Dear Government, Twitter, Facebook, Ola – you have an opportunity to tell bigots across the country that enough is enough. You all have the power to show those who indulge in hate speech that this will not be tolerated, that there are consequences for their actions, that discrimination on the basis of religion isn’t acceptable.
It starts with Abhishek Mishra.
Vishwa Hindu Parishad member Abhishek Mishra posted this tweet on 20 April, not as satire, not as parody, not as part of any protest. This was a proud boast made by a man who sees nothing wrong whatsoever with the fact that he was openly advocating discrimination against someone on the basis of their religion, and also in terming all people belonging to a particular religion as violent fundamentalists.
Sadly, this hardly comes as a surprise in modern-day India.
Mishra has been criticised severely, and the tweet has spawned a number of comedic imitations poking fun at politicians. However, none of this has fazed the Lucknow resident, who has gone on to defend himself on TV channels and continued posts on social media.
Here’s what can be done in response to this.
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Would This Statement be Protected Under Freedom of Expression?
Mishra claims he was exercising his fundamental right to freedom of expression in posting the tweet, and there is always a reasonable argument to be made against any censorship of speech. India has a significant problem with speech being curtailed for all the silliest of reasons, with someone always ready to fly into a fit of incontinent rage at even the most inoffensive things.
At the same time, both common sense and Article 19(2) of the Constitution recognise that there have to be some reasonable restrictions on what one can say in public. It is on this basis that various provisions to combat hate speech in India are legitimised.
The relevant ones in the Indian Penal Code (IPC) are:
- Section 153A IPC penalises ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’.
- Section 153B IPC penalises ‘imputations, assertions prejudicial to national-integration’.
- Section 295A IPC penalises ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’.
- Section 298 IPC penalises ‘uttering, words, etc., with deliberate intent to wound the religious feelings of any person’.
- Section 505(1) and (2) IPC penalises publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes.
Would This Qualify as Hate Speech?
On the face of it, Mishra’s tweet certainly seems to violate at least some of these.
Promotes disharmony and feelings of ill-will between Muslims and followers of other religions (s. 153A)
Imputes that Muslims cannot be true to India and its Constitution because of the reference to ‘Jihadi People’ (s. 153B)
Deliberately insults Muslims in India by insinuating that all followers of Islam are Jihadis (s. 295A)
Deliberately wounds the religious feelings of any Muslim who might see it, which is likely, since it’s a public post (s. 298)
Having said that, there is a need to take care before using laws like this. Bigotry is never something to condone, but putting someone behind bars because of a particular belief is a slippery slope, and opens the door to all manner of human rights violations.
Right now, our sense of (justifiably) righteous anger means we may be able to get behind convicting Mishra under one or more of these charges and throwing him in jail. But we mustn’t forget that the crime of sedition is set on the same coin as these offences, and they can also be used to punish anything even remotely critical of any religious group – which is hardly something that Mishra’s harshest critics would want to sign up to.
This is where the jurisprudence on hate speech by the courts has stepped in over the years, with a general trend towards protecting speech (as per the Law Commission of India). Nevertheless, if there is a genuine incitement to discrimination, and there is reason to believe that this incitement could actually have an effect, these provisions can apply.
This is where prosecuting Mishra may run into difficulties. He is hardly the first person to spew vitriol online at a particular community. Just because he says something like this online is hardly likely to mean that there’s going to be a nationwide boycott of Muslims, and nor does he have the kind of national or regional stature to influence people into thinking that all Muslims are violent Jihadis.
At the same time, he is not someone without any influence at all. He has nearly 17,000 followers on Twitter, and nearly 1,200 on Facebook himself; and the VHP IT Cell he manages has over 5,400 followers on Twitter and over 15,000 on Facebook. The tweet in question has 1,335 retweets 2,628 likes (which continue to increase) and he has received widespread public support from right-wing bigots.
This may not compare to the influence of someone like Narendra Modi or Yogi Adityanath, but it can’t quite be ignored. Mishra has also not only remained unrepentant over the whole brouhaha, but also doubled down, arguing that this is a response to a Facebook post by one Resmi Nair about not wanting to take Uber cabs with the ‘Rudra Hanuman’ symbol displayed on them.
However, not only is this a defence made up after he started facing flak, it also doesn’t quite compare, since the complaint to Uber is about a specific subset of cabs that the person feels threatened by, while Mishra claims that all Muslims are Jihadis.
As a result, if the police are willing to take this up, there is actually a reasonably strong case to be made, that this is an incitement to discrimination which could actually have an effect. Unfortunately, with Mishra based in Uttar Pradesh and with connections to the local and national government (as per his own Facebook information), it’s difficult to see any action being taken against him.
Sadly, this too is unsurprising in today’s India.
Should Social Media Platforms Take Action Against Mishra?
This does not, however, mean that there is no possibility of action against Mishra. The very means by which he published his bigotry, can also become the means to take action against him, and it is imperative that some action is taken against him to show that this kind of behaviour is not tolerable in a civilised society.
Social media platforms like Twitter and Facebook have their own rules and community standards to deal with hate speech, and as private platforms which provide terms and conditions for users to fulfil, they can take action even when the threshold for criminal law is not necessarily met. For them to do so is also less likely to chill speech, and ensures that their public platforms are not used in a manner which creates a hostile environment for others.
Private citizens have made complaints against Mishra on these platforms, along with engaging with and arguing against his offensive statements.
Twitter, unfortunately, has not taken down Mishra’s tweet despite it appearing to fall within one of the specific examples of conduct they do not tolerate under their ‘Hateful Conduct Policy’: “behaviour that incites fear about a protected group”. Mishra has predictably taken to the platform to crow about this, and claimed it as a “tight slap” on those trying to suspend his account.
It is disappointing that Twitter appears to be unable to enforce its own policies which it adopted last December with much fanfare, and only goes to demonstrate how easy it has become to disseminate hatred online.
However, Facebook, perhaps because of all the flak it has recently received for facilitating hate speech, has removed the same post for violating community standards, which is most welcome.
This does give one hope, as it shows that despite the problems with it, social media platforms can be responsive to this kind of behavior and address it if they have the will to do so. Generating that will for what seems like lower-level bigotry may not always be easy, but failing to do only allows it to become more widespread and normalised, which is why it’s important to show people like Mishra that there will be consequences for their actions.
What About Ola?
In response to the incident, Ola came out with the following statement:
It’s been interesting to see Ola get a fair bit of credit for their statement, despite not taking any real action. Perhaps it is just another sign of these troubled times that we are applauding the basic minimum that any sensible person or company would do in response to vile nonsense like Mishra’s.
Let us not forget that Amazon has taken down an endorsement featuring actress Swara Bhasker because of right-wing reactions to her protest against the Kathua rape and murder case. Given that all she was saying was that the crime was shameful and the criminals needed to be punished, we can see just how morally bankrupt the far right has become, and how spineless even the most powerful corporations can be in the face of this.
Still, despite the chance that it could lead to their app being downgraded, Ola could and should be doing more in response to Mishra, especially since his statements incite discrimination against one of their own drivers (notwithstanding their arguments about not employing anyone). Mishra also tagged their official handles in his posts, dragging them into the whole fiasco.
Ola’s terms and conditions, to which Mishra has obviously had to sign up, allow them to terminate or suspend a person’s account for any reason whatsoever, even if there is no breach of the T&Cs. They would hardly be remiss for relying on this to terminate the man’s account on this basis itself, given his brazen bigotry and refusal to back down – they don’t even need to provide notice to him if he is using his account to cause nuisance or prejudice to anyone.
Even if they want to assert a breach of the T&Cs, then this too shouldn’t be too difficult.
- Mishra’s conduct appears to violate para 8 of Part VII (Terms of Use), which says that the content from their application cannot be used to solicit performance of an illegal activity or activity that infringes the rights of others.
- It also appears to violate para 11, which says that user should not make negative, denigrating or defamatory statements about Ola’s parent company, or its merchants. While that provision can surely not cover situations where there is misconduct by Ola or its drivers, nothing of the sort happened here, and so cannot be a justification.
The ball is in their court now, and we can only hope that like Facebook, they utilise the options at their disposal to show Mishra and his ilk that just because they may have a right to freedom of expression, that doesn’t give them the right to spew hatred that can genuinely harm the lives of others.
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