The remarks made in Agra by Ram Shankar Katheria, the Union Minister of State for Human Resource Development, have raised a storm in Parliament. Speaking at a condolence meet organised by the Sangh Parivar on February 28, Katheria had allegedly said that Muslims should prepare for the “final battle” and that a conspiracy was being hatched against Hindus. Along with local Bharatiya Janata Party leader Kundanika Sharma and the Vishwa Hindu Parishad’s Agra secretary Ashok Lavanya, Katheria has been booked under sections 295A (wounding religious sentiment) and 153A (promoting enmity against groups) of the Indian Penal Code – the two laws most commonly invoked in cases where a hate speech is thought to have been made.
The minister’s comments are not surprising given that the BJP and its sister organisations have been trying to get maximum political mileage from the death of Arun Mahaur, a Dalit leader from the VHP was shot on his way back from a temple. Katheria’s provocative statements cannot be divorced from the timing, coming as it did in the run-up to campaigning for the Uttar Pradesh Assembly elections.
This is not the first time that a minister in the incumbent National Democratic Alliance government has been accused of making a hate speech. In December 2014, at a rally in the run-up to the Delhi Assembly elections, Union minister of state for food processing industries Sadhvi Niranjan Jyoti said that voters would have to choose between Ramzaade (followers of Lord Ram) and haraamzaade (illegitimate children).
Clear irony
This trend of politicians making provocative statements ahead of election season is not new. But what is frightening is these politicians are ministers in the ruling dispensation who wield enormous political power and can influence the minds of voters. They also seem to make these speeches with impunity.
Sections 295A and 153A constitute serious offences – cognisable and non-bailable, carrying a maximum punishment of up to three years. If the speech in question is made at a time when the Election Commission has announced the election dates and official campaigning has begun, then a conviction under section 153A can be used to disqualify a candidate for indulging in a corrupt practice under sections 123(3) A of Representation of Peoples Act. In addition, “promoting enmity between classes” in connection with an election is an electoral offence under section 125 of the same Act.
Despite these protections in law, politicians continue to spout hate speech, while the same laws – 153A and 295A in particular – are often used to harass and intimidate artists, dissenters and academics. The irony is hard to miss. The most striking example is that after all the explicit hate speech made by Shiv Sena leaders in its mouthpiece Saamna, especially in and around the period of the 1992-'93 communal riots in Mumbai, there have only been two convictions by trial courts, and that too, of party members near the bottom of the hierarchy.
Seeking solutions
Given the continuing problem of hate speech despite having laws in place, the Supreme Court in 2014 took up a Public Interest Litigation on the issue filed by the Pravasi Bhalai Sangathan, an organisation working for the welfare of migrant workers.
The Supreme Court referred to three ways in which Canadian courts have approached such matters. The first is that courts must apply hate speech prohibitions objectively. The second is that the term “hatred” or “hatred and contempt” in the law should be interpreted narrowly and restricted to extreme manifestations of the emotion described by the words “detestation” and “vilification”.
This would exclude speech that while may be repugnant and offensive, does not incite the level of abhorrence, delegitimisation and rejection that risks causing discrimination or harm. The third is that the focus of tribunals and courts should be the effect of the words in terms of whether it exposed the targeted person or group to hatred by others, and not whether the words were repugnant.
As per the Canadian courts’ approach to the issue, hate speech is not about causing distress to an individual or community, but about laying the groundwork for future attacks on a community, which can range from discrimination to ostracism, segregation, deportation, violence, and in extreme cases, genocide. India’s Supreme Court, while referring to the nuanced view that the Canadian Courts have taken, requested the Law Commission to look into the matter.
Dangerous speech
Another framework that has gained currency internationally are principles suggested by the law academic Susan Benesch. Drawing on earlier developments in international law, Benesch defines a domain of speech called “dangerous speech”, or speech that has a reasonable chance of catalysing violence against a group, which needs to be regulated. The most dangerous speech would be one where all the five variables mentioned below are present and maximised:
1. A powerful speaker with a high degree of influence over the audience
2. The audience has grievances and fears that the speaker can cultivate
3. A speech act that is clearly understood as a call to violence
4. A social or historical context that is propitious for violence, for any of a variety of reasons, including longstanding competition between groups for resources, lack of efforts to solve grievances, or previous episodes of violence
5. A means of dissemination that is influential in itself, for example because it is the sole or primary source of news for the relevant audience
Going by these frameworks, there is no doubt that the utterances of Katheria, Sadhvi Niranjan Jyoti, and a number of other politicians fall squarely under the category of speech that must be proscribed. The question is whether our institutions of governance are independent enough to follow through with these cases and ensure that those who cross the "lakshman rekha" of “dangerous speech” are prosecuted, and these prosecutions are taken to their logical conclusion, so that they serve as deterrents to persons across the political spectrum.
Even as this is being written, the sedition law (section 124A) is being used to silence dissent at Jawaharlal Nehru University. Sedition law is an anachronism. It makes the demand of the loyalty of citizens, a demand that should not be proscribed in law. Hate speech law (sections 153A and 295A) govern the relationship between groups of citizens based on the assumption of the British lawmakers that Indians were excitable subjects. These laws need to be seriously re-evaluated to ensure that they are not used to regulate hurt sentiments (which are subjective), and instead to prosecute “dangerous” speech (with more objective criteria) and to prevent speech that leads to discrimination, ostracism, segregation, deportation, violence, and genocide as defined by the courts in Canada.
Siddharth Narrain is a lawyer and Research Associate at Sarai – Centre for the Study of Developing Societies, Delhi.
