Legally Speaking
By Professor Dr Dilip Ukey, Dr Garima Pal & Dr Anand N Raut*
Religious or faith-based hate crimes are generally motivated by religious intolerance and ‘religion’ as such never preaches hateful attacks. The Constitution of India bestows freedom of conscience and religion on persons in India i.e., to both citizens and non-citizens of India. Freedom includes the right to freely profess, practice, propagate religion and manage religious affairs.
‘Propagation of Religion’ acts as a fundamental right, protected under Article 25, allowing an individual to communicate, transmit and spread by exposition of practices, tenets, and principles of one’s religion to acquaint others with the same. (Rev. Stainislaus Case). In doing so, one may get prompted to compare one’s own religion with the others. Religious intolerants and anti-social elements can misuse this to spread hatred, under the garb of the fundamental rights of speech and expression and of religion.
So, it’s vital to regulate hate speech, more so amidst glaring alleged instances; like the infamous Dharam Sansad at Haridwar targeting Muslims, Zakir Naik’s banned NGO (IRF) spreading religious and communal disharmony, hate crimes against the Christian community (PUCL Report: Hate Crimes on Christians in Karnataka,2021), petition pending in the Supreme Court seeking protection for Hindus against hate speech, and numerous similar instances in the past.
Social Media and Technology
Social media as a prominent mode of communication not only is being widely used for ‘propagation of religion’ but also for ‘hatred’. The absence of an efficient mechanism to cross-verify makes it difficult to check the authenticity of the facts circulated. By the time law enforcement agencies intervene, hatred is already spread globally.
Social media intermediaries like Youtube, Facebook, Twitter, Whatsapp etc. enjoy safe harbour in India unless they contravene provisions of law or fail to fulfil due diligence expectations as prescribed under the Intermediary Rules 2021. They’re required to inform users, not to host, display, upload, modify, publish, transmit, store, update or share any information that is racially or ethnically objectionable, or is patently false and untrue, and is written or published in any form, with the intent to mislead with intent to cause injury to any person.
The responsibility of social media becomes multifold amidst a surge of hate speech. Intermediaries with a huge subscriber base have added responsibilities upon them. Hate messages with malafide intentions are a kind of disinformation (the person disseminating false information knows it to be false).
Study shows that false news spreads even faster than true news. (MIT on Spread of True and False News Online 2021). As information is saved on servers of intermediaries, they are in a better position to weed out the unwanted. These intermediaries use human review and Artificial Intelligence (AI) tools, to remove hate speech. (Facebook Report “Community Standards Enforcement Report, Q2 2021”). But such reviews work for only a limited number of languages. Reports like OBF on Encouraging Counter-Speech by Mapping the Contours of Hate Speech on Facebook in India, 2018, show that despite such efforts, religious hate speech is very much prevalent in India.
Tackling Hate Speech and Propagation
Hate crimes are increasing at an alarming rate (Jack Levin, Jack Mc Davit). Laws like section 124A (Sedition), 153A, 153B, 198,295A (Blasphemy),505A of IPC, Section 3 (g) Religious Institutions (Prevention of Misuse) Act, 1988 etc. cursorily address issues of hate speech but do not particularly regulate religious hate speech.
The Constitution (Article 19 (2)) curtails speech which threatens public order, incitement to offence and security of the State. Article 25 restricts religious freedom if found violative of public order, morality and health and other provisions of Part III of the Constitution. The fact that Article 25 begins with restrictions, unlike Article 19, means Constitutional framers prioritized certain restrictions over fundamental religious rights.
Recently, Delhi Court (bail order for Professor Ratan Lal) stated ‘distasteful’ and ‘unnecessary statements’ do not fall within the prohibition of the law. The Intermediary Rules 2021 mandate significant messaging social media intermediaries to enable the government in identifying originators of information/messages. Though it has security and privacy concerns, can definitely help in tracking down the nuisance creators.
Recently in Hindu Yuva Vahini (Delhi Hate Speech, April 2022), the Supreme Court asked the Union Government to respond to a plea related to the law on hate speech and directed police to relook at its approach towards hate speech. Laws be enacted to maintain parens patriae attitude of State. Unless India enacts an exclusive law criminalising hate crimes like the UK’s Public Order Act,1986; The Radical and Religious Hatred Act 2006, it’s the responsibility of social media platforms to employ, significant human review, and advanced AI filters etc. to identify and arrest the propagation of religious hate.
*Professor Dr Dilip Ukey is the Vice Chancellor of Maharashtra National Law University (MNLU), Mumbai, Dr Garima Pal is a faculty at MNLU and Dr Anand N Raut is the Head of Post Graduate Department at MNLU.
