Responding to Online Targeting of Religious Minorities
- How to define Online Targeting?
- Guidelines on Communal Harmony, 2008[x]
- Indian Penal Code, 1860
- Protection of Civil Rights Act, 1955
- Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989
- The Cable Television Networks (Regulation) Act, 1995
- District and State Level Monitoring Committee – Authority to Act
- National Broadcasting Association (NBA) – Authority to Act
Online mediums are increasingly being used to target religious minorities. One can find interviews, short films, documentaries, and even skits with a storytelling approach, on social media and messaging apps – content that’s made attractive for people to watch and share but aimed at spreading hate against or vilifying minorities.
In the Ajit Mohan case,[i] the Supreme Court of India observed that while Facebook enabled free speech, it was being used for promoting disruptive messages, voices and ideologies. The court acknowledged that social media platforms were being used to inject extremist views into the mainstream to spread misinformation. Further, with the increasing internet penetration in the country, the usability of these online resources is also increasing. People are using such resources to justify or defend their opinions and beliefs and sometimes to even help formulate them.
Keeping in mind that narratives to target minorities can be, and are being, promoted deliberately and aggressively with the use of creative mediums, this paper intends to lay out the legal framework that can be tapped into while engaging with the content that impacts religious minorities negatively and affects their enjoyment of religious freedom.
How to define Online Targeting?
There is no specific definition that can holistically define online targeting. But for the sake of convenience, online targeting could be read as the use of hate or disaffection on the lines of religion that consciously seeks to undermine the unity and integrity of the country. It promotes discrimination, indignity and strikes at the heart of fraternity, which forms an integral part of India’s Constitution.
No law in India specifically defines hate or derogatory speech. Nevertheless, the Supreme Court in Pravasi Bhalai Sangathan v. Union of India and Ors[ii] has highlighted the indicators that can be used to measure the harm or extent that online targeting affects minority communities. Further, these pointers could also act as a framework to define and classify online targeting as and when it occurs in the following ways:
a). Suppose the online targeting is part of an effort to marginalise individuals based on their membership in a minority community.[iii]
b). When expressions or words or images used in the online targeting can expose the minority community to hatred or dislike or any form of disaffection or degrading treatment or diminish the value of dignity of an individual.[iv]
c). Suppose the online targeting intends to delegitimise a minority community in the eyes of the majority.[v]
d). Suppose the online targeting reduces the social standing and acceptance of a minority community.[vi]
e). When the extent of causing distress goes beyond individual community members, leading to an enormous societal impact.[vii]
f). Suppose the online targeting is part of a broader scheme that intends to target the vulnerable in a manner that it could cause them to suffer discrimination, ostracism, segregation, deportation, violence, and, in the most extreme cases, genocide.[viii]
g). When online targeting creates narratives that would act as a barrier for minorities when they attempt to participate as a community in a democracy.[ix]
Guidelines on Communal Harmony, 2008[x]
The Guidelines on Communal Harmony, prepared by the Ministry of Home Affairs in 2008, provide a broader policy framework. As per these guidelines, it is a prime responsibility of the state governments to maintain communal harmony, check rumours, prevent communal disturbances and riots, and provide protection and relief to people affected by such violence. In addition, the guidelines make recommendations about what the district and state administrations should do when online targeting intends to disturb communal harmony. It provides for strict action against anyone inflaming passions and stoking communal tensions through intemperate and inflammatory speeches and utterances. The relevant guidelines are:
a). The administration should take effective and meaningful action to curb and check rumours. Further, the guidelines mandate that strict action is taken against those inflaming passions and stoking communal tensions by intemperate and inflammatory speeches/utterances. Media and other channels must be used to halt any rumours and keep the people informed. (Guideline No. 3.13)
b). If any communal incident occurs, channels of contact with media persons should be established at a responsible level. Efforts should be made to prevent speculative reporting leading to fueling of rumours and community sentiments. In addition, there must be regular monitoring and briefing of the media to ensure that electronic media does not show images of specific incidents, leading to exaggerated perceptions about those incidents which would further provoke sentiments and passions. (Guideline 3.13 & 7.3)
c). The district administration should assess, identify and profile districts prone to communal sensitivities and tensions in light of religious conversions and “reconversions.” Further, the district administration should classify relevant areas as sensitive or hyper-sensitive, mandating that the administration reviews and updates them periodically. (Guideline 2.1)
d). Information should be well maintained in every concerned police station. Further, there is an express obligation on the Station House Officers (SHOs) and other senior officials to closely watch the situation in sensitive areas. Periodic visits and interactions with the civilian population and community leaders should also be done. (Guideline 2.1 & 2.2)
e). The administration should prepare detailed standard operating procedures and contingency plans to preempt and prevent any untoward situation at the state and district levels. (Guideline 2.4)
The Guidelines on Communal Harmony 2008 are a point of reference for the support given by the Central Government to state governments and Union Territories. In addition, if there is a broader challenge or case around online targeting in a writ, this policy could be a point of reference to draw upon.
Indian Penal Code, 1860
The statutory provisions relevant to online targeting are Sections 153A, 153B, 295A, 298 and 505(2) of the Indian Penal Code, 1860 (Hereinafter referred to as IPC).
a). Section 153A of the IPC criminalises any act which promotes enmity between groups of people on the grounds of religion. It further criminalises acts that are prejudicial to the maintenance of harmony. The wording of the provision relating to the form of content is broad. It recognises content that is in the form of words, either spoken or written, signs or visible representation. So, any form of online targeting, if it intends to encourage disharmony or feelings of enmity, hatred or ill-will between groups, then it becomes prosecutable under Section 153A.
b). Section 153B of the IPC criminalises any imputation or assertion that is prejudicial to national integration. It says that if any assertion in the form of words, either spoken or written, signs or visible representation wherein any class of person, because of being a member of any religious group, is portrayed as someone who cannot bear true faith and allegiance to the Constitution or is denied rights as citizens or if there is an assertion that causes disharmony or feelings of enmity, hatred or ill-will between groups, then it becomes prosecutable under Section 153B. The purpose of enacting these provisions is to check communal and separatist tendencies. Further, it is also to ensure that the dignity of the individual and the unity of the nation are secured and fraternity is valued.
c). Section 295A of the IPC deals with offences related to religion. It criminalises speech, writings, or signs, that are made with the deliberate or malicious intention of insulting a citizen’s religion or religious beliefs. Similarly, Section 298 of the IPC provides that any action with the deliberate and malicious intention of hurting the religious feelings of any person is punishable, and Section 295A is applicable for serious offences.
d). Section 502(2) of the IPC criminalises the act of making, publishing or circulating statements or reports that contain rumours or alarming news intending to create or promote enmity, hatred or ill-will between classes on the grounds of religion.
e). The court can take cognisance of these offences punishable under Sections 153A, 153B and 295A of the IPC after obtaining sanction from the government.
Therefore, if an first information report (FIR) is lodged invoking these offences, then the investigating officer will obtain sanction, conforming to the legal requirement under Section 196 of the Criminal Procedure Code, 1973. If it is a private complaint, then one must write to the concerned government, central or state, for granting an order of sanction and attach the same with the complaint that is being moved before a magistrate. The position of law with respect to sanction may vary from state to state, so the position of law in the concerned state should be ascertained before filing a complaint.
Further, if one comes across any online content and the objective of that content is to target the minorities, a criminal complaint can be filed under the provisions referred to above. The complaint will have to describe the content and explain how it can be used against the minorities while seeking immediate police action.
Protection of Civil Rights Act, 1955
This Act was enacted to supplement the implementation of the government’s constitutional mandate of abolishing “untouchability” and it criminalises any speech that would encourage the practice of untouchability or is related to untouchability and speaks clearly against the historically marginalised “Dalit” communities.
Section 7(1) (c) of the Act specifically prohibits any form of incitement or encouragement of the practice of untouchability that is in any form, namely words either written or spoken or by signs or visible representation or otherwise by any person or class of people or even the public in general. The above-referred provision can be invoked if conversion is used as a bogey to target and marginalise the Dalit communities in India.
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989
The SC/ST Act of 1989 also criminalises insults and intimidations on account of the victim’s identity as Scheduled Caste or Scheduled Tribe. Section 3(1) of the Act states that any insult or intimidation, or abuse with an intent to humiliate in public view is an offence. An insult that intends explicitly to humiliate the victim for his or her caste will be an offence because the Act’s object is to punish the violators who inflict any form of indignity, humiliation and harassment. The law intends to punish the acts of the “upper” caste against the Dalits when they are targeted because they are Dalits. The Act’s provisions could be invoked if conversion is used as a bogey to target and marginalise a Dalit community.
The Cable Television Networks (Regulation) Act, 1995
The relevant provisions of this Act are as follows:
a). Section 5 of the Act provides for a programme code, and Section 6 provides for an advertisement code which prohibit transmitting or re-transmitting through a cable service any programme or advertisement that is not in conformity with the prescribed codes.
b). Section 11 and 12 of the Act gives power to an authorised officer to seize and confiscate the equipment being used by the cable operator for operating the cable television network.
c). Section 16 of the Act is the penalising provision for violations. It provides for imprisonment for a term that may extend to two years for the first offence and imprisonment extending to five years for every subsequent offence. Section 17 relates to offences committed by companies. It fixes the liability on the person who at the time of the offence was in charge of or was responsible to the company for the conduct of the business of the company.
d). Section 19 of the Act authorises an officer to prohibit the transmission of a programme in the public interest if it is likely to promote, on the ground of religion, race, language, caste or community or any other ground, any disharmony or feelings of enmity, hatred or ill-will between different groups disturbing the public tranquility.
e). Rule 6 of the Cable Television Network Rules, 1994, prescribes the programme code. It prohibits any programme which offends good taste or decency; contains an attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes; contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half-truths; is likely to encourage or incite violence or criticises or maligns or slanders any individual or certain groups; denigrates women or children or contains visuals or words that reflect a slandering, ironical and snobbish attitude in the portrayal of a group.
f). Rule 7 of the Cable Television Network Rules prescribes the advertising code. It mandates that the advertising be designed to conform to the laws of the country and should not offend the subscribers’ morality, decency, and religious susceptibilities. Rule 7 (3A) states that no advertisement shall contain references that could hurt religious sentiments.
District and State Level Monitoring Committee – Authority to Act
To implement the provisions of the Cable Television Networks (Regulation) Act and the Rules, the Ministry of Information and Broadcasting has constituted district and state level monitoring committees. The committees provide a forum for the public to lodge a complaint regarding content aired over cable television and take action on the same as per the procedure prescribed. A committee can also notify a state government or the Central Government if any programme affects public order or is spreading resentment against any community. The committees must watch the content carried and ensure that the content is balanced, impartial and not likely to offend or incite any community. Depending on the seriousness of the situation and if there are violations of the programme and advertisement codes, they can issue an advisory or a warning to the channel. The channel may be asked to scroll an apology for a specified number of days, or its broadcast can be suspended for a specified time period.
Therefore, if one comes across such content and intends to act upon it, the following must be done:
Identify the concerned officer who is acting as the authorised officer to take complaints for that district level monitoring committee. File a detailed complaint along with the transcription of the entire program. The complaint must specifically refer to specific portions to show the violation of the Act.
National Broadcasting Association (NBA) – Authority to Act
The NBA has about 30 news broadcasters as its members, and it has issued a code of ethics and broadcasting standards that prescribe impartiality, objectivity, respecting privacy and eschewing obscenity. It places responsibility on the broadcasters to not inflame sentiments or air anything that could prejudice against certain groups of people. The regulations constitute the News Broadcasting Standards Authority (NBSA) as an adjudicatory body.[xi]
The NBA is a voluntary association, and, therefore, its jurisdiction is limited to its members. The list of news channels registered with the NBA is on their website.[xii] The NBSA regulations allow it to warn, admonish, censure, express disapproval against and/or impose a fine upon the broadcasters and/or recommend to the concerned authority for suspension/revocation of the license of such broadcasters after a due process of inquiry showing non-compliance of the NBA standards.
The procedure to file a complaint before the NBSA involves:
First, a complaint must be filed with the concerned broadcaster and only upon not receiving any response or receiving an unsatisfactory response can one approach the NBSA. Second, the NBSA can be approached by filling up the complaint form that is available online.[xiii] Third, while filing the complaint online, the specific provisions of the code that are being violated must be mentioned.
The NBSA would then notify the broadcaster about the complaint received and ask them to respond within 14 days before holding an inquiry in accordance with the NBSA regulations.
[i] Ajit Mohan and Ors. V. Legislative Assembly, NCT of Delhi and ORs, Writ Petition (C) No. 1088 of 2020
[ii] AIR 2014 SC 1591
[iii] Id. at 1597
[iv] Id. at 1597
[v] Id. at 1597
[vi] Id. at 1597
[vii] Id. at 1597
[viii] Id. at 1597
[ix] Id. at 1597
[x]Guidelines on Communal Harmony, 2008 available at https://www.mha.gov.in/sites/default/files/ComHor141008.pdf
[xi] Code of Ethics & Broadcasting Standards, News Broadcasters’ Association, available at: http://nbanewdelhi.com/pdf/final/NBA_code-of-ethics_english.pdf.