By Sanjay Raman Sinha
The Supreme Court recently heard a group of petitions on hate speech and made strong comments on the media and the government. Expressing displeasure over hate speeches delivered on various television channels, the Court sought to know whether the government will remain a “silent spectator” and whether it intends to enact anti-hate speech laws as per the recommendations of the Law Commission. The Court was equally harsh on the media. It said the mainstream media or social media channels are without regulation and have become a platform for inflammatory content. A bench of Justices KM Joseph and Justice Hrishikesh Roy said that there is a need to develop an institutional mechanism to deal with hate speeches. The need to frame specific laws also arises from the fact that there is a lack of clarity as to what exactly constitutes hate speech.
There are seven laws which are used to deal with hate speech in the country, but none of them defines hate speech as such. In fact, the Law Commission in its 267th report had stressed the need to define hate speech.
Ved Bhushan, former IPS officer, spoke from his ground experience. He said: “I will tell you from my experience. When I was in service, we filed cases on hate speech incidents under various acts. Sadly, most of the cases couldn’t be completed. Many cases had political implications and many involved strong political connections. This is how it works. Then, there is ambiguity in the definition of hate cases. Take the example of two Dharam Sansads. One was held in Haridwar and the other was held in Uttarakhand. The Delhi police had filed a closure report in the Supreme Court in which it said that no hate speech was delivered in the Delhi Dharam Sansad. Clearly, the vagueness in definition makes the prosecution weak. The Nupur Sharma case is a classic example. Other one is that of Imam of Jama Masjid against whom many warrants have been issued, but he is yet to be arrested. This is the complicity of politics which makes conviction in hate speech matters difficult.”
Till now, even the courts have not been seen to give strict punishment on hate speeches. There have been many instances where verdicts were too lax or lenient. First, the seminal Supreme Court verdict on regulation of hate speech in the 2014 Pravasi Bhalai Sangthan vs Union of India judgment was based on the premise of protection of marginalized communities and not on its negative impact on public order and morality. The Court did not go beyond the purview of existing laws to penalise hate speech as that would amount to “judicial overreach”. The Court observed that the implementation of the existing laws would solve the problem of hate speech to a great extent.
In fact, the apprehension that laying down a definite standard for hate speech might lead to a curb on free speech has prevented the judiciary from defining hate speech in India. Take another instance, that of the Amish Devgan vs UOI case. Here, the Supreme Court has recognized the damage caused by hate speech. However, Devgan was granted interim protection against arrest on the ground that he cooperates with the ongoing investigation into the perceived threats.
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Justice Sudhir Aggarwal, former judge of the Allahabad High Court said: “It is true that hate speech is not defined in law. Nor has the United Nations defined it. Yet, hate speech is considered as crime, the world over. However, I don’t agree fully with the contention that the laws pertaining to hate speech are not adequate. Take for instance IPC where there are many provisions to book a hate speech accused. Similarly, in the Representation of the People Act, there are provisions for action against hate speech offenders. The offender can be disqualified for giving a speech promoting enmity between two groups. The Cable TV Regulation Act also has provisions for hate speech offences. The Cinematograph Act also has provisions. The fact of the matter is that the law enforcement agencies are lax when it comes to taking action against hate speech offenders. This is more so because the offenders have strong political connections.”
The relationship of social media and hate speech is also incriminating. How social media has become involved in this entire hate speech episode is clear from the fact that 2018 was called Year of Online Hate. Facebook said in its Transparency Report that it had to remove three million hate speech posts. YouTube, in the same year, had to remove 25,000 inflammatory videos in a month. In the third quarter of 2020, 22 million posts on Facebook and 3.5 million posts on Instagram were removed. The data gain significance in the context that even now there is no law in the country to regulate the social media platforms from disseminating hate speech and communally sensitive content.
IT expert and advocate Pawan Duggal explained: “This is the age of fake news and fake content. I agree that we lack concrete laws to handle hate speech. We need a new docket of laws for effective restrictions on hate speech menace. I feel sad when I see IT Act 2000. It is silent on hate speech. Some regulations should have been included to make the law omnibus and relevant. Some provisions of IPC, like 468 and 469 should have been included in some form. If documents are made by forgery and used electronically, it can be used for fake news. India has not learnt its lessons from countries like Malaysia and Singapore where there are strict laws for fake news dissemination. In India, it is taken for granted, and the legal action is lax.”
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The Nupur Sharma episode has cast aspersions on the role of media and the alleged complicity of television channels to host communally pugnacious debaters and a lax moderator. The Supreme Court had also questioned the role of TV channels in giving space to hate mongers in their debates.
Senior journalist Dr Rakesh Pathak said: “The four estates of democracy have somewhere stumbled in the area of hate speech control and regulation. The most irresponsible actor has been the media. It has become the carrier of hate speech, and especially social media has become an unregulated menace. The judiciary also can’t wash its hand off for laxity in going after well-connected hate speech offenders. Just because someone smiles while delivering venom-laden speech doesn’t make him/her guileless of hate speech crime. The observations of judges on hate speech should find its way in the written order. The media has editorial responsibilities. Whenever hate speech gets raked up in a TV discussion, the anchor or moderator should immediately stop the diatribe. The newspaper should keep a strict vigil on articles and news reports which inadvertently or purposefully create a spectre of inter group animosity.”
The hate speech graph is ever rising. If we look at the recent data of National Crime Records Bureau, the cases of hate speech registered under Section 153A of the IPC have registered a growth of six times or almost 500% in seven years, 323 cases in 2014 rose to 1,804 cases in 2020. In fact, recently, the Election Commission had filed an affidavit in the Supreme Court, in which it said that there is no clear law in the country regarding hate speech. The Commission said that whatever laws are in place at present, they are not capable of taking action against those who spread hate speech or statements through hate speech.
Justice Aggarwal said: “The laws relating to hate speech are lax in the sense that the deterrent value is missing. The punishment is not exemplary and often it is not given to the offender quickly. Punishment of offenders will bring a sea change to the hate speech crime. The laws should also be upgraded to be in tune with the time. The intention behind any alleged hate speech should also be taken cognizance of. The police should take quick action and file charge sheet and the judiciary should ensure speedy trial. Furthermore, it is the responsibility of the media to underplay hate speech and not make itself a platform for broadcasting communally repugnant talk.”
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In the landmark Shreya Singhal case, the Court struck down Section 66A of the Information Technology Act, 2000, which made the vague offence of sending false, offensive or inconvenient messages punishable with three year’s imprisonment. However, despite the abrogation of Section 66A, police authorities have continued to file FIRs and make arrests under Section 66A all over the country. The National Crime Records Bureau data shows that over 1,300 cases were filed under the provision even after the judgment. Distressed, in 2019, the Supreme Court directed the Union and state governments to sensitise the police about the Shreya Singhal case.
Duggal said:
“Social media platforms are playing an irresponsible part. They put up objectionable content on their platforms knowing fully well that the police and courts are lax, and when notice will be served, they will remove the content. However, in the IT rules of 2021, the government has said that the service providers should remove objectionable content on their own initiative. But as the situation stands today, the service providers are not doing anything voluntarily. Neither they are following existing rules; nor they are appointing grievance officers or forming grievance cells. Instead of waiting for new laws we should get busy enforcing strictly the existing laws.”
Clearly curbing hate speech mongering is not as much about changing laws as it is about political and institutional will. The onus is firmly on the four pillars of democracy to take responsibility and join hands to banish the scourge of hate speech.