Hate Speech: The fault line that divides advocates of free speech

A discussion of hate speech laws have to be placed within the context of the emergence of religious fundamentalism, and it is now commonplace to see the provision being used by various religious groups who feel aggrieved by one speech act or another. The most notable uses of hate speech laws in recent times have been the M.F. Hussain case , the banning of James Laine’s book on Shivaji and the arrest of a final year art student Chandramohan (an example of the unholy alliance between Hindu and Christian fundamentalists).

Supreme Court advocate Rajeev Dhavan terms the use of hate speech provision such as Sec. 153 A of the IPC as akin to the use of ‘slapp suits’ (Strategic Legal Action against Public Participation refer to law suits that are filed to prevent people from engaging in public interest activities).  Dhavan innovatively describes the use of hate speech laws in India as kicks ([k]riminal intimidatory coercive knock out strategies).

Art. 19(2) of the constitution does not specifically mention hate speech nor is the phrase actually used in any other legislation, but the substance of the previsions exists in a number of provisions. Art. 19(2), for instance, contains the phrase ‘incitement to an offence’. It is also covered in Sections 153A, 295, 295A and 505 of the IPC. The Cable Television networks Regulation Act and rules cover it via Sections 5 & 6 and rule 6(1)(c) and rule 7, Section 5-B of the Cinematograph Act, Section 69 of the Information technology Act, Sec. 123(3)(a) of the Representation of Peoples Act.

The most significant provision remains Sec. 153A of the IPC which criminalises hate speech:

1[153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony: --

(1)        Whoever—

(a)        By words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place or birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b)        Commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, 2[or]

2 [(c)    Organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence of knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,]

 Shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Offence committed in place of worship, etc.: -

(2)        Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.] 

As is clear, the scope of sec. 153A is extremely broad, and hence amenable to use by various groups who claim that their ‘sentiments have been hurt’.

Role of the media and the judiciary

Post Ayodhya and Gujarat, there has been an increase in religious violence in India. The role of the media in the promotion of violence against Muslims in the aftermath of the burning of the train Godhra, has raised concern about the ways in which media can be used to fuel hatred against  a community and the role that it can play during conflict.

At the same time, when you see the actual operation of the law, you find that the only time that hate speech laws have been found to be effective is when it is used by the majority or used by the state to ban a book or a film. In fact, it has been demonstrated that the provision is often used by the state to silence any criticism levelled against it.

In Bilal Ahmed Kaloo v. State of A.P., a Kashmiri youth was arrested for inciting people in Hyderabad against the atrocities committed by the Indian army in Kashmir. In this case, the Supreme Court held that Sec. 153A could not be said to apply since the section requires the involvement of two communities. It held that

"The common feature in both sections being promotion of feeling of enmity, hatred or ill-will "between different" religious or racial or language or regional groups or castes and communities it is necessary that atleast two such groups or communities should be involved. Merely inciting the felling of one community or group without any reference to any other community or group cannot attract either of the two sections."

Again, while the judiciary is itself not outside of the politics of communal hatred, there are instances when the use of hate speech laws itself become the site for the production of hate speech itself. A glaring example of this is the case brought against Bal Thackeray, the head of the Shiv Sena in Mumbai, after the Bombay riots. Joseph Bain D’Souza, a retired Municipal Commissioner of Bombay filed a complaint under Sec. 153A of the IPC against Thackeray for his role in the incitement of violence against Muslims. As evidence, D’Souza produced a number of extracts from articles written by Bal Thackeray in the mouthpiece of the Shiv Sena, Saamna, in which Thackeray exhorted people to act against the ‘muslim traitors’ of the country.

Consider for instance the following examples form Bal Thackeray’s writings before the riots:

" Municipal Deputy Commissioner Mr. Khairnar risked his life to use the bulldozer in Bhendi Bazar which has become a heaven of Pakistani infiltrators and anti-national Muslims. Moulvis and mullah have corrupted Bhendi Bazar. The poision of treachery (anti nationalism) is flowing through every vein (lane) of Bhendi Bazar".

"Traitors Muslims have started acts of violence in the country after the dome of Babri Masjid collapsed. We are once again finally warning them that they should understand the sentiments of Hindu majority and merge themselves in the national mainstream. If you got carried away by the selfish leaders who push you into hell and attack Hindus, beware". 

The case came up before the Bombay high court, and in interpreting whether these words fell within the ambit of Sec. 153A of the IPC, the court ended up producing their own version of hate speech. The court for instance says that the section is intended to take action against people who incite hatred against a community. In their opinion

"If we take into consideration the article as a whole, 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 would be interesting to probe the anthropological origins of hate speech as well as the deeper philosophical analysis of the relationship between language, identity and the subjective idea of hurt. There has been some groundbreaking conceptual work done by Judith Butler in the context of the US, but in the Indian context, we have only had journalistic accounts with a few notable exceptions. While much of the debates on hate speech in India are shaped in the context of race in the US and right wing Nazism in Europe, hate speech laws in India have emerged in the context of religious conflict.

Colonial history

As with most of the other provisions regulating speech in India, hate speech laws were introduced during the colonial period. Speaking of the need for stronger historical and ethnographic detail on hate speech, sociologist Deepak Mehta for instance asks of how the juridical establishment of ‘hatred’ by the introduction of hate speech laws converts what may well have been a minefield of different affects (jealousy, loath, disgust, indifference) under one juridical category, and what the implications of such a transformation are.

A perusal of controversies over books in the colonial and postcolonial period reveal that most of them relate to the question of ‘incitement of hatred’ or the ‘outraging of religious sentiments’ of communities. Sec. 295A of the IPC for instance was introduced after the judgment in the famous Rangeela Rasool case. The Lahore high court had acquitted the publishers of Rangeela Rasul, a book which was alleged to have insulted Muslims. The acquittal resulted in massive demonstrations and protests across colonial India. The protests prompted the colonial legal authorities to introduce Sec. 295A of the IPC, which survived into the postcolonial period.

Sec. 295A as it currently stands states that

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."'

In Karnataka, the controversy over the publication of Banjagere Jayaprakash’s book "Anudeva Horaganavanu", and the demand for banning it, is a rather disturbing and scary scenario. The book claims that Basava, an important saint of the twelfth century and a key figure behind the origins of the Lingayat community, was actually born in a low caste Maadiga community. The Lingayats have been up in arms, and have demanded a ban of the book. The actual history behind contestations over Basava go right back to the fifteenth century, but the  juridical establishment of ‘hate speech’ converts a range of hermeneutic and truth disputes  into a question of the juridically verifiable ‘feelings of a community’.

A disturbing trend that we see being accelerated in the contemporary is the production of ‘hate speech’ through the intertwined strategies of using vandalism, producing a discourse of hate through the media, and finally using existing laws to harass writers and film makers. Speaking about the sustained campaign that the Hindu Right has maintained against noted Indian artists M F Hussain, Dhavan argues that

"The first stage was to create a controversy where none existed. Prior to this, no hate speech was either attributed to or provoked by the Husain sketches and paintings. In fact, this first stage could be described as the manufacturing of hate speech' by the forces of the Sangh Parivar. The second stage was to manipulate the law in an area of India where the politics of that State were favourable to harassing Husain. This has become easier because there are many states where the BJP is in power. The law does not insist on prosecuting hate speech in the state where the magazine is printed and published. A prosecution can take place where the publication is distributed by sale or gift. The third stage was the stage of intimidation by vandalism. The perpetrators of the vandalism are conscious that they can get away with it because they claim to be the spearhead of a social campaign for the defence of the faith. Attackers of Husain's work were, therefore, projected as heroes! It was not necessary that these three stages follow any linear pattern. They were part of a composite strategy which could be disaggregated for strategic use".

At the moment, the law as it currently stands is in desperate need of review and overhaul. The legislative intention behind hate speech laws seem to be on a permanent collision course with their real effects. Rather than protecting minorities from the vitriolic outbursts of Praveen Togadia and Co., the law has been consistently used by an intolerant majority whose sentiments are easily hurt.

The use of hate speech laws as a harassment device demands that we seriously rethink the scope and application of these provisions. The current scope of hate speech laws in India is far too wide and subjective. It would be difficult to identify a single work of art, a film or any book which does not have the possibility of hurting or offending someone. In the US, the understanding on hate speech has shifted from a subjective test to a more objective criteria which depends on the determination of whether there was a clear and present danger posed by the speech act in question.     

If one were to ban all speech that offends our delicate sentiments, then we would be left with precious little (all comedies would certainly have to go). The present law privileges the subjective feeling of hurt or outrage that someone may feel about an expressive or artistic statement and enables the person to complain.

And here is where the catch lies. Given the rather flimsy legal grounds on which most complaints are made, it is unlikely that the complaint will stand the test of law. But it does not really matter since the real punishment is the procedure itself. Its efficacy as a harassment tool is unmatched and the fact that a student can be arrested for an art work which was meant to be a part of a college exhibition testifies to its draconian status.

Finally, it is worth thinking about the impact that hate speech laws can have on creative and artistic expression.The role of art is to create provocations, to incite disagreement and to express opinions which may be uncomfortable or even insulting. Free Speech in India has been held ransom for too long by our imagined fears of the chaos and anarchy that speech can produce, but it is perhaps worthwhile recalling Eliot’s statement that genuine blasphemy is the product of a partial belief, it is as unavailable to the complete atheist as it is to the complete believer. The only way ahead is by rethinking our hate speech laws so that we can all get hearing aids to assist in our ability to speak and listen fearlessly.