Hate speech: India
Contents |
The basics
Definition, debate
The Times of India, Oct 05 2015
In India, there is no law that defines hate speech
What is hate speech?
Hate speech is a term used for a wide range of negative discourse linked with the speaker's hatred or prejudice against a certain section of society . It could be degrading, intimidating and aimed to incite violence against a particular religion, race, gender, ethnicity , nationality , sexual orientation, disability, political views, social class and so on. History has many examples when hate speeches were used to trigger eth nic violence resulting in genocide, as happened with the Jews in Nazi Germany and the Tutsi community in Rwanda.Regulation on hate speech is a post-Second World War phenomenon.
Isn't restriction on free speech unconstitutional?
Issues related to hate speech are often countered with the argument about freedom of speech. Given India's diversity , the drafters of the Constitution felt it was important to ensure a culture of tolerance by putting some restraints on freedom of speech. Sub-clause (a) of clause 1 of Article 19 of the Constitution states that all citizens have the right to freedom of speech and expression. However, it also states that the state can put reasonable restrictions on the exercise of this right in the interest of sovereignty and integrity of the country , security of state, friendly relations with foreign states, public order, decency and morality and in rela tion to contempt of court.
What are the laws against hate speech in India?
Various sections of IPC deal with hate speech. For instance, according to Sections 153A and 153B, any act that promotes enmity between groups on grounds of religion and race and is prejudicial to national integration is punishable. Section 295A of IPC states that speech, writings or signs made with deliberate intention to insult a religion or religious beliefs is punishable and could lead to up to three years of jail. Simi larly the Protection of Civil Rights Act, 1955, which was en acted to abolish untouchabili ty, has provisions penalising hate speech against Dalits. De spite the existence of all these laws, the Supreme Court in March 2014 asked the law com mission to suggest how hate speech should be defined and dealt with since the term is not defined in any existing law.
Can a community, class or caste be targeted in a political speech?
Section 125 of the Representation of the People Act restrains political parties and candidates from creating enmity or hatred between different classes of citizens of India. Also Section 123(3) of the Act states that no party or candidate shall appeal for votes on the ground of religion, race, caste, community , language and so on.
SC orders (2018, 2020), guidelines
Sunil Baghel, May 15, 2022: The Times of India
The Supreme Court of India, while hearing a clutch of petitions on hate speech, in fact, expressed unhappiness that despite two SC orders – one in 2018 and other in 2020 – laying down guidelines on hate speech, the same were not being followed by the states.
So, what exactly are the guidelines laid down by in the two Supreme Court orders?
2018: Nodal officer in each district
Hearing a public interest litigation against a series of mob-lynching incidents, the SC bench headed by then Chief Justice of India Dipak Misra said it was the duty of the states to incessantly and consistently strive and to promote fraternity amongst all citizens so that the dignity of every citizen is protected, nourished and promoted.
The bench issued numerous guidelines under three heads – preventive, remedial, and punitive. Though the guidelines were mainly on the issue of mob-lynching/mob-violence, they did cover hate speech and spreading irresponsible messages.
The court directed state governments to designate a police officer not below the rank of Superintendent of Police as nodal officer in each district. The nodal officer, assisted by one deputy superintendent of police rank officer, was supposed to constitute a special task force to gather “intelligence about people likely to commit such crimes or involve themselves in making or spreading hate speeches, provocative statements or fake news.”
The court directed that the police must register FIRs under Section 153A of the Indian Penal Code (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony) and/or other relevant provisions of law against persons who disseminate irresponsible messages and videos which could incite mob violence.
Towards the end of the judgment, the court had the following message for the state governments: “We may emphatically note that it is axiomatic that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law. In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens.”
2020: Elements of hate speech
The SC judgment of December 2020, involving a TV News anchor, contains an elaborate discussion on the concept of hate speech – mainly the distinction between hate speech and free speech, the need to criminalise hate speech and the tests to identify it. Multiple FIRs were lodged against the anchor for allegedly making remarks against Khwaja Moinuddin Chishti while holding a debate on the Places of Worship Act, 1991.
The SC Division Bench of Justices A M Khanwilkar and Sanjiv Khanna referred to an article by Alice E Marwick and Ross Miller of Fordham University, New York, and said there were three distinct elements that legislatures and courts can use to identify hate speech:
a) Content-based element
b) Intent-based element
c) Harm-based element or impact-based element
The content-based element would involve use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society. It can include use of certain symbols and iconography.
The intent-based element would require the speaker’s message to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message.
The harm or impact-based element referred to the consequences of the ‘hate speech’ — harm to the victim which can be violence or loss of self-esteem, economic or social subordination, physical and mental stress or effective exclusion from the political arena. “Nevertheless, the three elements are not watertight silos and do overlap and are interconnected and linked,” the bench said.
Content, context and other variables
The court noted that not just the content of the speech, but also its context was important in determining whether it amounts to hate speech or not. It added that ‘context’ would further involve certain key variables like ‘who’, ‘what’, ‘where’ and the ‘occasion, time and under what circumstances’ the case arises.
'Content' concerned more with the expression, language and message used to vilify, demean and incite psychosocial hatred or physical violence against the targeted group.
The court also observed that the impact of hate speech depends on the person who has uttered the words. “The variable recognises that a speech by ‘a person of influence’ such as a top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a TV show carries far more credibility and impact than a statement made by a common person on the street,” the bench said.
The court placed greater responsibility on those whose words likely carry more weight, suggesting they should be judged more harshly for irresponsible statements. “Persons of influence, keeping in view their reach, impact and authority they yield on general public or the specific class to which they belong, owe a duty and have to be more responsible. They are expected to know and perceive the meaning conveyed by the words spoken or written, including the possible meaning that is likely to be conveyed. With experience and knowledge, they are expected to have a higher level of communication skills. It is reasonable to hold that they would be careful in using the words that convey their intent,” the court observed.
‘Good faith’ and ‘(no)-legitimate purpose’ protection The court explained that ‘good faith’ conduct should display fidelity as well as a conscientious approach in honouring the values that tend to minimise insult, humiliation or intimidation.
On ‘(no)-legitimate purpose’, the court said one of the clearest markers of hate speech is that it has no redeeming or legitimate purpose other than spreading hatred towards a particular group. “A publication which contains unnecessary asides which appear to have no real purpose other than to disparage will tend to evidence that the publications were written with a mala fide intention.”
Law Commission’s recommendations
The Law Commission, in its 267th report, recommended amendments to the criminal laws for inserting new provisions prohibiting incitement to hatred by adding Section 153C.
Another addition through Section 505A to make intentionally causing fear, alarm, or provocation of violence in certain cases as an offence was also recommended. The government, however, is yet to bring about any changes in the law.
Hate news, misinformation: 2019
Oct 22, 2021: The Times of India
Internal documents at Facebook show “a struggle with misinformation, hate speech and celebrations of violence” in India, the company’s biggest market, with researchers at the social media giant pointing out that there are groups and pages “replete with inflammatory and misleading anti-Muslim content” on its platform, US media reports have said.
In a report, The New York Times said in February 2019, a Facebook researcher created a new user account to look into what the social media website will look like for a person living in Kerala.
“For the next three weeks, the account operated by a simple rule: Follow all the recommendations generated by Facebook's algorithms to join groups, watch videos and explore new pages on the site.
The result was an inundation of hate speech, misinformation and celebrations of violence, which were documented in an internal Facebook report published later that month,” the NYT report said.
“Internal documents show a struggle with misinformation, hate speech and celebrations of violence in the country, the company's biggest market,” said the report . The documents are part of a larger cache of material collected by whistle blower Frances Haugen, a former Facebook employee who recently testified before the Senate about the company and its social media platforms. The report said the internal documents include reports on how bots and fake accounts tied to the “country's ruling party and opposition figures” were wreaking havoc on national elections.
The NYT said that in a separate report produced after the 2019 national elections, Facebook found that “over 40 per cent of top views, or impressions, in the Indian state of West Bengal were fake/inauthentic”. One inauthentic account had amassed more than 30 million impressions.
In an internal document titled 'Adversarial Harmful Networks: India Case Study', "Facebook researchers wrote that there were groups and pages “replete with inflammatory and misleading anti-Muslim content” on Facebook.
The internal documents also detail how a plan “championed” by Facebook founder Mark Zuckerberg to focus on “meaningful social interactions” was leading to more misinformation in India, particularly during the pandemic. PTI
