The convenience of 'Hate Speech'

Kanu Agrawal September 16, 2020 16:38:49 IST
The convenience of 'Hate Speech'

‘Hate Hatao’ enables users to report hate speech.

Evelyn Beatrice Hall, an English writer who wrote under the pseudonym S. G. Tallentyre, wrote the phrase: "I disapprove of what you say, but I will defend to the death your right to say it" as an illustration of the French enlightenment writer Voltaire's beliefs. This quotation – which is sometimes misattributed to Voltaire himself – is often cited to describe the core principle of freedom of expression. While this principle depicts the absolutionist version of free speech similar to the American jurisprudence on the subject, the Indian Constitution consciously imposes further restrictions on the free speech. The American absolutionist approach has been rejected at the outset by constitution benches in Babulal Parate and Madhu Limaye [apart from the stray reliance by a smaller bench Shreya Singhal], the Volatairian principle is often invoked to evoke the delicate sensitivities of popular conscience and to stoke the rhetorical weaknesses of the Courts. This Voltarian principle today faces a far more sophisticated challenge : labeling of expression as ‘hate speech’.

At a normative plane, the “conservatives” would justify restrictions on free exercise of speech and the “liberals” or “progressives” would scorn at such restrictions. However, curiously, almost across the globe, there is an increasing movement to label aspects of expression of individuals or groups, as “hate speech”. Specifically, Article 20 of the International Covenant on Civil and Political Rights, 1966 and Article 4 of the International Convention on the Elimination of Racial Discrimination, 1965 hint towards explicit controls on expanse of free speech despite being purportedly rights enabling documents. What this has enabled are wide-ranging statutory prohibitions against speech of a particular nature across European nations dealing with ethnic, racial, religious or national security issues. The European Court of Human Rights has in fact, almost four and half decades back held that the "Freedom of expression...is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population". At the same time, the European Court has upheld laws framed by States curbing free expressions on the grounds that such ‘restrictions’ may be proportionate to the legitimate aim of democratic societies seeking to prevent expression which spreads, incites, promotes or justifies hatred based on intolerance. In principle, such position would fit in rather comfortably in the limited free speech rights that the Indian Constitution provides, but the devil generally lies in the details. The curtailment of the expression right, and the mandate to define what constitutes “hate speech” within a particular society, is the sole prerogative of elected representatives who, as a legitimate state interest of maintaining harmony, may invade the free speech right in some limited form. The Courts however, would not delve in to an investigative exercise under writ jurisdiction, seeking to curtailing constitutional rights in absence of statutory/executive intervention.

In this manner, the “hate speech” laws are taking shape across the world, with certain ‘pressure groups’ advocating for a wider range of curtailment of expression, especially aimed at shielding what such groups perceive as ‘vulnerable sections’ of minorities or immigrants. While such protection, if within constitutional perimeters, may represent a laudable aim, aiming such protection to the sole protection of what are perceived by a particular section as a ‘vulnerable group’ would not be appropriate. If expression is to be curtailed in the first place, it ought to be curtailed across the board, making it equally applicable to all communities and groups. On the other hand, if expression it is not to be curtailed, it is to be allowed across the board along with State protection. After all, speech is merely an incident of expression, and any selective coloring of the same as “hate” or “love” would be constitutionally irrelevant. Therefore, if at all “hate speech” is to be defined, it has to be community or group blind, if it is to apply neutrally and for it to further any legitimate state aim. This definitional hazard cannot give birth to a situation wherein expression against the integrity or sovereignty of a part of a country or derogatory depiction of a God adhered to by one community is seen as an incidence of free speech, and at the the same time, a similar expression is labeled as “hate speech” in other circumstances wherein certain favoured “vulnerable groups” are involved. The right to freedom of expression cannot be moulded conveniently to further one particular point of view over the other, or even to protect one particular expression of bigotry whilst censoring the other. The “marketplace of ideas” is function in a fair competitive manner and not to further one identifiable belief system over the other.

The history of Section 295A

In this context, the history of Section 295A of the IPC, has its own story to tell. In 1923, in response to a Hindu goddess being depicted as a prostitute, a publisher named Rajpal published an anonymous pamphlet titled Rangila Rasul, which allegedly contained some scandalous commentary. The pamphlet was authored by Pandit Chamupati of Arya Samaj who succeeded in the case under then Section 153A in Lahore High Court which ruled that although the writing was certainly offensive to the Muslim community, the prosecution was not legally sustainable because the writing could not cause enmity or hatred between different religious communities, which is the gist of the offence under Section 153(A) of the IPC. Subsequently, Pandit Chamupati was promptly murdered in cold blood by a man named Ilm-ud-din, who is now venerated in Pakistan. He was represented by none other than Mohammad Ali Jinnah, a prominent lawyer at the time, at the Lahore Sessions Court where he was sentenced to death. Despite the dastardly act and the subsequent conviction and execution in 1929, Ilm-ud-Din became an instant hero, so much so that a leader as tall as Allama Iqbal attended his last rites. In the same era, numerous other such incidents are said to have occurred, encapsulated by the legendary B.R. Ambedkar as under :

“These are not the only things Mr. Gandhi has done to build up Hindu-Moslem unity. He has never called the Muslims to account even when they have been guilty of gross crimes against Hindus.

It is a notorious fact that many prominent Hindus who had offended the religious susceptibilities of the Muslims either by their writings or by their part in the Shudhi movement have been murdered by some fanatic Musalmans. First to suffer was Swami Shradhanand, who was shot by Abdul Rashid on 23rd December 1926 when he was lying in his sick bed. This was followed by the murder of Lala Nanakchand, a prominent Arya Samajist of Delhi. Rajpal, the author of the Rangila Rasool, was stabbed by Ilamdin on 6th April 1929 while he was sitting in his shop. Nathuramal Sharma was murdered by Abdul Qayum in September 1934. It was an act of great daring. For Sharma was stabbed to death in the Court of the Judicial Commissioner of Sind where he was seated awaiting the hearing of his appeal against his conviction under Section 195, I. P. C, for the publication of a pamphlet on the history of Islam. Khanna, the Secretary of the Hindu Sabha, was severely assaulted in 1938 by the Mahomedans after the Session of the Hindu Maha Sabha held in Ahmedabad and very narrowly escaped death. This is, of course, a very short list and could be easily expanded. But whether the number of prominent Hindus killed by fanatic Muslims is large or small matters little. What matters is the attitude of those who count towards these murderers. The murderers paid the penalty of law where law is enforced. The leading Moslems, however, never condemned these criminals.

On the contrary, they were hailed as religious martyrs and agitation was carried on for clemency being shown to them. As an illustration of this attitude, one may refer to Mr. Barkat Alli, a Barrister of Lahore, who argued the appeal of Abdul Qayum. He went to the length of saying that Qayum was not guilty of murder of Nathuramal because his act was justifiable by the law of the Koran. This attitude of the Moslems is quite understandable. What is not understandable is the attitude of Mr. Gandhi.”

Clearly, there have been many Kamlesh Tiwari’s through history and who have been carefully relegated to dustbin of history by the purportedly eminent historians of our times. In fact, the Paris Charlie Hebdo incident or the Sweden riots, are not very alien to the Indian context. Or maybe, the justice warriors of today would want to impose pre-censorship on the great B.R. Ambedkar as well.

Be that as it may, the Rangeela Rosool incident, ultimately led to the enactment of the Section 295A. The report of the Select Committee preceding the enactment of Section 295(A) stated that the purpose of the Section was to punish persons who indulge in wanton vilification or attacks upon the religion of any particular group or class or upon the founders and prophets of a religion. It however emphasised that ''an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made''. Therefore, the Committee recommended that the words ''with deliberate and malicious intention'' be inserted in the Section which have now become the standard defence against the overbroad application of the provision. The constitutionality of Section 295(A) was upheld by the Supreme Court in Ramji Lal Modi on the exact point of that requirement of deliberate and malicious intention balanced the provision under Indian constitutional free speech standard. On a similar footing is Section 153A which seeks to punish persons who indulge in wanton vilification or attacks upon the religion, race, place of birth, residence, language etc. of any particular group or class or upon the founders and prophets of a religion. The other set of laws, apart the religious sensibilities restrictions, which provide a restriction on free speech in India are, sedition [Section 124A of the IPC] and to an extent, the Unlawful Activities (Prevention) Act, both of which deal with a national security and integrity aspect as a reasonable restriction of free speech.

National security v. religious sensibilities

While examining the extent of “hate speech” regulation, it is necessary to test the two most commonly prevailing set of provisions regarding the same – the national security/integrity censoring and the religious/societal sensibilities censoring. The said exceptions to generic free speech rights, are segregated by a fundamental distinction - while the national security/integrity exceptions, are naturally to be adjudicated on a secular dispassionate view-point which depends on the intrinsic content of the speech, the religious sensibilities exception is dependent on the sensibilities, or the lack of it, of different religious communities or other identifiable societal sub-groups. The religious/societal sensibilities exception, by its very nature, is dependent on the tolerance of the different communities and automatically varies not as per the content of the speech, rather varies as the reactions of the different religious communities to the content of the speech. To illustrate : a particular religious community may be naturally having a high degree of tolerance to criticism and therefore, the application of the religious/societal sensibilities exception to such religious community would naturally be limited. On the other hand, a particular religious community or sub-group may be extremely sensitive and prone to volatile reactions and naturally, extremely prone to justify a religious sensibilities exception or even a “public order” exception. By basing the religious sensibilities exception on the tendencies of religious communities/groups, the law on the subject in its application, results in punishing the tolerant and rewarding the intolerant thereby manifesting in an arbitrary application. While the suggestions to altogether delete the religious sensibilities exceptions may not be the most realistic in a deeply religious country, the provisions ought to be suitably tweaked in order to ensure that this naturally and inherently variable and arbitrary application is curtailed.

Ideally, the standard to judge the alleged State excesses both broad sets of exceptions : the religious sensibilities exception and the national integrity/security exception, must be the same. However, even a cursory glance at the popular discourse surrounding such issues, would demonstrate something glaring. It is almost too easy to notice the stark dichotomy in how the two sets of exceptions are treated in consciousness of the commentariat. While the accused under the national security and integrity crimes are defended valiantly by certain pressure groups, often seeking and getting reliefs over and above the prevailing law, accused persons under the religious sensibilities law, not belonging to the same ideological background, are left in the lurch. It was not surprising that despite availing the same reliefs, the activist lawyer and the TV anchor reacted in a starkly different manner, largely ignoring the fact that the Supreme Court has previously, although on limited occasions, granted bails to accused persons facing FIRs in multiple States.

The silence being acquiescence

There is a newfound clamour to initiate legal or criminal proceedings against specific TV anchors. One would expect, that the pressure groups, in such a situation would be the first line of defence for the anchors. The truth however, could not be farther away from ideological consistency. It is in fact the same pressure groups, which rather than protecting expression rights, are advocating the restrictions, or welcoming this extra-constitutional rigmarole, with an eerie deafening silence - all at the holy grail of “hate speech”. In order to effectuate this dichotomy, the sophisticated approach of “hate speech” labeling, more fashionably called ‘cancel culture’ is adopted. It is intriguing to note that the same pressure groups openly advocate curtailment of free expression if the individuals involved are not of a similar ideological inkling, often seeking a faux justification through a convenient description and definition of “hate speech”. The definition of “hate speech”, at least in popular understanding, is structured in a manner which seeks to shield only certain preference groups, which has enabled the silencing of numerous opposing voices. The “hate speech” allegations has, in the marketplace of ideas become the most important tool to curb personal freedoms by super-imposing a template ideology.

To illustrate, when any arrest is made under the UAPA, for either being directly involved in planned violence or being members of dreaded Naxal outfits, great eulogies are cited in “free speech”, chiding at the approach of the State for alleged “thought control”. For instance, while the call for partition of the country or the call for disintegration of the country, or the depicting of a Hindu Goddess in in burkha or the desecration of pious Hindu symbol in the name of “protests”, is defended at the altar of free speech, but the call by a politician to clear an illegal road blockade becomes “hate speech” inviting PIL ad-infinitum. The list of such incidents is endless where the exercise of free speech groups/persons of a particular ideological bent is celebrated and sought to be valiantly protected, whereas the exercise of the same right by someone else of the opposite ideological bent, is ignored, castigated or worse, coercively criminalised. This deep state of “hate speech” labelists, simultaneously make fashionable calls for “dissent” and at the same time, advocate the silencing of other inconvenient voices.

The pressure groups’ stoic silence or worse, active participation in the curtailment of freedom of expression because the speaker is not of a similar ideological bent, is not just hypocrisy, it is in fact, acquiescence. The principles of ‘liberalism’ have been obliterated by a convenient coalition across irreconcilable groups, which would make even Harvey Two Face from the The Dark Knight blush. What we see today are smaller “republics” of university spaces, intellectual circles, lawyers groups or any other smaller community unit where such a majority is enjoyed by select pressure groups, turn in to echo chambers, where any contrary view is censored, derided and ridiculed. No real friend of free speech would stay silent merely because it does not agree with the ideological leanings of the Speaker. The most “insidious” threat to freedom of expression is not from State excesses, it is from the lopsided labelling of expression as “hate speech”. The Voltarian principles cannot becomes tools to utilize on chosen occasions rather they are words to live by. Free speech cannot be a concubine of a particular clique, as its poignant ideals are married to the Constitution of India.

Footnotes

1 Babulal Parate v. State of Maharashtra, reported in (1961) 3 SCR 423

2 Madhu Limaye v. Sub-Divisional Magistrate, reported in (1970) 3 SCC 746

3 Shreya Singhal v. Union of India, reported in (2015) 5 SCC 1

4 Handyside v United Kingdom (5493/72)

5 Erbakan v. Turkey, App. No. 59405/00

6 See https://nation.com.pk/10-Oct-2015/until-we-start-denouncing-ilm-ud-din-s-legacy-mumtaz-qadris-will-keep-sprouting-up-in-pakistan

7 Pakistan : Hindu Alternative To Pakistan, Dr. Babasaheb Ambedkar Writings And Speeches Vol. 8, Pg 156-157 -

“These are not the only things Mr. Gandhi has done to build up Hindu-Moslem unity. He has never called the Muslims to account even when they have been guilty of gross crimes against Hindus.

It is a notorious fact that many prominent Hindus who had offended the religious susceptibilities of the Muslims either by their writings or by their part in the Shudhi movement have been murdered by some fanatic Musalmans. First to suffer was Swami Shradhanand, who was shot by Abdul Rashid on 23rd December 1926 when he was lying in his sick bed. This was followed by the murder of Lala Nanakchand, a prominent Arya Samajist of Delhi. Rajpal, the author of the Rangila Rasool, was stabbed by Ilamdin on 6th April 1929 while he was sitting in his shop. Nathuramal Sharma was murdered by Abdul Qayum in September 1934. It was an act of great daring. For Sharma was stabbed to death in the Court of the Judicial Commissioner of Sind where he was seated awaiting the hearing of his appeal against his conviction under Section 195, I. P. C, for the publication of a pamphlet on the history of Islam. Khanna, the Secretary of the Hindu Sabha, was severely assaulted in 1938 by the Mahomedans after the Session of the Hindu Maha Sabha held in Ahmedabad and very narrowly escaped death. This is, of course, a very short list and could be easily expanded. But whether the number of prominent Hindus killed by fanatic Muslims is large or small matters little. What matters is the attitude of those who count towards these murderers. The murderers paid the penalty of law where law is enforced. The leading Moslems, however, never condemned these criminals.

On the contrary, they were hailed as religious martyrs and agitation was carried on for clemency being shown to them. As an illustration of this attitude, one may refer to Mr. Barkat Alli, a Barrister of Lahore, who argued the appeal of Abdul Qayum. He went to the length of saying that Qayum was not guilty of murder of Nathuramal because his act was justifiable by the law of the Koran. This attitude of the Moslems is quite understandable. What is not understandable is the attitude of Mr. Gandhi.”

8 Soli J. Sorabjee, Insult to religion, Indian Express, Jun 25 2006 accessed at : http://archive.indianexpress.com/news/insult-to-religion-/7214/0

9 Ramji Lal Modi vs The State Of U.P, 1957 SCR 860

10 https://timesofindia.indiatimes.com/india/Legally-Speaking-TV-Anchor-and-activist-lawyer-avail-same-relief-yet-latter-slams-SC/articleshow/75526572.cms

11 https://main.sci.gov.in//supremecourt/2019/19777/19777_2019_5_46_14637_Order_02-Jul-2019.pdf

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