Tightening the Grip on Hate Speech Law in India vis-a-vis Elections
Hate speech includes any statement made against any individual, group or community that incites or is likely to incite feelings of hatred, enmity towards them and also make them prone to violence. The plight of hate speech snowballs into an infestation especially during the time of elections with large scale campaigns of political parties, which includes rallies, press conferences, social media jabs etc.
Hate Speech Online and Offline
Few years back, the dissemination of hate speech only occurred through the known channels, i.e., at rallies, road shows, on television and radio. These could be monitored, restricted or in cases where it was called for, completely prohibited because their time and place of occurrence was known. But in the last decade or so, with the mobile revolution and access to internet becoming ubiquitous and made available even in remote villages, hate speech has transcended into an era of online diffusion.
The role of online dissemination of party propaganda in election campaigning is well known to all political parties in the modern age. With more convenient and speedier modes of addressing the masses, hate speech finds it easier to make its way into the public domain. In the Indian scenario, the government has been able to secure only stopgap arrangements to tackle the issue of online hate speech during election periods. The increased use of social media behemoths like Facebook, Twitter and instant messaging services like Whatsapp and other communication websites among Indian users in recent times has given a platform for spreading hate speech and fake news.
A recent report by Economic Times undertakes a quantitative study of action taken against online violations of the ECI’s Model Code of Conduct.[i] Facebook, with an Indian user-base of 300 million, took down 574 posts, out of which a total of 6 had been flagged for containing hate speech.[ii] Even a cursory look over the aforementioned figures indicates the presence of major loopholes in the current framework for detection of online hate speech.
The procedure followed in the execution of the above actions are also fraught with anomalies. The sources of the complaints ranged from the Regional Electoral Officers to the general public. The complaints were made to the Election Commission, which then forwarded them to the website concerned. By the time the offending posts were finally removed, they had enjoyed ample airtime to achieve the ulterior motives for which they were actually designed. The gravity of the matter is made apparent by the fact that the above state of affairs represents a period of purportedly heightened sensitivity (whilst the Model Code of Conduct is in operation) of the Election Commission against hate speech.
Even at the height of its vigil, the results produced by the Commission and the existing mechanisms are dismal. Beyond the Model Code of Conduct [henceforth “MCC”] period, there exists virtually no framework to counter politically-motivated hate speech online. In the absence of whatever little scrutiny is undertaken by the Commission during the MCC period, the websites’ internal policy of dealing with offensive publications is the only bulwark against hate speech. These tenuous defences against the menace have continually proved to be ineffective.[iii]
Offensive and hateful posts remain visible online for months after being flagged or reported to the site by the other users. A glaring instance of such violations was reported by the New York Times. [iv] A legislator from Hyderabad, referred to Muslims as “cow killers” in a number of posts on his Facebook page. Although Facebook had removed some of the posts for violating its hate speech rules, certain video recordings in which he is seen talking about decapitating the “cow killers” remained visible for months.
Another legal grey area is concerned with the use of Whatsapp as a breeding ground for fake news and communally charged speech. Whatsapp presents a peculiar problem, as compared to the other networking sites. While group messaging on Whatsapp can be logically said to require similar treatment as online publications on other sites, there exists no such protective framework. Whatsapp has consistently avoided any censorship regimes that have been made applicable on other sites. A recent study by the Huffington Post explicated how Whatsapp served as a means of vicious anti-Muslim propaganda, with virtually no restrictions on the dissemination of inflammatory views.[v]
Laws on Hate Speech in India
Hate speech has been classified as an offence under different provisions of the Indian Penal Code, 1860 [hereinafter “IPC”].
S.153A of the IPC makes it an offence to “promote enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.”[vi]
According to S.505(1)(c), “anyone who makes, publishes or circulates any statement, rumour or report, with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.”
Further sub clause 2 of the same section states, “whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.”[vii]
S.295A punishes anyone “who with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise] insults or attempts to insult the religion or the religious beliefs of that class, with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”[viii]
S.298 provides for imprisonment of either description for a term which may extend to one year, or with fine, or with both to any person who with the “deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person.”
In addition to the above mentioned provisions of the IPC, the election commission also exercises control over spreading of hate speech during election using the MCC. The MCC, which comes into force as soon as elections are announced, deals with the issue of hate speech in its first provision itself. Sub clause 1 of Clause 1 relating to General Conduct states that, “No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.[ix]”
Above all, the election commission has been vested with wide powers under Article 324 of the Constitution of India in relation to the conduct of elections to parliament, state legislatures, the office of president and vice president of India.
Need for Change in the Present Law Dealing with Hate Speech in India
1. Undefined powers of the Election Commission
The Election Commission was called toothless by the Supreme Court of India, while hearing a PIL(Harpreet Mansukhani v. Election Commission of India, Writ Petition(s)(Civil) No(s). 364/2019) filed by an NRI on the issue of hate speech during elections.[x] The Supreme Court was told by the counsel appearing for the election commission that it had limited legal power to deal with hate speeches made by politicians during election campaigns and the usual procedure was to issue notice, followed by an advisory and finally file a complaint with the police.[xi]
The main issue here is that the election commission doesn’t have any statutory powers. All its powers are derived from Article 324 of the Constitution, which are plenary in nature, meaning they are without limitations and absolute, at least on the surface, which is not possible in law. Since plenary also means that its powers remain undefined, the exercise of those powers is often marred by restraint as to not exceed the judicial limits which are still unknown. In the aforementioned petition, the counsel for the top election body was not aware if the election commission had the power to disqualify a candidate from contesting on ground of making hate speech. Still, after being pulled up by the Apex Court, the Commission barred three candidates from campaigning for a stipulated period of time, which was not challenged by the candidates.
2. Model Code of Conduct: Still Potent?
Another issue is with regard to the Model Code of Conduct. It applies to the political parties and its candidates but the law is silent upon its exercise over third party affiliates and fan clubs, pages, websites. The issue here is two fold. Firstly, especially in cases where hate speech is transmitted through an online medium, the election commission is ill equipped to trace its sources and prevent its further dissemination. Secondly, in cases where hate speech is traced to the person making it, appropriate legal framework to punish and restrict him from making such speeches in future is non existent. The issue is not limited to just the aforementioned scenarios. Trinamool Congress invited a Bangladeshi actor to campaign for it in the recently concluded Lok Sabha elections. Whether, this is legally permissible, and if such foreign national violates any election laws, what action can be taken, if any, remains unanswered.
A plethora of laws address the issue of hate speech in India. The prototypical scenario of hate speech is that of a bigoted political leader, standing in a rally, leading his supporters towards violence and hatred against ‘the others’. In the age of the Internet, this simplistic scenario manifests itself in variegated and complex situations. As such, the plethora of laws yet remain ill-equipped to handle the onslaught of hatred-fuelled propaganda that spreads like wildfire within the online networks of society. Too little is achieved too late by the existing arrangement.
The need of the hour is a consolidated legal code that deals exclusively with the issue of online political propaganda and hate speech. The compliance of the internal policies of networking sites must be ensured through effective bodies or cells. The redundant MCMCs, established at the district levels, need to be scrapped down to give place to permanent bodies at the state level. Finally, the most intricate challenge regarding this issue lies in striking a fine balance between freedom of speech and apposite censorship. The parameters of such a balance must not be blindly adopted from the West. Rather, the determination made must be shaped by the peculiarities of India’s socio-cultural panorama.
[i] Anubhuti Vishnoi, Facebook removes 574 posts; Twitter deletes 49 accounts during first three phases, Economic Times, (Apr. 25, 2019) https://economictimes.indiatimes.com/news/elections/lok-sabha/india/facebook-removes-574-posts-twitter-deletes-49-accounts-during-first-three-phases/articleshow/69034967.cms?from=mdr (last accessed June 15, 2019).
[iii] Sugandha Lahoti, Ahead of Indian elections, Facebook removes hundreds of assets spreading fake news and hate speech, but are they too late?, Packet Hub (Apr. 2, 2019) https://hub.packtpub.com/ahead-of-indian-elections-facebook-removes-hundreds-of-assets-spreading-fake-news-and-hate-speech-but-are-they-too-late/ (last accessed June 15, 2019).
[iv] Vindu Goel & Sheera Frankel, In India Election, False Posts and Hate Speech Flummox Facebook, N.Y.Times (Apr. 1, 2019), https://www.nytimes.com/2019/04/01/technology/india-elections-facebook.html (last accessed June 15, 2019).
[v] Betwa Sharma, Election 2019: Inside The Frightening WhatsApp Messages Of A BJP Voter, Huffington Post (Apr. 13, 2019)
[vi] Indian Penal Code 1860 S 153A.
[vii] Indian Penal Code 1860 S 505.
[viii] Indian Penal Code 1860 S 295A.
[x] Aneesha Mathur, Hate speech: SC raps EC for failing to act against Mayawati, Yogi; to discuss ambit of power, India Today (Apr. 15, 2019), https://www.indiatoday.in/elections/lok-sabha-2019/story/supreme-court-election-commission-powers-yogi-adityanath-mayawati-1502160-2019-04-15 (last accessed June 15, 2019.
[xi] Harpreet Mansukhani v. Election Commission of India, (Writ Petition(s)(Civil) No(s). 364/2019), https://sci.gov.in/supremecourt/2019/9580/9580_2019_Order_15-Apr-2019.pdf.
By Sahastranshu, Senior Editor and Sehaj Singh Cheema, Junior Editor, RSRR