Controlling Hate Speech on the Internet: The Indian Perspective 1

Ketan S Modh

Controlling Hate Speech on the Internet: The Indian Perspective

Ketan S Modh

Leiden University

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Controlling Hate Speech on the Internet: The Indian Perspective 2
Ketan S Modh

Hate speech, or inflammatory speech, has always resulted in censorship throughout history.
The definition of hate speech has been ambiguous, but usually narrow and tailored to the
interests of the ruling power of the state. The definitions of “hate speech” typically depend on
the cultural and moral ethos of any society; when societies have been well-defined, for example
through geography, it was relatively easier to reach a consensus on such a definition. This was
because that definition would only be enforced in a certain area by an enforcing authority that
was known and respected, or feared, by everyone in that area. The rise of the internet, a global
means of communication, has stripped away such geographical boundaries. While this has led
to rapid technological growth through the cooperation of people from all over the world, it has
also set up very peculiar questions of law and its enforcement. The very definition of “hate
speech”, already ambiguous, was made even more so when made applicable to anything written
on the internet, since it could be created by anyone, anywhere in the world, posted to a server
anywhere in the world, and be accessed by (or targeted at) anyone, anywhere in the world. This
paper seeks to identify a possible solution to this conundrum within the specific context of
India.
SECTION I: Context
A HISTORY OF HATE SPEECH IN INDIA
The right to freedom of speech in India has been enshrined within the Constitution of India
itself. All citizens have the right to freedom of speech and expression.1 However, the same
Constitution also provides for the State to make any law “in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause in the
interests of the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence”.2 Since the Constitution contains allows the State to
make restrictions on the basis of public order, decency or morality, which are quite broad in
their scope and ambiguous in their definition, this also gives the State powers to create laws
regulating freedom of speech.

DEFINING HATE SPEECH

1
Article 19(1)(a) of the Constitution of India
2
Article 19(2), ibid at 1

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Controlling Hate Speech on the Internet: The Indian Perspective 3
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Note that the Constitution of India, as excerpted above, is quite ambiguous and can be
interpreted by the State to make broad regulations for the purposes of restricting hate speech
online. This was, in fact, done by the State through the promulgation of the Information
Technology Act, 2000. Under this Act, online hate speech was defined as any information sent
by means of a computer resource or communication device that is grossly offensive or
menacing in character, or any information that the sender knows to be false but sends anyway,
with the intent of “causing annoyance, inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred or ill will”.3 Any person engaging in such activity could
be sentenced with imprisonment up to a term of three years and a fine.
Prosecutions are generally conducted in India through the citation of not just one, but multiple
offences under law that may have significant overlap, without triggering double jeopardy.4 For
example, violation of hate speech laws under Section 66A will also trigger procedural rules
that give the police the ability to arrest without warrant,5 the ability to investigate cognizable
offences,6 and for offences against the State, or the criminal conspiracy to initiate such an
offence.7 This gives overarching powers to the State for restricting freedom of speech under
the garb of regulating hate speech.

RESTRICTING HATE SPEECH

Along with Section 66A referred to above, a complementing provision allows the government
to block public access to any information through a computer resource.8 Section 69A of the
Information Technology Act allows the State to direct “any agency of the Government or
intermediary” to block access to any information on any computer resource. For the purposes
of this act, a “computer resource” has been defined as a “computer, computer system, computer
network, data, computer database or software”.9 Essentially, this allows the government almost
completely unrestricted powers in blocking and filtering access to any website or computer on
the internet. Through this provision, “intermediaries”, who have been defined as any person
who “receives, stores or transmits” an electronic message on behalf of another person,10 also

3
Section 66A of the Information Technology Act, 2000
4
Institute of Chartered Accountants of India v. Vimal Kumar Surana, (2011) 1 SCC 534
5
Section 41 of the Code of Criminal Procedure (CrPC), India
6
Section 156(1), ibid at 5
7
Section 196A, ibid at 5
8
Section 69A; ibid at 3
9
Section 2(1); ibid at 3
10
Ibid at 9

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Controlling Hate Speech on the Internet: The Indian Perspective 4
Ketan S Modh

have the obligation of complying with the government’s request for blocking or filtering access
to any content on any such computer resource.

THE INDIAN SITUATION IN PRACTICE

A recent example was the arrest of two girls for a post made on Facebook that was considered
“hate speech” under the laws stated above, but was actually nothing more than a political
comment.11 The girls were charged first charged for making statements promoting enmity
between different groups under the Indian Penal Code,12 which was then changed to
“statements creating or promoting enmity, hatred or ill-will between classes”13, which was
finally changed to a charge under Section 66A of the Information Technology Act, 2000.
The arrest had made major headlines in India and around the world14, with general
condemnation of the misuse of a section that was too broad, for the promotion of political
motives.15 Many such arrests were made, which resulted in a Public Interest Litigation (a form
of class-action lawsuit) made before the Supreme Court of India, the highest judicial authority
in the country.16 Upon hearing the case, the Supreme Court of India determined Section 66A
of the IT Act as unconstitutional and overbroad, and struck it down through a judgment in
March, 2015.1718
The fact that the Supreme Court has struck down this provision does not completely stop the
government from enforcing draconian measures under the guise of hate speech, however. The
Supreme Court only ruled for one provision, but as stated above, the State can always prosecute
under different laws in India to accuse a person for inflammatory content. In most cases,
Section 66A would be complemented with an enforcement of the following Sections of the
Indian Penal Code: Section 153 (provoking, or intent to provoke riots); Section 153A
(producing enmity between different groups); and Section 298 (deliberately hurting religious

11
“India Facebook arrests: Shaheen and Renu speak out”; http://www.bbc.com/news/world-asia-india-20490823;
last accessed: October 12, 2015
12
Section 153A of the Indian Penal Code
13
Section 505-2, ibid at 9
14
Ibid at 8
15
“India is policing the Internet for all the sad and wrong reasons”; http://www.firstpost.com/india/india-is-
policing-the-internet-for-all-the-sad-and-wrong-reasons-531235.html; last accessed: October 12, 2015
16
“Supreme Court accepts student's petition challenging Section 66(A)”’ http://www.ndtv.com/india-
news/supreme-court-accepts-students-petition-challenging-section-66-a-505976; last accessed: October 12, 2015
17
“Supreme Court strikes down Section 66A of IT Act”; http://timesofindia.indiatimes.com/india/Supreme-
Court-strikes-down-Section-66A-of-IT-Act-which-allowed-arrests-for-objectionable-content-
online/articleshow/46672244.cms; last accessed: October 12, 2015
18
Shreya Singhal vs Union of India; accessible at http://supremecourtofindia.nic.in/FileServer/2015-03-
24_1427183283.pdf; last accessed: October 12, 2015

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Controlling Hate Speech on the Internet: The Indian Perspective 5
Ketan S Modh

sentiments). The sections are also very broad, with challenges being issued for these to be
struck down by the Supreme Court.19
Therefore, the issue of regulating hate speech online is still very much an unresolved issue in
India. While progress has been made towards reducing the powers of the Government, there
are still instances where people have been arrested under separate provisions for what was
essentially hate speech online.20
SECTION II: Identifying Problems
1. Free Speech
The issue of hate speech always carries itself as a “restriction” to the right to freedom of speech.
Under Indian law, this has been defined under the Constitution of India as an inalienable right
to citizens21 with certain restrictions set out by the State for the protection of the country.22
This Article under the Constitution of India is extremely broad and has been interlinked with
other rights, such as the right to equality before law23 and the protection of life and personal
liberty.24 Therefore, while the State does not have extensive powers to meddle with this right,
some provisions do exist for the enforcement of restrictions, as a method of protecting India
and stopping discrimination on the basis of religion, language, gender, etc. These powers must
be balanced with the idea of free speech on the internet.
2. Cyber Security
It is important to ensure that any measures adopted for the restriction of hate speech do not
cause cyber security problems for individuals and the country. For example, technological
solutions such as giving the Government backdoor access to various internet platforms also
puts citizens at risk of unnecessary and “Big Brother”-esque surveillance. Such backdoors
could also be used by enterprising hackers and vigilantes to wreak havoc.
3. Internet Governance Architecture
Any technological or regulatory measure adopted by the Indian government must also pass
muster with the international internet governance architecture, which includes the Internet
Governance Forum (IGF), the International Telecommunications Union (ITU) and various

19
“Subramanian Swamy challenges hate speech law in SC”;
http://timesofindia.indiatimes.com/india/Subramanian-Swamy-challenges-hate-speech-law-in-
SC/articleshow/47776651.cms; last accessed: October 12, 2015
20
“Section 66A quashed: Citizens can still be arrested for online posts”;
http://timesofindia.indiatimes.com/india/Section-66A-quashed-Citizens-can-still-be-arrested-for-online-
posts/articleshow/46683200.cms; last accessed October 12, 2015
21
Ibid at 1
22
Ibid at 2
23
Article 14, Constitution of India
24
Article 21, Constitution of India

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technological groups such as the Internet Engineering Task Force (IETF). For example,
Pakistan’s use of blackholing for restricting access to Youtube, which almost led to problems
for the whole internet,25 should be completely avoided.

SECTION III: Possible Solutions

For the purposes of proposing solutions under this paper, we will be working with the existing
powers of the Indian Government in setting restrictions for the regulation of hate speech as
proposed under Article 19(2).26 This means that the Government has the power regulate any
speech on the internet considered as negatively affecting public order, decency or morality,
and generally causing enmity or provoking riots between groups on the basis of ethnicity,
language, religion, etc. Note that hate speech, defined as such, is a major problem in India.
With twenty-two official languages defined under the Constitution of India, and an amalgam
of every major religion in the world coexisting in the country, every part of the country has a
different trigger for causing hatred or rioting.

OUTLINE OF THE SOLUTION

As stated above, the Government already has the right to enforce blocks and filters on
information being stored on a computer resource.27 However, this is a very broad power and
can lead to massive misuse. This paper suggests that such a power be well-defined, with checks
and balances inherent in the tripartite system of governance prevalent in India.
A general overview of the solution is as follows: instead of allowing the government or major
political party to determine what should and should not be considered hate speech, this must
be left to the broad consensus of citizens of the country. The government should create a
separate online portal for the logging of accusations of hate speech against a particular website,
or content within such website, and then allow users to vote on whether such content can be
considered hate speech. The owner or creator of such content must be given a chance to defend
that content through the same online portal. If, despite such a defense, the votes reach a
particular, well defined, threshold (which may be as a percentage of total votes cast), the
Government may direct such offending material to be taken down by the ISPs; if such content

25
“Pakistan ban led to Youtube blackout”; http://www.telegraph.co.uk/news/uknews/3356520/Pakistan-ban-to-
blame-for-YouTube-blackout.html; last accessed: October 12, 2015
26
Ibid at 2
27
Ibid at 8

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or website is hosted outside the country, then the ISPs may be directed to block and filter access
to it. This filter or block may, of course, be appealed against before a court of law.

DETAILED SOLUTION
A. The Online Portal
This portal should only deal with hate speech that is being spread online. The content being
displayed on the website may be accessed only by registering on the website, which would
require multiple verifications to ensure that the user is a citizen of India. For example, the
popular mobile app Airbnb, where users post their own homes for other unknown internet users
to stay, uses the concept of “Verified ID”28 to build trust amongst the participants and ensure
that they are real. This is done by uploading a scan of a government-issued ID, linking the
account with a social network account like Google, Facebook or LinkedIn, uploading a profile
picture and providing Airbnb with one’s phone number and address. A similar authentication
system can be used for users of the online portal for hate speech, with only IDs issued by the
Indian government being recognized.
The reason for multiple online authentications is to ensure that a targeted website is not
bombarded by anonymous bots and trolls for the purposes of ensuring that the website goes
offline, for various vested interests. Maintaining this level of trustworthiness amongst users is
especially important when the basic issue is adding restrictions to the idea of freedom of
speech. Websites must not be taken offline simply because one group is more technologically
proficient than the other at spamming votes for or against the content on that website.
B. The Voting Process
This online portal should be organized in a manner that all content can be categorized into
“levels” of hate speech content. This means that content may be voted on a sliding scale of “not
offensive at all” to “extremely offensive”. This would allow the government to determine
action to be taken against the website as well as its owners.
Further, there must be a strict time limit for such voting to occur. Hate speech and inflammatory
speech usually snowballs quite quickly. Building upon the hatred and intolerance created by
seemingly innocuous lines of argument to create hate speech that sparks major riots can happen

28
“What is Verified ID”; https://www.airbnb.com/help/article/450/what-is-verified-id; last
accessed: October 12, 2015

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without such a growth being noticed.29 Therefore, it is necessary for short deadlines for the
voting process.
Other obvious restrictions, of course, are that one user may only have one vote for each issue
highlighted in the online portal.
C. Enforcement
Once the website has reached a certain threshold of votes at the end of the voting period which
defines it as “hate speech”, the Government, or an agency created by it for this specific purpose,
may then direct ISPs to block such content from being accessed publicly. If such hate speech
is only a small portion of the website, such as social media portals such as Facebook, Twitter,
etc., then the government may request owners of such websites to take down that content due
to its hate speech content.
Depending on the “level” of hate speech content voted by users, the government may then also
elect for the ISPs to track down the location of the source of the offending material, and if
possible, the location of the user that posted such offending material. Of course, this must be
restricted to the highest levels of hate speech content only – these may typically include content
published by illegal organizations and terror groups.
Further, again depending on the level of hate speech, different punishments may be enacted
against the user involved with posting such content on the internet. This may range from fines
to motions for imprisonment before a court of law, as may be established under the regulations.
D. Appeal
Once the government has decided to enforce a filter or ban, has imposed fines or prosecuted
the creator of hate speech content (and, perhaps, the host of that content, depending on their
involvement), such an action of the government may be appealed against through the
independent judiciary of India, using the already established codes of civil, criminal and penal
procedures.

AFFECT ON STAKEHOLDERS
A. Business
This solution requires cooperation of all ISPs and major online platforms with the Government
for the purposes of curbing hate speech. Once a website, or some particular content on a
website, has been designated as hate speech, it would be the onus of the ISPs and businesses

29
Bleich, Erik(2011) 'The Rise of Hate Speech and Hate Crime Laws in Liberal Democracies', Journal of Ethnic
and Migration Studies, 37: 6, 917 — 934

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to block such content from public access. While ISPs are obligated to conform with
Government mandates on this topic through Section 69A of the Information Technology Act,
2000, major online platforms such as Facebook, Google, Twitter, etc. are not. The Government
must form a trust-based relationship with these companies to ensure that they cooperate.
B. Civil Society
Civil society, which includes the public, will have to be actively interested in the regulation of
hate speech online. It is quite possible for a website to be considered hate speech simply
because opponents of such a designation were not interested enough to participate in the voting
process. For this reason, active participation is necessary.
C. Government
The major role of the Government under this solution is ensuring that the online portal is active
and has the ability to cope with major traffic inflow. The Government will also be obligated to
keep user records secure, since such authentication requires the public to reveal personal
information online. The Government may also form a separate task force for the maintenance
and monitoring of the online portal for quick and effective enforcement.
The Government must also ensure public visibility of its portal and advertise this solution to
nudge as many citizens to participate as possible.

SECTION IV: Conclusion

This solution is by no means perfect; it requires active participation of the public, which may
be difficult to achieve. However, through the creation of a voting system and the use of a sliding
scale, all users of the online portal would be sensitized to the nature of hate speech, and the
affect it has on people. The vastness of India as a country, and the varied cultures, languages
and geography makes it very difficult for one part of the country to understand what may cause
hatred or be seen as offensive by another part or group in the country. The online portal would
allow citizens to self-learn and self-sensitize themselves to this issue. This may translate to
lesser hate speech offline as well, since such sensitization would allow people to self-regulate
their speech.
Another use of the online portal may be that, after a few years of use, a general theme or
consensus would appear on the topics that are considered as hate speech by the public. This
would result in greater clarity on the definition of hate speech as such, and perhaps reveal
interesting trends in public opinion and the growth in sensitization of the public towards
offensive online material.

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Controlling Hate Speech on the Internet: The Indian Perspective 10
Ketan S Modh

Hate speech is a major problem in any country. The availability of material online, for free, by
anyone around the world has made this an even bigger problem. However, the internet can also
be used as a counter to such hate speech, by educating anyone, anywhere in the world, or in a
specific country, regarding the need to be less offensive to others.

Electronic copy available at: https://ssrn.com/abstract=2783447