The Nupur Sharma episode, which recently brought the country to a boil, and a Delhi High Court judge’s observations on that, threw up many questions for law and hate speech jurisprudence in India. The foremost among them is: Is an exclusive law to regulate hate speech needed in India?
The legal opinion on this is divided and the unfolding discourse on this question has inevitably juxtaposed hate speech against free speech.
For many, the freedom of speech is nearly absolute. For them, there can be no curbs, especially no legal curbs, on freedom of expression in the name of curbing hate speech. In their view, there are provisions in the existing criminal law which can well take care of such violations.
For others, freedom of speech cannot be absolute. Hate speech is not free speech, in the sense of being a matter of opinion, but a device for incitement for hate crimes and for instigating sectarian violence. Necessary legal restrictions should be in place to curb that.
What’s hate speech?
There is no commonly accepted legal definition of hate speech globally. The United Nation’s Strategy and Plan of Action against Hate Speech document, released in June 2019, defines hate speech as “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or group on the basis of who they are; in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender, or other identity factor.” This is often rooted in, and generates intolerance and hatred and, in certain contexts, can be demeaning and divisive, the document explains.
Though there is not yet a widely endorsed UN Convention against Hate Speech, rather than prohibiting hate speech as such, international law — as understood and practiced by the UN — prohibits incitement to discrimination, hostility, and violence, which may also include or lead to terrorism or atrocity crimes.
The UN strategy document, however, clarifies that “Hate speech that does not reach the threshold of incitement is not something that international law requires states to prohibit.” Still, “it is important to underline that even when not prohibited, hate speech may be harmful,” the document explains.
Often, it becomes difficult to draw the line between freedom of expression and an expression loaded with instigative hatred. Often, only the outcome or even the potential outcome can make a difference post facto.
Precursor to hate crimes
Hate speech can also target different sections. Nupur Sharma’s insensitive observation about the Prophet constitutes a classic example of communal hate speech against the Muslim minority. Not only fundamentalists of different religious hues but even political parties opposed to each other spread hate speech against each other for their own political mobilisation.
Major political parties have their own IT cells which do not limit themselves to tracking developments through the digital media and disseminating party’s views on current issues but maintain a huge informal network of “volunteers” who are regularly fed with instructions to act as troll brigades in the social media.
And, in Indian public life, hardly a week passes without some instance of casteist slur against individuals from Dalit, ST or even OBC backgrounds. The latest example is the case involving Tamil Nadu’s DMK minister Rajakannappan. A video of Rajakannappan abusing a Block Development Officer of Dalit origin using casteist remarks went viral on the media this March.
S Kumaraswamy, a prominent lawyer in Tamil Nadu, told The Federal, “Such transgressions of law by individuals need to be condemned but they do not justify a new law. The effectiveness of our demands also depends on the nature of those in power. Such a law in the hands of authoritarian rulers would only be an added instrument in their hands for persecution of critics and for stifling the voices of protest of minorities.”
More tragic instance of hate is the case of suicide by Payal Tadvi, a medico from Scheduled Tribe background. Tadvi died by suicide in Mumbai in May 2019, unable to bear the casteist slurs by her senior colleagues. This came barely three years after the Rohit Vemula episode in Hyderabad in January 2016 shook the conscience of the civilised people across the country.
In 2019 itself, there was a spate of suicides by medicos — in Gujarat, Hubbali in Karnataka, and in Punjab. This January, a PG student in BMC Hospital in Mumbai attempted suicide due to a casteist insult.
We are familiar with hate politics and hate crimes against migrants, and linguistic and ethnic minorities. People from the Hindi belt are insulted as bhaiyas in metropolitan Mumbai. But young people from the North-East are abused as ‘chinkis’ in the same Hindi belt, and even in Delhi. In a display of retaliatory hate, poor labourers from UP, Bihar and Jharkhand face racist attacks in the North-East. These events show a continuum from hate speech to hate crimes.
Hate speech in media
Hate speeches are common during election campaigns. But they are not limited to the bitterly fought electoral battles. In the digital age, social media has emerged as a key arena of hate speech.
Twitter received 3,992 content takedown notices from the Government of India between July and December 2021 and Google 9,000 notices in six years between 2014 and 2020.
Internet freedom activists allege that not all these were hate messages. Rather, many postings genuinely critical of the government for valid reasons were also asked to be removed. Still, many are hate messages aimed at triggering riots. They give the handle to the government to curb even the genuinely critical messages.
Hateful messages are not limited to social media. They are creeping into the mainstream media too. After all, the mainstream media also has its fringes, especially the vernacular media.
While the mainstream media outfits have shown unanimity in opposing tooth and nail any government attempt at regulating them, they do face the internal challenge of beefing up their self-regulation.
A governance challenge
The Nupur Sharma episode showed that it is only very adverse diplomatic and political fallouts that force the reluctant government to intervene and act. All governments periodically confront such challenges. However, in mature democracies, there is also a realisation that tackling hate speech should not result in limiting or prohibiting freedom of speech.
But there is a growing feeling that some policy and legal curbs should be put in place to prevent hate speech from escalating into incitement, discrimination, hostility, and violence. Still, when it comes to policy-making, many democracies are still grappling with issues like how to judge what constitutes hate speech and what falls within the realm of free speech and, from the point of view of enforcement, in institutional terms, who would decide and on what basis.
Law to regulate hate speech
The need for a law to regulate hate speech was coherently articulated first in a 2012 book titled The Harm in Hate Speech by Jeremy Waldron, the philosopher of law attached to the New York University School of Law. The main argument of the book is that hate speech should not be protected by the First Amendment.
The First Amendment was added to the US Constitution in 1791 which prohibited the US Congress from making any law that “abridged the freedom of speech or of the press.” The First Amendment thus gave absolute protection to freedom of speech and press.
However, despite the very powerful First Amendment legacy, the history of constitutional law in the US shows that the US Supreme Court has time and again clarified that libellous utterances always fall outside the ambit of the First Amendment. Likewise, it exempted hate speech as well. In 1952, the US Supreme Court upheld an Illinois law that made it a crime to publish material exposing any racial or religious group to “contempt, derision, or obloquy.”
Those who favour a law to regulate hate speech base their opinion on the fact that hate speech undermines the dignity of minorities through collective libel. In their opinion, right to life means right to a life with dignity. It is this dignity that enables them to live as equals in a society.
The proponents of legal curbs on hate speech dismiss apprehensions on their misuse by citing the examples of Canada, Denmark, Germany, New Zealand, and the United Kingdom which have already put in place regulations restricting hate speech. Such regulations have not led to political censorship, they argue.
Coming to the Indian context, Ravindra Garhia, an activist-lawyer who was earlier part of the Lawyers’ Collective founded by eminent jurist Indira Jaisingh and who is now practising independently in the Supreme Court, told The Federal, “India urgently needs a law empowering the Election Commission to disqualify a political party in the ongoing polls if its spokespersons and chief ministers indulge brazen hate speech to polarise voters and even to de-register them for six years for repeat offences.”
Opposition leader Rahul Gandhi demanded in the Lok Sabha that Ajay Mishra Teni, whose hate speech triggered the farmers’ demo in Lakhimpur-Kheri against which his son rammed his vehicle, be dropped from the Union Council of Ministers. If there is a stringent law against hate speech, the Dharma Sansad in Haridwar would not have dared to brazenly call for killing Muslims, a Samajwadi Party leader in Prayagraj opined.
What works against such law
Some opponents of a law to curb hate speech feel that minor transgressions of civility in public discourse are also part of public life in a democracy and we should learn to live with that in the larger interest of democracy. In other words, curbing freedom of expression has far greater implications for democracy than the relatively less dangerous nuisance of hate speech by the fringe.
In their opinion, political liberty should be unconditional and the spirit of the First Amendment also found a popular expression in the saying, “I hate what you say but I will defend to the death your right to say it.” Their fears of misuse of such laws are well-founded in a scenario where political forces with majoritarian inclinations have taken over power.
Professor Babu Mathew, who teaches constitutional law at National Law School of India University (NLSIU), Bangalore told The Federal: “It is not because of the absence of law that problems like hate speech are persisting. There are ample provisions in the existing criminal laws to effectively curb that. It is because the enforcing institutions are compromised that people engaging in hate crimes get away.
“But then if there is a new law with scope for its misuse, it would be abundantly misused. Well, there can be some inbuilt guarantees in the law itself against its misuse. But then in that case the law itself would never be invoked.” Saying this, Babu stressed the need for a vigilant public opinion to get the institutions to act.
Law with safeguards
In a polarised atmosphere where hate is moving mainstream and where even people in power are engaged in the “Other-ing” of minorities and even at the social level the social media fora have become platforms of bigotry, some regulations in the law book can help in the efforts of saner sections of society against hate speech. The challenge is to ensure proper safeguards in the law against its misuse and building a strong public opinion for its enforcement.
Source: The Federeal, 9/08/22
