Data check: In seven years, India has seen a 500% rise in cases filed under its hate-speech law

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. But this section in the Indian Penal Code deals with “the 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 exclusive legislation that deals with hate speech.

While there does not exist a universal definition of hate speech, most developed countries recognise it as an exception to free speech. In the United Kingdom, 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 Unnited States is a legally protected fundamental right to free speech under the First Amendment and this forbids the US government from making laws 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 the Indian Penal Code are required to be incorporated” to address the issue of hate speech.

Legal provisions

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

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,” said Naved. “What we have are laws which criminalise the act of promoting enmity between communities, statements against national integration, defamation and so on.”

Apart from the Indian Penal Code, 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 the online transmission of any information that is intended to spread hate.

Cases rise manifold

Cases filed under Indian Penal Code 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 the National Crime Records Bureau 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,” said Naved. “In places like Noida, such cases go up to 150 per day.” He also attributed the low conviction rate to a lack of evidence and a high proportion of pending cases in courts for long periods of time.

In the four years between 2017 and 2020, cases filed under the Indian Penal Code Sections 295-297, which deal with insults against the 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 – from 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.

This article first appeared on FactChecker.in, a publication of the data-driven and public-interest journalism non-profit IndiaSpend.