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Orchestrated right-wing campaign targets Muslim women: Can the Law defend them adequately?

Hindutva leader from UP openly threatens Muslim women with sexual assault outside mosque; it’s time to take a closer look at legal provisions against such an aggression

CJP Team 15 Apr 2022

sexual assault
Image: https://cjp.org.in

Muslim women are being increasingly targeted with vile sexual threats, both online and on the ground. The blatantly abusive behaviour is often spearheaded with impunity by right-wing extremists and socio-culturally influential members of the majority community. Therefore, it is time to delve into legal provisions pertaining to such threats that have been becoming increasingly common.

Take for example the words of Bajrang Muni Das, the ‘Mahant’ and ‘Hindutva’ leader from Khairabad, UP. On April 2, 2022, Das openly threatened Muslim women with sexual assault while addressing supporters from his vehicle parked outside a mosque in Sitapur. Das’s audience comprised people who were part of a procession on the occasion of Hindu New Year. Much like many such processions being taken out recently, they made it a point to halt outside a mosque. This is where Das spoke into a microphone connected to loudspeaker and said, “If you tease a single [Hindu] girl, I will abduct your daughters and daughters-in-law from your house, and rape them in public.” The vile rape threat was filmed on video and went viral online shortly thereafter.

Taking cognisance of the offence and seeking arrest of the accused, National Commission for Women (NCW) reportedly stated, “The NCW has come across a Twitter post enclosing video of a priest Bajrang Muni threatening to kidnap and rape Muslim women while addressing a gathering in Sitapur district of Uttar Pradesh. It has been reported that police personnel were also present at the location; however, none of them stopped him from making such an outrageous statement against women.”

On April 8, 2022, the Uttar Pradesh police finallyfiled a First Information Report (FIR) against Das, four days after the incident.As reported by The Print, the said Hindutva leader was charged under sections 298 (utterance or gesture in the sight of that person or places with the deliberate intention of wounding the religious feelings of any person), 354 (sexual harassment, making sexually-coloured remarks) and 509 (using word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code (IPC).


Muslim women in Hate’s crosshairs

This is not the first time where Muslim women have been targeted. It was Citizens for Peace and Justice (CJP) that, in May 2021, approached Twitter over sexually violent content against Muslim women. We brough to light several instances of unchecked accounts promoting material that was not only pornographic but also glorified sexual violence against Muslim women. The accounts in question shared hundreds of pornographic videos of women in hijab every day, with inflammatory captions presenting Muslim women as objects, meant to be sexuallyexploited. Photoshopped pictures of Hindu men and pregnant women in saffron hijab were also widely shared by these accounts.Twenty-one such abusive accountswere removed after our complaint.

The fact that social media can be toxic to and for all women, regardless of religion, region, political affiliation and even nationality, is indisputable. But in India, Muslim women in particular are subject to an orchestrated right-wing campaign, abused for both their gender and their religion. This is made worse with the tacit complicity of the government of the day that harbours a hate-filled ideology and holds undisputed sway and power.

Although people of all genders can experience violence and abuse online, the abuse experienced by women is often not just sexist or misogynistic in nature, but online threats of violence against women are often sexualized and include specific references to women’s bodies and person. The aim of such verbalised gender violence and abuse is to create a hostile online environment for women with the goal of shaming, intimidating, degrading, belittling or silencing women.

There are even professionally successful and influential Muslim women on Twitter with verified accounts who are subjected to slurs and threats of sexual violence quite frequently. Noted journalist Arfa Khanum Sherwani, who works for The Wire, told Article14 that words like begum and hijabi have been converted into sexualized slurs to attack Muslim women just like jihadi is used to abuse Muslim men.“The word halala is used by IT cell trolls as a coded rape threat. There is a campaign to attempt to incite sexual violence and other crimes against Muslim women but its larger goal is to further isolate Muslim men from society,” she said.

In July 2021, nearly 80 Muslim women were targeted and put up “for sale” on the S**li Deals app, and in January 2022, over 100 Muslim women were targeted using the B**li Bai app. Both B**li and S**li are sexually derogatory words used to target Muslim women. In both cases, there was no real sale of any kind - the purpose was to degrade and humiliate Muslim women by sharing their personal images, and also to harass them by sharing their personal information.

Noor Mahvish, one such young woman targeted by the S**li Deals app shared her experience in a blog on CJP saying, “The Sulli Deal app that was hosted on GitHub listed (as if to auction) the profiles Muslim women with their pictures, as if they were objects. My picture and information were also made public. Along with me, there were 80 other Muslim women who have been listed (sic) on that app. The Women who were targeted are very vocal on social media, they proudly represent their community and are bravely fighting against this fascist regime. The most common thread behind those listed on Sulli Deal is that they are vocal Indian Muslim women.”

Hasiba Amin, a national coordinator for the Congress party with 139,000 Twitter followers, opened her account on 13 May, a day before Eid, to find that she had been “sold” in an online “auction”.She tweeted, “These people are placing bids to own me and this handle claims that I have been sold to someone. He says ‘enjoy brother’.” Amin had filed a complaint with the police regarding this incident. Journalist Sania Ahmad was also targeted by an unknown account, Sullideals101. “This account has been harassing me since the past one year. I had complained but that went in vain,” she told Article 14.

As reported by SabrangIndia, the UN Special Rapporteur on Minority Issues, Dr Fernand de Varennes, has taken note of the vile anti Muslim 'S**li Deals' as hate speech. Varennes said such harassment of Muslim women in India must be condemned and the law should act against it “as soon as they occur”. He added that “all Human Rights of minorities need to be fully and equally protected.”


Repercussions of online sexual abuse

The repercussions of such incitement of sexual violence against Muslim women sees its history in the incidents of communal violence and genocidal pogroms that have damaged India’s social fabric for decades. In both the 2002 Gujarat genocidal carnage and the Muzaffarnagar pogrom of 2013 rape and gendered violence was used as a weapon of violence against Muslim women.

Right before the anti-Muslim carnage broke out in Gujarat, we saw mass distribution of hundreds of pamphlets with all sorts of messages spreading hatred against Muslims. One such pamphlet titled Jihadinciting sexual violence against Muslim women was circulated. In the next few months 300 to 500 Muslim women were raped, killed and mass humiliated in full public view. CJP secretary Teesta Setalvad, who was documenting the 2002 Gujarat violence and its aftermath saw this on the ground as she interviewed women in relief camps and they shared theirfirst-hand experiences with the senior journalist and human rights defender.

This sexually driven propaganda achieved two aims: creating a band of men who view women of a particular community as targets for mass sexual violence and in every instance of mass violence, women are attacked to insult and attack the honor of a community.

Details of this hate speech preceding the 2002 genocidal pogrom was documented in Communalism Combat, March-April 2002, chapter entitled Pamphlet Poison. The Concerned Citizens Tribunal, Crimes Against Humanity, Gujarat 2002 also documented this thoroughly (Role of the Media), Hate Speech and Hate Writing. On the 20th anniversary of the Gujarat pogrom, secretary, CJP had documented the lineage of this kind of hate speech in that state since the early 1990s which has now gone national.

At that time, the mode of communication was limited to pamphlets but now the same message is being circulated on a much wider, national level scale which is facilitated by social media platforms like Twitter. Sexist or misogynistic abuse and threats have become rather common online. Suspending a few accounts or deleting some tweets are measures that are merely small dents on these concerted, wide-ranging, politically driven campaigns that are also aimed at misusing and manipulating platforms like Twitter for their illegal acts. India has had a history of targeted communal disturbances even when social media was absent and not a reality, so we can only imagine the kind of consequences such incitement on social media can have now.

The systemic nature of this online Islamophobic, racist, casteist and misogynist abuse indicates that it is produced and circulated by organised groups. Studies such as those conducted by Professor Shakuntala Banaji who teaches at the Department of Media and Communications, London School of Economics endorse this.More often than not, when it comes to such cases, especially women from marginalized sections, the persons who set things in motion are often found to be pawns of people who have power and clout, both political, social and economic.Her book co-authored by Ramnath Bhat titled Social Media and Hate is an excellent resource for anyone who wishes to learn more about the subject.

CJP’s sister organization, SabrangIndia has documented hate trends on social media systematically, especially how especially abusive #hashtags proliferate the public sphere and are a precursor to physical targeting of minorities.

The ease and speed with which content can proliferate on Twitter means that women’s experiences of violence and abuse on the platform require an urgent and adequate response from the company, which is lacking. Its algorithms fail to detect such content. Unless any user manually reports a particular tweet, it does not get taken down and in most cases even after it is reported, it doesn’t get taken down before it reaches the desired audience. The accounts, mostly anonymous, know that there is hardly any precedent for anyone in India from being prosecuted for misogynistic or hate speech. They are also aware that even if one handle is banned by a platform, it is easy to set up another account using another anonymous handle. The fact that they are able to have such a wide reach despite their content that is violative of twitter’s community guidelines, means they are able to thrive and mushroom into more and more accounts.

The violence and abuse many women experience online has a detrimental effect on their right to express themselves equally, freely and without fear. A December 2021 survey commissioned by Amnesty International also shows that women who are more active on the platform were more likely to report experiencing online abuse, compared to those less active – 40 per cent of women who use the platform more than once a day report experiencing abuse, compared to thirteen per cent who use the platform less than once a week.


Violation of Laws

The Indian Penal Code:
  • Section 153: Wantonly giving provocation with intent to cause riot

Whoever malignantly, or wantonly by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed;

Punishment:

If the offence of rioting be committed in consequence of such provocation - be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and

If the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

  • Section 153A: Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

(1) Whoever—

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racials, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity,

(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community

Punishment:

Imprisonment which may extend to three years, or with fine, or with both.

  • Section 153B: Imputations, assertions prejudicial to national integration.—(1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise,

(a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or

(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied, or deprived of their rights as citizens of India, or

(c) makes or publishes and assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons.

Punishment:

Imprisonment which may extend to three years, or with fine, or with both.

  • Section 292: Sale, etc., of obscene books, etc.—

(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

(2] Whoever—

(a) sells, lets to hire, distributes, publicity exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or

(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or

(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or

(e) offers or attempts to do any act which is an offence under this section,

Punishment:

On first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees.

In the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.

  • Section 293:Sale, etc., of obscene objects to young person.

Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do.

Punishment:

On first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees.

In the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.

  • Section 294: Obscene acts and songs.

Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place.

Punishment:

Imprisonment of either description for a term which may extend to three months, or with fine, or with both.

  • 295A Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

  • 298 Uttering, words, etc., with deliberate intent to wound the religious feelings of any person

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that persons or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

  • Section 351: Assault.

Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault;

Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

  • Section 354: Assault or criminal force to woman with intent to outrage her modesty.

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty;

Punishment

Imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

  • Section 354 A: Sexual harassment and punishment for sexual harassment.

(1) Aman committing any of the following acts—

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Punishment:

Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

  • Section 503: Criminal Intimidation.

Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

PunishmentSection 506:

Imprisonment of either description for a term which may extend to two years, or with fine, or with both.

If threat be to cause death or grievous hurt, etc.—and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 8 [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

  • Section 504: Intentional insult with intent to provoke breach of the peace.

Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence;

Punishment:

Imprisonment of either description for a term which may extend to two years, or with fine, or with both.

  • Section 505: Statements conducing to public mischief.

(1) Whoever makes, publishes or circulates any statement, rumour or report,—

(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or

(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community;

Punishment:

Imprisonment which may extend to 6 [three years], or with fine, or with both.

(2) Statements creating or promoting enmity, hatred or ill-will between classes.—Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities;

Punishment:

Imprisonment which may extend to three years, or with fine, or with both.

  • Section 509: Word, gesture or act intended to insult the modesty of a woman.

Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman;

Punishment

Simple imprisonment for a term which may extend to three years, and also with fine.

The Indecent Representation of Women (Prohibition) Act, 1986
  • Section 2: Definitions

(a) “advertisement” includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas;

(b) “distribution” includes distribution by way of samples whether free or otherwise;

(c) “indecent representation of women” means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals;

  • Section 3: Prohibition of advertisements containing indecent representation of women.

No person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains indecent representation of women in any form.

  • Section 4: Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women.

No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form.

Punishment: Section 6

Any person who contravenes the provisions of section 3 or section 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees. 


The Information Technology Act, 2000

  • Section 66A: Punishment for sending offensive messages through communication service, etc.–

Any person who sends, by means of a computer resource or a communication device,–

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.

Explanation.–For the purposes of this section, terms ―electronic mail‖ and ―electronic mail message‖ means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message

Punishment:

Imprisonment for a term which may extend to three years and with fine.

  • Section 67: Punishment for publishing or transmitting obscene material in electronic form.

Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Punishment:

On first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees.

In the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.


Judicial Precedents

Hate on social media platforms can have catastrophic impacts of communal violence, offline. The Law Commission Report, 2017 stated that “Hate speech has the potential of provoking individuals or society to commit acts of terrorism, genocides, ethnic cleansing etc. Such speech is considered outside the realm of protective discourse. Indisputably, offensive speech has real and devastating effects on people’s lives and risks their health and safety. It is harmful and divisive for communities and hampers social progress. If left unchecked hate speech can severely affect right to life of every individual.”

CJP had uploaded a 2-minute-long video citing the Equality Labs report raising the rising hate speech on Facebook India during 2018. Real threat presented by Facebook to an estimated 300 million Indian caste, religious, gender, and queer minorities both in India and abroad is a ticking tomb of communal violence, caste and hate speech. The video may be viewed here:

In Pravasi Bhalai Sangathan v. Union of India, 2014 11 SCC 477, the Supreme Court has unambiguously stated that hate speech is an effort to marginalise individuals based on their membership to a group, that can have a social impact. Moreover, the Court stated that hate speech lays the groundwork for broad attacks on the vulnerable that can range from discrimination, to ostracism, deportation, violence, and even to genocide.

In the same case, the Supreme Court cited Canada (Human Rights Commission) v. Taylor, (1990) 3 SCR 892, stating, “Three main prescriptions must be followed while interpreting the word “hatred” as is used in legislative provisions prohibiting hate speech. First, courts must apply the hate speech prohibition objectively. The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. Second, the legislative term “hatred” or “hatred or contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words, “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimisation and rejection that risks causing discrimination or other harmful effects. Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination.”

In the case of Amish Devgan vs Union Of India 2021 1 SCC 1, the Supreme Court quoted Benjamin Franklin, “It remains difficult in law to draw the outmost bounds of freedom of speech and expression, the limit beyond which the right would fall foul and can be subordinated to other democratic values and public law considerations, so as to constitute a criminal offence. The difficulty arises in ascertaining the legitimate countervailing public duty, and in proportionality and reasonableness of the restriction which criminalises written or spoken words. Further, criminalisation of speech is often demarcated and delineated by the past and recent significant events affecting the nation including explanation of their causes. Therefore, constitutional and statutory treatment of ‘hate speech’ depends on the values sought to be promoted, perceived harm involved and the importance of these harms. 57 Consequently, a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.”

The court elaborated on the concept of Hate Speech by identifying three elements:

  • Content-based: Open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society.
  • Intent-based:Speaker’s message to intend only to promote hatred, violence or resentment against a particular class or group.
  • Harm-based/ impact-based:There is an element of harm to the victim which can be violent or such as loss of self-esteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena.

In the same case, the Apex court also cited Andre Sellars from his essay ‘Defining Hate Speech’ where he examined the concept of hate speech in different democratic jurisdictions and formulated common traits in defining ‘hate speech’. He says:

  • Hate speech targets a group, or an individual as a member of the group
  • One should be able to objectively identify the speech as an insult or threat to the members of the targeted group, including stigmatising the targeted group by ascribing to it qualities widely disregarded as undesirable
  • Speech should cause harm, which can be physical harm such as violence or incitement and true threats of violence
  • Speech should have no redeeming purpose, which means that ‘the speech primarily carries no meaning other than hatred towards a particular group’

In the case of State of Karnataka and anr vs. Dr Pravinbhai Togadia (2004) 4 SCC 684, the Supreme Court held, “Communal harmony should not be made to suffer and be made dependent upon the will of an individual or a group of individuals whatever be their religion bit of a minority or that of the majority… the valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests needs and necessities to preserve the very core of democratic life preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take private reactions must be left to the discretion of those entrusted with the duty of maintaining law and order and interposition of courts…”

Here is a list of serial hate offenders who seem to be part of an “orchestrated right wing campaign”.

As a step towards curbing the spread of communal hate and violence, Citizens of Peace and Justice (CJP)decided to file a petition to form Mohalla Committees in all communally sensitive areas and strictly implement Rule of Law against Hate Offenders. We had also filed a joint-petition with other like-minded groups to the police to police to conduct thorough investigation and take action against actual perpetrators in the S**li Deals and B**li Bai cases.


Related:

CJP approaches Twitter over sexually violent content against Muslim women

Masterminds behind ‘S**li Deals’ and ‘B**li Bai’ apps granted bail

Bajrang Muni Das openly threatens Muslim women with sexual assault

Being a Muslim woman in India: A story

Muslim women’s auction: CJP, rights groups and activists write to Mumbai Police Commissioner

Orchestrated right-wing campaign targets Muslim women: Can the Law defend them adequately?

Hindutva leader from UP openly threatens Muslim women with sexual assault outside mosque; it’s time to take a closer look at legal provisions against such an aggression

sexual assault
Image: https://cjp.org.in

Muslim women are being increasingly targeted with vile sexual threats, both online and on the ground. The blatantly abusive behaviour is often spearheaded with impunity by right-wing extremists and socio-culturally influential members of the majority community. Therefore, it is time to delve into legal provisions pertaining to such threats that have been becoming increasingly common.

Take for example the words of Bajrang Muni Das, the ‘Mahant’ and ‘Hindutva’ leader from Khairabad, UP. On April 2, 2022, Das openly threatened Muslim women with sexual assault while addressing supporters from his vehicle parked outside a mosque in Sitapur. Das’s audience comprised people who were part of a procession on the occasion of Hindu New Year. Much like many such processions being taken out recently, they made it a point to halt outside a mosque. This is where Das spoke into a microphone connected to loudspeaker and said, “If you tease a single [Hindu] girl, I will abduct your daughters and daughters-in-law from your house, and rape them in public.” The vile rape threat was filmed on video and went viral online shortly thereafter.

Taking cognisance of the offence and seeking arrest of the accused, National Commission for Women (NCW) reportedly stated, “The NCW has come across a Twitter post enclosing video of a priest Bajrang Muni threatening to kidnap and rape Muslim women while addressing a gathering in Sitapur district of Uttar Pradesh. It has been reported that police personnel were also present at the location; however, none of them stopped him from making such an outrageous statement against women.”

On April 8, 2022, the Uttar Pradesh police finallyfiled a First Information Report (FIR) against Das, four days after the incident.As reported by The Print, the said Hindutva leader was charged under sections 298 (utterance or gesture in the sight of that person or places with the deliberate intention of wounding the religious feelings of any person), 354 (sexual harassment, making sexually-coloured remarks) and 509 (using word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code (IPC).


Muslim women in Hate’s crosshairs

This is not the first time where Muslim women have been targeted. It was Citizens for Peace and Justice (CJP) that, in May 2021, approached Twitter over sexually violent content against Muslim women. We brough to light several instances of unchecked accounts promoting material that was not only pornographic but also glorified sexual violence against Muslim women. The accounts in question shared hundreds of pornographic videos of women in hijab every day, with inflammatory captions presenting Muslim women as objects, meant to be sexuallyexploited. Photoshopped pictures of Hindu men and pregnant women in saffron hijab were also widely shared by these accounts.Twenty-one such abusive accountswere removed after our complaint.

The fact that social media can be toxic to and for all women, regardless of religion, region, political affiliation and even nationality, is indisputable. But in India, Muslim women in particular are subject to an orchestrated right-wing campaign, abused for both their gender and their religion. This is made worse with the tacit complicity of the government of the day that harbours a hate-filled ideology and holds undisputed sway and power.

Although people of all genders can experience violence and abuse online, the abuse experienced by women is often not just sexist or misogynistic in nature, but online threats of violence against women are often sexualized and include specific references to women’s bodies and person. The aim of such verbalised gender violence and abuse is to create a hostile online environment for women with the goal of shaming, intimidating, degrading, belittling or silencing women.

There are even professionally successful and influential Muslim women on Twitter with verified accounts who are subjected to slurs and threats of sexual violence quite frequently. Noted journalist Arfa Khanum Sherwani, who works for The Wire, told Article14 that words like begum and hijabi have been converted into sexualized slurs to attack Muslim women just like jihadi is used to abuse Muslim men.“The word halala is used by IT cell trolls as a coded rape threat. There is a campaign to attempt to incite sexual violence and other crimes against Muslim women but its larger goal is to further isolate Muslim men from society,” she said.

In July 2021, nearly 80 Muslim women were targeted and put up “for sale” on the S**li Deals app, and in January 2022, over 100 Muslim women were targeted using the B**li Bai app. Both B**li and S**li are sexually derogatory words used to target Muslim women. In both cases, there was no real sale of any kind - the purpose was to degrade and humiliate Muslim women by sharing their personal images, and also to harass them by sharing their personal information.

Noor Mahvish, one such young woman targeted by the S**li Deals app shared her experience in a blog on CJP saying, “The Sulli Deal app that was hosted on GitHub listed (as if to auction) the profiles Muslim women with their pictures, as if they were objects. My picture and information were also made public. Along with me, there were 80 other Muslim women who have been listed (sic) on that app. The Women who were targeted are very vocal on social media, they proudly represent their community and are bravely fighting against this fascist regime. The most common thread behind those listed on Sulli Deal is that they are vocal Indian Muslim women.”

Hasiba Amin, a national coordinator for the Congress party with 139,000 Twitter followers, opened her account on 13 May, a day before Eid, to find that she had been “sold” in an online “auction”.She tweeted, “These people are placing bids to own me and this handle claims that I have been sold to someone. He says ‘enjoy brother’.” Amin had filed a complaint with the police regarding this incident. Journalist Sania Ahmad was also targeted by an unknown account, Sullideals101. “This account has been harassing me since the past one year. I had complained but that went in vain,” she told Article 14.

As reported by SabrangIndia, the UN Special Rapporteur on Minority Issues, Dr Fernand de Varennes, has taken note of the vile anti Muslim 'S**li Deals' as hate speech. Varennes said such harassment of Muslim women in India must be condemned and the law should act against it “as soon as they occur”. He added that “all Human Rights of minorities need to be fully and equally protected.”


Repercussions of online sexual abuse

The repercussions of such incitement of sexual violence against Muslim women sees its history in the incidents of communal violence and genocidal pogroms that have damaged India’s social fabric for decades. In both the 2002 Gujarat genocidal carnage and the Muzaffarnagar pogrom of 2013 rape and gendered violence was used as a weapon of violence against Muslim women.

Right before the anti-Muslim carnage broke out in Gujarat, we saw mass distribution of hundreds of pamphlets with all sorts of messages spreading hatred against Muslims. One such pamphlet titled Jihadinciting sexual violence against Muslim women was circulated. In the next few months 300 to 500 Muslim women were raped, killed and mass humiliated in full public view. CJP secretary Teesta Setalvad, who was documenting the 2002 Gujarat violence and its aftermath saw this on the ground as she interviewed women in relief camps and they shared theirfirst-hand experiences with the senior journalist and human rights defender.

This sexually driven propaganda achieved two aims: creating a band of men who view women of a particular community as targets for mass sexual violence and in every instance of mass violence, women are attacked to insult and attack the honor of a community.

Details of this hate speech preceding the 2002 genocidal pogrom was documented in Communalism Combat, March-April 2002, chapter entitled Pamphlet Poison. The Concerned Citizens Tribunal, Crimes Against Humanity, Gujarat 2002 also documented this thoroughly (Role of the Media), Hate Speech and Hate Writing. On the 20th anniversary of the Gujarat pogrom, secretary, CJP had documented the lineage of this kind of hate speech in that state since the early 1990s which has now gone national.

At that time, the mode of communication was limited to pamphlets but now the same message is being circulated on a much wider, national level scale which is facilitated by social media platforms like Twitter. Sexist or misogynistic abuse and threats have become rather common online. Suspending a few accounts or deleting some tweets are measures that are merely small dents on these concerted, wide-ranging, politically driven campaigns that are also aimed at misusing and manipulating platforms like Twitter for their illegal acts. India has had a history of targeted communal disturbances even when social media was absent and not a reality, so we can only imagine the kind of consequences such incitement on social media can have now.

The systemic nature of this online Islamophobic, racist, casteist and misogynist abuse indicates that it is produced and circulated by organised groups. Studies such as those conducted by Professor Shakuntala Banaji who teaches at the Department of Media and Communications, London School of Economics endorse this.More often than not, when it comes to such cases, especially women from marginalized sections, the persons who set things in motion are often found to be pawns of people who have power and clout, both political, social and economic.Her book co-authored by Ramnath Bhat titled Social Media and Hate is an excellent resource for anyone who wishes to learn more about the subject.

CJP’s sister organization, SabrangIndia has documented hate trends on social media systematically, especially how especially abusive #hashtags proliferate the public sphere and are a precursor to physical targeting of minorities.

The ease and speed with which content can proliferate on Twitter means that women’s experiences of violence and abuse on the platform require an urgent and adequate response from the company, which is lacking. Its algorithms fail to detect such content. Unless any user manually reports a particular tweet, it does not get taken down and in most cases even after it is reported, it doesn’t get taken down before it reaches the desired audience. The accounts, mostly anonymous, know that there is hardly any precedent for anyone in India from being prosecuted for misogynistic or hate speech. They are also aware that even if one handle is banned by a platform, it is easy to set up another account using another anonymous handle. The fact that they are able to have such a wide reach despite their content that is violative of twitter’s community guidelines, means they are able to thrive and mushroom into more and more accounts.

The violence and abuse many women experience online has a detrimental effect on their right to express themselves equally, freely and without fear. A December 2021 survey commissioned by Amnesty International also shows that women who are more active on the platform were more likely to report experiencing online abuse, compared to those less active – 40 per cent of women who use the platform more than once a day report experiencing abuse, compared to thirteen per cent who use the platform less than once a week.


Violation of Laws

The Indian Penal Code:
  • Section 153: Wantonly giving provocation with intent to cause riot

Whoever malignantly, or wantonly by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed;

Punishment:

If the offence of rioting be committed in consequence of such provocation - be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and

If the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

  • Section 153A: Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

(1) Whoever—

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racials, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity,

(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community

Punishment:

Imprisonment which may extend to three years, or with fine, or with both.

  • Section 153B: Imputations, assertions prejudicial to national integration.—(1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise,

(a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or

(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied, or deprived of their rights as citizens of India, or

(c) makes or publishes and assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons.

Punishment:

Imprisonment which may extend to three years, or with fine, or with both.

  • Section 292: Sale, etc., of obscene books, etc.—

(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

(2] Whoever—

(a) sells, lets to hire, distributes, publicity exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or

(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or

(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or

(e) offers or attempts to do any act which is an offence under this section,

Punishment:

On first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees.

In the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.

  • Section 293:Sale, etc., of obscene objects to young person.

Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do.

Punishment:

On first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees.

In the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.

  • Section 294: Obscene acts and songs.

Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place.

Punishment:

Imprisonment of either description for a term which may extend to three months, or with fine, or with both.

  • 295A Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

  • 298 Uttering, words, etc., with deliberate intent to wound the religious feelings of any person

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that persons or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

  • Section 351: Assault.

Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault;

Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

  • Section 354: Assault or criminal force to woman with intent to outrage her modesty.

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty;

Punishment

Imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

  • Section 354 A: Sexual harassment and punishment for sexual harassment.

(1) Aman committing any of the following acts—

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Punishment:

Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

  • Section 503: Criminal Intimidation.

Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

PunishmentSection 506:

Imprisonment of either description for a term which may extend to two years, or with fine, or with both.

If threat be to cause death or grievous hurt, etc.—and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 8 [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

  • Section 504: Intentional insult with intent to provoke breach of the peace.

Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence;

Punishment:

Imprisonment of either description for a term which may extend to two years, or with fine, or with both.

  • Section 505: Statements conducing to public mischief.

(1) Whoever makes, publishes or circulates any statement, rumour or report,—

(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or

(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community;

Punishment:

Imprisonment which may extend to 6 [three years], or with fine, or with both.

(2) Statements creating or promoting enmity, hatred or ill-will between classes.—Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities;

Punishment:

Imprisonment which may extend to three years, or with fine, or with both.

  • Section 509: Word, gesture or act intended to insult the modesty of a woman.

Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman;

Punishment

Simple imprisonment for a term which may extend to three years, and also with fine.

The Indecent Representation of Women (Prohibition) Act, 1986
  • Section 2: Definitions

(a) “advertisement” includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas;

(b) “distribution” includes distribution by way of samples whether free or otherwise;

(c) “indecent representation of women” means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals;

  • Section 3: Prohibition of advertisements containing indecent representation of women.

No person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains indecent representation of women in any form.

  • Section 4: Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women.

No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form.

Punishment: Section 6

Any person who contravenes the provisions of section 3 or section 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees. 


The Information Technology Act, 2000

  • Section 66A: Punishment for sending offensive messages through communication service, etc.–

Any person who sends, by means of a computer resource or a communication device,–

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.

Explanation.–For the purposes of this section, terms ―electronic mail‖ and ―electronic mail message‖ means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message

Punishment:

Imprisonment for a term which may extend to three years and with fine.

  • Section 67: Punishment for publishing or transmitting obscene material in electronic form.

Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Punishment:

On first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees.

In the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.


Judicial Precedents

Hate on social media platforms can have catastrophic impacts of communal violence, offline. The Law Commission Report, 2017 stated that “Hate speech has the potential of provoking individuals or society to commit acts of terrorism, genocides, ethnic cleansing etc. Such speech is considered outside the realm of protective discourse. Indisputably, offensive speech has real and devastating effects on people’s lives and risks their health and safety. It is harmful and divisive for communities and hampers social progress. If left unchecked hate speech can severely affect right to life of every individual.”

CJP had uploaded a 2-minute-long video citing the Equality Labs report raising the rising hate speech on Facebook India during 2018. Real threat presented by Facebook to an estimated 300 million Indian caste, religious, gender, and queer minorities both in India and abroad is a ticking tomb of communal violence, caste and hate speech. The video may be viewed here:

In Pravasi Bhalai Sangathan v. Union of India, 2014 11 SCC 477, the Supreme Court has unambiguously stated that hate speech is an effort to marginalise individuals based on their membership to a group, that can have a social impact. Moreover, the Court stated that hate speech lays the groundwork for broad attacks on the vulnerable that can range from discrimination, to ostracism, deportation, violence, and even to genocide.

In the same case, the Supreme Court cited Canada (Human Rights Commission) v. Taylor, (1990) 3 SCR 892, stating, “Three main prescriptions must be followed while interpreting the word “hatred” as is used in legislative provisions prohibiting hate speech. First, courts must apply the hate speech prohibition objectively. The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. Second, the legislative term “hatred” or “hatred or contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words, “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimisation and rejection that risks causing discrimination or other harmful effects. Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination.”

In the case of Amish Devgan vs Union Of India 2021 1 SCC 1, the Supreme Court quoted Benjamin Franklin, “It remains difficult in law to draw the outmost bounds of freedom of speech and expression, the limit beyond which the right would fall foul and can be subordinated to other democratic values and public law considerations, so as to constitute a criminal offence. The difficulty arises in ascertaining the legitimate countervailing public duty, and in proportionality and reasonableness of the restriction which criminalises written or spoken words. Further, criminalisation of speech is often demarcated and delineated by the past and recent significant events affecting the nation including explanation of their causes. Therefore, constitutional and statutory treatment of ‘hate speech’ depends on the values sought to be promoted, perceived harm involved and the importance of these harms. 57 Consequently, a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.”

The court elaborated on the concept of Hate Speech by identifying three elements:

  • Content-based: Open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society.
  • Intent-based:Speaker’s message to intend only to promote hatred, violence or resentment against a particular class or group.
  • Harm-based/ impact-based:There is an element of harm to the victim which can be violent or such as loss of self-esteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena.

In the same case, the Apex court also cited Andre Sellars from his essay ‘Defining Hate Speech’ where he examined the concept of hate speech in different democratic jurisdictions and formulated common traits in defining ‘hate speech’. He says:

  • Hate speech targets a group, or an individual as a member of the group
  • One should be able to objectively identify the speech as an insult or threat to the members of the targeted group, including stigmatising the targeted group by ascribing to it qualities widely disregarded as undesirable
  • Speech should cause harm, which can be physical harm such as violence or incitement and true threats of violence
  • Speech should have no redeeming purpose, which means that ‘the speech primarily carries no meaning other than hatred towards a particular group’

In the case of State of Karnataka and anr vs. Dr Pravinbhai Togadia (2004) 4 SCC 684, the Supreme Court held, “Communal harmony should not be made to suffer and be made dependent upon the will of an individual or a group of individuals whatever be their religion bit of a minority or that of the majority… the valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests needs and necessities to preserve the very core of democratic life preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take private reactions must be left to the discretion of those entrusted with the duty of maintaining law and order and interposition of courts…”

Here is a list of serial hate offenders who seem to be part of an “orchestrated right wing campaign”.

As a step towards curbing the spread of communal hate and violence, Citizens of Peace and Justice (CJP)decided to file a petition to form Mohalla Committees in all communally sensitive areas and strictly implement Rule of Law against Hate Offenders. We had also filed a joint-petition with other like-minded groups to the police to police to conduct thorough investigation and take action against actual perpetrators in the S**li Deals and B**li Bai cases.


Related:

CJP approaches Twitter over sexually violent content against Muslim women

Masterminds behind ‘S**li Deals’ and ‘B**li Bai’ apps granted bail

Bajrang Muni Das openly threatens Muslim women with sexual assault

Being a Muslim woman in India: A story

Muslim women’s auction: CJP, rights groups and activists write to Mumbai Police Commissioner

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2020

Milestones 2020

In the year devastated by the Covid 19 Pandemic, India witnessed apathy against some of its most marginalised people and vilification of dissenters by powerful state and non state actors. As 2020 draws to a close, and hundreds of thousands of Indian farmers continue their protest in the bitter North Indian cold. Read how Indians resisted all attempts to snatch away fundamental and constitutional freedoms.
Migrant Diaries

Migrant Diaries

The 2020 COVID pandemic brought to fore the dismal lives that our migrant workers lead. Read these heartbreaking stories of how they lived before the pandemic, how the lockdown changed their lives and what they’re doing now.

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