While Supreme Court jurisprudence might take into account incitement to discrimination as well as incitement to violence, the text of the law does not distinguish between slander directed at a powerful majority and abuse targeted at a marginalised community or individual.68 The only law to fight hate speech in India that does recognise structural and historical discrimination is the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which applies to the internet space as well. The Delhi High Court has held that casteist slurs made on Facebook, for example, which target individuals belonging to a scheduled caste or scheduled tribe community, are punishable under this act – even when they are made in a closed group.69 Provisions that do not recognise the historical and systemic marginalisation of specific groups of people based on their identity, such as section 153A and 505(2) IPC, are likely to “disproportionately benefit those who already are in a more powerful position than their adversaries, however relative that position might be.”70 As more and more Indians come online, this tension will likely be felt only more acutely. In addition, the thresholds for the criminalisation of speech included in section 153A and section 505(2) in particular are arguably too low. Former UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, has noted that to be criminalised, hate speech should be of a public nature, should at the very minimum present a real and imminent danger, and must contain an obvious intent to harm.71 Sections 153A and 505(2), however, allow speech to be censored merely because it promotes “disharmony” or “feelings of enmity […] or ill-will” [italics ours]. In fact, in section 505(2), even the mere likelihood of this happening is considered sufficient for prosecution – there is no need to establish intent as well. Where sufficient tension is generated, as in the Shaheen Dada case, this provision, therefore, allows for the criminalisation of what may have been only an innocuous statement – or even a well-intended one – on the grounds that it is “likely” to promote class enmity. 68 Ibid. 69 Garg, A. (2017, July 4). Social media slurs on SC/ST punishable: HC. Times of India. www.timesofindia.indiatimes.com/india/socialmedia-slurs-on-sc/st-punishable-hc/articleshow/59432794.cms. 70 Shora, S. R., & Kovacs, A. (2013). Op. cit. 71 La Rue, F. (2012). Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. https://www.un.org/en/ga/search/view_doc. asp?symbol=A/67/357 Reform of the law might not always be sufficient. As section 295A comes close to a blasphemy law, it should arguably be scrapped. As Shora and Kovacs have argued: While believers of all religious communities, as well as those who do not adhere to any religion, should indeed be protected, religious beliefs as such should not. Without the right to question, be it one’s own religion or another, the right to religion becomes meaningless. Those who engage in violence because their own beliefs are questioned or challenged should not be protected by the law on that account.72 The constitutional validity of sections 153A, 295A and 298 IPC, among others, is currently being challenged in the Supreme Court by Subramaniam Swamy.73 Morality, obscenity and sexual expression A number of provisions are used to curtail freedom of expression on the internet on the grounds of morality or obscenity. Most prominent among these is section 67 of the IT Act:74 67. Punishment for publishing or transmitting obscene material in electronic form.— Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. The wording of this provision resembles closely that of section 292 of the IPC, which bans the sale, etc. of obscene publications or representations. 72 Shora, S. R., & Kovacs, A. (2013). Op. cit. 73 Choudhary, A. (2015, 23 June). Subramanian Swamy challenges hate speech law in SC. Times of India. www.timesofindia. indiatimes.com/india/Subramanian-Swamy-challenges-hatespeech-law-in-SC/articleshow/47776651.cms?from=mdr 74 Other provisions that can be and have been used in a similar vein include section 509 IPC (Word, gesture or act intended to insult the modesty of a woman) and provisions of the Indecent Representation of Women (Prohibition) Act, 1986. Their misuse seems, however, less widespread. For reasons of space, we have, therefore, not included a detailed discussion of these provisions in this paper. 62 / Unshackling Expression