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In the aftermath of a series of events held in different cities across North India in December 2021, where a call was given for violence against Indian Muslims, a minor leader was initially arrested. The Uttarakhand police arrested Wasim Rizvi/Jitendra Tyagi for his hate speeches at the Haridwar event, causing his friend and co-accused Yati Narsinghanand to sit on a fast in protest, and also call for a ‘revenge assembly’ if Rizvi-Tyagi wasn’t immediately released from custody. Yati declares that the laws that send a man to jail for calling for physical extermination of Muslims are unfair and must be rejected. At the time of writing, Yati has also been arrested, apparently for failing to respond to a police notice about the Haridwar event.
Also arrested in connection with the genocidal speeches at another event is ‘Sant Kalicharan’, who has been held under the usual Indian Penal Code sections for having promoted enmity, and caused hurt, by delivering a speech at an event in Raipur on December 25-27, 2021, when per usual, he focused his wrath on Muslims generally and on Mahatma Gandhi particularly
Some self-styled ‘Hindu interest groups’ submitted a memorandum addressed to the president of India in protest against his arrest too. The contents of the memorandum, and statements made to the press by its authors were summarised thus in a news report:
‘We, residents of Gurgaon, oppose the arrest of Sant Kalicharan. The probe has been one-sided in this case. While Owaisi has been using abusive remarks against Hindus and the police, no action has been taken against him.[…] This insult (arrest of Kalicharan) is a way to challenge Hindu society. He (Kalicharan) did not say anything that should be punishable as per law. Due to pressure created by some traitors, he has been arrested. Hindu society should not be provoked into a situation where it becomes a question of law and order […] the authorities have not taken any action against Owaisi, who has been threatening and inciting Hindus in his speeches.’
The most oft-used sections of the IPC frame ‘hate speech’ as a solitary act of deliberate outrage, or provocation, which might result in hurt sentiments, or cause feelings of distrust amongst communities, or disrupt public order and cause immediate violence. They do not regard ‘hate speech’ as systemic; a concerted effort at blocking an entire people from social, economic and political spaces that were earlier available to them so that it’s possible for a people to find that not only are calls for their physical extermination being made, but also that such calls are being intellectually justified as a ‘discourse’ with political and institutional acceptance, whether active or by silent acquiescence.
Of course, the Hindutva protestors described above are not making a serious argument. It’s rather more a war cry. But yet, similar sentiments appear in more serious circles as well, like this statement from some former ambassadors, which is why some clarity about the terms used is necessary.
What constitutes hate speech?
‘Hate speech’ is often posited against ‘free speech’, as if they were complementary ideas. In truth, the concept of ‘free speech’ stems from the idea of equality: from the democratic impulse; whereas the tendency towards hate mongering is mired in the oldest, most archaic ‘bullying for power’. In that sense, ‘hate speech’ is almost a misnomer, for it isn’t a speech problem: it is a problem of systemic bullying with an eye towards exclusivist, political power. The incitement is not always meant to lead to physical violence; it is in itself violent in its persistent stigmatising and calls towards exclusion.
‘Hate speech’ does not refer to offensive, or foul-mouthed speech directed at a people, or even to vitriolic complaints directed at the government. It is speech that can cause actual material harm through the social, economic and political marginalisation of a community.
‘Hate speech’ must be understood as linked to systemic discrimination and eventual political marginalisation of a community. It’s not just random vitriol: it feeds into a broader context of discrimination.
The Supreme Court of India in the case of Pravasi Bhalai Sangathan v. Union of India (2014) has said as much when it stated that ‘the idea of discrimination lies at the heart of hate speech’. Its impact is not measured by its abusive value alone, but rather by how successfully and systematically it marginalises a people:
“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society.” (emphasis added)
Charles Lawrence writing in the Stanford Law Review on how hate speech causes ‘democratic process defect’ says that the attempts to systematically exclude a group from the normal workings of the political process is the harm associated with hate speech.
For this reason, ‘hate speech’, which causes a ‘democratic deficit’ vis-à-vis the targeted community, by seeking to push it out of the polity, is always inflected with social, political or majoritarian power. Rabble-rousers and fall-mouthed members from numerical minorities, or politically marginalised communities might offend some with their speech, but they lack the ability to cause a ‘democratic deficit’. The ambassadors, therefore, draw a false equivalence.
What the ambassadors failed to see
The ambassadors’ letter states that condemnation of ‘hate speech’ should not be selective, based on the speaker’s religion, ethnicity or ideology. This is of course, reasonable advice. Sections of the IPC also apply equally to hateful speech where it causes enmity and distrust between communities, incites violence, or causes public disorder.
However, the application of the same IPC sections to all manner of angry speech or even hateful speech hides the element of actual discrimination that attaches to some speech, but not to others. Munawar Faruqui may have thought of a joke that might have offended religious sentiments had it actually been told. However, the police thought it fit to book him under Section 295A (outraging religious feelings of a class). To draw a contrast, the UP deputy chief minister reportedly defended the illegal and genocidal speeches made at the Haridwar event saying that ‘religious leaders have the right to say whatever they want’.
It’s almost inconceivable, but if someone were to book him for such a remark, justifying one set of religious leaders issuing proclamations of war against another religious community, he might also be booked under the same section 295A. If such a thing were to happen, even while being accused under the same provision of the IPC, the actual gravity of their respective speeches varies, the latter signalling state policy.
To take another example, there is an obnoxious and violent threat that was made by Akbar Owaisi, to the effect that if police were taken out of the equation, he would attack and finish off Hindus. It is communally violent speech that would rightly attract criminal sanction. However, it is distinct from genocidal speech only for the reason that his threat is out of sync, at this time, with his social and political capital. He cannot, thankfully, summon the means to back his words, or cause any kind of marginalisation of Indian Hindus. On the other hand, when hate speech seems to align with political policy and institutional silence, then it becomes a distinct kind of threat.
The Supreme Court in the case of Amish Devgan v. Union of India (2020) has also recognised the principle of ‘variable context’ and held that contextually “all speeches are not alike. This is not only because of group affiliations, but in the context of dominant group hate speech against a vulnerable and discriminated group, and also the impact of hate speech depends on the person who has uttered the words.”
In other words, the harm caused by speech is differentiated in terms of the material effect it has on the person or community targeted.
‘Hate speech’ is systemic and cumulative
The ambassadors’ letter also treats the many instances of ‘hate speech’ as exceptional. Even when calls for genocide are made by large numbers, in the presence of leaders from the ruling party and are presented as ‘legitimate opinion’ by a deputy chief minister, they are apparently solitary calls for violence by ‘fringe groups’, which should be seen as isolated incidents amidst the larger context of general communal bonhomie.
On the other hand, people who actually experience ‘hate speech’ understand it as systemic. It builds up slowly but steadily, and has a cumulative effect on the way a community begins to be commonly understood. If we take any single ‘hate speech’, it doesn’t necessarily cover all presumed grievances against Muslims, but how is it that each solitary speech fits so well into the larger narrative that paints them variously as marauders and predators, pampered and appeased, untrustworthy, disloyal, conservative, anti-modern and generally suspect?
In contemporary India, all Muslims don’t have a homogenous experience of violence. All Muslims do not necessarily experience personal physical violence every day, but what they do experience much more are the winks and the smirks and the ‘tum log…’ (‘you people’) refrain. Very genial conversations suddenly touch upon the Mughal invasion when discussing contemporary political violence and the damage to the Hindu psyche. There is much solemn sighing at the Congress’s policies of ‘appeasement’ in the face of dismal social-economic indicators for Muslims, and of the conservatism and isolationism of the community.
Others experience it in being denied rides, or deliveries or rentals. The poorest, and those without any social capital sometimes lose their livelihoods, and/or are physically brutalized.
In Pravasi Bhalai Sangathan, the Supreme Court has treated ‘hate speech’ as systemic, and as having a cumulative effect. When the ‘marginalizing discourse’, exhibits a range of opinions, and tenors, from the more sedate to the positively violent, it could be argued that not all speech constitutes an offence under Indian criminal laws. Yet taken together, they cause a ‘democratic deficit’, and breach the constitutional right to equal citizenship.
This idea has already been articulated in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which treats ‘speech’ (insult, intimidation and humiliation) directed at a member of the scheduled castes or tribes, as an ‘atrocity’, precisely because it feeds into histories of marginalization. It is not an atrocity because it seeks to insult, but rather because it normalizes their historical status as legitimate recipients of insults.
‘Hate speech’ causes ‘structural violence’ in addition to ‘overt violence’
We know that violence as a consequence of ‘hate speech’ can be both direct (in the form of lynchings, or ‘hate crimes’ that are attacks on the body), and also structural. The latter takes the form of beginning to consider an entire community as undesirable – in not allowing Muslim vendors into residential colonies; evicting Muslim tenants from rented accommodation, discouraging inter-religious marriages, and social interactions general – and, it would now seem, a gleeful discourse around sexual violence directed at Muslim women. It is new to Muslims as a whole, I daresay, but such structural violence has been directed at Dalits even post Independence.
Additionally, the cumulative impact of the relentless villainising of a people makes any counter mobilisation by them even more suspect. Any act of protest by a people who are at the receiving end of the ‘democratic deficit’ is viewed as further disruption of a project that seeks to make public spaces more exclusive. The most minor transgressions by these citizens are then seen as one by imposters/predators, with exaggerated responses in law and politics. Muslim or OBC criminals assume hyperbolic significance.
While Section 153B of the Indian Penal Code is an exception in that it includes aspects of structural violence as harm caused by hate speech, ‘hate speech’ when understood from the perspective of traditional Indian criminal law (Section 153 A, Section 295A, Section 298 and Section 505) is framed as a provocation between equal (if slightly touchy) citizens/ groups, with equal social and political capital. It assumes a situation where speech is not discursive, but an instant provocation, or incitement towards public disorder, by insulting religion or culture (like in the Ambassadors’ letter).
On the other hand, emerging jurisprudence on ‘hate speech’ views it more broadly, not only in terms of public disorder, or disharmony between two equal parties, but rather in terms of pushing the less powerful group in a given context, outside the available social and political spheres.
On a sympathetic reading, the ambassadors’ letter implicitly references the problem of exclusion. However, it makes the counter argument that those who highlight ‘hate speech’ forget the good work being done through welfare schemes for minorities in an effort towards inclusion.
If there is indeed an effort to include through welfare schemes, I should think it imperative that these very schemes should have assessment mechanisms to constantly monitor ‘hate speech’, which works at cross-purposes to these schemes. Whatever good work they seek to do is offset by the discourse of systemic exclusion, and that’s more good money down the drain. We must have an audit to see which is working more efficiently: the minority schemes, or the discourse of marginalization.
Hate speech through the lens of a biased police force
To sum up, we might start to think about ‘hate speech’ as a concerted politics of discrimination and respond to it as a constitutional tort. In fact, where ‘hate speech’ is a system of marginalisation, there is a lot to be said for strategic silences too, from people in responsibility. If not abetment, it is an abdication of their constitutional duty of care at the very least.
When responding to ‘hate speech’ the police mostly restrict themselves to the traditionally understood and limited scope of the IPC sections, which look at ‘provocative’ speech, without any nod towards ‘variable context’ (the ‘who is the speaker and what impact would it have?’ test) as described by the Supreme Court in the Amish Devgan case. As it happens, police action often confuses ‘hate speech’ with unpopular or dissenting speech. It neglects to consider that even the most aggressive anti-government speech/ protest would not cause any illegal democratic deficit for the government (unless it’s an armed revolution, or a military coup); if anything it expands participatory democracy and enhances accountability.
Violent protests may incur certain sections of the IPC that relate to public nuisance, or disorder, but they still do not constitute ‘hate speech’, which is a system of marginalisation. There are studies that record the social, economic and political marginalisation of targeted communities in the aftermath of sustained hateful discourses, but until the time that such data is brought centre-stage in assessing the harm done, law enforcement prefers to assess criminal harm on the basis of number of persons offended, inconvenienced, and thus incited.
It might be argued in all earnestness by the police that anti-majoritarian speech is conceivably provocative to more people and therefore more likely to incite violence, and hence more dissenters, and more Muslims (and Dalits and tribals) find themselves in jail for having provoked enmity or disharmony.
Law enforcement and the lower courts continue to rely on subjective assessments of “good faith” of the speakers. They seem to respond to similar speeches/ turn of phrase, differently, depending upon their own arbitrary appraisal of the potential for harm by the speaker. The use of the word “chakka jam” has earned Sharjeel Imam the charge of sedition and unlawful activities under the dreaded UAPA, while there are hoardings all over town, put up by the BJP announcing a ‘chakka jam’ in the national capital against the excise policies of the Delhi government.
It would seem that the police are more fearful of the potential for harm from Imam’s use of that phrase (in the way that one is fearful of the unknown), than it is of a prominent political party’s, with considerably more heft and manpower. This was borne out as well in the number of public buses deflated by party volunteers to aid their ‘chakka jam’ of January 3, 2022.
Ironically, such an assessment of potential for harm, even when bona fide, is already indicative of a ‘democratic deficit’, which is the objective of concerted hate speech over a period of time.
Increasingly, speakers from marginalized communities, as well as dissenters, do not seem to get the same benefit of the doubt on evaluations of potential for disorder in their speeches. Such benefit of the doubt depends on institutional assessments of the speaker. It has been established in studies on “structural bias’ in the police force in the UK and the US for instance, that embedded racism in the force causes a subjective bias against certain communities. The same would appear to be true for India, even in the absence of any such study. It might have to do with the lack of diversity in the force, and the resultant unfamiliarity with marginalised groups, and the fear of the other/predator and what they might be getting up to.
On the other hand, identifying with the mainstream, or majoritarianism, allows for a certain ease with their ways, and an indulgence of their indiscretions. I am reminded of how some people react to instances of sexual molestation: ‘Haha, boys will be boys. Don’t mean any harm.’ We saw it just recently when the Haridwar SHO laughed indulgently amidst a group of the hate speakers.
Shahrukh Alam is a lawyer practising in New Delhi.