Why You Should Be Concerned About The Hate Speech Bill

Kamlesh Tiwari for Blasphemy, Aseem Tripathi for sedition, Ambikesh Mahapatra for sharing a cartoon of the West Bengal CM Mamata Banerjee, Kiku Sharda for mimicking Ram Rahim, Zakir Khan for unfavourable posts against the UP CM Yogi Adityanath, and most recently defence strategy analyst and commentator Abhijit Iyer Mitra. How many of these names do we remember and how many more have we forgotten?

We all by now know about the bouquet of colonial laws that aims to police what we speak of in the name of reasonable restrictions. The ‘hate speech’ laws include among others Section 124A Indian Penal Code for sedition, Section 153A for promoting enmity between different groups on grounds of religion, race, language and residence, Section 153 B for assertions prejudicial to national integration and the 295A which penalises blasphemy or outraging the religious beliefs of people. There are other acts of course, but the above four sections could be considered to be the lion’s share of speech policing provisions in India. Every month either one of these laws are applied in some state of India to penalise people for offensive and sometimes stupid and sometimes disagreeable speech.

Out of the numerous instances, there have been three incidences which hit very close home and made me realise that eventually bad laws will catch up with every single person. The first incident was in 2012 when two girls were arrested in Mumbai for a Facebook post on the shutdown of the city for the funeral of Balasaheb Thackeray. The second has been the incident of the arrest of Abhijit Iyer Mitra for his satirical comments on the Konark temple and the origin of the rasagola. The first incident seemed like something I could have vented out on Facebook on a bad day and fact that you do not even need to be well-known for your random posts to be monitored, seemed extremely scary.

The second incident seemed horrendous to me because even after trying multiple times, I could not understand how people could misconstrue the clearly satirical comments made by Mitra and then be so offended by it to put him in jail. But, these two incidents made more sense to me in the light of the third incident. An anonymous troll on Twitter threatened to complain about my bigotry to my employers. I had no way to know what had offended him and what upset him was clearly not my business. But, the threat to my livelihood was real and it was just because one anonymous troll did not agree with my opinions on issues.

What if this troll had not gone to my employers but to the police and had filed a case against me? What if he had said that my comments were malicious and could incite violence or had outraged his religious sentiments or could provoke enmity between groups? What if my measured and calculated speech was hate speech for someone and what if they decided to send me to jail for it?

In a situation where anyone of us can be portrayed as guilty of hate speech, what exactly is hate speech?

At the outset, it needs to be understood that there is no definition of hate speech in the constitution or any accepted, ratified definition endorsed by India. Through the course of multiple judgments, the courts have tried coming down to an understanding of what is the exact nature of speech which could justify curtailing of free speech. In the Rangarajan vs Jagjivan Ram case of 1989, the court established that speech which could have an immediate triggering effect towards public disorder could amount to hate speech. In the Arup Bhuyan vs state of Assam case of 2011, the court held a similar view and further clarified the understanding of such a speech as something leading to ‘imminent lawless action’. In one of the landmark judgments on freedom of speech in India, the Shreya Singhal vs Union of India, the Supreme Court had judged that neither discussion nor advocacy but only incitement to violence, can be used as reasons to curtail free speech.

While the past judgments make it clear that hate speech is primarily to be identified as incitement to violence, we can still see the amount of misuse that has been coming through specific legislations. But the danger which lies ahead comes in the form of the recommendations of the 2017 law commission report headed by Justice B S Chauhan. As a part of the judgement of the 2014 Pravasi Bhalai Sangathan vs Union of India case, the Supreme Court had asked the Law Commission to define hate speech and make recommendations to the Parliament to curb its menace. The commission in its eagerness to curb hate speech has moved from a definition of ‘incitement to violence’ to ‘incitement to hatred’.

According to the Law Commission, the new definition of hate speech is “incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like”. The report goes on to state that anonymity of social media allows ‘false and offensive ideas’ to be propagated which could perpetuate discrimination. Therefore, it recommends that not just incitement to violence but incitement to discriminate amounts to hate speech. The report further recommends the addition to two penal provisions which make hate speech a cognizable offence which could lead to imprisonment for up to two years for causing hatred, fear, alarm and incitement to violence.

As if the existing laws were insufficient, there is the scope for more laws to stifle free speech and weaponise political correctness in the near future. Ponder closely for a moment over Abhijit Iyer languishing in jail and ask yourself a question. If someone puts their mind and heart to it, which statement, which joke, which retort of yours could not be construed as discriminatory or hateful? The definition is so loose and abstract that everything from a discussion on history to a joke on a community or group, to a political statement or discussion can be with much ease perceived as probably discriminatory or probably hateful. There might not be a word about any sort of violence. Just the perception of offence will be enough to prosecute people and curb their speeches. Any discourse by the media on any topic of regional or national importance can be covered under incitement to hatred and may turn out to be against the free press.

In May this year, the draft of the hate speech bill 2018 was sent to the Home Ministry which compiled the recommendations of three committees on hate speech. The first was the Chauhan Law Commission report discussed earlier. The second was the Bezbaruah committee report which had also recommended the provision of new laws to address rising issues of discrimination against citizens from North East India. And the final report was the T K Vishwanathan committee report. The panel led by Lok Sabha Secretary General Vishwanathan was formed after the repealing of Section 66 A with an aim of addressing online hate speech. The draft bill proposes an amendment to make hate speech a cognizable offence with new laws under Section 153 C (b) and Section 505 A with up to two years of jail time. The government currently is sitting on it but there is always the possibility of further tightening the noose if there is a regime change in 2019.

If you think it cannot be you, think again. We live in a time where every speech could be construed as hate speech. And if these new laws see the light of day, such cases will only increase. People have been jailed for joking about politicians, jailed for drawing cartoons, jailed for being critical of religion, jailed for cracking jokes in general. People have been jailed for being critical, for being angry, for being crass, for being stupid, for being insensitive. People are being jailed for being themselves and expressing themselves just the way they are. So if you really think it cannot be you, think again.