Introduction
Sections of the broadcast and print media in India have been in the spotlight for controversial content vilifying minority communities that have been the subject of both criminal proceedings and complaints under existing institutional mechanisms and medium-specific laws. The concern of civil society groups and minority communities, who have been the subject of stereotyping and vilification, is that such negative stereotyping contributes to an overall climate that will lead to greater insecurity among minorities and an incitement to discrimination, hostility and violence against them.
The 2020 report The Wages of Hate[1], authored by a coalition of civil society groups under the umbrella of Campaign Against Hate Speech, highlights the impact of sweeping generalisations and inaccuracies of reportage in the Kannada and English media that have led to the vilification of minority communities and protestors exercising their legitimate right to the freedom of speech. These include using the cluster of Covid-19 cases in the Tablighi Jamaat outbreak to portray Muslims as being spreaders of the virus, an editorial in The Star of Mysore newspaper that referred to the entire Muslim community as “bad apples”, as well as the demonisation of anti-CAA protestors in the media.
Similarly, in the proceedings before the Supreme Court in the Sudarshan TV case[2], the question centred around the content of a program on the channel that alleged a “UPSC jihad” and used blatantly discriminatory language referring to Muslims being part of the civil services. In this case, the Ministry of Information and Broadcasting has cautioned the channel to be careful and has warned of strict penal action in case of violation of the existing Programme Code under the Cable Television Networks (Regulation) Act, 1995[3]. The Campaign Against Hate Speech’s complaint, related to the coverage of the coronavirus in the Vijaya Karnataka newspaper filed before the Press Commission in May 2020, has resulted in a bailable warrant for the non-appearance of the editor of the newspaper.
The Supreme Court’s Jurisprudence
The Supreme Court’s jurisprudence in this area has focused on the question of incitement to violence in relation to public order, and has laid down in the “spark in a powder keg”[4] test that there has to be a proximate connection between content that is alleged to be disrupting public order and the occurrence of such disruption. The court has also included an element of mala fide intention in its analysis. Further, in order to protect against vexatious litigation, the court has also laid down speech protective standards, that the content should be judged against the standards of a reasonable person and not a sensitive one.[5]
The Supreme Court’s jurisprudence was tested in two recent cases – one in the Andhra Pradesh High Court, involving speeches by the AIMIM MLA Akbaruddin Owaisi,[6] and the other a telecast on News18 India.[7] In the former case, the petitioner’s grievance was the media’s dissemination of Owaisi’s speeches, which he argued would incite communal violence and lead to a disruption of public order. The Andhra Pradesh High Court, applying the “spark in a powder keg” test, held that the petitioner’s fears were unfounded and that “the sagacity and equilibrium shown by the general public” were proof that such speech fell under the purview of legitimate speech.
In the second case, the petitioner had used the word “terrorist” in relation to the Sufi saint Hazrat Moinuddin Chisti during a television programme. This had led to a spate of FIRs being filed against him on charges of violating sections 153A (promoting enmity between groups) and 295A (outraging religious feelings) of the Indian Penal Code, 1860 (“IPC”), inter alia. The Supreme Court applied the “spark in a powder keg” test and held that it was not possible to establish causality between the speech concerned and the resultant public order. In both these cases, the court, while referring to its jurisprudence on incitement, has ruled that the content in question did not amount to incitement to a public order disturbance. The Court has relied on its decision in the Tamas case[8] where the decision to screen the award-winning series on Doordarshan was challenged, and the court held that the content was educative and that it did not amount to incitement.
Taking a Broader View
The authors of The Wages of Hate report have taken the position that a wider view of the effects of hate speech, such as the arguments put forward by the philosopher Jeremy Waldron, will allow for a different approach to the question. Waldron argues that the existing approach in U.S. law based on the Brandenburg test of imminent lawless action, which is an incitement-based test that has influenced Indian courts, should be replaced with an approach that takes into consideration the impact of such speech on the dignity and security of the community that is targeted, chipping away at the value of assurance that such groups have – an assurance of their status as equal citizens and of security within the society that they live.[9] According to Waldron, the harm caused by such speech is broader than just the threat of incitement to violence against them and goes to the root of these values that define relations between groups in society.[10]
If one applies this approach to the context of statements targeting Muslims and other minority groups in the print and broadcast media in India, this seems like a powerful argument, where a community that is already widely discriminated against in sectors such as housing and employment[11] is now at the receiving end of such vilification in the media. The problem that the court faces is not so much that such content should not be allowed, but the consequence of criminalising such speech. This question is especially important where we have seen the same criminal provisions, such as sections 153A and 295A, being used to harass artists, creative voices, and voices of dissent by weaponising them and using them instrumentally.[12]
The Law Commission of India in its 2017 report on Hate Speech addressed this problem by suggesting an amendment to the IPC to include a provision that would specifically prohibit incitement to hatred[13] both in relation to violence but also through a wider category of “gravely threatening words” with the intention to cause fear or alarm. This reframing of the law would also use “protected characteristics” such as religion, caste, etc. that are recognised internationally and in other jurisdictions. The question, however, is whether a wider framing of the law will address the wider approach suggested in The Wages of Hate report or will it instead allow for harassment of legitimate speech.
In 2015, the Supreme Court, in the Shreya Singhal judgment[14], struck down section 66A of the Information Technology Act, 2000, which it held was framed too broadly, thereby allowing for the arbitrary use of the law to curtail legitimate speech. In doing so the Court laid out three categories of speech – discussion, advocacy and incitement. Of the three categories, the Court held only speech that amounted to incitement to be illegal. The question was when discussion or advocacy becomes incitement. The Wages of Hate report and the Sudarshan TV case seem to be asking a different question, i.e., whether there is speech that may be legitimate as per the incitement test, and yet unacceptable, because of their impact on minority and disadvantaged groups.
Conclusion
In the Australian state of Victoria, a state Parliamentary Committee has recently recommended that the existing criminal laws relating to anti-vilification based on a set of protected characteristics be amended to protect these groups and individuals against intentional or reckless conduct that is likely to incite hatred, serious contempt, revulsion or severe ridicule.[15] These recommendations followed depositions by many minority groups, many of who worked with indigenous, Muslim, Jewish, immigrant, and LGBTI communities, stating that these groups faced increasing and organised vilification in the state of Victoria.[16]
These legal debates, therefore, are not unique to India. What is unique though is the specific political and institutional context, given that any change in the court’s approach or legislative reform will have serious repercussions for legal remedies for those communities most at risk from hate speech and incitement to violence. Given the specific context of growing majoritarian and exclusionary politics in India, and a shrinking space for dissenting views, any proposed change in the law in India has to be carefully considered, discussed and debated. While there is no doubt that unregulated hateful content on broadcast media can have deadly consequences, we have to be careful to ensure that the answer that we propose does not lead to a further shrinking of the democratic space in the country.
[1] Campaign Against Hate Speech, “The Wages of Hate: Journalism in Dark Times”, September 2020 https://hatespeechbeda.files.wordpress.com/2020/10/finalhatespeechreport.pdf , (accessed 22 March 2021).
[2] Firoz Iqbal Khan v. Union of India, 2020 SCC OnLine SC 737.
[3] Cable Television Networks (Regulation) Act, 1995.
[4] S. Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC 574.
[5] Ibid.
[6] N.V.S.J. Rama Rao v. Broadcasting Corporation of India & Ors, 2013 SCC OnLine AP 12.
[7] Amish Devgan v. Union of India, 2020 SCC OnLine SC 994.
[8] Ramesh v. Union of India, (1988) 1 SCC 668.
[9] Jeremy Waldron, The Harm in Hate Speech, Harvard University Press, Cambridge, MA, 2014.
[10] Ibid.
[11] See, for example, the Report on the Social, Economic and Educational Status of the Muslim Community of India, Prime Minister’s High Level Committee, November 2006, http://www.minorityaffairs.gov.in/sites/default/files/sachar_comm.pdf, (accessed 4 April 2021) . See also, Mohsin Alam Bhat, “Bigotry at Home: How Delhi, Mumbai Keep Muslim Tenants Out”, Article14.com, 11 February 2021, https://www.article-14.com/post/bigotry-at-home-how-delhi-mumbai-keep-muslim-tenants-out (accessed 4 April 2021).
[12] The Supreme Court, in a recent order related to a broadcast by Republic TV CEO Arnab Goswami quashed multiple FIRs filed in different parts of the country holding that the filing of multiple FIRs in different parts of the country for the same incident amounted to harassment and did not satisfy the standard of reasonable restrictions or proportionality that it has laid down. However, the Court did not rule on the merits of the FIRs and did not interfere in the criminal proceedings in the original case filed in Mumbai. See, Arnab Ranjan Goswami v. Union of India & Ors, (2020) 14 SCC 12.
[13] Law Commission of India, Report No. 267 Hate Speech, March 2017, https://lawcommissionofindia.nic.in/reports/report267.pdf (accessed 23 March 2021).
[14] Shreya Singhal v. Union of India, (2015) 5 SCC 1.
[15] Parliament of Victoria, Legislative Assembly Legal and Social Issues Committee, Inquiry Into Anti-Vilification Protections, March 2021, https://www.parliament.vic.gov.au/lsic-la/article/4335 (accessed 23 March 2021).
[16] Ibid.
This article has been authored by Mr. Siddharth Narrain, PhD Candidate, Faculty of Law and Justice, UNSW, Sydney. He was assisted by Ms. Tanishka Maurya, a student at RGNUL, Punjab. This blog is part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.