Hate speech India has a number of provisions on its books that seek to restrict speech that can negatively affect the relations between its diverse communities, hurt their religious feelings, or prejudice their integration into the national community. In light of India’s size and diversity, it is quite understandable that the country’s laws contain a number of provisions aimed at ensuring the peaceful coexistence of its peoples. In practice, however, the way in which some of these provisions in the Indian Penal Code in particular have been phrased and interpreted leads to easy misuse, and may well harm the relations between India’s communities rather than helping them. Among the sections in the Indian Penal Code that are frequently used to restrict freedom of expression online,60 the wording of sections 153A and 505(2) IPC is quite similar: 153A. Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.— (1) Whoever— (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities […] shall be punished with imprisonment which may extend to three years, or with fine, or with both. 505(2) Statements creating or promoting enmity, hatred or ill-will between classes.— Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both. Similarly, sections 295A and 298 IPC, too, resemble each other: 295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by 60 For a more complete overview of hate speech provisions in Indian law, see Law Commission of India. (2017). Op. cit. insulting its religion or religious beliefs.— Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 298. Uttering, words, etc., with deliberate intent to wound the religious feelings of any person.— Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Under section 196 of the Code of Criminal Procedure, a court cannot take cognisance of a case under sections 153A or 295A without the previous sanction of the central government or state government. Before according sanction, the central government or state government may order a preliminary investigation by a police officer not being below the rank of inspector. Perhaps the most notorious example of misuse of these sections is from November 2012, when a young woman, Shaheen Dada, was arrested for a Facebook post she wrote questioning the shutdown of Mumbai that followed the death of Bal Thackeray, the founder of the Shiv Sena. The Shiv Sena is a right-wing ethnocentric party with a particularly strong following in Mumbai. Following its leader’s death, businesses throughout the city had been forced to shut and taxis went off the roads, all under the threat of violence. Shaheen Dada wrote: With all respect, every day, thousands of people die, but still the world moves on. Just due to one politician died a natural death, everyone just goes bonkers. They should know, we are resilient by force, not by choice. When was the last time, did anyone showed some respect or even a two-minute silence for Shaheed Bhagat Singh, Azad, Sukhdev or any of the people because of whom we are free-living Indians? Respect is earned, given, and definitely not forced. Today, Mumbai shuts down due to fear, not due to respect.61 61 Quoted in The Telegraph India (2012, 21 November). Everyone Need Not Think the Same: Facebook Girl. The Telegraph India. https:// www.telegraphindia.com/1121121/jsp/nation/story_16221567.jsp 60 / Unshackling Expression