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THE HINDU September 21, 2020 Analysis
THE HINDU
September 21, 2020
THE SOCIAL VIRTUE
THE SUPREME COURT SAID THE CONTENT WAS PRIMA FACIE
“PLAINLY HURTFUL TO THE COMMUNITY”.
“IT IS AN AFFRONT TO THE DIGNITY OF THE COMMUNITY.”
As per scholar, JEREMY WALDRON
1. Hate speech refers to utterances that incite violence, hatred, or discrimination against people on the basis
of their collective identity, be it race, ethnicity, religion, gender or sexuality
2. The limitation in these cases should be restricted to those categories of minorities who are vulnerable.
3. Under this conception, a merely offensive statement would not qualify as hate speech.
For example:
1. A mockery of Buddhism‟s tenets would not be illegal simply because it offends the sensibilities of its
practitioners; on the other hand, speech that describes all Buddhists as amoral would qualify.
2. Similarly, a work of satire on a religious figure that outrages the sentiments of his followers will be
safeguarded, but speech that vilifies an entire community by describing them, say, as “ANTI-NATIONALS”
would go unprotected.
3. The hate speech attacks two key tenets of a democratic republic:
a) The guarantee of equal dignity to all.
b) The public good of inclusiveness.
LIBERAL DEMOCRATIC-RATIONALE
1. Not all speech is equal – commercial speech, libel, and fighting words are afforded a lower standard of protection.
2. That almost all laws are a matter of construction; after all, most European democracies adopt principled
standards that distinguish hate speech from merely offensive or rebarbative speech.
3. That countering speech with more speech is plausible only when there is a balance of power across society.
NOTE: THERE CAN BE NO ASSURANCE THAT HATE SPEECH WILL SOMEHOW BE SIEVED OUT OF THE
VERITABLE MARKETPLACE OF IDEAS.
THE STATUTE
IPC SECTIONS 153A, 295 & 295A
SECTION 153 A:
1. The purpose of the Section 153 A is to punish persons who indulge in wanton vilification or attacks upon
the religion, race, place of birth, residence, language etc. of any particular group or class or upon the
founders and prophets of a religion.
2. The jurisdiction of this Section is widened so as to make promotion of disharmony, enmity or feelings of
hatred or ill-will between different religious, racial, language or regional groups or castes or
communities punishable.
3. Offence on moral turpitude is also covered in this section.
4. The offence is a cognizable offence and the punishment for the same may extend to three years, or with
fine, or with both.
5. However, the punishment of the offence committed in a place of worship is enhanced up to five years and fine.
INSIGHTS
1. The act of promoting enmity between different groups on grounds of religion, race, place of birth,
residence, language, caste, community or any other group.
2. Acts prejudicial to the maintenance of harmony between different groups or castes or communities, if the
acts disturb public tranquility.
3. Acts causing fear or alarm or a feeling of insecurity among members of any religious, racial, language or
regional group or caste or community by use of criminal force or violence against them.
SECTION 295
1. Section 295 of the I.P.C makes destruction, damage, or defilement of a place of worship or an object held
sacred, with intent to insult the religion of a class of persons, punishable with imprisonment which may extend
to two years, or with fine, or with both.
2. This section has been enacted to compel people to respect the religious susceptibilities of persons of
different religious persuasion or creeds.
INSIGHTS
1. The accused must do such an act with the intention of insulting the religion of any person, or with the
knowledge that any class of person is likely to consider such destruction, damage or defilement as an insult to
their religion.
2. The accused must destroy, damage or defile any place of worship or any object which is held as sacred by
any class of persons.
SECTION 295-A
1. The object of Section 295-A is to punish deliberate and malicious acts intended to outrage the religious
feelings of any class by insulating its religion or the religious beliefs.
. This section only punishes an aggravated form of insult to religion when it is perpetrated with deliberate and
malicious intention of outraging the religious feelings of a class.
INSIGHTS
1. The accused must insult or attempt to insult the religion or religious beliefs of any class of citizens of India.
2. The said insult must be with a deliberate and malicious intention of outraging the religious feelings of the said
class of citizens.
3. The said insult must be by words, either spoken or written, by signs or by visible representation or otherwise.
4. The offence under Section 295-A is cognizable and a non-bailable and non-compoundable offence.
5. The police have a power under to arrest a person charged under Section 295-A without a warrant.
LIMITATIONS OF LAW
1. They are vaguely worded, and they are frequently invoked to quell speech that so much as offends a
person‟s belief.
2. As a result, they militate against the permissible grounds for limiting free speech enumerated in Article 19(2)
of the Constitution, and, in particular, the restrictions allowed on considerations of public order and morality.
3. The first of those grounds demands that speech must reach a level of incitement to be criminalised. That is, the
utterance in dispute must go beyond advocacy.
4. It obliges us to read morality not as societal morality but as constitutional morality.
5. Seen this way, speech that merely causes offence and is no more than disparaging or unpleasant, would
continue to remain shielded.
6. But speech that treats communities with disparate concern, by creating in them a sense of dread, a sense of
exclusion from civic life, will go unprotected.
WAY AHEAD
1. The Supreme Court‟s own past precedent has scarcely helped clarify matters.
2. This case, therefore, represents something of an opportunity: to infuse clarity in our legislation by identifying
the distinction between merely offensive speech and hate speech, and
3. By making clearer still those categories of exceptional cases where the Constitution permits prior restraint.
4. States must deny protection to hate speech
5. The News Broadcasters Association (NBA) has told the Supreme Court to make its code of ethics against airing
malicious, biased and regressive content applicable to all TV news channels.
a) The NBA suggested that the court direct the government to include its ethical code in the Programme
Code of the Cable Television Networks Rules, 1994.
b) All news channels, whether they are NBA members or not, will then have to follow the Programme Code
containing the proposed amendments.
c) The NBA affidavit is in response to an order by the Supreme Court on September 18 to suggest steps to
strengthen the self-regulatory mechanism to prevent or penalise airing of communal or derogatory content
on electronic media.
THE CABLE TELEVISION NETWORKS RULES, 1994
Programme Code
1. No programme should be carried in the cable service which:
(a) Offends against good taste or decency:
(b) Contains criticism of friendly countries;
(c) Contains attack on religions or communities or visuals or words contemptuous of religious groups or
which promote communal attitudes;
(d) Contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths;
(e) Is likely to encourage or incite violence or contains anything against maintenance of law and order or
which promote-anti-national attitudes;
(f) Contains anything amounting to contempt of court;
(g) Contains aspersions against the integrity of the President and Judiciary;
(h) Contains anything affecting the integrity of the Nation;
(i) Criticises, maligns or slanders any individual in person or certain groups, segments of social, public
and moral life of the country;
(j) Encourages superstition or blind belief;
(k) Denigrates women through the depiction in any manner of the figure of a women, her form or body or
any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is
likely to deprave, corrupt or injure the public morality or morals;
(l) Denigrates children;
(m) Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of
certain ethnic, linguistic and regional groups
(n) Contravenes the provisions of the Cinematograph Act, 1952.
(o) is not suitable for unrestricted public exhibition
Explanation: For the purpose of this clause, the expression “unrestricted public exhibition” shall have the
same meaning as assigned to it in the Cinematograph Act, 1952 (37 of 1952);
2. The cable operator should strive to carry programmes in his cable service which project women in a positive,
leadership role of sobriety, moral and character building qualities.
3. No cable operator shall carry or include in his cable service any programme in respect of which copyright
subsists under the Copyright Act, 1972 (14 of 1972) unless he has been granted a licence by owners of
copyright under the Act in respect of such programme.
4. Care should be taken to ensure that programmes meant for children do not contain any bad language or
explicit scenes of violence.
5. Programmes unsuitable for children must not be carried in the cable service at times when the largest numbers
of children are viewing.
THE FOREIGN CONTRIBUTION (REGULATION) AMENDMENT BILL, 2020
The bill amends the foreign contribution (regulation) act, 2010
1. The Act regulates the acceptance and utilisation of foreign contribution by individuals, associations and companies.
2. Foreign contribution is the donation or transfer of any currency, security or article (of beyond a specified
value) by a foreign source.
3. Prohibition to accept foreign contribution: Under the Act, certain persons are prohibited to accept any foreign
contribution.
4. These include: election candidates, editor or publisher of a newspaper, judges, government servants, members
of any legislature, and political parties, among others.
5. The Bill adds public servants (as defined under the Indian Penal Code) to this list.
6. Public servant includes any person who is in service or pay of the government, or remunerated by the
government for the performance of any public duty.
7. Transfer of foreign contribution: Under the Act, foreign contribution cannot be transferred to any other person
unless such person is also registered to accept foreign contribution (or has obtained prior permission under the
Act to obtain foreign contribution).
8. The Bill amends this to prohibit the transfer of foreign contribution to any other person. The term „person‟
under the Act includes an individual, an association, or a registered company.
AADHAAR FOR REGISTRATION
The Act states that a person may accept foreign contribution if they have:
(i) Obtained a certificate of registration from central government, or
(ii) Not registered, but obtained prior permission from the government to accept foreign contribution.
1. Any person seeking registration (or renewal of such registration) or prior permission for receiving foreign
contribution must make an application to the central government in the prescribed manner.
2. The Bill adds that any person seeking prior permission, registration or renewal of registration must provide
the Aadhaar number of all its office bearers, directors or key functionaries, as an identification document.
3. In case of a foreigner, they must provide a copy of the passport or the Overseas Citizen of India card for
identification.
FCRA ACCOUNT
Under the Act,
1. A registered person must accept foreign contribution only in a single branch of a scheduled bank specified by
them.
2. However, they may open more accounts in other banks for utilisation of the contribution.
3. The Bill amends this to state that foreign contribution must be received only in an account designated by the bank
as “FCRA account” in such branch of the State Bank of India, New Delhi, as notified by the central government.
No funds other than the foreign contribution should be received or deposited in this account.
4. The person may open another FCRA account in any scheduled bank of their choice for keeping or utilising the
received contribution.
RESTRICTION IN UTILISATION OF FOREIGN CONTRIBUTION
Under the Act,
1. If a person accepting foreign contribution is found guilty of violating any provisions of the Act or the Foreign
Contribution (Regulation) Act, 1976, the unutilised or unreceived foreign contribution may be utilised or
received, only with the prior approval of the central government.
2. The Bill adds that the government may also restrict usage of unutilised foreign contribution for persons who
have been granted prior permission to receive such contribution.
3. This may be done if, based on a summary inquiry, and pending any further inquiry, the government believes
that such person has contravened provisions of the Act.
RENEWAL OF LICENSE
Under the Act, every person who has been given a certificate of registration must renew the certificate within six
months of expiration.
The Bill provides that the government may conduct an inquiry before renewing the certificate to ensure that the
person making the application:
(i) is not fictitious or benami,
(ii) has not been prosecuted or convicted for creating communal tension or indulging in activities aimed at
religious conversion, and
(iii) has not been found guilty of diversion or misutilisation of funds, among others conditions.
REDUCTION IN USE OF FOREIGN CONTRIBUTION FOR ADMINISTRATIVE PURPOSES
Under the Act,
1. A person who receives foreign contribution must use it only for the purpose for which the contribution is
received.
2. Further, they must not use more than 50% of the contribution for meeting administrative expenses.
3. The Bill reduces this limit to 20%.
SURRENDER OF CERTIFICATE
1. The Bill adds a provision allowing the central government to permit a person to surrender their registration
certificate.
2. The government may do so if, post an inquiry, it is satisfied that such person has not contravened any
provisions of the Act, and the management of its foreign contribution (and related assets) has been vested in
an authority prescribed by the government.
3. Suspension of registration: Under the Act, the government may suspend the registration of a person for a
period not exceeding 180 days.
4. The Bill adds that such suspension may be extended up to an additional 180 days.
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