Must Violence or Hatred Actually Result?

Another tenet of the Rabat Plan of Action threshold test is the likelihood and imminence of harm.(1) Incitement, by definition, is an inchoate crime.  The action advocated through incitement speech does not have to be committed for it to amount to a crime.  Nevertheless, some degree of risk of resulting harm must be identified.  This means that courts will have to determine that there was a reasonable probability that the speech would succeed in inciting violence, discrimination or hostility against the target group.  Courts in different jurisdictions have differed on just how likely the harm needs to be to constitute a criminal act.

For example, in Devgan v. Union of India,(2) the  Supreme Court of India interpreted sections 295A and 505 of the Penal Code, which proscribe “deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs” and “statements conducing to public mischief”, including “Statements creating or promoting enmity, hatred or ill-will between classes”, as well as section 153A, which prohibits promoting “enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to the maintenance of harmony.” The Court provided the following guidance regarding the required likelihood of actual harm resulting from speech:

[55]: “Sometimes, difficulty may arise and the courts … would have to exercise discernment and caution in deciding whether the ‘content’ is a political or policy comment, or creates or spreads hatred against the targeted community … The ‘content’ should reflect hate which tends to vilify, humiliate and incite hatred or violence against the target group based upon identity of the group beyond and besides the subject matter.”

…

[67]: “Clauses (a) and (b) to sub-section (1) to Section 153A of the Penal Code use the words ‘promotes’ and ‘likely’ respectively. Similarly, Section 295-A uses the word ‘attempts’ and … Section 505 uses the words ‘create or promote.’ Word ‘likely’ … convey[s] the meaning, that the chance of the event occurring should be real and not fanciful or remote … The standard of ‘not improbable’ is too weak and cannot be applied as it would infringe upon and fall foul of reasonable restriction and the test of proportionality…‘Promote’ does not imply mere describing and narrating a fact, or giving opinion criticising the point of view or actions of another person – it requires that the speaker should actively incite the audience to cause public disorder. This active incitement can be gauged by the content of the speech, the context and surrounding circumstances, and the intent of the speaker. However, in case the speaker does not actively incite the descent into public disorder, and is merely pointing out why a certain person or group is behaving in a particular manner, what are their demands and their point of view, or when the speaker interviews such person or group, it would be a passive delivery of facts and opinions which may not amount to promotion.

[68]: “The word ‘attempt’, though used in Sections 153-A and 295-A of the Penal Code, has not been defined. However, there are judicial interpretations that an ‘attempt to constitute a crime’ is an act done or forming part of a series of acts which would constitute its actual commission but for an interruption. An attempt is short of actual causation of crime and more than mere preparation.”

Devgan v. Union of India, Writ Petition NO. 160 of 2020, 2020 SCC OnLine SC 994 (2020)