Do Rhea & Other Targets Of Sexist Hate Speech Have Legal Recourse?

Rhea Chakraborty will be in jail until 22 September. What remedy do persecuted women like her have in law?

Image of Rhea Chakraborty used for representational purposes.

(Photo: Kamran Akhter / The Quint)

(This piece was originally published on 4 September 2020, and has been republished in light of Rhea Chakraborty’s arrest on 8 September by the NCB.)

We love to hate women: ‘loose’, ‘greedy’, ‘witchy’, ‘b*tchy’, ‘gold-digging’, ‘home-wrecking’, ‘promiscuous’, ‘dominating’, ‘predatory’, ‘long taloned’ — women. Speech of this kind, which uses stereotypes and offensive language towards women, degrades them; pummels their self-esteem, and pares them down to their sex.

It feeds like a succubus, on the unequal power relations between men and women; weighing the worth of women based on their relationship to men. It hurts their dignity and perpetuates inequality. It is sexist — it is hate speech.

Sushant Singh Suicide: Misogyny & Media Trials

Sexist hate speech is an everyday challenge for women. Deflecting unfunny jokes at home and work is a combat skill: straight-face, side glare, lowered eyes. But social media is a battleground few are prepared for. No pepper spray can disarm the pomposity of anonymous trolls whose hate-fuelled projectiles rip through our dignity.

Sushant Singh Rajput’s death has led to a media trial — mostly online — which impacts his female relations disproportionately. Rhea Chakraborty is at the forefront, but his former girlfriends and sisters have not been spared either.

Accused of ‘controlling’ Sushant and ‘frittering away his assets’ despite not being in a legally sanctioned relationship with him, Rhea’s character has been assassinated. Sara Ali Khan, speculated to be a former fling, apparently ‘exploited him’ and ‘broke his heart’. His sisters are said to be ‘greedy’, ‘concerned about his money’ rather than his death.

This is not an exclusive club. Anushka Sharma and Sania Mirza have been called ‘distractions’— blamed for their husbands’ failures on the playground. Fourteen-year old Arushi Talwar, murdered in her bedroom, was the subject of more revulsion than Sooraj Pancholi — a man — accused for abetting the suicide of his girlfriend Jiah Khan.

Victim, mourner, accused — these women are vilified less for their actions, and more for their gender.

• Sushant Singh Rajput’s death has led to a media trial — mostly online — which impacts his female relations disproportionately.
• Rhea Chakraborty is at the forefront, but his former girlfriends and sisters have not been spared either.
• Victim, mourner, accused — these women are vilified less for their actions, and more for their gender.
• What remedy do these women have in law? Defamation law, both civil and criminal, is one such remedy.
  
• But the nature of harm it seeks to redress is limited to privacy concerns and loss of reputation.

Hate Campaign Against Rhea Chakraborty – What Remedy In Law Do Women Like Her Have?

What remedy do these women have in law? Defamation law, both civil and criminal, is one such remedy. But the nature of harm it seeks to redress is limited to privacy concerns and loss of reputation. Section 67A of the Information Technology Act makes it a criminal offence to transmit ‘sexually explicit content’ in electronic form. Section 509 of the Indian Penal Code makes it an offence to “insult the modesty of a woman”. Both these provisions are wide and vague. They may capture legitimate sexual content which actually promotes women’s sexuality — their desires and experiences.

And what is the ‘modesty of a woman’, pray? Courts in India have been brave, but have failed to interpret this phrase without reinforcing outmoded notions of sexual morality (‘reserve or sense of shame’; ‘womanly propriety of behaviour’; ‘scrupulous chastity’; ‘essence of a woman’s modesty is her sex’) .

These laws only address speech that is suggestive, and therefore, offensive. They do not cover speech that promotes gender stereotypes. That harm is without remedy.

The hate campaign against Rhea spiralled into a general one against Bengali women, who received support on Twitter for the attack on their cultural, not gender identity. The speech against these women is less against individuals, and more against a gender group. The harm caused by it is better addressed through hate speech law.

No Law – Yet – For Hate Speech Against Women. But It’s Work-In-Progress

Hate speech law in India, in its present form, protects religious, racial and ethnic groups. And yet, in failing to capture speech that encourages hateful ideas, and only capturing that which encourages criminal acts — that is, creating conflict between groups — hate speech law has its own challenges. Another limitation would be poor enforcement of the law and its entanglement with politics. One reason for the shortcomings of the law is unclear statutory language which fails to identify and define the harms caused by such speech; the other is giving wide discretion to judges to determine what amounts as hate speech.

There is no law which covers hate speech against women. But it is in the works.

The Law Commission of India, in a 2017 report titled ‘Hate Speech’, proposed the insertion of two sections in the Indian Penal Code. The draft sections 153C and 505A make it a criminal offence to spread hatred and incite violence against people on various grounds, including sex, gender identity and sexual orientation.

This is as clear a description of these sections as possible — the language used in the draft is blurred and confusing. Unless it goes through multiple rounds of discussion and revision — by lawyers, policy experts, and the groups it covers — it may suffer the same problems as religious hate speech law.

Hate speech is difficult to determine without context. Therefore, the draft should have a clear definition — supported by illustrations — which identifies the harm and context of such speech.

The statement of objects and reasons of the law — which is an aid to interpretation — should provide the theoretical framework within which the law should function. This will help restrict judicial discretion in interpretation of the text. The Law Commission report is yet to be acted upon. In March, 2020, a PIL was filed, seeking its implementation.

Hate Speech Is NOT Free Speech

Social media platforms already prohibit hate speech against women in their community standards. But they do not define the term, making the reporting and removal of hateful posts difficult. Keyword-based takedown mechanisms may over-censor. Humans too may not be able to identify hate speech, and may either take down posts at random, or not at all. A well-defined hate speech law could serve both as guidance and an impetus to social media platforms to take down reported posts.

Even so, leaving a social media platform to act as a judge and censor is not desirable.

Censorship as a tool to counter hate speech fails to tackle the underlying cause of sexism.

Taking action under the hate speech legislation will make the aggressor accountable, taking down speech will not.

Hate speech is not free speech.

The right to free speech under Article 19(1)(a) of the Constitution can be restricted by enacting legislation on the grounds mentioned in Article 19(2). There is no blanket right to speech. In a matter where MP Azam Khan made distasteful comments about a gang rape (‘a political conspiracy’), a five judge bench of the Supreme Court seeks to recognise hate speech against women as a ‘reasonable restriction’ on free speech.

Recognition is important. Women may not want to suffer sexism at the hands of law enforcement agencies, and may not file complaints under the law. Some hate speech needs to be countered with more speech, not law. But the law is a recognition of hate speech against women. Society impacts law, but in a cyclic manner, law too impacts society. We need a law, to start the conversation — to change speech.

(The writer is a Delhi-based lawyer. She tweets @nidhikhanna. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)