While the intent of the prosecution – not allowing divisive forces to prosper – is noble, the method is regressive, in keeping with India’s bad track record in upholding freedom of expression.

Why the govt is wrong in supporting prosecution of Swamy for hate speech
Blog Blog Saturday, November 07, 2015 - 13:51

Update: Responding to the story by The News Minute, BJP leader Subramanian Swamy tweeted on Sunday, saying: "The Govt affidavit is most outrageous and stupid and an affront to democracy by unelectable govt appointees."

Under attack from the country’s liberal-left establishment for ‘increasing intolerance’ in the country, the NDA government made a surprise legal submission at the Supreme Court last week when it supported the prosecution of its own leader Subramaniam Swamy for making a hate speech promoting hatred between Hindus and Muslims. The government said that “divisive forces cannot be allowed to prosper”.

While the intent of the prosecution – not allowing divisive forces to prosper – is noble, the method is regressive, in keeping with India’s bad track record in upholding freedom of expression.

The existence of hate speech laws in India is a sugar-coated representation of the fact that right to speech and expression never really existed in the ‘world’s largest democracy’.

The constitution of India assures people of its country freedom of speech. The same constitution, however, adds a caveat that it is “subject to reasonable restrictions”. Sections 153(A) and 295(A) of the constitution restrict people from showing disrespect "on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever". The laws specially forbid anyone from insulting another’s "religious feelings".

If this loosely constructed law continues to exist or is enforced more strictly, the party in power at the centre can knead it to its own sinews. The centre will be the one defining the degree of ‘reasonability’ of the restrictions. Caste and religion based politics is not new to India and this law has been misused many a times before on such lines.

Misuse is easily possible not only by the government but also by individual institutions. For example, the blasphemy case of Sanal Edamaruku had the poor man flee from the country in 2012. Endamaruku is a rationalist from Kerala who investigated a case of a crucifix in Mumbai’s Our Lady Velankanni church dripping water from its feet. His research attributed this ‘miracle’ to capillary action. Soon, the archbishop of the church had filed complaints against him under section 295(A) in several police stations. He can now no longer step back into India without being arrested and with fellow crusader Naredndra Dhabolkar being brutally assassinated, he felt that returning could also put his life in danger.

People in India have the freedom of speech, subject to “reasonable restrictions”. The very fact that this part of the clause exists is giving rise to so many conflicts. First of all, how do you legally define hate speech? Why should the constitution regulate or morally police humans when it must be considered human nature to suit oneself and not offend the other? The justification given for hate speech restriction is that it addresses specific issues of intimidation and incitement. However, the manifestation of these laws in reality has become more of a means to enforce general social regulation.

To abolish this law is the only way to promote ‘tolerance’. Because then, it wouldn’t be something forced upon. This action will compel the people of the country, whichever religion, to be tolerant by not taking things so personally and rise above the juvenile gestures or speech. Those who make such speeches are like loud babies crying for attention. If you don’t acknowledge their presence and leave them be, you will soon find them giving up and sucking on their thumbs. This over-used phrase in recent times, intolerance, does not limit itself to those who outwardly display their narrow-mindedness by murdering people, but also brands those who get affected by a misinformed statement or gesture.

People say religion should not be hated upon because it isn’t just a set of beliefs but has become their identity. So, if you disapprove of the religion that we follow, you are disapproving of us. Why should this be the case with religion alone? Many other ideologies too come under this category of not being just a set of beliefs but their identity itself like communism or fascism. They too have seen complete dedication, even unto death. How then, is questioning those ideas pardonable?

It is definitely important to curb the encouragement of hatred to protect the lives of those who may be attacked. This sort of thinking, though, is flawed. It reveals the distinction being made by many between speech and action. If somebody ‘acts’ on their hatred by attacking others physically, harming them or even killing them, such persons must most certainly be punished. If hate speech delivered by someone has immediate consequences in enticing someone to act, punishment seems fair. However still, banning hate speech all together is dictatorial. A person spreading hate speech may be morally despised but should not be legally prosecuted.

Banning hate speech is not the solution. If every case were taken to court, the judicial system of India would be clogged with just anti-speech lawsuits. Instead, the government must allow people to speak their minds and generate extensive debates over such issues. Only then is there any hope of one side understanding the other. All that the government must do is to facilitate such discussions with sufficient security.

Become a TNM Member for just Rs 999!
You can also support us with a one-time payment.