Addressing Cases Related to Hate Speech and Hurting Religious Sentiment

Introduction:

What constitutes hate speech is not defined under any international legal instrument and the conceptual definition or characterization of what is ‘hateful’ remains controversial and disputed.[1]Experts define hate speech as communications of antagonism or disparagement of an individual or a group on account of a group characteristic such as religion, ethnicity, race, colour, national origin, sex, disability, political belief etc.[2] The Supreme Court of India in Pravasi Valai Sangathan vs. Union of India and Others[3]defined ‘hate speech’ as

… an effort to marginalise 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.

Public speech provided in any platform, e.g. social media, public gathering etc., that reveals hate or encourages violence towards a person or a group based on their primordial identity e.g., race, religion, sex or sexual orientation can be termed as hate speech.[4] In many countries a victim of hate speech can seek remedy under civil or criminal law or both.[5] Unfortunately, in some countries, including Bangladesh, hate speech is not considered as a legal term.[6]

In Bangladesh, any speech that spreads hatred is barred by the Constitutional provision[7] and if any situation arises regarding any speech that tantamount to ‘hurting religious sentiment’, the victim can get remedy under the Digital Security Act, 2018 and the Penal Code, 1860. However, the term ‘hate speech’ is not mentioned per se in the Constitution or in the aforesaid laws and there is no specific definition of hate speech. This chapter addresses the legal parameters and issues, which an activist and a lawyer need to know while assisting a victim of hate speech or whose religious sentiment has been hurt by any speech. Thus, this chapter explains the following issues:

International legal framework pertaining hate speech

Hate Speech: the context of Bangladesh

Laws of Bangladesh for addressing hate speech and hurting religious sentiment of another

National Laws affecting freedom of expression and Freedom of Religion and Belief (FORB).

Case Studies

Steps an activist or a lawyer undertakes to assist the victims of hate speech and whose religious sentiment is hurt

International legal framework: balancing between FORB and Hate Speech:

As mentioned earlier, there is no international legal definition of hate speech and the characterization of what is ‘hateful’ is controversial and disputed.[8] However, some scholars try to define hate speech as speech which attacks or demeans a group based on race, ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity.[9] The international and domestic legal instruments provides framework for states to address hate speech within their duty to promote and protect rights which includes balancing rights to freedom of expression with rights to dignity, equality and safety.[10] Nevertheless, difficulties arises dealing with hate speech propagated online since individual states do not play active role in this matter.[11] Internet intermediaries such as social networking platforms, internet service providers or search engines etc. stipulate in their terms of service how they may intervene in allowing, restricting or channelling the creation and access to specific content.[12] Internet intermediaries have developed diversified definitions of hate speech and guidelines to regulate any difficulties regarding it[13] though some of them do not use the term hate speech directly rather they have a descriptive list of terms related to it.[14]

SL No.	Name of the Companies	Using terms related to hate speech
01.	Yahoo	“content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable”.[15]
02.	Twitter	Twitter does not mention explicitly a prohibition of hate speech, but alerts its users that they “may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabelled or are otherwise deceptive”.[16]
03.	Facebook	Facebook elaborates that “Facebook removes hate speech, which includes content that directly attacks people based on their: race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender or gender identity, or serious disabilities or diseases”.[17]
04.	YouTube	YouTube’s terms of service, for example, seek to balance freedom of expression and limitations to some forms of content. As they read, “We encourage free speech and defend everyone’s right to express unpopular points of view. But we do not permit hate speech: speech which attacks or demeans a group based on race or ethnic origin, religion, disability gender, age, veteran status and sexual orientation/ gender identity.[18]

There are a number of provisions under International Law, which ensures the rights regarding freedom of expression, opinion, thought etc. including some restrictions.

SL No.	International legal framework ensuring freedom of expression, opinion, thought including some restrictions	Articles
1.	The International Covenant on Civil and Political Rights,1966	Article 20 (1) provides that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
2.	International Convention on the Elimination of Racial Discrimination, 1965	Article 4 provides that States shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof
Key Soft Instruments
General Comment No 34, Human Rights Committee on Article 19, ICCPR (2012)
Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (2012)

Almost all countries around the world regulate hate speech in a way that promotes human dignity and protects minorities from verbal persecution.[19] Many countries impose restrictions on hate speech following the stipulations of Article 20 of the ICCPR.[20] The European countries have adopted legislation aimed at repressing hate speech.[21]

Hate speech: the context of Bangladesh

In Bangladesh hateful and degrading speech pertaining women and religion is delivered by the vested interest groups and also by a section of people. Commission on the Status of Women(CSW) has reported that hate speech by the Imams in waz mahfils is on the rise in Bangladesh.[22] In 2019, the Daily Observer of Bangladesh has reported that the government has identified 15 Islamic scholars of the country for spreading hate speech at different waz mahfils (a religious gatherings of the Muslims).[23] As per Ain O Salish Kendra’s (ASK) report, during the period of 2013 – 2020 approximately 1,580 incidents where the sentiments of religious minority people were hurt through hate speech. This reveals that on an average 197 incidents concerning hate speech takes place each year.[24] Furthermore, Bangladesh Hindu Buddhist Christian Oikya Parishad (BHBCUC) reported that approximately 1000 incidents regarding hate speech took place in each of the past five years.[25] Speech which is hateful to other religion is also broadcasted by certain mosques during Friday sermon. Reportedly in 2004 – 2005 hate speech was spread during Friday sermons in certain places of Bangladesh, including Khulna and Satkhira to incite religious intolerance and attack against the Ahmediyas.[26]

After the 2016 Holy Artisan terrorist attack, the present Government as a part of its ‘zero tolerance’ policy, is controlling the contents of Friday sermons so that hateful speech inciting religious intolerance and terrorism can be halted.[27] Many victims of hateful speech complaints that police put less effort to file any case in this matter if it is reported by religious minorities.[28] Activists allege that sometimes, if not always, police show negligence for preparing the charge sheets if the allegation for propagating hateful speech if it is made by a non-Muslim against a Muslim.[29] So far, none of the cases on propagating or broadcasting or publishing hateful speech inciting religious intolerance violating individual right of FORB has been resolved till today. A number of accused have been arrested but most of them are enlarged on bail.[30]

Case Study-1: Kushal Baran Chakraborty Case

Kushal Baran Chakraborty, a teacher of University of Chittagong and an activist working for the equal rights of the religious minorities, filed a general diary (GD) with Hathazari Model police station on October 18,[31] after he had received threats from the Facebook account of one Syed Shahzad the previous day. Kushal had received three text messages and four audio messages from the account through Facebook Messenger. All of these messages are filled with hatred towards him and Hindu religion since he is a Hindu. One of the audio recordings had said: “We will evict Hindus from this country between 2016-2024. We 10,000 men are only waiting for our Amir’s order, and then there will be no idolaters in this country.”Kushal claims police are yet to take any action over the GD. “Police have not even called once to check if I am safe or not,” he said, “nor did they provide any update on the progress on the investigation”. He is waiting to know when the investigation will end and the perpetrators will be brought to justice. He does not know whether he will face the same fate as Avijeet or others.

Laws of Bangladesh for addressing hate speech and hurting religious sentiment:

There is no law in Bangladesh which defines hate speech or hurting religious sentiment through any hateful speech. The use of community directed hateful speech is nothing new in the society of Bangladesh, these were used before and during 1971 War of Liberation to incite Pakistan Army and auxiliary forces to commit crimes against humanity, genocide etc. against the people of Bangladesh(the then East Pakistan).[32] Even in the present Bangladesh, many instances of community or gender directed hate speech is propagated sometimes by the vested interest groups, nonetheless there is no particular law that defines hate speech, it can only be accommodated through interpretation of law. The Constitution of Bangladesh guarantees freedom of expression as a fundamental right however, this is a conditional right.[33]According to Dewan Abdul Kader vs. Bangladesh, [34] freedom of speech and expression and freedom of the press as enshrined in clause (2) of Article 39 of the Constitution mean and include expression, publication, distribution and circulation of anything and any idea of any sort subject to the restrictions that may be imposed by law for securing any of the eight purposes enumerated in clause (2) of Article 39 of the Constitution. Therefore, interpretation of Article 39(2) includes prohibition on hateful speech and expression of any statement which will hurt religious sentiment. Currently, a victim can get remedy under the Penal Code, 1860 and the Digital Security Act, 2018, even though none of the provisions define the words ‘hate speech’ or ‘hurting religious sentiment’.

As all internet activities around the world, occur without central coordination or control,[35] Governments have a very small role in directing or controlling the internet.[36] In Bangladesh due to digitalisation almost everyone is using social media platform. But there is no specific provision in the existing laws to protect online community/activists from hate speech and contents that hurt religious sentiment. Broadcasting anything which may hurt religious sentiment is prohibited under section 5.1.6 of the Bangladesh National Broadcast Policy-2014.[37] This policy only covers the issue of religious sentiment but does not define what religious sentiment is. It does not address broadcasting of hate speech directly, and it is not enough to address broadcasting hate speech on social media. Among hundreds of printed newspapers and online news platforms, only the Daily Star published a series of news reports on the Broadcast Policy.[38] It is pertinent to mention that this policy is used for reference only, it does not have any binding effect and a citizen cannot file a Writ Petition under Article 102 of the Constitution if the government authorities fail to enforce or implement this policy.

SL No.	National legal framework on hate speech and hurting religious sentiment	Articles/Sections
1.	The Constitution of the People’s Republic of Bangladesh,1972	Article 39: (1) Freedom of thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence– (a) the right of every citizen to freedom of speech and expression; and (b) freedom of the press, are guaranteed.
2.	The Constitution of the People’s Republic of Bangladesh,1972	Article 41. (1) Subject to law, public order and morality – (a) every citizen has the right to profess, practise or propagate any religion; (b) every religious community or denomination has the right to establish, maintain and manage its religious institutions. (2) No person attending any educational institution shall be required to receive religious instruction, or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.
3.	The Penal Code, 1860	Section 295 provides punishment for injuring or defiling place of worship, with intent to insult the religion of any class.
4.	The Penal Code, 1860	Section 295A provides punishment for committing deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Section 295A of the Code on its language it is applicable to those insults to religious beliefs which in addition to being deliberate and malicious are intended to outrage the religious feelings of the followers of that religion. [Shamsuddin Ahmed and others Vs. The State and another] [39]
5.	The Penal Code, 1860	Section 298 provides punishment for uttering words etc. with deliberate intent to wound religious feelings.
6.	The Digital Security Act, 2018	Section 28 provides punishment for the Publication, broadcast, etc. of information in website or in any electronic format,that hurts the religious values or sentiment.
7.	Bangladesh National Broadcast Policy,2014	Section 5.1.6 denotes that broadcasting anything which can inflict an attack on a religious values and secular beliefs sentiment is prohibited.

Implementation of National Laws affecting FORB:

As mentioned earlier, in our legal framework, the policy makers consolidated the main objective of hate speech hurting religious sentiment and FORB through legal interpretation. In a number of occasions, this vagueness of law affects FORB of the minorities and it opens up avenue for misuse of law.

Case Study-2: Shariat Sarkar: Story of a Victim of Misuse of Law

Bangladeshi police arrested Shariat Sarkar (40)[40], a famous Baul (Sufi folk) artist, for allegedly making comments that hurt the “religious sentiment” of Muslims. He was charged with violating Section 28 of the draconian Digital Security Act. During a concert in late December 2019, he allegedly criticized religious Muslim clerics who oppose singing and had offered a 5 million taka (58,800 USD) challenge to anyone who can prove that music is forbidden under Islamic scripture. As per the reports of the Daily Sun[41] and the New Age[42] he was arrested for criticizing religious Muslim clerics. By analysing the Baul Shariat Case, it can be said that the grounds on which Baul Shariat is arrested is still contested.

Application of the aforesaid laws can become a tool of oppression, since Bangladesh does not have latest technology to identify the person who has created a content online to hurt religious sentiment. At times, the investigation agency may take years before they can determine that the online content is not created by the accused in custody. However, by the time the investigation agency determines his involvement, the accused remained in custody for years violating his fundamental rights guaranteed by the Constitution. As an activist or lawyer,one will have to be cautious about the misuse of law andshould provide legal assistance to the victims as well.

Steps an activist or a lawyer undertake to assist the victims of hate speech and hurting religious sentiment:

Human rights activists, lawyers have a mammoth duty while they are working with the issues of hate speech or speech that hurt religious sentiment. As there is no specific remedy or step, following steps can be taken for assisting the victim.

SL No.	Assisting the victims of hate speech and hurting religious sentiment
1.	Giving emotional and psychological support
2.	Collecting & understanding the fact
3.	Seeking help from Legal Aid Service
4.	Filing FIR
5.	Giving advice to secure the records regarding the incident
6.	Complaining to the National Human Rights Commission

Sample of a Complaint Form to National Human Rights Commission:

Information about the Complainant:

Name:
Sex (Put tick mark): Male Female Others
Father/Husband’s Name:
Permanent Address:
Present Address:

Information about the Victim:

Name of the Victim:
Number of victims:
Father’s Name:
Permanent Address:
Present Address:
Religion:
If belong to an Ethnic group:
Sex (Put tick mark): Male Female Others
Is the victim disable?: Yes No

If yes, type of disablement:

Age:
National ID No:

Details of Alleged person(s)/organisation(s):

Name:
Designation:
Father’s Name:
Permanent Address:
Present Address:

Brief description about the violation of human rights/freedom of expression/FORB:

Date:
Time:
Place of occurrence:
Description of the incident:

Description of the occurrence:

The Desired remedy:

I….. complainant, do hereby declaring that the information given in this complaint form is true to the best of my knowledge and conscience.

Signature/ Thumb impression

Exercise:

Pirojgonj is an Upazila of Taikunda. A violence was sparked on February 12, 2016, following a Facebook post atPirojgonj. The zealots attacked the Hindu community. At least 28 houses of Hindus were ransacked in the attack prompted by rumors that Prophet Muhammad (pbuh) had been defamed in Facebook posts by some Hindus. Hundreds of people from that village swooped up Hindu families alleging that two Hindu youths posted ignominious comments on Facebook about the Prophet. A call was made by saying that “Idol worshipers including Priyojit Roy and Subash Roy must be punished (প্রিয়জিত রায় ও সুবাস রায়সহ অন্যান্য মূর্তি পূজারিদের শাস্তি দিতে হবে)’’ from the loudspeakers at FalakiyaArabia IslamiKhudbatulUlum Madrasa at the place of incident launch the attack on Hindus. In a state of panic, the Hindus fled their homes. The police had detained Priyojit Roy and Subash Roy to verify the incident. During the interrogation, they had denied posting any such remark.

Suppose, you are an activist/a lawyer. Now-

How will you assist Priyojit Roy and Subash Roy for getting remedy?
How will you assist the whole community in this regard?

Outcomes of this Chapter:

SL No.	Outcomes
1.	Understanding the Present situation of hate speech and speech hurting religious sentiment in Bangladesh
2.	Gathering knowledge about the Laws of Bangladesh for addressing hate speech and speech hurting religious sentiment
3.	Analyzing the effects of the implementation of National Laws without any specific definition of hate speech and speech hurting religious sentiment
4.	Understanding the International legal framework for remedy and for creation of balance
5.	Analysing the cases of hate speech
6.	Identifying the steps an activist or a lawyer undertake to assist the victims or the falsely alleged accused of hate speech or speech hurting religious sentiment

[1]UN Strategy and Plan of Action on Hate Speech. Retrieved from: https://tinyurl.com/y3vowqhk Accessed on 01.01.2021.

[2]Levy, L., Karnst, K., Winkler, A. (2000). Encyclopaedia of the American Constitution. Macmillan Reference USA.

[3]Pravasi Valai Sangathan vs. Union of India and Others (2014) SC AIR 1591.

[4]UN Strategy and Plan of Action on Hate Speech.Retrieved from: https://tinyurl.com/y3vowqhk Accessed on 01.01.2021.

[5]Zachary, L. (2020). "Hate Speech on Social Media: Global Comparisons". East European Constitutional Review.

[6]"CNN's Chris Cuomo: First Amendment doesn't cover hate speech". Retrieved from: https://tinyurl.com/y22x6ae2 Accessed on 02.01.2021

[7]The Constitution of the People’s Republic of Bangladesh 1972 Article 39(2) (BD).

[8]UN Strategy and Plan of Action on Hate Speech. Retrieved from: https://tinyurl.com/y3vowqhk Accessed on 01.01.2021.

[9] About YouTube, YOUTUBE. Retrieved from: http://www.youtube.com/t/aboutyoutube. Accessed on 01.01.2021.

[10] United Nations Children’s Fund (2007). A Human Rights Based Approach to Education for All. United Nations Educational, Scientifi c and Cultural Organization.

[11] Ibid

[12] ibid

[13] ibid

[14] ibid

[15] Countering Online Hate Speech (http://help.yahoo.com/l/us/yahoo/smallbusiness/bizmail/spam/spam-44.html). (2015). United Nations Educational, Scientific and Cultural Organization.

[16] Countering Online Hate Speech (https://twitter.com/tos). (2015). United Nations Educational, Scientific and Cultural Organization.

[17] Countering Online Hate Speech (https://www.facebook.com/communitystandards). (2015). United Nations Educational, Scientific and Cultural Organization.

[18] Countering Online Hate Speech (https://www.youtube.com/t/community_guidelines). (2015). United Nations Educational, Scientific and Cultural Organization.

[19]Timofeeva, Y. (2003). Hate Speech Online: Restricted or Protected? Comparison of Regulation in the United States and Germany. Hein Online.

[20] Webb, T. (2000). Verbal Poison-Criminalizing Hate Speech: A Comparative Analysis and a Proposal for the American System. Washburn Law Journal. Vol. 50.

[21] Van Blarcum, C. (2005). Internet Hate Speech: The European Framework and the Emerging American Haven. Washington and Lee Law Review. Vol. 62, Issue 2.

[22]UN Strategy and Plan of Action on Hate Speech. (2019, June 18). Retrieved from: https://tinyurl.com/y3vowqhk Accessed on 01.01.2021.

[23]“15 named for fanning communal tension, militancy thru Waz”.(2019, April 7). The Observer. Retrieved from: https://www.observerbd.com/news.php?id=192164, Accessed on 14.01.2021.

[24]Antora, N.(2020, November 7). Hurting religious sentiment: Are minorities denied justice? Dhaka Tribune. Retrieved from: https://www.dhakatribune.com/bangladesh/2020/11/07/hurting-religious-sentiment-are-minorities-denied-justice Accessed on: 14.01.2021.

[25]Ibid

[26]Human Rights Watch, “Breach of Faith: Persecution of the Ahmadiyya Community in Bangladesh. (2005). Retrieved from: https://www.hrw.org/reports/2005/bangladesh0605/bangladesh0605. Accessed on: 14.01.2021

[27]Corraya, S. (2016, November 7). “Mosque Sermons now under control in fight against Islamic Terrorism”, Asia News.it. Retrieved from: http://www.asianews.it/news-en/Mosque-sermons-now-under-control-in-fight-against-Islamic-terrorism-38006.html Accessed on: 14.01.2021

[28] Ibid

[29]Devnath, B. (2019, October 23). Communal Attacks over FB Posts: Instigators still on the loose. The Daily Star. Retrieved from: https://www.thedailystar.net/frontpage/bhola-incident-communal-attacks-over-fb-posts-all-unfurled-eerily-similar-way-1817413 Accessed on: 14.01.2021

[30]Antora, N. (2020, November 7). Hurting religious sentiment: Are minorities denied justice? Dhaka Tribune. Retrieved from: https://www.dhakatribune.com/bangladesh/2020/11/07/hurting-religious-sentiment-are-minorities-denied-justice Accessed on: 14.01.2021.

[31] Ibid

[32] Bangladesh vs. Abdul QuaderMollah, (2013). ICT-BD Case No. 02 of 2012.

[33]The Constitution of the People’s Republic of Bangladesh 1972 Article 39(2) (BD).

[34]Dewan Abdul Kader vs. Bangladesh (1994) 14 BLD HCD 418.

[35] Gary Schneider et al., The Internet 12 (5th Ed. 2009).

[36]Biagi, S. (2012). Media Impact: An Introduction to Mass Media, California. Wadsworth Publishing Co Inc.

[37]The National Broadcast Policy (2014) Clause 5.1.6 (BD).

[38]https://www.thedailystar.net/google/search#gsc.tab=0&gsc.q=national%20broadcast%20policy&gsc.sort=, Accessed on 04.03.2021.

[39]Shamsuddin Ahmed and others Vs. The State and another (2000) 52 DLR 497.

[40] Reza, P. (2020, January 20). Baul Singer Shariat Sarkar arrested in Bangladesh for ‘Insulting’ Islam. Global Voices Advox. Retrieved from:https://advox.globalvoices.org/2020/01/20/baul-singer-shariat-sarkar-arrested-in-bangladesh-for-insulting-islam/ Accessed on 04.03.2021.

[41]Baul Shariat Sarkar arrested under digital security act. Daily Sun. Retrieved from: https://www.daily-sun.com/post/454009/Baul-Shariat-Sarkar-arrested-under-digital-security-act, Accessed on 04.03.2021.

[42]Baul singer Shariat Sarker sent back to custody. NewAge Bangladesh. Retrieved from:. https://www.newagebd.net/article/96646/baul-singer-shariat-sarker-sent-back-to-custody, Accessed on 04.03.2021.