Reforming Indian hate speech laws’
By Sarthak Gupta
In India, the polarization in religion between the majority community and the minority community has been long-drawn-out because of rich-cultural history. However, from the 19th Century, the foremost root of political and societal polarization in India has been a foundational question of nationhood – Should India be a secular republic or a Hindu Rashtra, considering that around 80% of the population is Hindu? Unsurprisingly, after the dawn of Hindu nationalist Bharatiya Janata Party (BJP) in 2014 and 2019, the effects of extreme polarization have become progressively alarming.
Political assaults on India’s independent political institutions have escalated, opposition leaders are dismissive of upholding pluralism and secularism, and hatred and violence towards minority communities have bubbled up. In the past few months’ certain events in India have unfolded the grave concerns for hate speech and the emergence of genocidalism. The article reflects these events and argues that despite having anti-hate speech statutes, hate speech in India is prevailing at a faster pace which is a concerning issue for a democratic secular constitution.
A Religious Parliament calling for Genocide
In December 2021, a conclave name ‘Dharma Sansad’ [Religious Parliament’] was called by the notorious religious leader with right-wing activists, Hindu ascetics and some religious institutions at Hardiwar, a pilgrimage city in a northern state of India. The subject of this three-day event was ‘The Future of the Eternal [Dharma] in Islamic India: Problem and Solutions. The speakers of the conclave have numerous hate speeches and called for genocide against religious minorities in India. One of the speakers made a statement that if you want to finish them kill them [them here is religious minorities primarily Muslim community] and to win against them we need 100 solider who will kill 2 million of them to create India a Hindu nation.
The same leader also demanded that all the temples in India should have a poster-cum-warning prohibiting on entry of people from the Muslim-community after a 14-year old Muslim boy was brutally assaulted by one of the right-wing Hindutva activists just because he entered the temple’s premises ‘to drink water. In another similar event, a 10-year Muslim boy who mistakenly entered the temple premise was accused of conspiracy by the priest and was handed to the police. Surprisingly, there are many cases registered against the priest itself for hateful comments on Islam and the Prophet.
Another speaker said, that at the end of the conclave a Dharmadesh [Religious Order] will be released which will be the ‘words of god’ and ought to be recognized by the democratic state including New Delhi, Uttar Pradesh and other states in India. He threatened the state government to listen to their demand [the demand here is to make India, a Hindu nation and call violence against minorities], otherwise, they would wage a war that would be more dreadful than the 1857 revolt. The 1857 revolt is a critical event in Indian history because this was the first revolt in India against colonial rule to overthrow their administration. The speaker further said that if any Hotel in the city celebrated the upcoming minorities festival [Christmas or Eid], they should be prepared to face destruction.
The speeches also made international references. One of the speakers called for Safai Abhiyan [Cleansing Drive], referring to Myanmar, and called the police, army personnel and political leaders to participate in the cleansing drive. The reference of Myanmar was made to draw parallels with the ethnic cleansing of the Rohingya Muslim minority. The speakers also supported excluding Muslim Vendors outside of the pilgrim city.
Oath to Kill and Create a Hindu Nation
During the same time frame, in the national capital city New Delhi, an oath-taking ceremony was called by a right-wing Hindu youth religious group called Hindu Yuva Vahini. The Editor-in-Chief of a national news outlet administered an oath to the people parallel to Nazi-Salute at the ceremony. The statement of the oath was, “We make a resolution until our last breath: We will make India a Hindu nation, and keep it a Hindu-only nation. We will fight and die if required, we will kill as well.” What was important to note here, is that the Editor-in-chief took this ceremony video and posted it on his Twitter, amplifying the threat to kill on an online international platform.
Previously, the same editor-in-chief also made derogatory and hate statements on indigenous tribes and Meena Communities on the conflict of Amargarh Fort in the clash between the members of the Meena community and Hindu right-wing members. An FIR was registered against him which stated that he intended to spread ‘religious frenzy’ as a fragment of a conspiracy against the minority community and intends to initiate communal riots. On a similar line, he also proposed a conspiracy on a news outlet called ‘UPSC Jihad’ centred on the argument that Muslims intentionally ‘infiltrated’ the Indian Civil Services for their hidden purposes [connected to the ideology of jihad]. The Ministry of Information and Broadcasting and the Court called this conspiracy ‘insidious’ and with a prima facie objective to “vilify the Muslim community” and contain “palpably erroneous” information. The crucial observation in this event was despite being violative of the code, the government only gave a warning and didn’t initiate any legal action against him or the news outlet.
Another Dharma Sansad
After the first conclave, another two-day ‘Dharma Sansad’ conclave was organized in Chhattisgarh, a city in central India. The motto of this conclave was to urge ‘Sanatani Hindus’ [Hinduism believers] to start their preparation for a Hindu Nation and call for genocide against Muslim and Christian minorities. The leaders of the conclave ask people to arm themselves [calling for war]. One of the leaders, called Mahatma Gandhi, the father of the nation a ‘traitor’ and glorified his assassin. He accused Gandhi of destroying the nation [because Gandhi believed in secularism].
Constitutionalism: Freedom of Speech Vs Hate Speech
The substantial reason behind these conclaves calling genocide and delivering hate speech can be argued as political-religious groups romanticizing authoritarianism, favouring majoritarianism and the polarization between the religious communities. However, the crucial question is whether are these hate speeches get protection despite criminalization.
One of the foremost issues in India is no statute defines what constitutes ‘hate speech.’ The Constitution of India under Article 19 stipulates the freedom of speech and expression [‘FOE’] which also allows the right to propagate one’s ideas. Under the FOE, every citizen has the right to publish, disseminate and circulate their ideas. Not being an absolute right, the FOE constraints speeches which falls under the grounds specified under Article 19/2.
Any expression or speech that violates, abuses in any way on “the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or concerning contempt of court, defamation or incitement to an offence” is subjected to be constrained under these exhaustive grounds. The Supreme Court of India [SC] has ruled that constraint to the fundamental freedoms ought to be seen reasonable in exceptional circumstances ‘only’ within the exclusive spectrum and can’t be subjected to judicial approval.
In Pravasi Bhalai Sangathan v. Union of India, a petition was before the SC with a prayer that the State should take peremptory action against the people who delivered hate speech. The Court held that it can’t go beyond the framework of existing statutes to prosecute hate speech, emphasizing ‘judicial overreach.’ The Court went further and observed the issue of ‘compressing the prohibition to a reasonable standard’ and expressed the concerns that defining a definite standard will hinder free expression, which prevents the judiciary in India and elsewhere from defining hate speech. The Court observed that enforcing existing regulations would significantly reduce the problem of hate speech.
Criminalising: Undefined Hate Speech
Nevertheless, a case was registered against the speakers of the first conclave, the police officer didn’t arrest any speaker. After a petition was filed before the SC, praying for their arrest, the police made the arrest. Surprisingly, in the second conclave, the police arrested the person who insulted Gandhi and applauded his assassin, which is and should not be defined as criminal speech. Nevertheless, Gandhi is a prominent figure in Indian history, FOE protects the freedom of personal beliefs and opinions. However, the first conclave calling genocide on Muslim minorities and threatening to rage a war more violent than 1857 revolt was no doubt constitutes criminal speech and at no cost shouldn’t be protected under FOE.
Hate speech functions in extra unexpected contexts, fostering an environment that reinforces existing prejudices and entrenches pre-existing discrimination. The anti-Semitism in Europe or anti-Khmer in Cambodia are prominent instances of this. While anti-Semitism or anti-Khmer sentiment took its most horrific expression in repeated genocide and eventually the Shoah and the Khmer Rouge, it also took the character of establishing in society a “cultural common sense” about the Jewish people and Khmer people in the mundane lifestyle. Regularly, this “cultural common sense” relied on clichés and social prejudice to justify continuous discrimination, social and economic boycotts, and ghettoization. The end outcome of which is the continuous subjugation of a segment of society can be attained without turning to the blatant encouragement to violence. One of the prevalent illustrations is the racial discrimination system – apartheid in South Africa and the use of the N-word for people of colour as a symbol/insult reflecting the past violence of apartheid and atrocities in contemporary times.
The significance of enabling a diversity of thought has guided free speech tenets. Thus, even a speech that is ‘vehement, acerbic, and occasionally unpleasantly sharp’ gets protection from State intervention. While offensive speech may not support constraints, Jeremy Waldron contends that there is a class of injury that necessitates restriction in democratic institutions, amounting to much more than hurt sentiments but less than harm in the notion of physical damage. When speech damages integrity, it creates immense harm than just hurting its intended recipient. It would imperil the “implicit promise” that citizens of a democracy, particularly minorities or marginalized communities, are treated equally with the majority.
The statutes which criminalize hate speech inter alia includes, Sections 153A and 295A of the Indian Penal Code, 1860 (‘IPC’) and Section 95 of the Code of Criminal Procedure, 1973 (‘CrPC’). Moreover, the prima facia objective of these provisions wasn’t to identify hate speech rather they were formulated to address blasphemy and fusing enmity. The notion of hate speech differs from these two objectives. Hate speech is considered as speech that attacks individuals based on their identity and calls for violence or discrimination against them. Just like in conclave targeting Muslim Community by demanding to throw Muslim vendors outside the city.
The foremost concern in the statutes that criminalise hate speech is incompatibility because the rationale which is used to criminalise hate speech i.e. incitement to violence is very rigid. Incitement to violence cannot be used as the exclusive element for evaluating whether or not a speech constitutes hate speech. Even non-violent speech has the potential to marginalise a particular segment of society or individual. The anonymity of the internet in the era of technology allows a miscreant to effortlessly disseminate false and offensive thoughts. These views do not always provoke violence, but they may contribute to perpetuating society’s discriminating attitudes. Therefore, incitement to discriminate ought to be an essential characteristic in the identification of hate speech.
The forthcoming concern is that hate speech, by the proposition, often does not identify itself to be hate speech. The hate speech is directed with the appropriate degree of ambiguity that is often being argued as calls to self-defence rather than calls to violence. The speakers in the conclave used the ‘if’ word as a necessity while calling for violence on minorities [See the first section] Subsequently, in this video, a leader can be seen calling violence on every man who wears a ‘round/net’ cap The reference here is used for skull cap which is considered as a religious identity for Muslims. Furthermore, another similar concern is drawing the line between what constitutes direct hate speech and what constitutes indirect hate speech. In the conclave many speakers didn’t target the minorities directly, they used Myanmar Rohingya Ethnic Cleansing as a reference to call for such ethnic cleansing in India. This sort of indirect hate speech is described as a “dog-whistle“, although it may escape the scrutiny of an outside spectator, both the speaker and the listener are aware of what and who is being addressed to. Any thorough interpretation of hate speech is a question of discretion that must account for its opaque and deceptive nature. Therefore, the intention plays a crucial role in determining it, however, contemplating intention is itself a Rubik’s criminal-cube puzzle.
Therefore, for the above-mentioned reasons, the Indian Parliament must amend the existing hate speech statutes to protect the abuse of fundamental freedoms and democracy. The former judge of SC, Justice Rohinton Fariman, also criticized the conclave’s speeches and opposed majoritarianism and further recommended amending the existing hate speech statutes to provide ‘minimum sentences so that it creates deterrence for others who make hate speech.’ The SC has intervened in the hate speeches of the first conclave [Haridwar] that can be seen as a potential opportunity to address these concerns. However, there is also a negative precedent, wherein the Court excused itself to lay down the direction on hate speech directed Law Commission of India to examine the concern. Taking into consideration the magnitude of the hate speeches and openly calling genocide, the Court must take this opportunity to emphasise that constitutional rule of law can’t be taken for granted and those who disrespect the Constitution and abuses its freedoms, (calling it a book for murdering 1000 million Hindus) ought to be prosecuted.
Sarthak Gupta is an undergraduate B.A.; L.L.B law student at the Institute of Law, Nirma University, India.