Mahesh Vikram Hegde, founder of Postcard News, has been arrested, apparently for publishing content alleged to be only tenuously linked to reality and communally divisive. News of his arrest was met with relief in some quarters, particularly those of ostensibly liberal persuasion. The rights and wrongs of the matter will be decided in the courts, but the arrest and its reception merit consideration because they involve issues that affect us all.

After all, it is not necessary to publish content through formal media to fall foul of the law. Simply offering one’s opinion on social media could invite legal action.

Hegde has reportedly been booked under Sections 120B, 153A and 295A of the Indian Penal Code. While Section 120B deals with criminal conspiracy, the other provisions are specifically intended to counter societal disharmony and what could be considered “hate speech”.

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In essence, Section 153A makes it a criminal offence to even attempt to promote “disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities” on any ground. Doing anything “prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or cases or communities, and which disturbs or is likely to disturb the public tranquility” is potentially an offence as well. Section 295A criminalises deliberate and malicious acts intended to outrage religious feelings of any class of Indian citizens by insulting or trying to insult their religion or religious beliefs.

The two provisions, which overlap to a degree, are not meant to suppress scholarship. Nonetheless, truth is not considered an absolute defence under either provision; one’s tone is generally taken into account. On the question of intent, the position of the law has not been static. Section 295A criminalises only “deliberate and malicious acts” intended to have an effect the law decrees illegal. As such, lacking intent may be a valid defence where Section 295A is invoked. Section 153A, in contrast, is silent on the subject of intent. Early case law suggested intent could be drawn from the words used, but the judiciary later appeared to deviate from this position and began to look more closely at the intention of the accused person.

Different approach

The dangers of divisive speech are clear. Quotidian obscenities include killing people because of communal and caste hatred, denying them housing and even access to basic amenities such as drinking water. In a plural society that has been hierarchical for centuries and has not yet recovered from the more recent divide and rule policies of colonial rulers, it is difficult to challenge the need for laws that could counter hate speech. If nothing else, such speech invariably creates societal fissures that may result in real harm – assault, discrimination, and possibly worse.

That said, the law is clearly imprecise. It deals in generalities rather than specifics, as laws of this nature must. The law cannot predict every situation that may arise and create a dedicated response for each individual prediction. This, unfortunately, means that the law is a rather blunt tool that can be wielded by almost anyone. It is, therefore, important to look closely at how the law is used and how narratives can be structured to do the least damage possible.

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In the case of Postcard News, the consensus among those who have welcomed Hegde’s arrest appears to be that “fake news” is being assailed. This is deeply problematic simply because the term “fake news” does not lend itself to a precise definition. Any news may be considered fake by someone or the other depending on their political and ideological leanings. All of us have such leanings even if they are not pronounced, and we tend to see the world through the lens of our beliefs. We are also all prone to making the occasional factual error.

Creating public discourse that cheers the invocation of criminal law, of all things, against fake news is unsafe. It potentially puts all speech at risk since “fake news” is an amorphous term that can be applied to almost any content. To compound the problem, the law is susceptible to varied interpretations and is easily invoked.

It would be preferable, not to mention more effective, to identify specific forms of speech that engender societal hatred and distrust, critique them and fashion a society where making such speech is unacceptable as a norm. The law already often recognises it as a crime; the rest is up to us.

Nandita Saikia is a media and technology lawyer in Delhi.