The Haridwar hate assembly: the answer to divisive politics is not law alone, but also civil society mobilisation
By Sukumar Muralidharan
January 11, 2022
India and the world have a long way to go in legislating a practical set of principles on hate speech. Standards of civility are meanwhile under challenge as citizens of even the most stable liberal democracies retreat into narrow ghettos of identity, and respect for the dignity of the “other” disappears, writes SUKUMAR MURALIDHARAN
A three-day festival of hate speech in Haridwar has prompted a phase of extreme investigative diligence by the Uttarakhand police. Few are holding their breath since the transformation of investigation into obfuscation is already apparent.
Explicit video recordings of the Haridwar event, rather pretentiously called a Dharm Sansad, began circulating over social media soon after it concluded on December 19. Police in Uttarakhand and elsewhere received complaints demanding action under applicable statutes against the celebration of violence and the calls for the mass killing of people from minority faiths. Yet, beyond the cursory initial move of “first information reports”, there was little further action.
In some dismay, legal scholars wrote of an abundance of statutes available to bring the culprits to book. Senior military officers and bureaucrats, including former chiefs of the defence forces, warned that the rhetoric of hate could cause “serious breaches in internal security (and also) tear apart the social fabric of our nation”. And normally quiescent faculty and students from the Indian Institutes of Management and other educational institutions wrote to the Prime Minister, stating what seemed the obvious: “Your silence on the rising intolerance in our country … emboldens the hate-filled voices and threatens the unity and integrity of our country”.
Civility and social concord are built up over the years and their observance is a matter of custom, only inviting the force of law when a violent rupture is imminent. Yet, the force of law diminishes when votes could potentially be harvested by promoting embitterment. Power is meant to be exercised under the law, but the process through which power is constituted often takes lawless forms. When the retention of power at all costs becomes a consuming object, agencies of the law could be directed to abet in endemic lawlessness.
This distinction between “hate speech” as actual incitement and as part of the background conditions in which the crime of genocide occurs, creates further ambiguities. It gives rise to a possibility, in the judgment of the ICTR, of “hate speech that does not instigate violence”. Again, diligent observance of these distinctions may well ensure that interventions are too late to stop an outbreak of violence.
Rhetorical violence as a precursor to the disenfranchisement of those seen to not “belong” within the nation, is a recognised means for extreme populists to fire up core constituencies and attract new adherents. Constitutional democracies could devise remedies to these frailties in practice, but these are in turn to be implemented by an executive agency constituted in electoral competition. This raises the age-old question: who will educate the educators?
In general, the limits on speech are observed as part of an unstated code, with legal restraints prior to the speech act normally being frowned on. If violent consequences follow from speech acts, there is a plethora of laws available for enforcing accountability in varying degrees of rigour.
Force was employed in blatantly lawless manners to crush dissent in December 2019, as streets in Delhi began to teem with protests against highly questionable amendments in India’s citizenship law. The protests occurred at a particularly delicate juncture, since elections to the Delhi state assembly were approaching. Intent on doing what they do best, campaigners from the Bharatiya Janata Party (BJP) raised the pitch of the rhetoric as the campaign intensified, with explicit exhortations for further violence against the demonstrators.
The BJP lost the Delhi election decisively and a visit soon afterwards by U.S. President Donald Trump was no deterrent, as waves of vengeful violence broke out in a working class suburb of the capital city on a scale unseen for three decades. A petition before the Delhi High Court, demanding immediate FIR’s against the politicians for their words of incitement, led to immediate notices to the local police and the abrupt transfer of the judge involved. The matter has since languished with little prospect of being settled, even two years since the events.
Exception to free speech
All legal systems recognise hate as a necessary exception to free speech, but as with other issues where culture plays a role, no agreed global standard on the matter exists. The US First Amendment introduced constitutional protections for free speech towards the end of the 18th century, but immediately wrote in a series of exemptions for acts of “seditious” and “blasphemous” libel. In the 20th century came the Espionage Act, another powerful impediment to free speech.
Established governments have always legislated on speech in ways to sustain themselves. It was only in the 20th century when the news media and creative arts were themselves institutionalised within the fabric of democratic societies, that more expansive interpretations of free speech gained traction.
This shift in judicial standards has since been consolidated. In 1952, in a brief retraction the Supreme Court of the United States (SCOTUS) upheld in the case of Beauharnais v Illinois, a token penalty against a white supremacist who railed against “mongrelisation” and a determined pushback against the “rapes, robberies, guns, knives and marijuana of the negro”. Subsequent rulings though have tilted towards an absolutist interpretation of the free speech right.
In 1969, in a case involving a Ku Klux Klan leader calling for the “return” of the “nigger” to Africa and the Jew to Israel, SCOTUS unanimously held conviction by a lower court unlawful and instituted a two-part test for assessing when an act of speech breached constitutional boundaries: both the intent to incite violence and the connection with any such consequent action had to be established. This was a high bar to clear for any form of prior restraint on speech: a test that came to be known, after the defendant in the case, as the Brandenburg test.