Hate speech regulations: stringent investigations only the first step

BY Geeta Seshu| IN Opinion | 14/03/2014
Hate speech cases are highly politicised and undermine basic law enforcement principles,

The Supreme Court’s decision to direct the Law Commission to draft guidelines to examine hate speech is a welcome move. Apart from the court’s observation that the law itself is sufficient to deal with hate speech, the more pertinent is the court’s assessment that norms for enforcement need to be fine-tuned. And that, as we have seen in the past, is easier said than done.

The apex court’s directive comes in the wake of a PIL filed by Pravasi Bhalai Sanghatana, a New Delhi-based NGO which, according to its website, is dedicated to the cause of inter-state migrants. Migrants, as we are all aware, have borne the brunt of hate speeches and violence in recent years, a large part of it unrecorded or unrecognized as hate speech or hate propaganda in mainstream media.
A bench headed by Justice B S Chauhan along with Justices MY Eqbal and AK Sikri said that the Law Commission needed to clearly define hate speech and find out what action could be taken by the Election Commission against politicians and their political parties for indulging in hate speech.
Interestingly, the Supreme court dismissed another petition barely a week ago, filed by advocate Manohar Lal Sharma, to ban hate speeches in the run up to the general elections. Justices R.M. Lodha and Dipak Misra said that India was a ‘mature’ democracy and the opinion of 128 crore people must be left unrestricted.
Let all shades of opinion come. Let the opinion of 128 crore come out in the open. Let the people decide it,” the judges said, asking what type of mandamus (directive) could they issue in such a case.

The second PIL cited the instances of the hate speeches by All India Majlis-e Ittihad al-Muslimin politician Akbaruddin Owaisi, Vishwa Hindu Parishad (VHP) chief Praveen Togadia and Maharashtra Navnirman Sena (MNS) chief Raj Thackeray. The first two have been charged with inciting communal hatred while the last has been charged with inciting violence against North Indian migrants to Mumbai.
While coming down strongly against hate speech, the judges expressed their helplessness at the limitations of the judiciary in dealing with a very real malaise. For, in their comments preceding the order, they observed:
"The court cannot re-write, re-cast or reframe the legislation for the very good reason that it has no power to legislate. The very power to legislate has not been conferred on the courts.” Hate speech, the court said, does marginalize and delegitimize individuals and groups:

"A hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. A hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide."
Enforcement of hate speech laws
All hate speech cases are difficult to adjudicate, as they are so highly politicized. The basic principles of natural justice, free speech notions of permissible speech, even if it is hate propaganda, versus utterances that incite harm and violence, come up against basic law enforcement. And that’s where the judiciary steps in.
But does the enforcement of existing laws (the IPC’s Sec 153 A and 295A), rest with the judiciary? A little history lesson is not out of order in reviewing hate speech cases. For, why do they come up before the court in the first place? Why aren’t law enforcing agencies empowered to deal with these instances or complaints and nip them in the bud before they even get to the outbreak of violence?
Did the PIL mention the case against BJP leader Varun Gandhi? Or perhaps the controversial judgement of the Bombay High Court on the case against the (now deceased) Shiv Sena leader Bal Thackeray? Or even what seems to be the rarest of the rare - the conviction of two Shiv Sena corporators last year on hates speech charges 20 years after the riots in Mumbai?
If these cases were examined, perhaps the real problems in enforcing existing laws would be clearer. In the Varun Gandhi case, the BJP leader was quoted in election speeches in 2009 that he would cut off the hands raised against Hindus. Yet, he secured acquittals in two cases lodged in Pilibhit, Uttar Pradesh and a Tehelka sting provided some indications why 88 witnesses turned hostile.
Elsewhere on this site, Lawrence Liang wrote of how hate speech is the fault line that divides advocates of free speech. Referring to the case filed by J B D’Souza and Dilip Thakore against Thackeray, Liang observed that, in reviewing the application of Sec 153 A of the Indian Penal Code (IPC) in this case, the court “ended up producing their own version of hate speech”, saying that the section was is intended to take action against people who incite hatred against a community:
“…..it is clear that the criticism is against anti-national or traitors section of Muslims and their selfish leaders who are creating rift between Hindus and Muslims and in the aforesaid portion reference is also made that Muslims should understand the sentiments of Hindu majority and merge themselves in the national mainstream instead of being carried away by the selfish leaders who were prompting to attack Hindus.”
It took an age for the government of the day to sanction prosecution in this case, leading to Thackeray’s defence to claim that he required some concession as he was an old man and suffered from chest pain!
But tenacious complainants can still persist and secure convictions, if not against the high and mighty, at least against lesser mortals. On July 9, 2008, a special magistrate, appointed to try cases related to the December 1992 and January 1993 riots in the city, convicted Shiv Sena leaders Madhukar Sarpotdar, Jaywant Parab and Ashok Shinde of a year’s imprisonment for delivering hate speeches during the December 1992 riots in Mumbai but a sessions court reduced the imprisonment to two months in May last year
Sarpotdar, who was famously charged with carrying arms in an ambulance meant to ferry riot victims, died in 2010, even while the appeals were pending in the case. Parab and Shinde are still on bail, granted by the Bombay High Court.
Perhaps by the time the courts finally get through the case, the remaining accused will get some kind of token punishment. Or, if the political winds change, perhaps they won’t.
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