Imran Masood could have done with a different kind of national fame. For the Congress candidate from Saharanpur, fame came in the form of notoriety for allegedly threatening to “chop” BJP prime ministerial candidate Narendra “Modi to pieces”, initiating the registration of a criminal case against him for violating election code of conduct and his imminent arrest, forcing him to apologise rather obliquely, cancellation of Congress Vice President Rahul Gandhi’s rally in the western Uttar Pradesh city, and of course, drawing the ire of the main opposition party.
It is incidents and election campaigning like these that prompted the Supreme Court last week to refer the issue of hate speeches by politicians to the Law Commission. Giving its ruling on a petition filed by an NGO against hate speeches, a three-judge bench, led by Justice BS Chauhan, was clear that the lack of prosecution for such speeches was not because the existing laws did not possess sufficient provisions but because of lack of enforcement.
“Effective regulation of hate speeches at all levels is required as the authors of such speeches can be booked under the existing penal law and all the law enforcing agencies must ensure that the existing law is not rendered a dead letter,” the order stated.
It is interesting to note that the top court had on March 3 said on a different petition, according to NDTV.com, that it will not intervene to stop politicians from delivering hate speeches as crores of people meant crores of opinions. “We are a country of 128 crore people and there may be 128 crore views. This is the maturity of a democracy. For a person making such a speech, it may not be a hate speech,” said the judges who heard the case.
In its ask for the Law Commission, the apex court now wants examination of the issue relating to “hate speech”, definition of the expression, and recommendations to Parliament to strengthen the Election Commission to curb the menace, irrespective of whenever made as the Law Commission has undertaken the study as to whether the Election Commission should be conferred the power to de-recognise a political party or disqualify it or its members, if a party or its members commit the said offence.
Hate speeches are a common phenomenon in the world’s largest democracy, political or otherwise. Vested interests have been known to stir up the religio-political and cultural diversity whenever it suited them, leading to some pretty sensitive issues, be it the Babri Masjid demolition or the Muzaffarnagar communal violence.
So what’s the problem here, given that we have Section 153A and Section 295A of the Indian Penal Code (IPC), which deal with hate speech in India (‘promotion of hatred, enmity’, ‘outraging religious feelings’, ‘insulting a religion’, etc)? Further, eminentSupreme Court lawyer writes, “India has many varieties of ‘hate speech’. That is, speech that makes you hate or despise or provoke action against the object of the speech. These include anti-national (Section 124A, Indian Penal Code), anti-communal, racial, linguistic, ethnic and descent-related (Section 153A), anti-sovereignty (Section 153B), anti-outraging religious feelings (Section 295A), anti-pornography (Section 292), anti-Scheduled Castes and Scheduled Tribes (SC and ST Act, 1989 and Protection of Human Rights Act, 1976), and anti-harm to children (Young Persons’ Harmful Publications Act, 1956) hate speech.
According to lawyer Lawrence Liang, who writes for the Alternative Law Forum, the sections, which were introduced in the colonial period, “an underlying assumption was that there was a need for a rational and neutral arbiter (the colonial State) to govern the relationship between ‘emotionally excitable subjects’ prone to emotional injury and physical violence. But this was a self-fulfilling prophecy because once you have a law that allows for the making of legal claims on the basis of charged emotional states, you begin to see the emergence of cases that steadily cultivate a legal vocabulary of hurt sentiments. This is understandable given that if the legal demand is for the empirical demonstration of hurt sensibilities, the evidence that will be presented for prosecution is exactly that: hurt sentiments.”
It must be said to the judiciary’s credit that the machinery as a whole has been quite careful in interpreting hate speech provisions. Indian courts have always urged for a need to have stricter link between an utterance and its impact on the society as a whole, even at times, objectively deflecting from direct verdicts that have the ability to ignite a sensitive situation that goes beyond the state machinery’s control. However, despite the courts’ warnings against use of hate speech laws in a frivolous manner, “there is indeed a need to rework the actual wording of the provisions of the IPC and address its current form of vagueness and general tone,” says Sandeep Tully, a legal evangelist.
According to legal experts, perhaps the most important loopholes in judiciary that needs to be addressed is that the political heavyweight get away with by spewing venom while it’s only the low-ranking, often irrelevant and unimportant party functionaries who get the legal axe. Saura vDatta, a professor of law and jurisprudence in Mumbai, writes in his opinion piece in Al-Jazeera: “In February last year, the VHP’s Praveen Togadia engaged in a vicious anti-Muslim screed was investigated, but the sanction to prosecute is still awaited. Those whose inflammatory speeches led to the province of Muzaffarnagar to be ravaged by a communal inferno in September last year are still enjoying impunity.”
Yes, agree most experts, that the issue of hate speech is a bigger and more complex problem than just political parties and their leaders engaged in verbal duels to gain higher ground in the eye of the electorate. One tends to agree with the Supreme Court’s discretion in dealing with such issues very objectively, on case-to-case basis and sensitively. However, one cannot deny the political parties’ responsibility in banishing such under-belt practices from their very core.
“Yes, parties can go beyond just verbal censure,” says Arnab Maity, a political observer, adding, “It was very responsible on the part of Rahul (Gandhi) not to visit Saharanpur after the hate speech issue cropped up. It just sent the right signal across the rank and file of the Congress. Perhaps, withdrawing Imran Masood’s candidature would have sent out an enhanced signal that the Congress would not tolerate such nonsense.” However, he agrees, the party VP’s action is a start in the right direction.
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