLaws.com Hate Speech Laws in India Writing Team Primary Chinmayi Arun Arpita Biswas Parul Sharma Secondary Sarvjeet Singh Smitha Krishna Prasad Nakul Nayak Ujwala Uppaluri Other Contributors Aditya Singh Chawla Faiza Rahman Gale Andrew Geetha Hariharan Kasturika Das Kritika Bharadwaj Shuchita Thapar Siddharth Manohar Vaibhav Dutt Interns and Research Assistants Lakshay Gupta Nivedita Jha Nivedita Saksena Shreya Shrivastava Shruntanjaya Bhardwaj Siddharth Deb Vivek Shah Anant Sangal LatestLaws.com Introductory Note and Acknowledgements This report is an effort to map hate speech laws in India, and attempts to offer a clear overview to anyone interested in the regulation of hate speech in India. It discusses the spectrum of laws, includ- ing the specific legal standards developed by the courts, applicable to hate speech in India. It also analyses the relationship between these laws and the constitutional right to freedom of speech and expression. The laws discussed in this report range from the primary criminal laws to specific statutes that regu- late speech in the context of elections, or advertisements. Medium specific laws directed at speech on print media, television, radio and the internet are also discussed here. The mapping of these laws and the specific standards under each of them was necessary for many reasons. One was so that it would be clear that the proliferation of hate speech in India is not for lack of law regulating hate speech in India. Another was that even though the legal standards have been stated clearly by the judiciary in the context of specific laws, the laws are not actually applied in a manner that is consistent with those standards. We hope that this report will support further research on these questions, offering researchers, journalists, lawyers and members of the government clarity as they try to understand how far speech is covered by these laws. This report is a result of years of advice, conversations and support from many generous people. It was conceived and executed as a result of a project initiated by Justice A.P. Shah and the questions that he was asking as Chairman of the Law Commission of India. It was informed by our early conver- sations with Professor Susan Benesch and Mr. Siddharth Narrain, who have been generous with their advice and support through the years that we have worked on it. We also benefited greatly from our conversations with Professor (Dr.) Urs Gasser, Dr. Robert Faris and Mr. Amar Ashar, and others from the Berkman Klein Center for Internet and Society at Harvard University as we worked on this report. LatestLaws.com Hate Speech Laws in India Over the years in which we have written this, we have invited multiple experts to speak with us about hate speech and freedom of expression. Each of these sessions has enabled us to think through the report in a more nuanced manner. We would therefore like to thank Justice Dr. B.S. Chauhan, Justice Sanjay Kishan Kaul, Justice Dr. S. Muralidhar, Mr. Gopal Subramanium, Mr. Shyam Divan, Professor (Dr.) Wolfgang Schulz, Mr. Mihir Desai, Ms. Pamela Philipose, Mr. Harsh Mander, Dr. Cherian George, Mr. Aakar Patel, Professor David Kaye, Dr. Carlos Affonso Souza and Ms. Gayatri Venkiteswaran for their invaluable inputs. This report was made possible by the generous support we received from National Law University Delhi. We would therefore like to thank the Vice Chancellor Professor (Dr.) Ranbir Singh, and the Registrar, Professor (Dr.) G. S. Bajpai. We also thank the members of the Centre for Communication Governance, National Law University Delhi for the many ways in which they supported the writing team through the difficult process of writing and editing this report. LatestLaws.com Contents 1. International Human Rights Law Governing Hate Speech 01 1.1. Introduction 03 1.2. Universal Declaration of Human Rights 03 1.3. International Covenant on Civil and Political Rights 04 1.4. International Convention on Elimination of Racial Discrimination 06 1.5. Convention on Elimination of all forms of Discrimination Against Women 06 1.6. Rabat Plan of Action 08 2. Constitutional Law and Hate Speech 11 2.1. Introduction 13 2.2. Constitutional Framework of Freedom of Speech and Expression 13 2.3. Reasonable Restrictions and Hate Speech in India 14 2.3.1. Reasonable restrictions 14 2.3.2. ‘In the interests of’ 14 2.4. Public Order as a Reasonable Restriction under Article 19(2) 15 2.4.1. The public order standard 15 2.4.2. Other significant judgments 16 2.5. Other Grounds under Article 19(2) 17 2.6. Conclusion 17 LatestLaws.com Hate Speech Laws in India 3. Criminal Laws and Hate Speech 21 3.1. The Indian Penal Code and Hate Speech 23 3.1.1. Introduction 25 3.1.2. Section 153A - Promotion of Enmity between Groups 25 3.1.2.1. Ingredients of Section 153A 26 3.1.2.2. Truth as a defence 29 3.1.2.3. Constitutionality vis-à-vis Articles 19(1)(a) and 19(2) 29 3.1.2.4. Conclusion 31 3.1.3. Section 153B – Imputation or Assertion Prejudicial to National Integration 31 3.1.3.1. Ingredients of Section 153B 32 3.1.3.2. Obligation 33 3.1.3.3. Intention: an ingredient? 33 3.1.3.4. Conclusion 34 3.1.4. Section 295 – Destruction of Sacred Objects 34 3.1.4.1. Ingredients of Section 295 35 3.1.4.2. Conclusion 37 3.1.5. Section 295A – Outraging Religious Feelings with Deliberate and Malicious Intent 38 3.1.5.1. Ingredients of Section 295A 38 3.1.5.2. Truth as a defence 42 3.1.5.3. Constitutionality vis-à-vis Article 19(1)(a) and 19(2) 43 3.1.5.4. Constitutionality vis-à-vis Article 25 43 3.1.5.5. Conclusion 43 3.1.6. Section 298 – Speech with the Intention of Wounding Religious Feelings 44 3.1.6.1. Ingredients of Section 298 44 3.1.6.2. Difference between Sections 295A and 298 46 3.1.6.3. Conclusion 47 3.1.7. Section 505 – Public Mischief 47 3.1.7.1. Ingredients of Section 505 48 3.1.7.2. Constitutionality vis-à-vis Articles 19(1)(a) and 19(2) 49 3.1.7.3. Conclusion 49 3.1.8. Conclusion 50 3.2. The Code of Criminal Procedure and Hate Speech 55 3.2.1. Introduction 57 3.2.2. Section 95 and 96 57 3.2.2.1. Requirements for a valid order of forfeiture 58 3.2.2.2. When can forfeiture be ordered 60 3.2.2.3. Seizing forfeited publications 62 LatestLaws.com 3.2.2.4. Challenging an order of forfeiture 63 3.2.2.5. Constitutionality of Sections 95 and 96 65 3.2.2.6. Conclusion 65 3.2.3. Section 196 66 3.2.3.1. Scope of Section 196 67 3.2.3.2. Stage at which sanction is required 67 3.2.3.3. Ingredients of sanction under Section 196 68 3.2.3.4. Conclusion 69 3.2.4. Ancillary CrPC Sections 69 3.2.4.1. Section 178 69 3.2.4.2. Section 144 70 3.2.4.3. Section 151 and Section 107: preventive detention 75 3.2.4.4. Conclusion 76 3.2.5. Conclusion 77 4. Other Laws Governing Hate Speech 83 4.1. Introduction 85 4.2. The Scheduled Castes and Scheduled Tribes (Preven- tion of Atrocities) Act, 1989 85 4.2.1. Introduction 85 4.2.2. Affiliation with SC/ST community 86 4.2.3. ‘Intentionally insults or intimidates with intent to humiliate’ 86 4.2.4. ‘In any place within public view’ 88 4.2.5. Conclusion 89 4.3. Protection of Civil Rights Act, 1955 90 4.3.1. Introduction 90 4.3.2. Inciting or encouraging the practice of untouchability 91 4.3.3. Insulting or attempting to insult on grounds of ‘untouch ability’ 91 4.3.4. Mens rea 91 4.3.5. Conclusion 92 4.4. Customs Act, 1962 92 4.4.1. Introduction 92 4.4.2. The power to prohibit the importation of publications 92 4.4.3. Conclusion 94 4.5. Indecent Representation of Women (Prohibition) Act, 1986 94 4.5.1. Introduction 94 4.5.2. Instances of ‘hate speech’ 94 LatestLaws.com Hate Speech Laws in India 4.5.3. Conclusion 94 4.6.The Religious Institutions (Prevention of Misuse) Act, 1988 95 4.6.1. Introduction 95 4.6.2. ‘Use’ of any premises 95 4.7.The National Security Act, 1980 95 4.7.1. Introduction 95 4.7.2. Ingredients 96 4.7.3. Procedural requirements: ‘application of mind’ by the detaining authority 97 4.7.4. Conclusion 99 4.8. The HIV/AIDS Act, 2017 99 5. Hate Speech in Election Laws 103 5.1. Introduction 105 5.2. Section 123(3A) of RoPA: Corrupt Practices 105 5.2.1. Background 106 5.2.2. Ingredients of ‘corrupt practices’ 107 5.2.3. Standard of proof 108 5.2.4. Truth as defence 109 5.2.5. Constitutionality of Section 123(3A) vis-à-vis Articles 19(1)(a) and 25 109 5.3.