The Hate speech often leads to Hate Crimes; these acts are considered as discriminatory in nature. The discriminatory intent has many inhuman forms and may not be accompanied by any specific intent. The perpetrator of these crimes need not have such intent. This failure on the part of the State has brought about great suffering and injury to the target person or groups on religious, political or other such grounds. The most severe impact of this violence has been on women and children. They have been made a target of the widespread and systematic attack historically. Children have been subjected to several forms of ill-treatment, including torture. Likewise, Women have been subjected to gender-based violence by the perpetrators.
Media reporting of such violence, vis-à-vis hate crimes are, everywhere lopsided. Spread of unverified, fake news, misinformation, and disinformation contributes to escalation of violence. Mischievous elements hiding behind the cloaks of newsmen or women, activists on Twitter and Facebook circulate fake news with videos and photos – in some cases even morphs or edits –that result in sporadic incidents.
Foreign powers, foreign state and non-state actors continue to take up activities that amount to interference in the internal affairs of India with ulterior designs. These foreign actors have deep-rooted nexus with a few influential civil society organisations in India that include lawyers, NGOs, purported independent media, journalists, and opposition leaders to destabilise democracy in the country. These individuals and organisations used Freedom of Speech and Expression, misinformation, and disinformation as a tool to thwart and throttle peaceful democracy in India. There has also been a continuing attempt to spread communal disharmony in India and disintegrate India. These are the subject matter of Investigation by the Ministry of Home Affairs, Government of India.
Racism, racial discrimination, xenophobia and related intolerance condoned by state governmental policies violate human rights and are incompatible with democracy, the rule of law and transparent and accountable governance. In a world where radicalisation, hate and extremism are dividing people, Inclusiveness and cultural diversity in democracy can unite the world and its citizens. No country can progress without inclusiveness and cultural diversity.
To assess the severity of the hatred, possible elements may include the cruelty or intent of the statement or harm advocated and the frequency, quantity and extent of the communication. At present, there is no definition of hate speech and no separate legislature to curb hate speech. However, a Bill was introduced in Rajya Sabha in December 2023. At present, there are provisions such as Sections 153A, 153B, 505, and 295A of the Indian Penal Code. Hate Speech is narrowly construed by the law enforcement agencies in India. Hate Speech is directed only at the ‘Minority Muslims’ wherein the Hindu majority are seen as Instigators and the Muslim Minorites are treated as victims.
The context is of great importance when assessing whether particular statements are likely to incite discrimination, hostility or violence against the target group, and it may have a direct bearing on both intent and/or causation. Analysis of the context should place the speech act within the social and political context prevalent at the time the speech was made and disseminated.
The speaker’s position or status in society should be considered, specifically the individual’s or organisation’s standing in the context of the audience to whom the speech is directed.
Negligence and recklessness are not sufficient for an act to be an offence. In this regard, it requires the activation of a triangular relationship between the object and subject of the speech act as well as the audience.
The content of the speech constitutes one of the key foci of the court’s deliberations and is a critical element of incitement. Content analysis may include the degree to which the speech was provocative and direct, as well as the form, style, and nature of arguments deployed in the speech or the balance struck between arguments deployed.
The extent includes such elements as the reach of the speech act, its public nature, its magnitude and the size of its audience. Other elements to consider include whether the speech is public, what means of dissemination are used, for example, by a single leaflet or broadcast in the mainstream media or via the Internet, the frequency, quantity and extent of the communications, whether the audience had the means to act on the incitement, whether the statement (or work) is circulated in a restricted environment or widely accessible to the general public.
The Incitement, by definition, is an inchoate crime. The action advocated through incitement speech does not have to be committed for said speech to amount to a crime. Nevertheless, some degree of risk of harm must be identified. It means that the courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group, recognizing that such causation should be rather direct.
A ‘positively persuasive’ evidence must be submitted in these cases of sporadic violence and hate speech. The voluntary professional codes of conduct for the media and journalists should reflect the principle of equality, and effective steps should be taken to promulgate and implement such codes, which is missing in the context of all Hate Crimes and Hate Speech incidents leading to crimes in India.
Any restrictions must be formulated in a way that makes clear that its sole purpose is to protect individuals and communities belonging to ethnic, national or religious groups, holding specific beliefs or opinions, whether of a religious or other nature, from hostility, discrimination or violence, rather than to protect belief systems, religions or institutions as such from criticism.
The freedom to exercise or not exercise one’s religion or belief cannot exist if the freedom of expression is not respected, as free public discourse depends on respect for the diversity of convictions which people may have. Likewise, freedom of expression is essential to creating an environment in which constructive discussion about religious matters can be held.
The existing provisions Sections 153A, 153B, 505, and 295A of the Indian Penal Code are sufficient to address Hate Speech; to make it Religious neutral, the hate speech may be analysed on the basis of context, speaker, intent, content and form, extent of the speech act, likelihood and imminence. At present, hate speech is “Minority Centric” as seen through the lens of Law enforcement agencies in India.
