Hate speech: India
This is a collection of articles archived for the excellence of their content. |
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
Judgements of superior courts
SC on Hate Speech/ 2023
Religion not fragile, can’t be hurt by a speech: HC
AmitAnand Choudhary, April 29, 2023: The Times of India
New Delhi: Terming hate speech as a “serious offence” that affects the secular fabric of the country, the Supreme Court directed police in all states and UTs to take suo motu action and register cases against those making such speeches, irrespective of their religion, without waiting for formal complaints.
Extending the scope of its 2022 order beyond Uttarakhand, UP, Delhi and Maharashtra, a bench of Justices KM Joseph and BV Nagarathna also made it clear to the authorities that any hesitation to act would be viewed as contempt of the top court and appropriate action would be taken against erring officers.
The court stressed the state governments were duty-bound to act against hate speech, and that it had to pass the order as no action was being taken to deal with the problem. It also asked the parties not to “bring politics” in the hearing.
The assertion that police authorities were required to take action irrespective of religion of an offender came after the hearing saw different sides accusing each other of using hate speech.
“The Centre shares the concern (of the SC) but the question is where to draw the line,” SG Tushar Mehta said.
High Courts
Hate speech is not free speech
Sep 17, 2023: The Times of India
Sanatan Dharma includes “a whole set of eternal duties” and “free speech cannot be hate speech”, the Madras high court has said on a petition against a college which sought students’ views on ‘Opposition to Sanatan’. The court was told the circular seeking views has since been withdrawn. Justice N Seshasayee also referred to untouchability, saying it is unconstitutional “within or outside Sanatan Dharma”.
Smile: If something is said with a smile, there is no criminality: HC
Sofi Ahsan, March 26, 2023: The Indian Express
In a case related to alleged hate speeches connected to the Northeast Delhi riots, the Delhi High Court said that a speech given during election time is different from one given during ordinary times and sometimes things are said just to create a ‘mahaul’ (atmosphere) without there being the intention.
Justice Chandra Dhari Singh observed that if something is said with a smile, then there is no criminality but if something is said offensively, then there may be criminality. The court was hearing CPI(M) leader Brinda Karat’s petition against a lower court order in which the prayer for registration of FIR against Union Minister Anurag Thakur and MP Parvesh Verma for their alleged hate speech was declined.
“Were they election speeches? Was that an election speech or speech in ordinary time? If any speech is given during election time, then it’s a different thing. If you’re giving a speech in the ordinary course, then it is instigating something. In the election speech, so many things are said by politicians to politicians… that is also a wrong but I have to see the criminality of the act,” said the court.
It added that otherwise thousands of FIRs may be lodged against all politicians during elections: “If you’re saying something with a smile then there is no criminality, if you’re saying something offensively then criminality. You have to check and balance. Otherwise, I think 1,000 FIRs may be lodged against all politicians during elections.”
“Because we are also in democratic … you also have the right to speech and all these things. When and at what time that speech was delivered and what was the intention? Only intention to win the election or intention to instigate the public to do the crime. Both are two different things, then we have to (apply) mens rea,” said the bench.
In reference to a submission pertaining to Verma’s statement, in which he had allegedly said “ye log aapke gharon mein ghusenge aapki betiyun ko uthainge aur unko rape karenge…”, the court asked who ‘yeh loug’ indicates in it and how petitioners were concluding that it referred to the particular community. Advocate Adit Pujari, representing the petitioner, argued that it was made in the context of Shaheen Bagh.
The court also asked if only one particular community was in the protest. “Where is that material? Because if you’re saying that protest is only for one particular community and another community is not supporting the agitation, are you suggesting that?” asked the court, while questioning if that agitation was supported by all other citizens of this country, how the petitioners can contend that the speech was directed towards only one community.
Pujari responded that whether it is election or no election, there is “some kind of instigation” in the statements.
The court said that it was making the observations in general and not particularly in reference to the case. “Suppose you have said something just for creating mahaul (atmosphere) and all this, I think there is no mens rea because some other political parties say something else. Everybody is addressing their constituencies and mobilising their constituents. That speech has been done for the purpose of mobilising the constituency,” it added.
The court reserved its judgment on Karat’s petition. Police had earlier defended the lower court’s decision.
The lower court on August 26, 2020, had dismissed the complaint filed by Karat and CPI(M) leader KM Tewari in February 2020 for registration of FIR against Thakur and Verma for their alleged hate speech in relation to the anti-CAA protests. It was argued before the High Court in the petition that the complaint was filed over 9 months ago and the registration of FIR is already extremely delayed despite cognizable offences being made out.
The lower court, while dismissing the complaint, had said the complainants had not obtained the previous sanction from the competent authority to prosecute Thakur and Verma under sections 153A, 153B, 295A, 298, 504, 505 and 506 IPC. As per Section 196 CrPC, prior sanction from the state is required for prosecution of offences punishable under Section 153A, 153B, 295A and 505 of IPC.
In the petition filed through advocate Tara Narula, it was also argued that if the order passed by lower court is permitted to stand, no application under CrPC Section 156(3) – which empowers a magistrate to order an investigation into a cognizable offence – would be maintainable before any court, in respect of offences for which sanction is required to be taken prior to cognizance.
The petition stated, “The petitioners/complainants, already aggrieved by the failure of police to register an FIR for the commission of cognizable offences amounting to hate speech, have now been relegated by the Ld. ACMM to seek sanction from the State/Centre, a sanction which is a statutory requirement for taking cognisance, not investigation”.
It was also contended that dismissal of the complaint for lack of sanction means asking the complainant to step into the shoes of the investigating agency and make a case for prosecution before the sanctioning agency. “Any application for sanction by the complainant at this stage would be without the benefit of materials and evidence obtained during investigation,” the petition reads.
Organisers not responsible for someone else’s hate speech
July 22, 2023: The Times of India
NEW DELHI: The Delhi High Court has ruled that an individual organising a public meeting cannot be held accountable for a hate speech delivered by one of the participants over which such an organizer had no control.
The court made the observations while setting aside a trial court order directing the Delhi Police to register an FIR against Vishwa Hindu Parishad leader Alok Kumar, on a complaint filed by activist Harsh Mander, for allegedly giving a hate speech during a VHP rally in 2019.
"In case FIRs are registered against a person organising a meeting, for the misconduct of any participant of the meeting, it will severely impact the basic principle of criminal law that a person is accountable for his own criminal actions and others are not vicariously liable for the same unless specifically provided for under law," Justice Swarana Kanta Sharma observed.
The trial court had ordered registration of FIR against Kumar for allegedly inciting violence against members of the Muslim community in relation to vandalisation of a temple that took place in Old Delhi's Lal Kuan in July 2019.
Apart from Kumar, the trial court also ordered registration of FIR against one seer from Varanasi.
The court remarked, "The impugned conduct of one person in a public meeting cannot be tied to another person present therein holding him vicariously liable. It will be on the same corollary as if in a television or a public debate, the anchor is held liable for the comments or views expressed by another.”
The court noting that there was no allegation that Kumar was present at the spot at the time when the alleged hate speech was delivered by Swami ji of Kashi observed, "...The right of every person to be protected from malicious prosecution also has to be guarded and it is to be ensured that FIRs be not directed to be registered in absence of any material on record, in casual and trivial manner without recording satisfaction about commission of cognizable offence and without passing a reasoned order, especially in cases where the learned Magistrate disagrees with the detailed Action Taken Report filed by the police on the basis of preliminary inquiry conducted by it."
YEAR WISE STATISTICS
2021-22
Kalyan Das, Dec 6, 2023: The Times of India
Dehradun : There’s been an increase of 45% in cases pertaining to hate speech and other acts to promote enmity between groups on the ground of religion, race, language and place of birth registered under IPC section 153A in India in the past two years, revealed the latest National Crime Records Bureau (NCRB) report on crime for 2022.
As per the report released on Monday, there were 993 such cases in 2021 which rose to 1,444 in 2022, up 45%. In 2022, maximum cases were reported in Uttar Pradesh (217), followed by Rajasthan (191) and Maharashtra (178).
In terms of the rate of such crimes, however, the northeastern states of Manipur, Sikkim and Arunachal and Telangana in the south had the highest rates. While Manipur at 0.5 per lakh population had the highest, Sikkim (0.4), Arunachal and Telangana (0.3) were not far behind. UP, on this measure was at 0.1 per lakh, well below these states.
Data also showed that two of five states — MP, Rajasthan, Telangana, Chhattisgarh, Mizoram —which recently went to polls saw over 100% rise in hate speech cases. While MP was up 191% with 108 cases in 2022 against 37 in 2021, Rajasthan saw 138% increase with 191 cases in 2022 compared to 80 in 2021.
Meanwhile, Telangana reported 119 cases last year against 91 in 2021, an increase of 31%. Chhattisgarh witnessed a dip as only five cases were reported in 2022 against seven in 2021 and Mizoram was an exception with no cases reported in the past two years. Among the other major states, Tamil Nadu reported 146 cases, Andhra (109), Karnataka (64), Assam (44), West Bengal (43), Punjab (30), Haryana (29), Delhi (26), J&K (16), Uttarakhand and Manipur with 15 each and Himachal (10).
See also
Censorship of the arts and media: India
Information Technology Act: India
Freedom to criticize, deny religions: India
Freedom of the press/ media, safety of journalists: India
Sedition, offences against the state: India
Hate speech: India
