{"id":329,"date":"2023-08-09T14:08:02","date_gmt":"2023-08-09T14:08:02","guid":{"rendered":"https:\/\/projects-dev.itforchange.net\/online-violence-gender-and-law-guide\/?page_id=329"},"modified":"2024-10-29T12:33:53","modified_gmt":"2024-10-29T07:03:53","slug":"2-6-gender-based-hate-speech","status":"publish","type":"page","link":"https:\/\/projects.itforchange.net\/online-violence-gender-and-law-guide\/module-2-typologies-of-online-gender-based-offenses-in-law\/2-6-gender-based-hate-speech\/","title":{"rendered":"2.6. Gender-Based Hate Speech"},"content":{"rendered":"
Navigate:Online Gender-based Violence Judicial Resource Guide<\/span><\/a><\/span><\/div><\/div><\/div><\/div><\/div><\/div>
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\n\t\t\t\t\t\t\"\" 2.6 Gender-Based Hate Speech\t\t\t\t\t\t<\/h1>\n\t\t\t\t\t\t\t\t\t\t\t
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2.6.1 What is gender-based hate speech?<\/h3>\n
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The Supreme Court of India in Pravasi Bhalai Sangathan v. Union of India (UOI) and Ors (2014),<\/i>1<\/a><\/sup>Pravasi Bhalai Sangathan v. Union of India (UOI) and Ors,<\/i> (2014), AIR 2014 SC 1591 (2014), judgment dated 12 March 2014, Supreme Court of India.<\/span> defined hate speech and explained its impact on affected persons as below:<\/p>\n

\u201cHate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on the vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group's ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.\u201d2<\/a><\/sup>Pravasi Bhalai Sangathan v. Union of India (UOI) and Ors,<\/i> (2014), AIR 2014 SC 1591 (2014), judgment dated 12 March 2014, Supreme Court of India at para 7.<\/span><\/p>\n

The Law Commission of India in its 267th report also defined hate speech in similar terms: \u201cAn incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.\u201d3<\/a><\/sup>Law Commission of India. (2017). Hate Speech. <\/i>Report No.267, p.49. https:\/\/www.latestlaws.com\/wp-content\/uploads\/2017\/10\/Law-Commission-Report-No.-267-Hate-Speech.pdf<\/a> <\/span><\/p>\n

Thus, hate speech is a form of speech directed against a specific individual or group based on arbitrary and normatively irrelevant features such as religion, caste, or gender. Such speech stigmatizes and vilifies the individual or group by ascribing to them qualities that are widely perceived as undesirable.4<\/a><\/sup>Parekh, B. (2012). Is there a Case for Banning Hate Speech? In Herz, M & Molnar, P. (Eds.), The Content and Context of Hate Speech Rethinking Regulation and Responses (<\/i>pp. 37-56). Cambridge University Press. https:\/\/www.cambridge.org\/core\/books\/abs\/content-and-context-of-hate-speech\/is-there-a-case-for-banning-hate-speech\/F4C4B6AA81DFF40234B75D4ED7399A44<\/a><\/span> Because of the negative qualities ascribed to them, hate speech makes such an individual or group a legitimate object of hostility and revulsion in the eyes of others.5<\/a><\/sup> Parekh, B. (2012). Is there a Case for Banning Hate Speech? In Herz, M & Molnar, P. (Eds.), The Content and Context of Hate Speech Rethinking Regulation and Responses (<\/i>pp. 37-56). Cambridge University Press. https:\/\/www.cambridge.org\/core\/books\/abs\/content-and-context-of-hate-speech\/is-there-a-case-for-banning-hate-speech\/F4C4B6AA81DFF40234B75D4ED7399A44<\/a><\/span> The end result or effect of hate speech is not necessarily only violence against the targeted individual or group, but can also lead to widespread discrimination, ostracization, and delegitimization of such an individual or group, impairing their exercise of citizenship rights and democratic participation in the online and offline public sphere.<\/p>\n

An essential aspect that distinguishes hate speech from other kinds of vilifying or offensive speech is the power and authority of the speakers versus the relative position of subordination of the person or group targeted. This is because speech that inspires hostility towards a dominant group or individual has vastly different consequences and implications than that which targets a marginalized or oppressed group,6<\/a><\/sup>Amish Devgan v. Union of India and Ors.(2020)<\/i>, (2021) 1 SCC 1, judgment dated 7 December 2020, Supreme Court of India. <\/span> in terms of their ability to exercise their rights and liberties, and their civic status and standing in society.7<\/a><\/sup>Raghavan, A. (2021). The Internet-Enabled Assault on Women\u2019s Democratic Rights and Freedoms, <\/i>pp. 9-13. <\/i>IT for Change. https:\/\/itforchange.net\/sites\/default\/files\/1738\/The-internet-enabled-assault-on-womens-dem-rights-arti-raghavan-dec-21.pdf<\/a>.<\/span><\/p>\n

Hate speech on the basis of gender is a distinct form of technology-facilitated gender-based violence (TFGBV) that women, particularly women in public and political life, face daily. Online hate speech against women often reduces them to basic biological and reproductive functions; attacks their credibility on the basis of gender; deploys speech, expressions, and images that sexually objectify and subordinate them; and reinforces harmful gender stereotypes. This could take the form of assertions that women should stick to the things they are good at, and insinuations that politics is no place for women.8<\/a><\/sup>Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations. A Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-political Life, <\/i>p.34. IT for Change. https:\/\/itforchange.net\/sites\/default\/files\/2132\/ITfC-Twitter-Report-Profitable-Provocations.pdf<\/a>;. Ghosh, S. (2020). Decoding Gendered Online Trolling in India.<\/i> ORF. https:\/\/www.orfonline.org\/expert-speak\/decoding-gendered-online-trolling-in-india\/<\/a>.<\/span><\/p>\n

Unlike gender trolling and sexual harassment, the impact of hate speech on women goes beyond fear, anxiety, distress, intimidation, or mental anguish. These immediate effects contribute to a chilling or silencing effect on women, thereby limiting their opportunities and aspirations for participating on the internet.9<\/a><\/sup>Raghavan, A. (2021). The Internet-Enabled Assault on Women\u2019s Democratic Rights and Freedoms. <\/i>IT for Change. https:\/\/itforchange.net\/sites\/default\/files\/1738\/The-internet-enabled-assault-on-womens-dem-rights-arti-raghavan-dec-21.pdf<\/a>.<\/span><\/p>\n<\/div>\n<\/div><\/div><\/div>

2.6.2 What is a gender-sensitive way to read a case of gendered hate speech?<\/h3>\n
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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\u2019s 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.<\/p>\n

Any form of hate speech is constitutive in nature, meaning, the speech \u201cconstructs social structures and fortifies or reinforces social hierarchies\u201d.10<\/a><\/sup>\u00a0Raghavan, A. (2021). The Internet-Enabled Assault on Women\u2019s Democratic Rights and Freedoms. <\/i>IT for Change. https:\/\/itforchange.net\/sites\/default\/files\/1738\/The-internet-enabled-assault-on-womens-dem-rights-arti-raghavan-dec-21.pdf<\/a>. Also see, Matsuda, M.J., et al (eds). (1993). Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. <\/i>Westview Press. https:\/\/scholarship.law.columbia.edu\/books\/287\/<\/a><\/span> 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.<\/p>\n

Hate speech devalues the speech of individual members of the targeted group and attacks the credibility of their speech,11<\/a><\/sup>Raghavan, A. (2021). The Internet-Enabled Assault on Women\u2019s Democratic Rights and Freedoms. <\/i>IT for Change. https:\/\/itforchange.net\/sites\/default\/files\/1738\/The-internet-enabled-assault-on-womens-dem-rights-arti-raghavan-dec-21.pdf<\/a>.<\/span> 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.<\/p>\n

The above-mentioned effects of hate speech on women\u2019s 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.<\/p>\n

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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

2.6.3 Which laws are applicable?<\/h3>\n
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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, 1951,12<\/a><\/sup>This section is invoked only in case of speech\/acts made or done in relation to elections. <\/span> 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.13<\/a><\/sup>Law Commission of India. (2017). Hate Speech. <\/i>Report No.267, p.52. https:\/\/www.latestlaws.com\/wp-content\/uploads\/2017\/10\/Law-Commission-Report-No.-267-Hate-Speech.pdf<\/a><\/span> 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.14<\/a><\/sup>Law Commission of India. (2017). Hate Speech. <\/i>Report No.267, p.52. https:\/\/www.latestlaws.com\/wp-content\/uploads\/2017\/10\/Law-Commission-Report-No.-267-Hate-Speech.pdf<\/a><\/span> 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

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  1. Section 196 of the BNS (Promoting Enemity Between Groups) : <\/b>Under the IPC, the offense of promoting enmity between different groups, and doing acts prejudicial to the maintenance of harmony is given in Section 153A. In the BNS, it is discussed in Section 196. The elements of the offense are the same under both laws and it consists of promoting disharmony or enmity between different groups based on religion, race, language, or other factors, either through various means or by committing acts that disturb public peace. It also covers organizing activities to train individuals to use violence against any group, thereby causing fear or insecurity.\u00a0<\/span><\/li>\n
  2. Section 75 of the BNS (Sexual Harassment):<\/b> Under the IPC, the offense of sexual harassment is given in Section 354A, and under the BNS it is an offense under Section 75. The elements of the offense are the same under both laws. Section 75 discusses that a man shall be guilty of sexual harassment if he engages in unwelcome and explicit sexual contact or advances, demands sexual favors, shows pornography against a woman's will, or makes sexually colored remarks.<\/span><\/li>\n
  3. Section 356 of the BNS (Defamation): <\/b>Under the IPC, the definition of criminal defamation and its punishment are provided in Sections 499 and 500. However in the BNS, these sections are consolidated into one provision: Section 356. The elements of the offense have not been changed in the BNS provision. The section discusses the harm caused by publication, verbalization, or other forms of offensive material that is false, defamatory in nature, and causes harm to the reputation of a person. The main difference between the two laws is that in the BNS, community service has been added as an alternative punishment along with imprisonment and fines.<\/span><\/li>\n
  4. Section 351 of the BNS (Criminal Intimidation):<\/b> Under the IPC, the crime of criminal intimidation and its punishment are provided under Section 503 and 506, respectively. Further, criminal intimidation through an anonymous source is punishable under Section 507. These sections are consolidated under the BNS into one provision, Section 351, and are dealt with under different sub-sections. Section 351(1) of the BNS corresponds to Section 503 of the IPC; Section 351 (2) of the BNS corresponds to Section 506 of the IPC; and Section 351(3) of the BNS corresponds to Section 507 of the IPC. These sections discuss the offense of criminal intimidation which occurs when someone threatens another with harm to their person, reputation, or property, intending to cause alarm or compel them to act against their legal rights or duties.<\/b><\/li>\n<\/ol>\n\t\t\t\t<\/div>\n\t\t\t<\/div>\n\t\t<\/div>\n\t\t<\/div>\n<\/div>\n<\/div><\/div>

    2.6.4 How have courts dealt with gendered hate speech?<\/h3>\n
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    2.6.4.1 P. Saravanakumar v. State rep. by its Inspector of Police, Cyber Cell, Central Crime Branch, Egmore, Chennai & Another<\/em> (2019)<\/em>15<\/a><\/sup>P. Saravanakumar v. State rep.by its Inspector of Police, Cyber Cell, Central Crime Branch, Egmore, Chennai & Another,<\/i> (2019) Crl.O.P.No.232 of 2013, order dated 5 August 2019, Madras High Court. <\/span><\/h4>\n

    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.<\/p>\n

    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\u2019s and her mother\u2019s 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\u2019s online participation and stripping away their rights and freedoms.<\/p>\n

    2.6.4.2 The Present Petition Has Been ... v. Unknown<\/em> (2021)<\/em>16<\/a><\/sup>The Present Petition Has Been ...v. Unknown<\/i> Crl. O.P. No.12604\/2020, judgment dated 27 April 2021, Madras High Court.<\/span><\/h4>\n

    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\u2019s status as citizens and infringe on their constitutionally guaranteed rights. However, the court still fell back on patriarchal tropes of \u201cmodesty and chastity of the women folk\u201d17<\/a><\/sup>The Present Petition Has Been ...v. Unknown<\/i> Crl. O.P. No.12604\/2020, judgment dated 27 April 2021, Madras High Court, at para 10.<\/span> to describe the harm caused by the misogynistic hate speech of the accused person.<\/p>\n<\/div>\n<\/div><\/div><\/div>

    2.6.5 How have other jurisdictions dealt with gendered hate speech?<\/h3>\n
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    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.18<\/a><\/sup>The Constitution of the Republic of South Africa, 1996, Section 16(2)<\/span> 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.19<\/a><\/sup>Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, Section 1(xxii). (South Africa).<\/span> 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.20<\/a><\/sup>SPromotion of Equality and prevention of Unfair Discrimination Act, 2000, Section 10(1). (South Africa).<\/span><\/p>\n

    Similarly, Canada penalizes speech that incites hatred against any \u201cidentifiable group\u201d,21<\/a><\/sup>Canadian Criminal Code R.S.C., 1985, Section 319(2).<\/span> a term that has been defined to mean \u201cany 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\u201d.22<\/a><\/sup>Canadian Criminal Code R.S.C., 1985, Section 318(4). <\/span><\/p>\n

    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.<\/p>\n<\/div>\n<\/div><\/div><\/div>

    Footnotes<\/h3>\n
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