Online Hate Speech: Hateful Speech or Arbitrary Laws?

Sanjay Ravi & Jatin

Abstract

Online hate speech is a widely debated topic in present day India, specifically with respect to what constitutes hate speech. Through the use of case studies and precedents, an attempt will be made to establish the ambit of hate speech. The paper will explore the current legal situation in the country, and whether these laws actually limit the misuse of free speech or end up curbing the right to free speech itself.

We will examine provisions such as Section 67 of the Information Technology Act, 2000, Section 294 and 153A of the Indian Penal Code, 1860 amongst others, all of which form the legal framework of hate speech. The vague and capricious wording of these provisions gives the government unfettered discretion with respect to what constitutes hate speech, thereby leading to unjust punishment while also limiting political discourse. These laws are archaic in nature and are a product of the British, who framed these laws to subdue opposing nationalist sentiments. By allowing these laws to remain as they are, an opportunity is created for the government in power to leverage a similarly dangerous degree of control over what can or cannot be said. 

There have been various instances of innocuous or satirical opinions on social media being erroneously branded as hate speech by state authorities and the authors of such opinions being punished harshly. This is being done in order to suppress opposing ideas and to impose their own agenda on the public. These laws being implemented on the basis of political ideology stem the flow of healthy political debate, thus undermining the very essence of a democracy. We will also examine the legal scenario of hate speech in the USA, and how it is different from India

Through this paper, it shall be established that the hate speech laws in India are archaic and arbitrary and are dangerous to democracy. This paper will also refer to the situation of the USA and how it could be a viable path for our country to follow in establishing the purview of hate speech.

Introduction

The legal scenario of online hate speech in India and its relationship with the constitutionally enshrined right of free speech, is a complicated one. The question of what actually constitutes hate speech is tricky, which our lawmakers have answered very callously over the last few years. The conservative implementation of hate speech laws in our country has led to a number of unfortunate and unfounded instances of injustice faced by individuals who aired their seemingly innocuous opinions on social media and other online platforms. This wrongful implementation by the government is enabled by these laws being arbitrary and open to misguided interpretation. Our country is in the midst of an era characterised by religious indignation and caste-based politics, where religion and caste are repeatedly used as tools of political propaganda. There have been a number of instances where the airing of political opinions online has been swiftly labelled as ‘hate speech’ by authorities and subsequently resulted in excessive punishment for the authors. One such instance is the case of Shreya Singhal v. Union of India.[1]where the Supreme Court was compelled to look into a matter relating to Section 66A of the Information Technology Act.[2]

This provision made the use of any ‘electronic mail’ or ‘electronic mail message’ punishable, if used for the purpose of causing annoyance, inconvenience and misleading the recipient as to the origin of such messages. The vague and capricious wording of this provision left it open to misguided interpretation by authorities often leading to grave consequences, as seen in the Shreya Singhal case.

In this case, two women posted comments on Facebook questioning the purpose of shutting down the entire city of Mumbai on account of the death of a political leader. These comments were brought under the ambit of Section 66A[3]of the Information Technology Act, 2000 and they were arrested by the police. Although they were later released and assured that they would not be prosecuted, this incident was widely condemned in the media. Later, these women filed a petition challenging the constitutional validity of the provision. A Division bench comprising of Chelameswar J. and Nariman J. heard the matter and decided unanimously in favour of striking down Section 66A of the Act[4]on the ground that it violated the constitutionally enshrined right to free speech under Article 19.[5]

The Supreme Court in Shreya Singhal[6], by striking down Section 66A of the IT Act[7], ensured that the right to free speech is protected from arbitrary restrictions. The Court in this judgment took a brave and important step towards safeguarding this fundamental right, and taking the decision-making power, with respect to what constitutes online hate speech, away from the hands of the ruling party. However, this precedent set by the Supreme Court has not been effective enough in achieving the purpose it set out to achieve.

This is because there are a significant number of similar ambiguously worded provisions in other statutes such as the Indian Penal Code, 1860[8], which the ruling party has repeatedly used to their advantage in order to exercise control over what can and cannot be said in the public domain. Section 153A of the IPC punishes words which are spoken or written that promote ‘disharmony’ or feelings of hatred, enmity or ill will towards another community, religion, race or language[9]. The ambiguous wording of this provision enables the Government to exercise complete control over deciding whether or not a particular opinion aired by an individual comes under the ambit of this provision. This has led to a number of instances where people have been harshly punished for airing seemingly innocuous opinions on social media, thereby ensuring that the precedent set by the Supreme Court in the Shreya Singhal case did not have the desired effect.

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Our country is still in a state of flux pertaining to the fundamental right of free speech. The makers of the Constitution of India clearly considered the right to free speech as fundamental to the growth and prosperity of the country. However, alongside this constitutionally enshrined right, there were restrictions imposed which ensured that this freedom was not absolute. This was aimed at ensuring that an individual did not abuse his right to free speech as a way of causing hurt. In theory, the makers of the Constitution were completely justified in providing for various exceptions to free speech, as an absolute right to free speech can often lead to its exploitation.

However, for this constitutionally manifested concept of free speech to work smoothly, there needs to be a system of checks and balances to decide whether or not an individual’s views should be punished. This has neither been provided for by the Constitution, nor has it been laid down in subsequent judicial pronouncements. It is paramount for the judiciary to lay down a test as to what constitutes free speech, along similar lines as those laid down by the Supreme Court of the United States in the cases of Brandenburg v. Ohio[10] and Terminiello v. Chicago.[11]

The lack of a concrete test laid down by the Supreme Court has blunted the positivity generated by the Shreya Singhal judgment. This judgment merely prohibited the arrest of individuals under the ambit of Article 66A[12] of the Information Technology Act but, as mentioned earlier, the arrests of individuals who have aired their opinions on social media have continued. These arrests are now being made under the ambit of other similarly arbitrary provisions such as Sections 153A[13], 505(1)(c)[14], 505(2)[15]and 295A[16] of the Indian Penal Code, all of which have been used to punish satirical opinions. One such instance is the recent arrest of Abhijit Iyer Mitra, who was charged under these provisions for his alleged derogatory comments made about the Sun Temple in Konark.

His joke about the temple should have ordinarily been brushed off as an attempt at humour. The fact that he was not only arrested but kept in jail for more than six weeks shows that the Supreme Court’s judgment in the case of Shreya Singhal has made absolutely no difference. The circumstances in Iyer Mitra’s case were similar to those two women. Instead of the judgment heralding a new era of progressive attitudes towards free speech, the country has fallen further into the depths of dogmatism.

Furthermore, there has been conjecture in political circles that the Orissa Government strived for the punishment meted out to Iyer Mitra to be excessively harsh, due to his close friendship with the former BJD MP Baijayant Panda, who was a rival and outspoken critic of Naveen Patnaik, the Chief Minister of Orissa. This is an example of the perils attached to empowering governmental authorities with the absolute responsibility of deciding what kind of speech can and cannot be punished.

The case of the comedian Kiku Sharda being charged under Section 295A[17]of the IPC is another example of a primitive interpretation of the provision with the aim of curbing satire. He was charged under this provision due to his mimicking of Gurmeet Ram Rahim, a self-professed Godman. This incident was greeted with ridicule by the general public as well as the media.  In democratic powers such as the United States, the ability to freely criticise and poke fun at even the most influential individuals of the country is given to every person. There is almost a free reign given to people of the United States to criticise individuals in position of power, especially on social media. They can do so with absolutely no fear of punishment or retaliation from the government. The same is not true in India, where the Government decides what constitutes hate speech and whether or not it should be punished.

Giving the government this absolute power is extremely hazardous, because there can be a number of external and unrelated factors involved which may lead to bias affecting its decision. Free speech is a fundamental tenet of a good democracy and it is essential for individuals within a country to feel safe and secure enough to air their views, no matter how controversial. The fear of retaliation or punishment limits the ability as well as the initiative shown by an individual to air his or her grievances with respect to the political or social situation in the country.

As seen in the provisions examined above, hate speech is an exception to the right to free speech in India. However, this is not the case in countries such as the United States where, through a series of judicial pronouncements over a number of decades, hate is speech is no longer considered to be an exception to free speech. This implies that an individual’s opinion will not be punished merely on the ground that it hurt the sentiments of another person or group. There have been various tests laid down by the Supreme Court pertaining to what constitutes an exception to free speech, which will be elaborated on later in this paper.

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The foundation for any successful democracy is the people[18]. Abraham Lincoln defined a democracy as a government of the people, for the people and by the people. The heads of any democratic state are merely the elected representatives of the public and are given positions of power to serve the needs of the country. For a democracy to function seamlessly, it requires that each individual be free to participate in the process of elections. The fundamental principle of a democracy is that the people are the ultimate authority and the source of the authority of government. As overseers of the government, the people of the country must have complete access to information and must also be allowed to express views and opinions. The government derives its power from the people and the channelling of this power must not be to oppress or abuse, but rather to protect their interests and welfare.

As seen above in various instances, authorities have used vague laws and fallacious interpretations to punish citizens for voicing views or opinions. This taints the very core of democracy which is, in essence, a government of the people. For the government to function effectively, it must take into scrutiny the various perspectives of the people, even when such a perspective is fundamentally against the manifesto of the ruling party. Opposing ideas are an essential component of the legislative process, and such ideas need not come from the opposing party in the parliament alone. Classifying a public standpoint as hate speech immediately stems the flow of free speech and limits healthy political discourse. This curbing of political debate is far from what an ideal democracy should hope to achieve and instead is a makeshift autocracy with the ruling party at the forefront[19].

Vague and capricious laws and their erroneous interpretation pose a threat to the freedom of speech, one of the fundamental rights guaranteed to the people by the Constitution of India. As mentioned above, many of these laws still continue to exist even after various positive judgments. Most of these laws were framed during a period when their ultimate purpose was to quell the rise of opposing nationalist movements. The Indian Penal Code was enacted during 1860, at a time when the British were gaining power and control over the country. The draft of the first penal code was prepared under the guidance of Thomas Babington Macaulay, and then underwent a careful revision under the hands of Barnes Peacock. The purpose of this act was to hegemonize the Indian public and to prevent disobedient action of the people.

Indian Nationalist Movements were gaining popularity during this stage and Indian leaders were making public speeches and announcements to rally the masses against the British. It is only natural for the rulers of the country to desire complete control over its subjects and to avert rebellious movements. The hate speech laws were their way of ensuring their dominance over the Indian public by preventing anti-British public speeches. More than a century later, the laws remain unchanged and unamended, which has given the ruling party a chance to exert unwarranted command over the people. Harmless comments and satirical views are being perceived as hateful by authorities, displaying a subjugatory attitude over the general public, which must not be so in a democracy. This attitude strikes fear in the minds of the people leading them to restrain their thoughts and beliefs, thus moving further away from an ideal democracy.

This attitude and power of the authorities can be traced back once again to the vague and arbitrary wordings of the laws. These laws interfere with the freedom of speech and expression guaranteed to us by the Constitution of India and act as exceptions to this fundamental right. The right approach to deal with the freedom of speech may not be exceptions but instead, guidance can be taken from the American legal system.  

The United States of America has always been reluctant to place restrictions on free speech, thus giving it a much wider scope. While there may not be any obvious restrictions on speech, there are judgments that lay down tests and other checks which ensure that no gross violation of the right may occur. Terminiello v.Chicago[20]was an important early case that explored the freedom of speech and expression. In this case, a defrocked Catholic priest regularly voiced anti-Semitic views to a large congregation. He gained a bit of popularity through this and protestors used to gather during his speeches. During one such sermon, his words incited his congregation and the protestors outside into a fight. Justice William O. Douglas of the US Supreme Court, ruled that freedom of speech is protected against censorship or punishment, unless shown likely to reduce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest and that there is no room under the Constitution for a more restrictive view. Douglas also went on to explain that the purpose of free speech was to invite dispute, and that provocative content can actually be seen as positive.

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Brandenburg v. Ohio[21]is another landmark judgment of the United States of America that empowers the Right to Free Speech to exist without any major restrictions or hindrances. Charles Brandenburg, a Klu Klux Klan leader, claimed in a rally that the President and the Supreme Court of the United States were suppressing the white and Caucasian people in order to give power to the blacks. He also spoke about plans regarding a march that was to take place on the Fourth of July, near the White House in Washington D.C. Upon his arrest by a lower court and a subsequent appeal, the Supreme Court overturned his conviction. Justice William Brennan, speaking for a unanimous bench, said that inflammatory speech cannot be punished unless that speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The Supreme Court has always pushed for unfettered free speech, and for speech to be curbed only in the rarest of rare occasion. If any law exists that could pose even a slight threat to the freedom of speech, the Supreme Court instantly strikes down such a law. It has done so recently in the case of Matal v. Tam[22], where Simon Tam applied for a registration on the mark “The Slants” for his band. The US Patent and Trademark Office interpreted the word to be a derogatory term used to refer to people of Asian descent. In this case, Section 2(a)[23] of the Lanham Act was in question. The provision placed a ban on the federal registration of “immoral” or “scandalous” marks.  A disparaging mark is a mark which dishonours by comparison with what is inferior, slights, deprecates, degrades, or affects or injures by unjust comparison. Simon Tam argued that the use of the mark was not for derogatory purposes and that they were repurposing the term from an offensive slur. After a lot of deliberation, the US Supreme Court ruled unanimously that the clause violates the free speech clause of the First Amendment. Justice Samuel Alito quoted a line from another landmark judgment in his reasoning, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’.”[24]

All these cases drive home one singular point, that the Freedom of speech should be absolute with as little an exception as possible. For a country like India to develop further, we must also progress as a democracy. In order to do so every citizen in the country must be able to speak their mind freely and without fear of punishment. The laws currently existing in India serve only as restrictions to free speech and incentives for authorities to punish. These exceptions must be done away with, and a broad test must be laid down to determine the extent of free speech. As is now prevalent in the United States of America, India must also give the same respect to the freedom of speech, allowing speech to be untainted and unbiased.  This test would act as a framework for the authorities to follow so as to reduce and hopefully resolve wrongful arrests. India is a diverse country, and the existing laws only make it easier to hurt people’s sentiments and stop political discourse. If we are able to achieve an ideal situation that every democratic country should strive for, then the country will flourish with healthy political debate happening in every corner of the country and the governance of our country will benefit from the same. 


[1] Shreya Singhal v. Union of India, A.I.R 2015 S.C.1523

[2] Information Technology (Amendment) Act, 2008, Section 66A

[3] Information Technology (Amendment) Act, 2008, Section 66A

[4] Information Technology (Amendment) Act, 2008, Section 66A

[5] Constitution of India, Art. 19

[6] Shreya Singhal v. Union of India, A.I.R 2015 S.C.1523

[7] Information Technology (Amendment) Act, 2008, Section 66A

[8] Indian Penal Code, 1860

[9] Indian Penal Code,1860, Section 153A

[10] Brandenburg v. Ohio, 395 U.S. 444 (1969)

[11] Terminiello v. City of Chicago, 337 U.S. 1 (1949)

[12] Information Technology (Amendment) Act, 2008, Section 66A

[13] Indian Penal Code,1860, Section 153A

[14] Indian Penal Code, 1860, Section 505(1)(c)

[15] Indian Penal Code, 1860, Section 505(2)

[16] Indian Penal Code, 1860, Section 295A

[17] Indian Penal Code, 1860, Section 295A

[18] John Dewey, Democracy and Education (Macmillan, 1916).

[19] Suvidutt Muttikulangara Sundaran, Hate Speech Laws in India – A conundrum to crack, (November 19, 2019), http://jurip.org/wp-content/uploads/2017/05/Suvidutt-Sundaran.pdf

[20] Terminiello v. City of Chicago, 337 U.S. 1 (1949)

[21] Brandenburg v. Ohio, 395 U.S. 444 (1969)

[22] Matal v. Tam, 582 U.S. (2017)

[23] Trademark Act, 1964, Section 2(a)

[24] United States v. Schwimmer, 279 U.S. 644-655 (1929)