Fighting Hate Speech and The Grey Area

On 8th August 2021, at a rally in Jantar Mantar, inflammatory slogans calling for violence against Muslims were raised. Two days later, Bhartiya Janta Party leader Ashwini Upadhyay and five others were arrested. According to a report in Scroll, they have been charged with promoting religious enmity and breaking the Covid-19 protocol. But more than that, this incident brings up the issue of hate speech back into notice. I know I am a little late to write about it, but still this piece was very important for me.

A working paper by Deepankar Basu, associate professor of economics at UMass Amherst, suggests that between 2014 and 2018, india saw a 300% increase in the level of anti-minority hate crimes. And the Ashwini Upadhyay incident is another addition to the list. There’s an evident need to control hate speech but what make matters complicated is that at a time when hate speech cases are rising, we are also becoming increasingly intolerant. This can be concluded from the fact that whoever is speaking truth to power, is getting arrested on the brutal charges of UAPA, the anti-terror law, or the colonial law of sedition. Between 2016 and 2019, number of cases filed under sedition increased by 160%, while the conviction rate dropped from 33% to 3.3% during the same period. This tells us how the freedom of speech has been stifled in the past few years.

So the dilemma is how to counter both threat to freedom of speech and hate speech. If we increase the restrictions and make strict laws for hate speeches, that would mean compromising with freedom of speech during these difficult times, and the opposite would mean giving a freedom to hate mongers. But before finding solutions to the problems let’s discuss what hate speech actually is.

The blacklaw’s Dictionary defines hate speech as, “Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.” Point to be noted is that there is no specific definition of what hate speech is. It is purely subjective and case-specific.

Now that we know that it is subjective, how can we identify a hate speech? The Supreme Court of India in the Amish Devgan vs the Union of India case spelled out a criteria for judging any speech as a hate speech by saying that it should be judged, “from the standard of reasonable, strong-minded, firm and courageous men and not by those who are weak and ones with vacillating minds nor of those who scent danger in every hostile point of view.” This is a very interesting comment considering how “khatre mein hai” (“is in danger”) has become like a very common saying in recent times.

Another very good method of identifying hate speech was given by American writers Alice E Marwick and Ross Millar of Fordham University, and written by Parsa Venkateshwar Rao Jr. in an article in The Leaflet. Marwick and Millar came up with a very simple technique of looking at the Content, Intent, and the Consequence of any speech, out of which the consequence is of high important. Let’s test the case of Ashwini Upadhyay for that matter. The content or the slogans raised in the rally were bad, discriminatory and certainly hateful. The intent was to provoke violence against muslims. And hopefully there was no seen effect of the rally, but surely incidents like these are the reason hate crimes are increasing rapidly in india.

Hence, we need to find a way to stop all this while taking into account Freedom of Speech.  The United Nations came up with the ‘Rabat Threshold Test’ to understand the severity of any hate speech. The  United Nations Strategy And Plan Of Action On Hate Speech: Detailed Guidance says that it should be assessed on the basis of six criteria which includes, “(a) the social and political context; (b) the status of the speaker; (c) the intention of the speaker; (d) the content and form of the speech; (e) the extent of its dissemination; and (f) the likelihood of harm, including imminence”

It further says that only Top Level hate crimes, which meets all the six criteria, should be criminalized. The intermediate level, which do not fit all the criteria should be prohibited. And for the bottom level hate speeches, the advisory said, the crime is not punishable. The bottom level crime includes, “Expression that is offensive, shocking or disturbing > The condoning or denial of historical events, including crimes of genocide or crimes against humanity > Blasphemous speech, including insult to religious feelings, lack of respect for a religion or other belief system, and defamation of religions.”

But apart from laws and international guidelines, we as a society need to combat hate speech at a personal level. But a research by IndiaSpend shows that “Candidates with hate-speech cases against them were three times more successful in elections compared to those without a criminal record.” This is a disheartening figure. As Rao wrote,

“A society that nurses grudges and hatred will destroy itself. It is an issue that goes beyond mere laws, allowing or forbidding something.

Laws are instrumental. They cannot be a substitute for idealism and vision, for harmony and goodwill.”

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