‘Genocide is a process, not an event. It did not start with the gas chambers, it started with hate speech‘ Sheri P Rosenberg
Hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.” Provisions in law criminalise speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups.
Violation of Section 196 of the Bharatiya Nyaya Sanhita (BNS) – Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony or activities that disrupt public peace or teach people how to use violence against any group, can invoke imprisonment and a fine. For general offenses, the maximum imprisonment is three years. For offenses that occur in a place of worship or during a religious ceremony, the maximum imprisonment is five years.
Under the Indian Penal Code (IPC) –Section 153a, 153b, 153c and 505 were expected to address hate speech but were already inadequate. The Bharatiya Nyaya Sanhita (BNS) 2023 which replaces the Indian Penal code has been criticised for making prosecution of hate speech even more difficult. The BNS ignores the 267th Law Commission report and a slew of Supreme Court judgements asking for a nuanced effective understanding of and penal provisions against hate speech.
At times there is a confusion between free speech and hate speech. Free speech is extremely important and needs to be protected in societies that value human rights. The Camden Principles on freedom of expression and equality explore the fine balance between these two. Limitations on free speech can also be used by those in power to suppress the voices of minorities. Draconian laws such as the UAPA have been slapped on several vocal critics of the government. This is sheer abuse of power.
Offensive speech that poses a risk or threat to others has to be taken seriously if it incites discrimination, hostility or violence towards a person or group defined by their race, religion, ethnicity or other factors. It occurs through a process of ‘othering’. Hate speech has been known to incite, enable or instigate hate crimes which can be defined as overt acts of violence against persons or property (vandalism); arson; violation or deprivation of civil rights; certain “true threats; or acts of intimidation, assault or murder; or conspiracy to commit these crimes. It is a criminal offense motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity, including skin colour and national origin. It is more than offensive speech or conduct and its victims can include institutions, religious organizations and government entities as well as individuals. The seriousness of hate speech has been mentioned by the UN Secretary-General, António Guterres as a precursor to atrocity crimes.
Hate speech has become the norm in election campaigns
The political leaders who indulge hate speeches are hardly prosecuted and punished. The impunity that protects perpetrators of hate speech within a democratic system is alarming. Should hate speech, openly calling for violence, vandalism, ethnic cleansing, taking up of arms etc. and directed against specific individuals and communities, especially as part of election campaigns be allowed unchecked? These hate speeches are not even infrequent and within private spaces but blaring on loudspeakers and on social media. Anonymous handles on social media congregate in huge numbers to attack, vilify and abuse individuals and communities.
Sadly, with the escalation of identity politics geared towards the elections, hate speech reaps rich dividends. We have reached a point where there is a need for a perpetual enemy to bring us together. The Muslim community in India has borne the brunt of this, although other minorities have not been exempt. This hate speech is becoming entrenched and normalised and becoming part of school and institutional behaviours and regular social media posts and WhatsApp forwards. These hate filled and discriminatory messages are accepted at face value without any kind of commitment to the truth. Illogical, irrational, baseless fake news are peddled putting communities at risk of losing lives, livelihoods and dignity. Media, the supposed 4th pillar, is in cahoots with this, with shocking conflict of interest and unabashed allegiance to the current party in power.
There have been a series of hate speeches leading up to elections particularly by the current regime.
In January 2023, a religious conclave in Haridwar saw calls for organised violence against Muslims similar to the Myanmar kind of ‘cleansing campaign’ and that any resistance by the government would be faced with ‘revolt’.
The targeting has been relentless. Muslim businesses have been targeted, there have been open calls for economic boycotts and even those engaged in trade have been viciously and horrifically attacked, lynchings of suspected cattle traders or even of consuming/transporting beef have been attacked by maniacal mobs. Vocal Muslim women on social media have been put up ‘on sale’, mosques have been vandalised and demolished. Internet is rife with the blatant anti-minority hatred that has been completely unchecked (and even to some extent enabled) by the government in power. False accusations have been thrown around without any commitment to the truth or fraternity. When called out, rhetoric and falsehoods are the norm.
Human Rights watch analysed the Prime Minister’s speech after the announcement of the Moral Code of Conduct (which forbids appealing to communal feelings for securing votes) in ……….and found Islamophobic remarks in 110 campaign speeches. “If elected to power at the Centre, Congress would distribute people’s property, land and gold among Muslims,” Mr. Modi said during his address at a Lok Sabha elections campaign meeting in Rajasthan’s Banswara district on April 21, 2024. This kind of language, as opposed to the language of non-discrimination and inclusivity, is most unbecoming of an elected representative of the State.
According to the HRW report, taking hate speech to the realm of hate crime, the BJP government has demolished Muslims’ homes, businesses, and places of worship “without due process” and “carried out other unlawful practices”, all of which have continued since the election.
A report by the NGO Common Cause has documented that half the police they surveyed had anti-Muslim bias making them less likely to intervene in the event of crimes against Muslims. There are several records of impunity being offered for crimes against this community, by courts and other government bodies. Ironically, laws are being passed to further vilify and target these same communities.
It is shameful to see extrajudicial punishments being meted out to innocent Muslims, in the inhumane method of “bulldozer justice.” Since 2022 several homes have been destroyed by the authorities meant to protect citizens with flimsy reasons that no court of law would sustain. It is common knowledge that those who participated in protests or raised their voices against the government in power have been targeted by this state sponsored violence and hate crimes. The Supreme Court has stated that retaliatory demolitions are not acceptable, but even that does not seem to be a suitable deterrent, which must again concern all law abiding citizens of the country.
In May, two BJP officials made profane comments about Prophet Mohammed, leading to deadly protests across India and condemnation from Muslim-majority countries. The BJP suspended the officials but these responses are too infrequent and slow and after much damage has been done.
The US Commission on International Religious freedom has classified India as a country of particular concern and urged the US government to place sanctions on Indian officials responsible for abuse. This is indeed a shame on the country’s vibrant democratic image that has been respected across the world. It would require a lot of concerted effort to undo this damage caused to our country’s reputation.
The significant enemy concept plays well in Indian politics. It is a deviation from the real politics of governance. The policies of development should be the primary issue of the campaign agenda. Unfortunately we do not witness any such debates having serious and substantial matters in the debate. The loud spoken sensational statements in public make the news.
There are no adequate laws to deal with hate speech. The legal process will take such a long time and the consequences even if there is punishment will come only after the damage is done and the election is also over. Hence the damage control is not done at all.
The loss of argumentative Indian is an irreparable loss for the Indian system. We need to argue out things on the basis of reason, logic and scientific temper. But in reality it is religion, caste and personal history of individuals. Hence the deviation is very easy in such a context.
In the process of we and they narrative the hate speeches appeal to the minds of the masses. A deep sense of deprivation and insecurity is made part of the conversation and that can be fatal. The political campaign’s goal is very clear. It is not interested in convincing people on substantial arguments but in dividing people in the name of religion and caste.
A twisted history is part of such rhetoric in political speeches. Some historical figures are suddenly demonised and a few new historical figures are created overnight to suit the narrative that is being built up for the election run.
No doubt it is part of the larger system. It is a consequence of identity bargaining in the political sphere. Divide and rule has become the order of the day in our democratic electoral politics.
Solutions and the way forward
What are the possible solutions to these low level political gimmicks in the country that are putting our own fellow citizens at risk to their lives, property, mental health and religious freedom? The Election Commission, which has a crucial role to enable free and fair elections, has to ensure that campaigns are also above board and following basic ethical principles of non-discrimination. Selective and slow response beats the purpose of the Election Commission itself. Taking these hate speeches to court is a long drawn process and justice is often delayed endlessly. We need to explore the possibility of fast track courts during the elections specifically geared to hate speeches and hate crimes.
The voting population, including the future populations need to be educated on the right way of conducting election campaigns and the need to hold violators accountable. Those perpetuating these hate speeches only do so because they see political benefit to it. If this benefit is withdrawn by an informed and articulate voter base, it will not be able to unleash the unrestrained damage that it is currently able to.
Rajya Sabha Member Manoj Kumar Jha (RJD) has called for a law to regulate hate speech and improve information disclosure about paid content. He has called out news channels for deliberately broadcasting TRP-centric news without or contrary to officially known facts. Importantly he also suggested that such legislation be introduced with stakeholders to find a balance between censorship of harmful content and freedom of speech and expression. He also made a case for including internet education in the school curriculum to impart basic knowledge and also sensitise children about the responsible use of the internet and the risks of hate speech and abuse.
He submitted a Bill in the Rajya Sabha on 9th December 2022 against hate crimes and hate speech directed to a person based on religion, race, caste or community, sex, gender, sexual orientation, place of birth residence, language, disability, tribe etc. and that it should be non-cognizable and non-bailable. Any person:— (a) who intentionally publishes, propagates or advocates anything or communicates to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to harm or incite harm or promote or propagate hatred, based on one or more of the following grounds: (i) religion, (ii) race, (iii) caste or community, (iv) sex, (v) gender, (vi) sexual orientation, (vii) place of birth, This includes intentionally distributing or making available electronic material which constitutes hate speech and advocate hatred that constitutes incitement to cause harm.
Hate speech, particularly as an election tool, and directed across the minorities, specifically the Muslim community is rampant across the country, and only growing worse. The consequences are severe and in contrast to the democratic fibre of the country. There is a need for urgent steps to be put in place to keep the government in check. All bodies with power to intervene – whether it is the Election commission, the judiciary, the police, civil society and even the voters need to take a stance that hate speech will not be tolerated. Let us stop normalising and enabling hate speech. This, as we know from history, is only a few steps away from hate crimes, ethnic cleansing and genocide. Let us act with the urgency that the issue deserves.
The author is the Director of St. Joseph’s Law College Bengaluru. His social media handles are @JeraldSJCL Twitter/ @Jeralddsouzasj Instagram
Disclaimer: The views expressed here are the author’s personal views, and do not necessarily represent the views of Sabrangindia.