Tackling hate speech

Syllabus: General Studies Paper 1

Context:

Recently a speech by a Bishop in Kerala, coined the term ‘narcotic jihad’. The speech aimed at a particular religion has a divisive tone.

Understanding hate speech

• In Chaplinsky v. New Hampshire (1942), the U.S. The Supreme Court held that their Constitution does not protect “insulting or ‘fighting’ words. These words by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” 
• This is the core principle behind hate speech prohibition. Every person is entitled to basic human dignity and decent treatment. 

Impact of hate speech

• Hate speech views members of the target group as an enemy within, refuses to accept them as legitimate and equal members of society, lowers their social standing, and subverts the very basis of a shared life. 
• It creates barriers of mistrust and hostility between individuals and groups, plants fears, obstructs normal relations.
• In Pravasi Bhalai Sangathan v. Union of India (2014), the Supreme Court of India quoted from the Canadian Supreme Court’s decision in Saskatchewan v. Whatcott (2013). 
  • It said that hate speech “impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.” 
  • This rhetoric has not only led to a climate of fear among minorities, but to cases of violence carried out solely on the basis of their identity. 

Current laws in India 

• The Indian Penal Code has provisions that, among others, prevent hate speech (Section 153A), obscenity (Section 292), and defamation (Section 499). 
• Section 153-A of the Indian Penal Code (IPC) prohibits “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony”. 
  • The provision in its erstwhile form was incorporated by way of the Penal Code Amendment Act of 1898. 
  • The Select Committee rejected the proposal to add this provision along with Section 124-A of the IPC (sedition) saying that the former is more concerned with “public tranquility” than the security of the state. 
  • It is this communitarian element that makes the law still relevant, while the sedition law has become dangerous and obsolete.
• In the 267th Report of the Law Commission of India, hate speech is stated 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.
• Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 
  • Due diligence to be followed by intermediary: Section 79 of the Information Technology Act provides a “safe harbour” to intermediaries (that host user-generated content) and exempts them from liability for the actions of users.
  • A grievance redressal mechanism: The social media platforms will need to appoint a grievance officer to deal with complaints, who must acknowledge the complaint within 24 hours and resolve it within 15 days of receipt.
  • 10 categories of content that the platform should not host: These include content that threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order; defamatory, obscene, pornographic, invasive of another’s privacy content.
    • Upon the receipt of information about the platform hosting prohibited content from a court or the appropriate government agency, it should remove the said content within 36 hours.

Concerns:

• Poor implementation of laws: On the one hand, remarks with tendencies towards hatred and violence against minorities are ignored. On the other, vague references against the majoritarian agenda are often charged under this provision.
• In India, hate speech is not defined under the Constitution or in the penal statutes. There is no specific legislation on it. It is not easy to design an accurate anti-hate speech law, due to its inherent potential for misuse. 
• India does not yet have a legal framework for data protection. The decision to ask for personal data from social media sites without public consultations on how this information will be fitted into the framework of law might end up having little effect on communal rumour-mongering and only serve to undermine the right to privacy under Article 21.
• Right to free speech: Simply handing over personal data to the government without any checks would be against the right to free speech under Article 19(1). 
• Communal hate speech, even calls for genocide, have seen little action from the administration even when the identity of the perpetrator is known.
• The use of OTT platforms such as Whatsapp in the mobilisation of crowds, and in the circulation of dangerous speech. They are end to end encrypted and not ordinarily accessible to law enforcement, which has triggered a heavy-handed approach from state governments.
  • The Supreme court had called for a “properly framed regime” to allow the government to get information about first originators of messages from “significant” social media intermediaries with end-to-end encryption technology like WhatsApp.
  • The IT Rules of 2021 mention this order of the Supreme Court as one of the reasons to justify their existence.

This is why we need a political and pedagogical solution to the menace. The Constitution’s ideas of equality, liberty and fraternity must be made topics of continuing public education. Whenever hate speech thrives, the state should invoke the existing law judiciously in appropriate cases. It must also take a secular stand based on the rule of law and educate the masses.

The Hindu Link:

https://www.thehindu.com/opinion/op-ed/tackling-hate-speech/article36576494.ece