Suchitra Vijayan at The Polis Project spoke to lawyer and legal researcher Siddharth Narrain about the history of hate speech in India, and its current trajectories in relation to freedom of expression, social media and question of dissent. This conversation is an attempt to take the academic and legal scholarship around the law, justice, and violence to a wider audience.

Siddharth Narrain

Siddharth Narrain is a lawyer and legal researcher based in Delhi. He is an Honorary Research Fellow with the Sarai Programme, Centre for the Study of Developing Societies (CSDS), Delhi. He has worked previously as an Assistant Professor at the School of Law, Governance, and Citizenship, Ambedkar University Delhi; as a legal researcher with the Alternative Law Forum, Bangalore, and as a journalist with The Hindu group of publications, Delhi. @snarrain

Let’s start with the basics. Can you tell us what Hate Speech is and how Hate Speech is defined in India?

So, Hate Speech, funnily enough if you actually begin to look for definitions, it’s very difficult to find a legal definition of Hate Speech. And even in academic writing, legal writing, Hate Speech is usually very broadly defined, as an attack on a group or an individual which is based on identity. So, it’s often identities like race, religion, ability, physical ability etcetera. In the law, finds its form very differently in different jurisdictions and different countries dealt with Hate Speech in very different ways. In fact, the place where you can actually get the closest to a comprehensible definition of Hate Speech, I think is understandable, is if you look at the community guidelines or the guidelines that online platforms like Facebook and YouTube. So, for instance, if you look at Facebook’s community guidelines, you’ll see that have a pretty detailed explanation of what constitutes Hate Speech, and, in my opinion, those are the kinds of definitions which actually match with what we, what we would normally refer to Hate Speech in the media or what we refer to in conversation.

And you have written rather extensively on the legislative history of Hate Speech in India. So,  before we go into more nuanced questions can you also tell us a little bit about the legislative history of Hate Speech in India and perhaps link it to this often-heard word about hurt sentiments. What does it mean and how does these two links together?

So, in India, India has a very distinct history when it comes to, what we are broadly defining here, calling here as Hate Speech. India as well as many countries which, where the British framed legislation, the Hate Speech becomes an issue during the, during colonial times. Initially, it was an off-shoot of what we would understand as sedition. So, in India sedition law was the, was the big thing and the national struggle was targeted with sedition law. So, for instance, Gandhi had a very famous trial. People like Gandhi and Tilak, were trial, tried for sedition. But what happens, if you look at the history is that at some point in time in the late nineteenth century, there is a division in the law between sedition and hate speech. So, sedition becomes speech that targets the state and Hate Speech becomes speech which targets other communities. So, there is that division. So initially, that corresponds to the present-day Section 153 (A) of the Indian Penal Code.

But in the 1920s there is a very interesting episode, a very dramatic episode in the late 1920s in the then undivided Punjab, where there is a huge controversy over a pamphlet called Rangeela Rasool– a very crude satire of the Prophet. So, when there were protests over this and there was a case that was filed under the, under the existing hate speck law at that time, the judge basically held that it did not amount to Hate Speech under that law because the law only targeted attacks on a community and not attacks on a religious figure. As a result, there were huge public protests. There was a lot of mobilisation of groups at that time and the government, the then colonial government was forced to enact a new law which is Section 295(A) of the Penal Code which criminalises attacks on religious figures as well. The language of the law for instance in Section 295(A) talks about outraging religious feelings of any class by insulting religion or religious beliefs. That’s where you have this entire notion of hurt sentiments. That’s the history. So, there is a very, very specific context of how hurt sentiments get criminalised and because of this broad framing of the law, in contemporary times, we’ve had many political outfits and individuals who have invoked this law to claim that their sentiments have been hurt by artistic expression, by people, by creative content, movies. It’s a very common, I mean for instance Wendy Doniger who writes about religion in India has also been targeted under this law.

And now can we go on to the other concept, the idea of dangerous speech. What is Dangerous Speech? And how does it differ, or does it differ from Hate Speech?

So Dangerous Speech, I would say in my understanding is a sub-set of hate speech. It’s a particular kind of Hate Speech which one can link more concretely to violence. The word comes about, became, began to be used quite commonly by academics like Professor. Susan Benesch. She and her colleagues were part of a project called The Dangerous Speech Project. You can look it up online. There is a lot of material that they’ve put up. But basically, they, they define this term in relation to the work they have done on genocide and through their work on genocide in places like Rwanda for instance, they have come to the understanding that even when, when a, when an incident of mass violence actually takes place, like the genocide that happened in Rwanda, there is a link that one can make to speech that was, to public speech that was circulating in the lead up to the violence. And this is what they call Dangerous Speech. And they very specifically list out certain factors that are at play. So, for instance, they talk about who is making the speech. What are the means of communication? Who is the audience? Are there other viable forms of information that they are competing with? So, they identify these specific factors and they say that there is a certain kind of atmosphere that has been created which allows for mass violence or violence, group violence. So here they, they are talking about a specific kind of Hate Speech.

And could you go little bit deeper into this understanding of this relationship between Dangerous Speech and violence in relationship to India?

So, in India, the context is specific. So, anybody has some familiarity with India, South Asia, in many parts of the Global South I would say and given the colonial context and given the context of communal conflict and contestation, it is very real to experience group violence. By group violence I mean, communal riots, instances when there is a breakdown of public order, for, for temporary periods of time and that sparked off by a specific incident but often is related to much broader factors, for instance the economic competition between religious or other groups or a history of violence in a particular area, or particular actors or political players who are what Paul Brass, the academic calls there is a, there are institutional actors who are also invested in this, in this violence. So, so there is a history of this context and so, so there is a very real danger of speech in any form translating into violence between two groups. Question is of course, how do you link this speech and violence? Now, for those in other contexts this link is often very tenuous. So, people would say for instance that just because somebody makes a speech or just because there is something that is circulating, it doesn’t automatically cause, how do you link that to a specific instance of violence?

But I think the, the point is not that there is speech and that it causes violence so there is a specific thing that is being said and is circulating and is causing violence. But the point is there is a larger, there is a larger constellation of events and occurrences in which this particular content or speech, it, it gets a certain kind of charge in that atmosphere. When there is a lot of tension because somebody ahs said something and is being highlighted by another group and they are, and there is tension between two groups, say religious groups at a particular point in time, at that point in time, a speech, a provocative speech, what we call Dangerous Speech, something is said publicly, or it circulates then it could have a certain kind of charge and could contribute to the, to this link between violence and speech. So that’s the, that’s the way in which I would see dangerous speech.

Now, there are many, many people who work on Free Speech who I know and who I respect. But many people have different views on this. For many people who work on Free Speech, they don’t want to go down the line where you start linking speech to violence, to make that very concrete link because it makes it easier to curb speech but in, in my experience, I would say in the work that I’ve been doing around social media and Dangerous Speech- the little bit that I have actually done- I can see that there is something going on there which, which you cannot ignore.

And that brings us again to the work that you have been doing on the questions of social media and how information is circulated, and you talk about this the blurring of boundary between private and the public speech. Can you talk to us a little bit more about what this blurring is and how you see that relating to this idea of violence erupting?

Hate Speech itself, the very traditional definition of Hate Speech is that it has to be speech that is public. For instance, a private communication between two people, if I were to insult somebody, if I were to attack somebody through a private communication, historically that was never considered Hate Speech. It could be considered defamation. It could be considered something that you could, you know, be offended by but not, would not fit in the traditional category of Hate Speech because it was required to be public speech, something that was accessible or was in the public arena.

Now what has happened is that, over a period of time there has been a blurring of this, what constitutes public and private speech especially mediated by new technologies and especially because of the widespread use of mobile phone enabled internet. All of us know that more and more circulation of speech and news on, on platforms such as Facebook and platforms such as WhatsApp. And WhatsApp is a particularly interesting example because it’s, it’s a communication platform that is designed to be protected, encrypted, peer to peer encrypted. Nobody actually is supposed to be able to see what, what happens in between. So, technically it is a completely private communication. But the way, the way this platform works is that, a lot of, it is very easy to forward content and the ease with which content moves from one platform to another, you can easily download things from YouTube send it on WhatsApp which then can go to Facebook and the ease of circulation and the speed and amplification of that circulation- so within moments you have material that’s forwarded and within moments you can have content which goes viral. So, in that sense it is very difficult to particularly pin this down as and say that they still remains private communication especially in the context of something like Hate Speech.

If you have an attack on a community, a speech content which is attacking a community or making an allegation against a community and this is being circulated widely in an area and there is actually physical violence, communal riots going on at that time, it’s very difficult to turn around and say this is private speech so it doesn’t constitute Hate Speech. It makes no sense in this context. And I’ll give you an example actually, an incident, when I was at RightsCon two years ago, which is a major conference of people who work in the area of human rights and technology. I attended a panel which was on policing and hate speech and on this panel, there was a police person from Zambia and a policeman from Netherlands. And after they spoke, I asked both of them a question. I said, how are you dealing with Hate Speech on platform like WhatsApp. And so, it was very interesting the contrast in the responses, because the Dutch cop, he said, listen this is not Hate Speech, sorry this is not Hate Speech because this is private communication between two people, so we don’t even consider it, so we won’t even consider this as Hate Speech. And it was such a, you know, I was taken aback because this makes no sense. And the Zambian cop said, you know, it’s a big problem in our country. We are trying to figure out how to deal with this. It’s a difficult question. We don’t have the technology right now to. We are trying to figure it out. So, I could relate to his answer much more through the work that I have done and through our specific context. And that also gives you a sense of public-private, because the traditional rule of law, public-private distinction, you would not even consider this as Hate Speech- while this breaks down when you see new technologies and how such speech is actually communicated.

Siddharth, I have a quick follow up question. It is very fascinating that you spoke to two different people and yet came out with very different understanding and analyses of the problem. Do you think the Dutch experience is somehow, is it different? Do you think societies like Zambia, like India, the concern is, is the problem different? Or is the way the problem is policed different that causes these two similar but different officers to respond so differently?

So, I think, it’s an interesting question. I have been thinking about it. So, one possibility is that the Dutch cop is trained better to answer this, so he was being more politically correct, that’s one. If you rule that out, if you take what he saying as, at face value, it either means that he doesn’t know how this could work, you know he is not aware of just how widespread, how content spreads on WhatsApp. Or the context in which he is, is different, so which means that people are not using such peer to peer platforms for the same purposes that we are familiar with and the ways in which we are familiar with.

But even having said that, surely even in Netherlands there are large migrant communities, there are large number of people I’m sure who are using such platforms to communicate in various ways. I still don’t understand why he could give that pat reply. But yes, may be there is something specific about the Global South context- the fact that WhatsApp is very popular here. The fact that WhatsApp groups play a particular role. Like WhatsApp is the new de-facto medium, right? So, even the government will function through WhatsApp. Even the police has WhatsApp groups, even your neighbourhood community has WhatsApp groups.

So maybe the context there…that’s the difference. That is something that he didn’t totally get.

And that now takes us to the broader work that you have been doing. In the EPW essay that you wrote, you talk about the murder of Mohsin Sheikh who was killed during the communal violence of 2014. Could you talk to us about the case and also the legal question it raises for you and for the larger legislative measures in India.

So, Mohsin Sheikh was a software engineer who.. he, he lived on the, on the outskirts of Pune. He happened to be outside around 2014, when there were, there were communal disturbances in that area. And this took on many forms. Actually, over a period of few months, there was conflict between Hindus and Muslims. There was conflict between, inter-caste tensions specially around Dalit assertion at that time. So, there were, there were many things that were happening in that area, which led to specific instance where people were being, there were groups that were going around publicly attacking public property in Pune at that time. Now, he happened to be outside and a group of people basically attacked him and they, they injured, they injured the person he was with and they killed him.

So, when the case was prosecuted, one of the observations they made was that perhaps he was attacked because he was identifiable as Muslim because he was actually going to the mosque or was coming back from there.

Rather appalling observation to make, saying that identity somehow justifies his attack and killing.

Yes, exactly. So, so that came in for a lot of criticism. So basically, the question was would that, how does, how is that a factor, how is that a factor which mitigates anything? There could be a factor which make things worse for the perpetrators because then it could be considered a identity based crime. In the US it could be called a Hate Crime. India doesn’t have a specific Hate Crime legislation but if anything, one could, one could possibly see it as a more serious form of violence because you are targeting somebody purely based on their identity. But the context, the way in which the judge makes the remark was almost like it was a mitigating factor. So that became quite controversial.

And the link between Mohsin Sheikh’s death and this particular bail order that we are talking about, which you know, they had applied for bail and that’s where this comment came and, and what we were talking about earlier, is that during this time there was a lot of material that was circulated which was basically attacking Gods and Goddesses or certain figures like Ambedkar also and Shivaji and so on-  who people, who people generally revered or who thought were important figures in these communities who live in these areas. There was a group at that time. A quite a large group of people who came together- which was a civil society group, and they said, when they found that this material was circulating, and this violence had happened. They decided that they needed to do something about it. So, they basically created… they already had a pre-existing group which had come together on Facebook during a natural disaster that had happened, for relief work at that time. So, they used this existing base and they came together and said okay let’s start tracking Hate Speech online and let’s start trying to take this down.

So, they used a very interesting method and I found this out when I did my interviews there and so what they did was that they had this huge base of say around twenty thousand or more people on a Facebook group and then they had a core team and the core team would then identify certain kinds of material which they saw on Facebook or… so this is mostly on Facebook. So, they were able to identify this material, this content and they would then basically flag this as violative of Facebook’s guidelines and because of the large numbers they were at that time able to get Facebook to take this down. Now Facebook itself would claim that numbers don’t matter, the numbers game shouldn’t matter but at that time anyway it made a difference. They were able to successfully take this down. They didn’t have any strict guideline of what they considered.. they used their common sense. And they just used their intuitive sense on what was, what is acceptable and what should not be. They were criticised by some people at that time for acting like some sort of a vigilante force. It was the question that some academic and celebrities raised what that you are doing this today but tomorrow we would have another group which would decide we want to take something else down and so then what stops them from doing so.

And then most interesting was that the Pune police actively collaborated with them in taking down material and Pune police also had a very active offline campaign. A campaign where they went to schools, they had these huge billboards put up where they are urging people not to forward messages without thinking and so on and they actively campaigned. And this is, this could be in some way is one of the examples, if you think about it where we have had a serious response to Dangerous Speech and where actually they claim that they were successful in diffusing the situation.

And that brings us to the opposite of the scenario: a place like Kashmir where the government regularly shuts down internet, regularly shuts down access to any kind of social media platform. In 2016, they had hundred days of curfew. Can you then use Kashmir as the basis to talk about the relationship between freedom of speech and how that works in India?

So, Kashmir is a prime example of what are the dangers of going, the dangers of maybe institutionally, institutionalising some of these measures. So, because this, Kashmir is a kind of test case in many ways. It is a first place where you have had internet shutdowns, even getting sim cards is highly regulated in Kashmir. For a long time, people were not able to get pre-paid sim cards itself. The entire phenomenon of access to internet being shut down during violence, group violence, the first place, one of the first places where this happened was in Kashmir. You have instances all over India. There has been a large number over the last four to five years where the government regularly has, it cuts off access to either broadband or, usually broadband internet for short periods of time or limited periods of time during instances of communal violence. So, the same logic that we use in any, many of these instances, we transpose this onto a context like Kashmir. It might have a very different valence. Because to give you an example, in Kashmir, a District Magistrate passed an order a few years ago saying that all WhatsApp news groups should be registered. Of course, to think about it the mind boggles because first of all, what is a news group? What is a WhatsApp news group? You have WhatsApp groups created for various things, it could be a birthday party, it could be an event. Many of these could be for an hour, they could be lasting for years. So how one can determine what’s a WhatsApp news groups is very vague and broad. And secondly imagine a situation where all WhatsApp news groups have to be registered with the magistrate or the government and the police has access to it. This is quite unthinkable as a practice. But I mean this is something that they came up with but I don’t think they can, enforcing it, it is not possible to enforce this. But obviously it becomes a method of, that you can use to harass people, harass and control dissent etcetera.

And interestingly a few months after that you saw, I saw a newspaper report which said that in Varanasi somebody had passed a similar order. So, the other side of the story is of course how there has been increased monitoring. So even in Pune, one of the things that happened is that there is more sophisticated monitoring of what they identify as nodes or major players. So, in the Pune context it was actors who could, who would have a lot of friends, who would be able to influence society in a particular way and there, their posts were looked at or scrutinised more. And it is a way of policing. It is a way of the police keeping ahead of the violence that is happening to be able to respond to it. But what it means is that they are setting up infrastructure where you can actually see, they see what people are posting publicly. So, they are not doing anything illegal, at least not in the face of it but they are monitoring people’s public posts etcetera. But we all know that in a way once they get more sophisticated, this kind of monitoring, on the face of it they are saying they are monitoring for certain key terms during violence etcetera for policing. But once it gets more sophisticated the ways of profiling, they ways of putting together information to profile people, so that’s always a danger.

And India doesn’t have a very strong data privacy framework as yet. Very recently Justice Shri Krishna Commission, a commission which was setup by the government came out with recommendations on a framework for data privacy. Many people have criticised this framework as too focussed on commerce and too less on individual rights. So, it is not very clear whether we will actually go down the route of having very robust data privacy protection. So, without such protection and without the institutional mechanisms to act as checks on excess, when you have such monitoring even in the context of violence, you, it’s possible that it will also lead to more sophisticated monitoring and of course in Kashmir and other places or even profiling of say dissidents, people who oppose the government etcetera, that becomes much easier.

Sidharth thank you so much for your time. As we come to the end of this conversation, I just want to ask you one last question. There is a lot of anxiety in India about the nature of violence that’s spiking, about crackdown on what people consider as civil liberties. The Thoothukudi protests recently against police snipers shooting at protestors and there was an internet crackdown. I was wondering if you could give us your concluding thoughts on how you see these trajectories of dangerous speech and violence and in some ways also increased monitoring of these groups. What do you think would be the future trajectories as we move forward?

I think there is a lot to think about on the broader issues. What we have been talking about is a very specific context with WhatsApp and communal violence, Dangerous Speech. But I think we find the broader, if one kind of zooms out a bit then you will see that globally there is not writing and debate on the relationship between social media, violence and Hate Speech and democracy and this could, you know it ranges from the US, the role that right wing trolls and right wing news agencies played in the US elections to Brexit to the Philippine president Duterte and how he has used Facebook to violence in Mayan Amar to India, so I think there is a global context in which people are beginning to now ask questions of platforms, ask questions of how civil society and people using around these platforms also and in what ways, there have been fundamentally shifts in the way public exchanges and public conversations and dialogue happens. In India there have been for instance a series of lynching and those in the US would be able to relate to this, especially through the context of race and history of lynching of African Americans and so on.

In India this is not the term that was actually used so often and now this is the term that is being used and we are, our context has been more in the history of caste violence, public violence where people have been tortured, attacked because of their caste, because people decide to marry being from different castes or the context of gender violence etcetera. But more recently there have been a spate of attacks on people either based on their religion, based on the fact that linked to this entire issue of criminalisation of cow slaughter, the beef trade or the fact that people look different and are from outside and are outsiders who are travelling and because of certain rumours that are circulating many of these rumours have to do with child lifting. The fact that children have been kidnapped etc. there have been number of incidents across the country where people have been attacked and many people have lost their lives.

I think, now this is something people are now thinking about actively, why is this suddenly happening, is there a history, social history that one has to look at? What is the role of technology? What are the ways in which the conversation around issues like justice is now becoming, one related to vengeance and violence? Is there some way technology is mediating this change? What is this the nature of democratic dialogue? And what is the role that these actors have to play? And these are very important questions for the future and in a context where public violence is so out there and so visible like in India right now, with elections that are approaching and where we see increased hate speech from political actors, instrumental use of hate speech especially during elections and so on, just raises a number of questions for larger issues of how one actually imagines democratic dialogue and free speech.

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