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Of Hate Speech, Communal Violence and the Law

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Megha Bhasin:

Free speech is quintessential in a democracy because it facilitates the exchange of diverse opinions. In a representative democracy, dialogue facilitates the testing of competing claims and obtaining of diverse input into political decision making. Free speech is also critical to the enjoyment of personal autonomy. In the area of hate speech, the libertarian idea of free expression comes into tension with the aspiration of equal dignity. Societies like India which are committed to pluralism are obligated to safeguard individual expression while promoting egalitarian principles against harming others’ safety and dignity.

Maintaining public order is something that the government has to balance against speakers’ rights. The threat to individuals’ physical well-being and dignity interests may supersede those of individuals who resort to intimidating symbols like burning crosses and swastikas to elicit violence. When a Danish newspaper publishes caricatures depicting the Islamic Prophet Muhammad, leading to widespread protests from Muslims across the world and France forbids the wearing of symbols representing religious insignia to schools because it constitutes a propagandist pattern, the issue of freedom of speech and restrictions imposed in public interest come to the fore.

Hate speech, the “words that are used as weapons to ambush, terrorize, wound, humiliate, and degrade,” damages “not only the targeted group or individual’s physiological and emotional state, but also personal freedom, dignity, and personhood” and society at large.

On February 27, 2002, two train carriages carrying Hindu activists were allegedly set on fire by a Muslim mob in the town of Godhra, in the state of Gujarat, resulting in fifty-eight deaths. In response, there were widespread attacks throughout Gujarat by Hindus against Muslims, involving killings, sexual violence, torture, destruction of property–including the destruction of places of worship–and the internal displacement of people. The violence continued for several months afterwards, despite the deployment of the Indian army in Gujarat.

Muslim women were particularly targeted by Hindu attackers as symbols of the community that they sought to humiliate and destroy–not only as bearers of children, but also as a target of revenge for the supposed historical defilement of Hindu women by Muslim men during repeated “Muslim” invasions of the “motherland.” Some survivors reported rapists shouting that they intended to impregnate them with “little Hindus,” and pregnant women were allegedly attacked so as to destroy the fetus. At the height of the killings, on March 1, 2002, Narendra Modi, the Chief Minister of Gujarat described the riots as “resulting from the natural and justified anger of the people.” Praveen Togadia, the international general secretary of the VHP stated that the “time was ripe for forming a separate army of Hindu youths who would protect the religion from attacks by jehadis.” In December 2002, after the BJP party’s decisive win in the state assembly elections in Gujarat, Togadia reportedly asserted that the experiment of the “Hindutva lab” would be repeated in other parts of the country and that “[a] Hindu Rashtra [state] can be expected in the next two years. We will change India’s history and Pakistan’s geography by then.”

Raj Thackeray’s vitriolic invective against North Indians in Maharashtra raises important issues on the law relating to hate speech.

S. 153A of the Indian Penal Code punishes those who attempt to promote enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and commits acts prejudicial to the maintenance of harmony. In Baburao Patel [1980 Cr LJ 529], the court convicted the accused under this section for two articles written by him in which he portrayed contemporary Muslims as descendants of foul Moghuls who were lascivious perverts and murderers. S. 153B similarly punishes imputations and assertions prejudicial to national integration. S. 295A punishes anyone who with deliberate and malicious intent commits an act aimed at outraging the religious feelings of any class, by insulting its religion or religious beliefs. In Ramji Lal Modi [1957 SCR 860], it was held that this provision is within the protection afforded by Art. 19(2) of the Constitution. S. 298 punishes anyone who utters words, etc. with deliberate intent to wound religious feelings. S. 505(2) punishes the making of statements which would promote enmity, hatred or ill will between classes. What is lacking is the political will to uphold the rule of law, and not to be subservient to the rule of the jungle.

Mob violence is also a result of a feeling of alienation and demonisation of a target group. The hate-literature on minorities has been created for several decades and has been spoon-fed to a section of the majority community in the same way as German Nazis did. For good governance as well as for social cohesion and harmony among the communities, relentless action both legal and social against hate-speech is called for. However, our criminal justice system and our judiciary have not galvanized themselves to meet this situation and deliver speedy justice.

The genocide in Gujarat and the continuing malfunctioning of the state government, judiciary, police and the bureaucracy states that there is an assault on the secular fabric of this nation. However, Gujarat cannot and must not become the only focal point since the manifestations of fascism are spread throughout the country and is evidenced in various incidents throughout the country.

Vested interests and misplaced strategic policies limit the space and scope for a culturally diverse and religiously tolerant state and society. Hate-based ideologies result in nullifying the valuable cultural and intellectual heritage of the country. Unfortunately, pulpits have been often used to incite people against religious minorities as well as other sects within the country. There is a need to inculcate a culture of tolerance within our own surroundings, so as to reverse pervading hate-based indoctrinations that can only increase social ghetto-ism on the basis of religion and sect. The challenge before the law enforcers is to strike a balance between permissible speech on the one hand and on the other, active incitement that could spiral into violence.

The writer is a correspondent of Youth Ki Awaaz

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