Incitement of violence cannot be the sole criterion for determining hate speech, the Law Commission today said, recommending that efforts to create hatred and fear should also be brought under its ambit.
Even a speech that does not incite violence has the potential of marginalising a section of the society, it asserted while seeking enhanced penal provisions to check hate speech.
In the report 'Hate Speech' submitted to the Law Ministry, the panel said there is a need to amend provisions of the Indian Penal Code to insert new provisions on 'prohibiting incitement to hatred' and 'causing fear, alarm, or provocation of violence in certain cases'.
"Incitement to violence cannot be the sole test for determining whether a speech amounts to hate speech or not. Even speech that does not incite violence has the potential of marginalising a certain section of the society or individual," the report said.
It pointed out that in the age of technology, the anonymity of internet allows a miscreant to easily spread false and offensive ideas.
"These ideas need not always incite violence but they might perpetuate the discriminatory attitudes prevalent in the society. Thus, incitement to discrimination is also a significant factor that contributes to the identification of hate speech," it said.
But what actually constitutes a hate speech?
According to the Commission, "hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.
"Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence."
The Commission also submitted the Criminal Law (Amendment) Bill, 2017 along with the report recommending changes in the IPC and the Code or Criminal Procedure (CrPC).
According to the draft bill, a new section, 153C, should be inserted in the IPC to prohibit incitement to hatred.
"Who ever, on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe -
"a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or
"(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence," will be punishable with imprisonment of up to two years, and fine of up to Rs 5000, or with both.
The law panel also recommended inserting section 505 A in the IPC about causing fear, alarm, or provocation of violence in certain cases.
"Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe - uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;
"(i) within the hearing or sight of a person, causing fear or alarm, or;
"(ii) with the intent to provoke the use of unlawful violence, against that person or another", will be punished with imprisonment of up to one year or fine up to Rs 5000, or both.
The issue was referred to it by the Supreme Court.
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