Religious or faith-based hate crimes are generally motivated by religious intolerance; religion itself as such never preaches hateful attacks. The Constitution of India bestows freedom of conscience and religion on persons in India, both citizens and non-citizens of India. This freedom includes the right to freely profess, practise and propagate religion, and manage religious affairs. ‘Propagation of Religion’ acts as a fundamental right, protected under Article 25, allowing an individual to communicate, transmit and spread by exposition of practices the tenets and principles of one’s religion, to acquaint others with the same. In doing so, one may get prompted to make comparisons between one’s own religion and that of others. Religious intolerants and anti-social elements can misuse this to spread hatred under the garb of fundamental right of speech and expression, and of religion.
Therefore, it is vital to regulate hate speech, more so amidst glaring alleged instances such as the infamous Dharam Sansad at Haridwar targeting Muslims, Zakir Naik’s NGO (IRF) spreading religious and communal disharmony, hate crimes against the Christian community, petition pending in the SC seeking protection for Hindus against hate speech, and numerous similar instances in the past.
Social Media and Technology
Social media as a prominent mode of communication is being widely used for propagation of not only religion but also hatred. The absence of an efficient mechanism to cross-verify makes it difficult to check the authenticity of facts and claims which are circulated. By the time law enforcement agencies intervene, hatred is already spread globally.
Social media intermediaries like YouTube, Facebook, Twitter, WhatsApp etc enjoy safe harbour in India unless they contravene the provisions of law or fail to fulfil due diligence expectations as prescribed under the Intermediary Rules 2021. They are required to inform users that they must not host, display, upload, modify, publish, transmit, store, update or share any information that is racially or ethnically objectionable, or is patently false and untrue, and is written or published in any form with the intent to mislead or cause injury to any person.
The responsibility of social media becomes multifold amidst a surge of hate speech. Intermediaries with a huge subscriber base have added responsibilities upon them. Hate messages with malafide intention are a kind of dis-information (ie, the person disseminating false information knows it to be false). Study shows that false news spreads even faster than true news. As information is saved on the servers of intermediaries, they are in a better position to weed out the unwanted. These intermediaries use human review and AI tools to remove hate speech, but such reviews work for only a limited number of languages. Reports like OBF on Encouraging Counter-Speech by Mapping the Contours of Hate Speech on Facebook in India, 2018, show that despite such efforts, religious hate speech is very much prevalent in India.
Tackling Hate Speech & Propagation
Hate crimes are increasing at an alarming rate. Laws like section 124A (Sedition), 153A, 153B, 198, 295A (Blasphemy), 505A of IPC, Section 3 (g) Religious Institutions (Prevention of Misuse) Act, 1988 etc cursorily address issues of hate speech, but do not particularly regulate religious hate speech. Constitution (Art 19 (2)) curtails speech which threatens public order, incitement to offence and security of the State. Art 25 restricts religious freedom if found violative of public order, morality and health and other provisions of Part III of the Constitution.
The fact that Article 25 begins with restrictions, unlike Article 19, means that the framers of the Constitution prioritised certain restrictions over fundamental religious rights. Recently, the Delhi Metropolitan Magistrate while passsing the bail order for Delhi University Professor Ratan Lal stated that “distasteful” and “unnecessary statements” do not fall within the prohibition of law. The Intermediary Rules 2021 mandate that significant social media messaging intermediaries should enable the government to identify the originators of information or messages. Though this comes with security and privacy concerns, it can help in tracking down nuisance creators.
Recently in the case of the Hindu Yuva Vahini (Delhi Hate Speech, April 2022), the Supreme Court asked the Union Government to respond to a plea related to the law on hate speech, and directed the police to relook its approach towards hate speech. Laws should be enacted to maintain the parens patriae (“parent of the nation”) attitude of State. Unless India enacts an exclusive law criminalising hate crimes — like the UK’s Public Order Act, 1986 and the Radical and Religious Hatred Act 2006 — it is the responsibility of social media platforms to employ significant human review, advanced AI filters etc, to identify and arrest propagation of religious hate.
Prof Dr Dilip Ukey is Vice-Chancellor of Maharashtra National Law University Mumbai; Dr Anand N Raut and Dr Garima Pal are Assistant Professors at MNLU Mumbai
