Free Speech & Violent Extremism: Special Rapporteur on Terrorism Weighs in

Written by Nakul Nayak

Yesterday, the Human Rights Council came out with an advance unedited version of a report (A/HRC/31/65) of the Special Rapporteur on protection of human rights while countering terrorism. This report in particular deals with protecting human rights while preventing and countering violent extremism. The Special Rapporteur, Ben Emmerson, has made some interesting remarks on extremist speech and its position in the hierarchy of protected and unprotected speech.

First, it should be noted that the Report tries to grapple with and distinguish between the commonly substituted terms “extremism” and “terrorism”. Noting that violent extremism lacks a consistent definition across countries and in some instances any definition at all, the Report goes on to liken it to terrorism. He also acknowledges the lack of understanding of the “radicalization process”, whereby innocent individuals become violent extremists. While the report does not suggest an approach to defining either term, it briefly contrasts the definitions laid down in various countries. However, there does seem to be some consensus on the ambit of violent extremism being broader than terrorism and consisting a range of subversive activities.

The important section of the Report, from the perspective of free speech, deals with incitement to violent extremism and efforts to counter it. The Report cites UN Resolution 1624(2005) that calls for the need to adopt legislative measures as effective means of addressing incitement to terrorism. However, the Report insists on the existence of “serious human rights concerns linked to the criminalization of incitement, in particular around freedom of expression and the right to privacy.[1] The Report then goes on to quote the UN Secretary General and the Special Rapporteur on Free Expression laying down various safeguards to laws criminalizing incitement. In particular, these laws must prosecute incitement that is directly related to terrorism, has the intention and effect of promoting terrorism, and includes judicial recourse, among other things.[2]

This gives us an opporutnity to discuss the standards of free speech restrictions in India. While the Supreme Court has expressly imported the American speech-protective standard of incitement to imminent lawless action in Arup Bhuyan, confusion still persists over the applicable standard in any justifying any restriction to free speech. The Supreme Court’s outdated ‘tendency’ test that does not require an intimate connection between speech and action still finds place in today’s law reports. This is evident from the celebrated case of Shreya Singhal. After a lengthy analysis of the public order jurisprudence in India and advocating for a direct connection between speech and public disorder, Justice Nariman muddies the water by examining section 66A of the IT Act under the ‘tendency’ test. Some coherence in incitement standards is needed.

The next pertinent segment of the Report dealt specifically with the impact of State measures on the restriction of expression, especially online content. Interestingly, the Report suggests that “Governments should counter ideas they disagree with, but should not seek to prevent non-violent ideas and opinions from being discussed.[3] This brings to mind the recent proposal of the National Security Council Secretariat (NSCS) seeking to set up a National Media Analytics Centre (NMAC) to counter negative online narratives through press releases, briefings, and conferences. While nothing concrete has come out, with the proposal still in the pipelines, safeguards must be implemented to assuage chilling effect and privacy concerns. It may be noted here that the Report’s remarks are limited to countering speech that form an indispensible part of the “radicalization process”. However, the NMAC covers negative content across the online spectrum, with its only marker being the “intensity or standing of the post”.

An important paragraph of the report- perhaps the gist of the free speech perspective in the combat of violent extremism- is the visible unease in determining the position of extremist speech glorifying and advocating terrorism. The Report notes the Human Rights Committee’s stand that terms such as “glorifying” terrorism must be clearly defined to avoid unnecessary incursions on free speech. At the same time, the “Secretary General has deprecated the ‘troubling trend’ of criminalizing glorification of terrorism, considering it to be an inappropriate restriction on expression.[4]

These propositions are in stark contrast to India’s terror legislation, the Unlawful Activities Prevention Act, 1967. Section 13 punishes anyone who “advocates, … advises … the commission of any unlawful activity …” An unlawful activity has been defined in section 2(o) to include speech acts that

  • supports a claim of “secession of a part of the territory of India from the Union” or,
  • which disclaims, questions … the sovereignty and territorial integrity of India” or,
  • rather draconically, “which causes … disaffection against India.

It will also be noted that all three offences are content-based restrictions on free speech i.e. limitations based purely on the subjects that the words deal in. Textually, these laws do not necessarily require an examination of the intent of the speaker, the impact of the words on the audience, or indeed the context in which the words are used.

Finally, the Report notes the views of the Special Rapporteur on Free Expression on hate speech and characterizing most efforts to counter them as “misguided”. However, the Report also “recognizes the importance of not letting hate speech go unchecked …” In one sense, the Special Rapporteur expressly rejects American First Amendment jurisprudence, which does not acknowledge hate speech as a permissible restriction to free speech. At the same time, the Report’s insistence that “the underlying causes should also be addressed” instead of being satisfied with mere prosecutions is a policy aspiration that needs serious thought in India.

This Report on violent extremism (as distinct from terrorism) is much-needed and timely. The strong human rights concerns espoused, with its attendant importance attached to a context-driven approach in prosecuting speech acts, are a sobering reminder about the many inadequacies of Indian terror law and its respect for fundamental rights.

Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.

[1] Para 24.

[2] Para 24.

[3] Para 38.

[4] Para 39.

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Anupam Kher’s Cockroach Tweet: Cultural Reference or Hate Speech?

Written by Siddharth Manohar

The noise surrounding the recent controversy regarding a tweet by Indian actor (and UN Ambassador for Gender Equality) Anupam Kher made it difficult to look into why it caught so much attention. That it did is beyond doubt, garnering over six thousand hits, significantly more than almost all of his other tweets. It was also followed by plenty of coverage and promotion from its audience, who responded while sharing their own views as well. Here I try to look at whether there was any basis for the criticism that the tweet received, and the degree to which it was justified.

To start off, it would be useful to reproduce the lines in their original form:

घरों में पेस्ट कंट्रोल होता है तो कॉक्रोच, कीड़े मकोड़े इत्यादि बाहर निकलते है घर साफ़ होता हैवैसे ही आजकल देश का पेस्ट कंट्रोल चल रहा है

Which translates into: “During pest control in houses, the cockroaches and other insects etc. are removed. The house gets cleaned. Similarly, pest control of the country is going on these days.”

On an initial reading, it is a harmless and vague insult. The use of the term ‘cockroach’, which has attracted the most attention, seems to be employed as a characterisation of anything undesirable, be they problems, politics, or people. As a standalone insult, it remains a lot less venomous as compared to some of the other material that one may find on the website. Apart from containing a reference to one of the actor’s films, it is also vague and targets no group explicitly. It is therefore understandable that the issue has its share of people who may be bewildered by what could possibly be quite so harmful in this particular tweet, and are likely to pass off criticism as an overreaction that seems to be increasingly common.

To understand if there is a valid criticism of the tweet, we look at the larger context in which such a term is understood. The comparing of groups of people to animals and pests has a long, concrete, and troubling history. The process has over time and study acquired the name of ‘dehumanisation’, the process by which language and discourse is used to make a group of people seem ‘less-than-human’. It is a widely documented and extremely effective method of incitement to violence.

The reasoning behind its usage in the process is also interesting and relevant. According to Helen Fein (Benesch, 2008), the purpose of this kind of discourse is to put a certain group of people outside the limits of moral considerations and obligations. This is because the default moral understanding of a majority of people is underpinned by the principle that it is unacceptable to carry out violent acts of hate, or to kill any person. The repeated categorisation of a group of people as the ‘other’, and the polarisation of their identity as a group not worthy of human respect or equal rights, has the effect on the mind of the larger public. Acts of violence and crimes start to seem more acceptable and less outrageous when committed against this group, and this process of dehumanisation escalates over time.

The narratives most often target a specific identity, most famously that of ethnicity and religious identity. The most prominent examples of this occur during the inter-war period in Germany, where there was a large amount of material alienating and dehumanising those of Jewish religion. The content was systematically churned out by state agencies instructed with an agenda. Similarly, the build-up to the Rwandan genocide in 1994 saw a very strong narrative which demonised the Tutsi ethnic group in Rwanda, labeling them as Inyenzi (cockroaches) that cannot contribute to society because of who they were, their basic identity. This narrative creates a larger feeling of resentment amongst the public against the people of the target group, making it easier to commit acts of violence against them. Susan Benesch would argue that there cannot in fact be a large scale violent attack against a group of people that live amongst a majority without the cooperation or the tacit acceptance of that larger group of people.

The comparison of people to pests and animals has repeatedly been used as a tool in this process of moulding public sentiment against certain groups of people. In these cases, the narrative that it served to created helped in the execution of large scale genocidal operations that have left millions of people killed over the decades. Dehumanisation has also been included as part of an academic study devising a ten-step model of genocide. The historical evidence is in overwhelming suggestion that the use of such terms to build a narrative is part of a larger build up towards organised violence based on lines of group identity.

To suggest that an Indian actor is sending out a call for violence is ill-thought out, and ignorant of the complexity of the issue. What does need to be observed however, is how easily discussions are used to create and divide identities, and what values are ascribed to these identities. While healthy and vociferous debate forms an important part of a democracy, also equally important is the tangible effect that speech can have on its immediate surroundings. It is the effects and the consequences (and harm) of speech that give rise to justifications for its regulation, and it is therefore always useful to keep a watchful eye on where public discourse takes us.

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Parliamentary Standing Committee on a New Online Hate Speech Provision

Written by Nakul Nayak

(My thanks to Mr. Apar Gupta for providing this lead through his Twitter feed.)

Amidst the noise of the winter session of Parliament last month, a new proposal to regulate online communications was made. On December 7th, the Parliamentary Standing Committee on Home Affairs presented a status report (“Action Taken Report”) to the Rajya Sabha. This report was in the nature of a review of the actions taken by the Central Government on the recommendations and observations contained in another report presented to the Rajya Sabha in February, 2014 – the 176th Report on the Functioning of the Delhi Police (“176th Report”). In essence, these reports studied the prevalent law and order condition in Delhi and provided recommendations, legal and non-legal, for fighting crime.

One of the issues highlighted in the 176th Report was the manifest shortcomings in the Information Technology Act. The Report noted that the IT Act needed to be reviewed regularly. One particular suggestion given by the Delhi Police in this regard related to the lack of clarity in the definition of the erstwhile sec. 66A. The police suggested that “[s]everal generalized terms are being used in definition of section 66A of IT Act like annoyance, inconvenience, danger, obstruction, insult, hatred etc. Illustrative definition of each term should be provided in the Act with some explanation/illustration.[1] Note that this report was published in 2014, more than a year before the Supreme Court’s historic ruling in Shreya Singhal finding sec. 66A unconstitutional.

An important proposition of law that was laid down in Shreya Singhal was that any restriction of speech under Art. 19(2) must be medium-neutral. Thus, the contours of the doctrines prohibiting speech will be the same over the internet as any other medium. At the same time, the Court rejected an Art. 14 challenge to sec. 66A, thereby finding that there existed an intelligible differentia between the internet and other media. This has opened the doors for the legislature to make laws to tackle offences that are internet-specific, like say phishing.

The Action Taken Report notes that as a result of the striking down of sec. 66A, some online conduct has gone outside the purview of regulation. One such example the report cites is “spoofing”. Spoofing is the dissemination of communications on the internet with a concealed or forged identity. The Report goes on to provide a working definition for “spoofing” and proposes to criminalise it. If this proposal falls through, spoofing will be an instance of an internet-specific offence

Another example of unjustifiable online conduct that has been exonerated post-Singhal is hate speech. Hate speech laws is a broad head that includes all such legal regulations that proscribe discriminatory expression that is intended to spread hatred or has that effect. The Report states that all online hate speech must be covered under the IT Act through an exclusive provision. It has suggested that this provision be worded as follows

whoever, by means of a computer resource or a communication device sends or transmits any information ( as defined under 2 (1) (v) of IT Act )

  1. which promotes or attempts to promote, on the ground of religion, race, sex, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between 
religious, racial, linguistic or regional groups or caste, or communities, or
  2. which carries imputations that any class of persons cannot, by reason of their being members of any religious, racial, linguistic or regional group or caste or community bear true faith and allegiance to constitution of India, as by law 
established or uphold the sovereignty or integrity of India, or
  3. which counsels advices or propagates that any class of persons shall or should be by reason of their being members of any religious, racial, language or religion group or caste or community or gender be denied or [sic] deprived of their rights as 
citizens of India, or
  4. carries assertion, appeal, counsel, plea concerning obligation of any class of 
persons, by reasons of their being members of any religion, racial, language or religion group or caste or community or gender and such assertion, appeal, counsel or plea causes or is likely to cause disharmony or feeling of enmity or hatred or ill-will between such members or other persons.”

shall be punishable with ………”

A mere perusal of these provisions reveals that they are substantially similar to the offenses covered under sec. 153A and sec. 153B of the Indian Penal Code, which along with sec. 295A of the IPC form the backbone of penal regulations on hate speech. In this backdrop, it would appear that the proposed insertion to the IT Act is redundant. The Action Taken Report justifies the inclusion of this proposed provision on the ground that the impact caused by the “fast and wider spread of the online material … may be more severe and damaging. Thus, stricter penalties may be prescribed for the same as against similar sections mentioned in IPC.” However, if the rationale is to employ stricter penalties to online content, then the Report could very well have suggested amendments to sec. 153A and sec. 153B.

What is disconcerting, however, is the assumption that because incendiary content is posted online, its effect will be “more severe and damaging”. Indeed social media has had a hand in the spread of violence and fear in tense situations over the last few years, starting from the North East exodus to the Muzzafarnagar riots and up to as recently as Dadri lynching. Yet, the blanket assertion that online content is more damaging does not take into account many variables like

  • the influence of the speaker – A popular public figure with a large following can exercise much more influence on public behaviour in an offline medium than a common man can on social media,
  • the atmospheric differences between viewing online content in your house and listening to speech at a charged rally, or
  • the internal contradictions of online speech, like the influence exerted by a 140 character tweet vis-à-vis a communally sensitive video (note here that the Supreme Court itself has emphatically recognized the difference between motion picture and the written word in stirring emotion in KA Abbas).

The Report could perhaps benefit from a more nuanced understanding of hate speech. A well-recognized effort in that direction is Prof. Susan Benesch’s Dangerous Speech framework. Prof. Benesch has devised a five-point examination of incendiary speech on the basis of the speaker, the audience, the socio-historical context, the speech act, and the means of transmission. This characterises the effects of the alleged hate speech in a more organized manner, allowing for a more informed adjudication on the possible pernicious effect that said speech might have.

An interesting question of debate could well centre on the proposed enhanced penalty for online hate speech. Would greater penalty for online speech (as opposed to offline speech) attract the ire of the doctrinal stance of medium-neutrality of the Court? Note that the Court in Shreya Singhal only mentions that the standards of determining speech restriction must be medium-neutral. Yet, the premise of enhanced penalties is based on the greater speed and access of online speech, which is necessarily internet-specific. Will a Court’s adjudication of penalties for criminalized speech amount to a standard or not?

Retweeting akin to Fresh Publication?

The Report also suggests that any person who shares culpable online content “should also be liable for the offence”. This includes those who “innocently” forward such content. Thus, for instance, anyone who retweets an original tweet that is later criminalized, will also be found liable for the same offence, as if he originally uploaded the content. According to the Report, “[t]his would act as a deterrent in the viral spread of such content.

Forwarding of content, originally uploaded by one individual, is a popular feature in social media websites. Twitter’s version is called ‘Retweet’, while Facebook’s version is called ‘Share’. When a person X shares a person Y’s post, it may mean one of two things

  1. X endorses said opinion and expresses the same, through the mask of Y.
  2. X conveys to his followers the very fact that Y remarked said content. (In fact, many individuals provide a disclaimer on their Twitter profiles that Retweets do not necessarily meant endorsements.)

In an informative academic article, Nandan Kamath, a distinguished lawyer, termed people who forward information as “content sharers”, characterizing them as “a new breed of intermediaries”. Kamath goes on to liken content sharing to linked quotations and not as fresh publications. In doing so, he calls for restricted liabilities to content sharers. Kamath also examines the UK position on prosecution for social media content, which is multi-faceted, requiring “evidential sufficiency” and “public interest”.

The observations of the Action Taken Report appear linear in their stance of criminalizing all content sharing where the expression may be culpable. In doing so, it assumes all content sharing to amount to original speech. This approach turns a blind eye to instances where a sharer intends the post as a linked quotation. The Report would do well to take these concerns into account, thereby developing a more nuanced policy.

Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.

[1] Para 3.10.2

Bihar Elections ’15: A Hate Speech Examination

Written by Nakul Nayak

The recent state elections in Bihar witnessed the return of Lalu Prasad Yadav as a key political player in the state. However, the elections were also notable for the bitter exchanges between the contesting parties in their election rallies and advertisements. On November 7, a day before the results of the elections were declared, the Indian Express carried a report terming this “the worst political campaign in the state’s electoral history.” Based on data from the Election Commission (EC), the Report found that “the state poll machinery filed 13 FIRs against star campaigners of different political parties for ‘hate speech’, a first for elections in Bihar.

In this post, I provide a brief timeline of the EC’s interventions during the election period followed by an exposition of the law on hate speeches made during the election period and arrive at a comprehensive standard of determining the same as per established Supreme Court case law. Thereafter, I shall identify some inflammatory statements made by various politicians as reported in the media. Finally, I will provide a short analysis about whether these statements can withstand the standards developed by the Court.

 Timeline of Events

The EC announced the dates for the elections on September 9. On September 17, the EC issued an advisory to all contesting political parties to maintain “high standards during election campaigns” in relation to provocative and inflammatory speeches.

A month from the date of announcements of elections, on October 9, the EC criticised all contesting political parties about

the plummeting levels of political speeches by various political party leaders and candidates … The tone and tenor of the political speeches have been found to be calculated to cause mutual hatred, disharmony or ill-will and aimed at to aggravate the differences between different political parties and classes of citizens on the grounds of religion, caste and community …

On October 31, taking stock of the vitriolic political content found in advertisement spaces in newspapers, the EC directed the parties and newspapers not to public any such content that has “the potential of aggravating the differences between different classes of citizens of India and also creating mutual hatred, ill-will and disharmony amongst different social and religious communities”.

On November 1, the EC specifically pulled up Amit Shah for stating that “if Nitish-Lalu win, then consequences will be felt in Bihar and firecrackers will be burst in Pakistan.

Finally, on November 4, a day before the polls, an exasperated EC noted instances where its above directions were violated and directed that any political advertising for the next day will necessarily have to be pre-certified by it.

 Arriving at a Hate Speech Standard for Elections

The hate speech regime in election laws is contained in two distinct provisions in the Representation of People Act, 1951 (ROPA). The first is sec. 123(3A), which outlaws the “promotion of … feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate …

The other provision is sec. 125, which states that “Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable …

The right to stand for elections is a special right created by the ROPA. This right is not a common law right or indeed a fundamental right. Accordingly, if any person wants to contest elections, he/she must play by the rules laid down in the ROPA. On an election platform, one cannot defend one’s statements by claiming the right to free speech under Art. 19(1)(a) of the Constitution. This proposition was first held in Jumuna Prasad. As a logical corollary, the restrictions on statements made on an election platform need not necessarily be compliant with Art. 19(2). Such restrictions need only be proved, beyond a reasonable doubt, under sec. 123(3A) or sec. 125 of the ROPA.

The standard to be used in determining whether a statement constitutes “hate speech” was laid down in Ziyauddin. The Court prescribed an effects test; specifically whether the effect of the statements on “ordinary average voters” would lead to the promotion of feelings of enmity or hatred between different classes. Thus, the intention of the person making the statement is rendered irrelevant, and only the effect of that statement on the “ordinary average voter” in the circumstances is taken into consideration.

In this context, in Kultar Singh, the Court has issued a caveat. It held

In reading such documents, it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one another, are all a part of the game, and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light.

Thus, the effect of the speech on the ordinary average voter taking account of the partisan context appears to be the standard to determine whether a statement violates sec. 123(3A) or sec 125 of the ROPA.

Applying this standard

Now, let us use this standard to verify the validity of the statements rounded up by the EC and other similar controversial comments.

On October 31, the Election Commission apparently singled out two BJP advertisements. They stated

  • Voton ki kheti ke liye aatank ki fasal seenchtha kya sushasan hai? (‘Is good governance about harvesting votes by sowing terrorism?’)
  • Daliton-Pichhadon ki thali kheench, alpasankhyakon ko aarkashan parosney ka shadyantra kya sushasan hai? (‘Is it good governance to hatch a conspiracy to snatch reservations from Dalits and Backwards and give it to the minorities?’)

The first statement was a shot at the incumbent Chief Minister about, as one article put it, “being soft on terror in order to win the support of Muslims.” The obvious implication here was that Muslims are supportive of and/or intentionally complicit in terrorism.

The second statement openly pits caste against religion in the domain of affirmative action. The inference here was that, if relected, the current Chief Minister would rob the Backward Classes of their reservations and hand it to Muslims. Here, by pandering to the “Dalits and Backwards”, the advertisement borders on sensitive communal topics. This statement must also be seen in light of the Prime Minister’s polarizing remarks a few days earlier that “Nobody will be allowed to take away your reservation and give it to any other community in pursuit of their vote bank politics.

With respect to partisan context, these advertisements were published in written form and distributed freely. Consequently, the question of partisan feelings akin to an election rally does not arise. The effect of these statements on the ordinary average voter is a question of fact that should be decided by a Court.

As mentioned earlier, on November 1, the EC scrutinized Amit Shah’s statement that “If Nitish-Lalu win, then consequences will be felt in Bihar and firecrackers will be burst in Pakistan.

Again, the implication of this statement was that the Nitish-Lalu political alliance was essentially a pro-Muslim one. Reading this with the earlier mentioned advertisements on “soft on terror”, one narrative (and thus effect on the ordinary average voter) that could be implied is that a pro-Muslim alliance will be conducive to terror and thus firecrackers will be burst in Pakistan. Again, this question of fact must be determined judicially through the use of witnesses and it can be near impossible to surmise.

Here, it may be noted here that all these statements are pointed at political parties or leaders directly and not religion or caste. However, as held in Ebrahaim Sait,

A speech, though its immediate target is a political party, may yet be such as to promote feelings of enmity or hatred between different classes of citizens. It is the likely effect of the speech of the voters that has to be considered

Moreover, this case also held that hate speech allegations in the ROPA employ the criminal law standard of proof beyond reasonable doubt, where the burden lies on the election petitioners.

Moving forward, it would be interesting to note if the elections of various candidates are challenged in Courts and these remarks and statements are interpreted.