2.6 Gender-Based Hate Speech

The first step in adopting a gender-sensitive approach in a case of gender-based hate speech is to correctly identify its harms. In addition to the chilling effect it has on a woman’s freedom of speech and participation, hate speech also has long-term and generalized impacts which go beyond the moment of crime and the immediate victim to reinforce harmful gender stereotypes and make all women objects of hostility and revulsion.

Any form of hate speech is constitutive in nature, meaning, the speech “constructs social structures and fortifies or reinforces social hierarchies”.¹⁰ Raghavan, A. (2021). The Internet-Enabled Assault on Women’s Democratic Rights and Freedoms. IT for Change. https://itforchange.net/sites/default/files/1738/The-internet-enabled-assault-on-womens-dem-rights-arti-raghavan-dec-21.pdf. Also see, Matsuda, M.J., et al (eds). (1993). Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Westview Press. https://scholarship.law.columbia.edu/books/287/ Gender-based hate speech, therefore, not only reinforces existing gender and sexual stereotypes, but also leads to new forms of subordination and degradation of women, particularly in the online space. It also has the effect of justifying and normalizing the objectification of women and violence against them.

Hate speech devalues the speech of individual members of the targeted group and attacks the credibility of their speech,¹¹Raghavan, A. (2021). The Internet-Enabled Assault on Women’s Democratic Rights and Freedoms. IT for Change. https://itforchange.net/sites/default/files/1738/The-internet-enabled-assault-on-womens-dem-rights-arti-raghavan-dec-21.pdf. which negatively affects the utility of an already limited space for participation, not only for affected women, but also for women as a group. A general fear of retaliation against what they say or do coerces many women into silence or impedes their personal and professional use of the internet.

The above-mentioned effects of hate speech on women’s role and participation in society, in turn, infringe on their fundamental rights and freedoms such as the right to freedom of speech, equality, and dignity. Therefore, a case of gender-based hate speech should be considered a form of discrimination against women, and an infringement of their constitutionally protected fundamental rights, including their right to public participation.

A gender-sensitive approach should also give due consideration to the intersectional identities of women targeted by hate speech so as to account for the differential nature and impact of the speech on individuals or groups due to their peculiar social locations and privileges, or the lack of it.

Currently, Indian laws that are invoked to deal with cases of hate speech, such as Sections 153A, 153B, 505 of the Indian Penal Code (IPC), and Section 123(3A) of the Representation of People Act, 1951,¹²This section is invoked only in case of speech/acts made or done in relation to elections. etc., do not cover gender as a protected category. Recognizing this, the Law Commission of India recommended the insertion of Section 153C to the IPC, to penalize incitement to hatred by spoken or written words, signs, and visible representation on the grounds of gender identity, sex, and sexual orientation, among others.¹³Law Commission of India. (2017). Hate Speech. Report No.267, p.52. https://www.latestlaws.com/wp-content/uploads/2017/10/Law-Commission-Report-No.-267-Hate-Speech.pdf It also recommended the insertion of Section 505A to the IPC to penalize causing fear or alarm, or the provocation of violence against anyone on the grounds of their identity, including sex, gender, and sexual orientation.¹⁴Law Commission of India. (2017). Hate Speech. Report No.267, p.52. https://www.latestlaws.com/wp-content/uploads/2017/10/Law-Commission-Report-No.-267-Hate-Speech.pdf Crucially, the Law Commission recommended that hate speech laws should not only proscribe incitement to violence, but also incitement to discrimination. This is vital for effective prosecution as incitement to violence can be a higher standard of proof that many forms of gender-based hate speech may fail to fulfil. These recommendations have not yet been implemented through legislative amendments.

The absence of gender-specific hate speech laws, however, does not mean an absolute legal vacuum. Penal provisions such as Section 354A of the IPC (sexual harassment), Sections 499 and 500 of the IPC (defamation), and Sections 503, 506, and 507 of the IPC (criminal intimidation) can be deployed in cases of gender-based hate speech, depending on the type of harm involved, that is, whether it intimidates the victim, injures her reputation or damages her credibility, or harasses her by sexual objectification as a strategy of oppression and subordination, etc.

Finally, in the case of women belonging to Scheduled Castes or Scheduled Tribes, the remedy can be found under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC and ST Act), which penalizes acts of insult, intimidation, and abuse of members belonging to these communities.

2.6.4.1 P. Saravanakumar v. State rep. by its Inspector of Police, Cyber Cell, Central Crime Branch, Egmore, Chennai & Another (2019)¹⁵P. Saravanakumar v. State rep.by its Inspector of Police, Cyber Cell, Central Crime Branch, Egmore, Chennai & Another, (2019) Crl.O.P.No.232 of 2013, order dated 5 August 2019, Madras High Court.

This case was discussed in the gender trolling section, but finds relevance as a case of gender-based hate speech as well. Along with gender trolling, the complainant and her mother faced criminal intimidation on Twitter in the form of threats to kill, rape, and assault. The complainant also faced aspersions on her character; a chronic stream of extremely vulgar references and innuendoes even about her mother; insults on the basis of gender and caste; and patently false information that could pit groups against her, thereby endangering her life. The complainant stated that the hate speech campaign was emotionally traumatic, affected her livelihood and fundamental right to occupation, and resulted in rumors being spread about her, affecting her professional standing.

The Madras High Court dismissed the petition of the accused persons for quashing the First Information Report (FIR) registered against them under Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998, and relevant provisions of the Information Technology (IT) Act, 2000 (IT Act). The court rightly recognized and held that the act of the accused persons violated the complainant’s and her mother’s right to dignity and honor under Article 21 of the Constitution, and their right to equality under Articles 14 and 15 of the Constitution. This is a gender-sensitive way to approach a case of gender-based hate speech as it identifies the real harm produced by such speech in terms of restricting women’s online participation and stripping away their rights and freedoms.

2.6.4.2 The Present Petition Has Been ... v. Unknown (2021)¹⁶The Present Petition Has Been ...v. Unknown Crl. O.P. No.12604/2020, judgment dated 27 April 2021, Madras High Court.

In this case where the accused targeted several women, especially women in public life, with scandalous and derogatory tweets, the Madras High Court recognized that such tweets devalue women’s status as citizens and infringe on their constitutionally guaranteed rights. However, the court still fell back on patriarchal tropes of “modesty and chastity of the women folk”¹⁷The Present Petition Has Been ...v. Unknown Crl. O.P. No.12604/2020, judgment dated 27 April 2021, Madras High Court, at para 10. to describe the harm caused by the misogynistic hate speech of the accused person.

Unlike India, South Africa has expressly carved out speech that incites or advocates hatred on the grounds of gender (among others) as an exception to the guarantee of freedom of speech and expression in its Constitution.¹⁸The Constitution of the Republic of South Africa, 1996, Section 16(2) Further, Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, proscribes hate speech on the basis of any of the protected identities, including gender, sex, and sexual orientation.¹⁹Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, Section 1(xxii). (South Africa). The Section defines hate speech as the act of publishing, propagating, advocating, or communicating words against a person based on one or more of the prohibited grounds, such that it could reasonably be construed to demonstrate a clear intention to be hurtful, harmful, or to incite harm, or to promote or propagate hatred.²⁰SPromotion of Equality and prevention of Unfair Discrimination Act, 2000, Section 10(1). (South Africa).

Similarly, Canada penalizes speech that incites hatred against any “identifiable group”,²¹Canadian Criminal Code R.S.C., 1985, Section 319(2). a term that has been defined to mean “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability”.²²Canadian Criminal Code R.S.C., 1985, Section 318(4).

Statutory provisions such as those of South Africa and Canada view gendered or misogynistic hate speech as a form of discrimination and violation of fundamental rights, and thereby break away from the patriarchal underpinnings of law that manifest through notions of womanly modesty, decency, and obscenity. These statutory provisions also distinguish hate speech from harassment by recognizing the stigmatizing and delegitimizing impact of such speech that goes beyond the individual victim and the moment of the crime.