Section 153A: its use and misuse

• The Supreme Court granted interim bail to the chairman of the media and publicity department of the All India Congress Committee, who had been arrested for alleged hate speech by Assam Police earlier in the day.
• Multiple FIRs registered against Khera across different states mentioned offences ranging from criminal conspiracy, imputations, assertions prejudicial to national-integration to promoting enmity between religions.
• The invocation of these laws are often criticised for restricting free speech and misusing the legal processes for political purposes.

Section 153A: What the law says

• Section 153A of the Indian Penal Code (IPC) penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”.
• This is punishable with imprisonment up to three years, or with fine, or with both.
• It was enacted in 1898 and was not in the original penal code.
  • At the time of the amendment, promoting class hatred was a part of the English law of sedition, but was not included in the Indian law.
• In the pre-Independence Rangila Rasool case, the Punjab High Court had acquitted the Hindu publisher of a tract that had made disparaging remarks about the private life of the Prophet, and had been charged under Section 153A.
• Along with Section 153A, Section 505, which penalises “statements conducing to public mischief” was also introduced.
• In his 2016 paper, legal scholar Siddharth Narrain noted that the provision was introduced to “change the existing provision dealing with circulating mischievous reports to shift the burden of proving the truth to the accused”.

The application of the law

• Hate speech laws have been invoked under regimes of all parties to crack down on criticism of public functionaries and to arrest individuals.
• In May last year, Marathi actor Ketaki Chitale was arrested for a Facebook post allegedly defaming NCP leader Sharad Pawar. She was booked under the same provisions in as many as 22 FIRs.
• Data from the National Crime Records Bureau (NCRB) show that the rate of conviction for Section 153A is very low
• The registration of multiple FIRs across different states drains the resources of the accused to secure legal representation.
• The accused has to move the Supreme Court seeking clubbing of the FIRs if the FIRs relate to one event. This is what Khera sought.

Safeguards against misuse

• Sections 153A and 153B require prior sanction from the government for initiating prosecution.
  • But this is required before the trial begins, and not at the stage of preliminary investigation.
• To curb indiscriminate arrests, the Supreme Court laid down guidelines in Arnesh Kumar v State of Bihar case of 2014.
  • For offences that carry a sentence of less than seven years, the police cannot automatically arrest an accused before investigation.
• In a 2021 ruling, the SC said that the state will have to prove intent for securing a conviction under Section 153A.
  • The SC in this case quashed an FIR against the editor of The Shillong Times, registered for allegedly creating communal disharmony through a Facebook post.

Conclusion

• Therefore, words used in the alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.