Hate speech needs to be combated at the social and political level, through arguments and persuasion. A society that nurses grudges and hatred will destroy itself, warns PARSA VENKATESHWAR RAO.
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From a libertarian point of view, hate speech is legitimate unless it is proved to be inciting violence directly, or it is proved under the libel laws to have caused irreparable damage to the reputation of a person. And so, it should be defended however distasteful and offensive it may be.
There is also a need to defend hate speech because authoritarian governments are lying in wait to restrict and even remove the fundamental right of speech by labelling criticism as something that is posing a danger to the security of the nation.
The present political situation in the country is such that there are quite a few people who are out to vilify other people in the name of freedom of speech, and which would result in social disharmony and lead to violence, arson and murder.
However, freedoms become useless if they are restricted for legitimate and illegitimate reasons.
This is why one must be doubly cautious when restricting certain kinds of speech.
“The definition that the judges offer of hate speech in their judgment is interesting as well as troublesome, though the logic on which they base their view passes muster.
Supreme Court Justices A.M.Khanwilkar and Sanjiv Khanna in the Amish Devgan vs the Union of India case have literally entered the theoretical minefield when they discuss the definition and scope of hate speech, which they distinguish from free speech.
Their disquisition is not related to the facts of the case under consideration only in a tangential way. The case against Amish Devgan is yet to be filed and tried.
Devgan sought quashing of the First Information Reports that were filed against him after he made insulting comments about Khwaja Moinuddin Chishti, the venerate Sufi whose tomb at Ajmer attracts people of all religions.
Devgan has also retracted his remarks and offered an unconditional apology.
But the complainants may press their charges of hate speech against Devgan, and the court will have to decide whether the retraction and the unconditional apology was sufficient.
The definition that the judges offer of hate speech in their judgment is interesting as well as troublesome, though the logic on which they base their view passes muster. They say that hate speech targets a group and that it violates the principle of fraternity embedded in the Preamble to the Constitution that was expanded through the 42nd Amendment.
“Of course, they have spelled out reasonable criteria for judging something as hate speech by saying that it should be judged "from the standard of reasonable, strong-minded, firm and courageous men and not by those who are weak and ones with vacillating minds nor of those who scent danger in every hostile point of view."
The Preamble as adopted on November 26, 1949 – being observed as Constitution Day since 2019 – read "Fraternity assuring the dignity of the individual", but it was expanded in 1976 to read, "Fraternity assuring the dignity of the individual and the [unity and integrity of the nation] …"
They only intended to broaden the definition of hate speech when they invoked the constitutional principle of fraternity, but it will not be long before this definition will be used against individuals speaking against the government.
The existing sedition laws already arm the unscrupulous government to the teeth to trample down critics, and this definition of hate speech would only further legitimise the authoritarian intent of those in power.
The judgement, written by Justice Khanna for the Division Bench – explains the expanded sense of the principle of fraternity:
"Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual's obligation to others to ensure unity and integrity of the nation."
And they say that when acts of hate speech directly and indirectly "impinge on …diversity and pluralism… "they undermine the unity and integrity" aspect.
“And the impact or consequences of hate speech appear to be the real issue because they would result in "loss of self-esteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena."
Of course, they have spelled out reasonable criteria for judging something as hate speech by saying that it should be judged "from the standard of reasonable, strong-minded, firm and courageous men and not by those who are weak and ones with vacillating minds nor of those who scent danger in every hostile point of view."
American writers Alice E Marwick and Ross Millar of Fordham University make the triple distinction of identifying hate speech in terms of content, intent and impact. And the impact or consequences of hate speech appear to be the real issue because they would result in "loss of self-esteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena."
Given the existing situation of majoritarian belligerence prevailing in the country, it can be reasonably interpreted that most acts of anti-minority acts of hate speech have the aim of not just intimidation but also that of social and economic subordination and of political exclusion.
But we must find other ways of protecting the minorities from majoritarian onslaughts through means other than that of restricting the freedom of speech through definitions, however reasonable. It will be argued, and rightly too, that the freedom of speech under Article 19 (1) (a) of the Constitution, stands already circumscribed through Article 19 (2) effected through several amendments. There is then no need to further restrict it.
Freedom is a value and right in itself.
“But we must find other ways of protecting the minorities from majoritarian onslaughts through means other than that of restricting the freedom of speech through definitions, however reasonable.
It is an ideal that cannot be made to subserve other utilitarian ends. Hate speech needs to be combated at the social and political level, through arguments and persuasion.
A society that nurses grudges and hatred will destroy itself. It is an issue that goes beyond mere laws, allowing or forbidding something.
Laws are instrumental. They cannot be a substitute for idealism and vision, for harmony and goodwill.
(Parsa Venkateshwar Rao Jr is an author of numerous books. His latest one is The Upanishads: An Introduction (Harper Collins). He is a senior Delhi-based journalist and political commentator. The views are personal.)