Earlier this month, the city of Pune and adjoining areas in the western Indian state of Maharashtra were caught up in a wave of communal violence, which led to a large-scale vandalism and a spate of hate crimes, which included a Muslim gentleman being clobbered to death by an irate mob.
It all started with a malicious Facebook post. Photographs of venerated figures – two Hindu kings of medieval India, and a recently departed demagogue of a Hindu right-wing political party, were morphed to show them in an apparently “derogatory” manner, and widely circulated over social media. As if on cue, the moment they went viral, hundreds of supporters of far right Hindu organisations took to the streets, baying for the offenders’ blood.
This wasn’t the first time social media was used as a megaphone for communal and religious hate speech with a clear agenda of provoking a violent backlash.
Last year, Muzaffarnagar in the northern state of Uttar Pradesh was wracked by communal riots on a scale not witnessed since the Gujarat pogrom of 2002 in which more than 1,000 Muslims were killed.
The uploading and dissemination of the video of lynching by a legislator of the Hindu nationalist Bharatiya Janata Party (BJP) added fuel to the fire. It later emerged that the video was actually from Pakistan, and passed off as Indian.
Even before that, in 2012, fake and morphed videos of Tibetans were circulated under the claim that they depicted the persecution of the Rohingyas in Myanmar, leading to a mass exodus of people and even small riots in certain metropolitan cities.
Spate of violence
This spate of violence and the subsequent treatment of social media as a scapegoat and even culprit is redolent of Kenya in 2007 or how the radio was held culpable for its role in the Rwandan genocide in 1994. Or how Facebook is being blamed for spreading hate speech in Myanmar.
This spate of violence and the subsequent treatment of social media as a scapegoat and even culprit is redolent of Kenya in 2007 or how the radio was held culpable for its role in the Rwandan genocide in 1994.
Politicians were quick to jump on to the ‘monitor and ban’ bandwagon, the police in Mumbai and the capital, New Delhi, set up cyber-crime laboratories geared to constantly watch out for malicious and objectionable social media posts.
If this wasn’t enough, self-styled ‘concerned citizens’ have set up online vigilante groups, to maintain a constant vigil over what they consider “objectionable” or “derogatory” online posts and reporting them to the police.
These developments wouldn’t have been cause for consternation were it not for Section 66A of India’s Information Technology Act, which, if one examines critically, has been the cause not only of persecution, but has in fact also been (mis)used very strategically to trigger off communal violence. The 66A penalises anyone passing around any information which is
(a) grossly offensive or has menacing character; or
(b) known to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.
The italicised terms defy any rational definition, and no wonder have been used to bully and instill fear – someone arrested for he dared criticise the chief minister of a state and the prime minister , the police declaring that even those who “Like” Facebook posts which could be deemed “offensive” shall be booked.
And it is being seen in almost every case being registered under this section that the police are also slapping charges under Section 153A of the Indian Penal Code. Section 153 punishes any act designed to incite communal disharmony.
So, in a country like India, which is perpetually on a communal tinderbox, where religious sentiments run deep, where respect for certain public and historical figures always come accompanied with veneration for their demi-god status, it doesn’t take much for malice to be coated with a toxic communal hue. And since one could argue about a plausible, legally sound meaning of “grossly offensive” or “menacing” till the cows come home, the damage spreads like wildfire, and social media only aggravates the condition.
Reading down Section 66A
At stake here is not only freedom of expression, but also communal harmony and precious lives, and all these are inextricably linked with Section 66A. Thus, the only way out is to read down this provision – that is, pare it down to reasonable limits. Of course, the best course of action for a robust democracy is to repeal it altogether, but that seems to be a long way off in India.
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The constitutional validity of Section 66A is already under challenge before the Supreme Court, and the precedents from Britain and the US would be of immense value.
In 2006, the House of Lords read down Section 127(1)(a) of UK’s Communication Act, 2003 (on which Section 66A is closely modeled) – holding that the phrase must be construed according to standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances.
The court added that “there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context.”
Guidance from the US could be sought from the decision in the pending Anthony Elonis case, where the Supreme Court is to decide the meaning of a “true threat” in online communication.
It essentially means that the court shall gauge the purported intention of the person before deciding if his words, etc. posed a real menace. In 2003, the Court had struck down a law prohibiting cross burning because it penalised expression even if there was no overt intention to commit acts of violence. Now the test is to see if a similar reasoning could be applied to the virtual world of cyberspace.
Whether the Indian government and its agencies takes the bull by the horns or uses social media as the whipping horse would be the litmus test for freedom of expression on the internet in India.