Zero tolerance for hate speech

Anchored in Prejudice

India is reputed as a country that has many enviable virtues -- a plural society, cultural diversity, a working democracy, and civilisational wisdom. We are a unique example of a nation that includes ethnic, linguistic and religious diversity; facets representing our strength, not weakness.

Yet, caring for diversity and advancing harmony in a multicultural society such as ours is rapidly emerging as a serious challenge. The problems that threaten the unity in diversity arise not just from political and ideological differences. In recent years, the proximate cause of the challenge centres on how we use language -- from intemperate language to hate speech -- in public discourse.

It is a serious enough problem to have prompted the Supreme Court of India to express its displeasure over hate speeches via debates on TV channels. The Supreme Court called the ‘visual media’ the “chief medium of hate speech” and asked why the government is “a mute witness when all this is happening”.

This is not the first time that the apex court has expressed a sense of urgency in this matter. In fact, based on its direction in 2014, the Law Commission has recommended amendments to the Indian Penal Code (IPC), 1860, and the Code of Criminal Procedure (CrPC), 1973, by adding new provisions on ‘prohibiting incitement to hatred’ following Section 153B IPC and ‘causing fear, alarm, or provocation of violence in certain cases’ following Section 505 IPC, and accordingly amending the First Schedule of the CrPC.

The government must take the initiative on the sage exhortation of the Supreme Court and address the growing problem of hate speech. How might this be done? Clearly, it is time that both the State and the citizens adopt a ‘zero-tolerance’ policy and enforcement protocol to deal with hate speech across different mediums. This will be a difficult rite of passage because calling out hate speech often gets mired in controversy over two basic questions.

A first issue for the identification of content as hateful is that there is no universally accepted definition of hate speech, mainly because of the subjective determination of whether speech is merely ‘offensive’ or conveys ‘hate’.

To address this ambiguity, a good beginning would be for the government to identify the elements that would constitute hate speech action. The identified common traits must include: the targeting of a group, or an individual as a member of a group; the presence of content that expresses hatred, causes harm, incites bad actions beyond the speech itself, and has no redeeming purpose; the intention of harm or bad activity; the public nature of the speech; finally, a context that makes violent response likely as a result.

The identified traits do not form a single definition but can be used to provide objective criteria to declare the speech in question to be a hate speech. Such an objective trait-based framework will likely pass the test of jurisprudence.

Second, hate speech creates a conflict between one person’s freedom of speech and another person’s right to be free from verbal abuse. The delicate balance that must be maintained between Article 19(1) (a) -- freedom of speech and expression -- and Article 19(2) -- the imposition of reasonable restrictions on that right in defence of human dignity -- has received significant attention from legal scholars and philosophers. Advocates of free speech must recognise that such freedom should not extend to speech that expresses ideas that most people would find distasteful, offensive, disagreeable, or discomforting.

It is necessary to take the evils of hate speech seriously and acknowledge that certain kinds of speech are beyond tolerance. The freedom to advocate and debate ideas is not absolute, and regulation by law should prevent people from abusing this freedom to attack the rights of others or their status in society as human beings and equal members of the community. Such a logical framework too is likely to find favour with the Supreme Court.

What responsibilities must media houses and television channels bear? What might constitute an ethical and legally tenable code of conduct that should be enforced on them? Not to promote or incite discrimination is one of the cardinal principles of ethical journalism, despite which, several television anchors and journalists still peddle political propaganda; and many media and television channels have become platforms of intolerance.

In a fraught and contested news environment, journalists are sometimes willing victims of prejudice and political manipulation. Little do they seem to realise that the debates they fuel and the language they, perhaps unwittingly, incite on television can result in widespread rumour mongering, the spread of hate, and sometimes violence. Therefore, hate speech laws constitute a legitimate antidote and the immediate target constituency to enforce them should be the media houses and TV channels, regardless of their political affiliation or ownership.

Finally, the need for a wider social and legal debate on balancing the requirements to prevent hate speech on the one hand, and protecting civil liberties on the other, cannot be substituted by technological or legislative solutions alone. The term ‘hate speech’ does not refer to random harsh statements or radical criticism, but rather statements that reproduce prejudice and discrimination and trigger violence. The complex nature of the underlying drivers of hate speech, including the politics of religion, means that coordinated hate and disinformation campaigns can go viral and reach their target audience in rapid time. An equal sense of urgency must inform the response of the government.

Government regulation of hate speech need not shrink the space for criticism and dissent, provided such regulation fulfils the three-part human rights test: prescription by law; legitimate aims; necessity and proportionality.

Equally, strengthening civil society resilience and raising awareness in the public about the importance of zero tolerance to hate speech will constitute important countermeasures. Much more needs to be done to improve media literacy across all age groups. Put simply, the television channels or the political class have no interest in combating disinformation. This responsibility must be shared by civil society. Will we rise to the challenge?

(The writer is Director, Public Affairs Centre, Bengaluru)