1

Arrests in Maharashtra over Aurangzeb posts

|

Why in news?

  • In the past 12 weeks, at least five men have been arrested in Maharashtra for allegedly putting up posts glorifying Mughal emperor Aurangzeb.
  • As per the First Information Reports (FIRs), the men have been booked under Sections 298, 295A, 505 (2), and 153A of the Indian Penal Code.

What’s in today’s article?

  • Hate Speech
  • News Summary

Hate Speech

  • About
    • 267thReport of the Law Commission of India describes hate speech as an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.
    • Hate speech covers many forms of expressions which advocate, incite, promote or justify hatred, violence and discrimination against a person or group of persons for a variety of reasons.
    • It poses grave dangers for the cohesion of a democratic society, the protection of human rights and the rule of law.
  • Freedom of speech and hate speech
    • Article 19(2) of the Constitution guarantees freedom of speech and expression to all citizens of India.
    • This article is subjected to certain restrictions, namely:
      • sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
    • Provisions in clauses (2) to (6) of Article 19 authorizes the State to restrict the exercise of the freedom guaranteed under the article.
  • Legal Provisions of Hate Speech (other than provisions of IPC)
    • Representation of the People Act, 1951
      • Section 8 disqualifies a person from contesting election if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression.
    • Protection of Civil Rights Act, 1955
      • Section 7 penalizes incitement to, and encouragement of untouchability through words, either spoken or written, or by signs or by visible representations or otherwise.
  • Suggestions by various committees
    • The Law Commission has proposed that separate offences be added to the IPC to criminalize hate speech, instead of being subsumed in the existing sections concerning inflammatory acts and speeches.
    • Similar proposals to add sections to the IPC to punish acts and statements that promote racial discrimination or amount to hate speech have been made by the P. Bezbaruah Committee and the T.K. Viswanathan Committee.

News Summary: Arrests in Maharashtra over Aurangzeb posts

Under what provisions were the arrests made?

  • The arrests were under different Sections of the Indian Penal Code (IPC). This included:
    • Section 298– uttering words, etc., intending to wound religious feelings),
    • Section 295A– punishment for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs),
      • This section has been widely invoked on a range of issues such as penalising political satire, seeking bans on books, and even political critique on social media.
    • Section 505 (2)– punishes statements conducing to public mischief,
    • Section 153A– promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
  • These sections have a common requirement of intention to wound religious feelings or carry out malicious acts, among others.
    • Thus, intention is an essential ingredient of the hate speech laws.
  • The invocation of these laws, also referred to as hate speech laws, has evoked frequent criticism for restricting free speech and misusing the legal process for political purposes.

How are these laws applied?

  • Hate speech laws have been invoked under regimes of all parties to crack down on criticism of public functionaries and arrest individuals.
    • E.g., in May 2022, Marathi actor Ketaki Chitale was arrested for a Facebook post allegedly defaming NCP leader Sharad Pawar.
  • Data from the National Crime Records Bureau (NCRB) show that the rate of conviction for Section 153A is very low.
  • In 2020, 1,804 cases were registered, six times higher than the 323 cases in 2014.
  • However, the conviction rate in 2020 was 20.2%, suggesting that the process often becomes the punishment.

What are the safeguards against misuse?

  • Given that the provisions are worded broadly, there are safeguards against their misuse.
  • Requirement of prior sanction from the govt
    • Sections 153A and 153B require prior sanction from the government for initiating prosecution.
    • However, this is required before the trial begins, not at the stage of the preliminary investigation.
  • Guidelines to curb indiscriminate arrests
    • To curb indiscriminate arrests, the top court laid down a set of guidelines in its 2014 ruling in “Arnesh Kumar v. State of Bihar”.
      • As per the guidelines, for offences that carry a sentence of fewer than seven years, the police cannot automatically arrest an accused before an investigation.
    • In its 2021 ruling, “Patricia Mukhim v. The State Of Meghalaya”, the SC said that the state will have to prove intent for securing a conviction under Section 153A.
      • In this judgement, the apex court added that the intention to cause disorder or incite people to violence is the sine qua non (necessary condition without which something is not possible) of the offence under Section 153A IPC.