'We need to re-constitutionalize the society which is currently being de-constitutionalized by the regime and the political front running the regime. Unless and until you are able to induct constitutional politics into the existing state of affairs, you won't be able to have a meaningful discourse on hate speech.'.—–.THE issue of hate speech occupies centre stage in India's legal-political discourse today, as organized hate speech events have started coming up in various parts of northern India under the misnomer of 'Dharm Sansad'..At this juncture, The Leaflet spoke with Kaleeswaram Raj, a lawyer practising at the Supreme Court and the Kerala High Court, who has successfully argued several important Constitutional matters before the Supreme Court, as well as been appointed as amicus curiae by courts in various cases. His writings have appeared in most major newspapers and legal journals, and he has also written multiple books on law..In a free-wheeling conversation, we discuss with him how we got here, the existing legal framework to tackle hate speech in India, what kind of reforms this framework needs, the distinction between hate speech simpliciter and aggravated hate speech with penal traits, and the judiciary's role in tackling this menace..Edited excerpts are as follows:.Q: What are the existing laws and judicial guidelines in place to tackle hate speech in different forms in India?.A: We first need to have a correct understanding, rather than a definition, of what is hate speech, as a concept, or as an offence, or as something which challenges human dignity, or something which lowers the level of tolerance in society. The first and foremost thing would be to understand what is hate speech so that we will then be able to make a distinction between mere hate speech on the one hand, and the real incitement to violence, on the other. Once there is an incitement to violence (for example, in the Haridwar speech from last year), when you reduce it to the level of hate speech, you are actually losing the gravity of what has been done. A call for genocide, for example, cannot be reduced to a mere instance of hate speech. This distinction is very important, and only when we understand this distinction, we will be able to look at which are the statutory provisions or judicial precedents dealing with hate speech..“Once there is an incitement to violence, when you reduce it to the level of hate speech, you are actually losing the gravity of what has been done. A call for genocide, for example, cannot be reduced to a mere instance of hate speech..We need to make a clear, categorical distinction first. We need to have the idea that hate speech is not free speech. Or rather, hate speech does not have the protection which free speech is entitled to have under Article 19(1)(a) of the Constitution. This distinction is significant..Hate speech doesn't get constitutional protection. It is something different, and it goes against constitutional morality in public discourse. In a way, it also reflects the quality of our polity. From different spheres of history and different stages, you get different levels of national discourse. Those levels of discourse also indicate, in one way or another, the quality of politics at that relevant point of time in history..Also read: Why is free speech different from hate speech?.To understand it better, take for example, the Constituent Assembly Debates. The kind of morality which was encompassed in the entire polity during the freedom struggle, that quality you get in the deliberations as well. It is not just the manifestation of the education level of the assembly members; there were many people who weren't educated from the West, who didn't even have indigenous higher levels of education, but who performed very well during the debates. This means that the discourse reflects, in any deliberative democracy, the quality of the polity..In contemporary India, hate speech also indicates the low level of politics, especially communal politics, going on..Now, coming back to your question as to what are the laws. We need to understand that there are certain provisions in the Indian Penal Code [IPC], and also in special statutes, such as the Representation of the People Act, 1951, or the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, dealing with certain instances which are styled as offences, which might include instances of hate speech as well..Take for example, Sections 153 (wantonly giving provocation, with intent to cause riot), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence), 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) and 298 (uttering words, etc., with deliberate intent to wound the religious feelings of any person) of the IPC, as well as, in certain instances, Sections 120B (punishment of criminal conspiracy) and 120A (definition of criminal conspiracy) of IPC. When you analyse these provisions, you might find a component of hate speech in these offences, specifically those defined in the IPC. Incitement to violence, for example, or any kind of offence falling under these categories, may involve hate speech. But hate speech need not always be an offence. These provisions may contain elements of hate speech, but every instance of hate speech need not necessarily be an offence either..“Hate speech, even when it doesn't fall within the ambit of penal offences, is equally dangerous to democracy, to a plural society, to a society based on Constitutionalism, especially a Constitution having in its Preamble notions such as equality, dignity, fraternity and liberty..This distinction is very important. For example, see two cases before the Supreme Court. One is the Sudarshan TV case, which is currently pending and is being considered by the Supreme Court. There, a programme was telecast by Sudarshan TV describing a particular community or its members involved in certain activities which results in obtainment of higher share of employment in the UPSC services. It was not supported by any cogent or scientific material or data. But that in itself may not probably lead to incitement to violence. Therefore, what is involved in the Sudarshan TV matter is something like hate speech simpliciter, which nevertheless is equally pernicious in the moral or political parlance. Merely for the reason that it doesn't attract a provision in the IPC or in any special statute doesn't mean that it doesn't harm the society, or that it doesn't harm the nation..You will find a famous speech by British Parliamentarian Lord Bhikhu Parekh about hate speech in which he says that it lowers the tone of public debate, or rather it refuses to accept others as equal citizens; it enhances the level of mistrust and hostility in society; it diminishes the dignity of citizens. All these are instances that harm the nation and the people. That's why even when some comment might not amount to a particular offence, it is offensive in the broader sense of the term to the society at large. Therefore, we need to guard against instances of hate speech as it happens on social media, or on other digital platforms or elsewhere..This kind of hate speech has been the subject matter of certain judgments even in the Indian context. For instance, the Supreme Court, in Babu Rao Patel versus State of Delhi (1980), talked about the impact of hate speech on society at large. Another relatively recent Supreme Court judgment would be Pravasi Bhalai Sangathan versus Union of India (2014). These are cases in which the Supreme Court has not extended protection of Article 19(1)(a) to instances of hate speech..There is no fundamental right to hate speech in the Indian context, unlike the situation in the U.S., where to some extent hate speech is protected by the First Amendment, unless there is some kind of incitement or capacity to incite or produce imminent lawless action. In the latter situation, such speech would be impermissible. That is what the U.S. Supreme Court said in Brandenburg versus Ohio (1969)..The Indian Supreme Court has delivered several recent judgments on hate speech: Tehseen S. Poonawalla versus Union of India (2018), Kodungallur Film Society versus Union of India (2018), and Amish Devgan versus Union of India (2020).The Amish Devgan judgment draws a fine distinction between hate speech and hate crimes. It is jurisprudentially correct and doctrinally impressive..“When we discuss hate speech and the laws related thereto, we cannot segregate legal and theoretical discussion from the ongoing political process in the country. It is the politics which determines the application of law..To put it in a single sentence, hate speech, even when it doesn't fall within the ambit of penal offences, is equally dangerous to democracy, to a plural society, to a society based on Constitutionalism, especially a Constitution having in its Preamble notions such as equality, dignity, fraternity and liberty. This is one part of it..The second part involves situations where there are aggravated forms of hate speech that have the tendency to incite violence in society. The glaring example is the so-called Haridwar hate speech. It's actually a call for genocide, and shouldn't be reduced to an instance of hate speech. We need to understand that U.S.-based non-profit organization Genocide Watch has warned that India is moving towards a dangerous situation because of calls like this. We should guard against the possibility of such unfortunate divisions and other kinds of happenings in the future..This kind of aggravated forms of hate speech which have the tendency to incite violence or genocide should be treated as a category in itself which is not hate speech simpliciter; which definitely falls within the ambit of penal offences like sections 153, 153A, 295A, 298 etc. of IPC and other specific offences under the respective enactments, depending upon the content and context of the speech..Whether these amount to an offence, or not, they pose danger to the society: how do you deal with them? As I said, we have certain provisions in special enactments and the IPC. There are judgments such as the ones obtained in Pravasi Bhalai Sangathan, Babu Rao Patel and Amish Devgan. But we don't have a special statute on hate speech..Also read: The Rwandan genocide case and its eerie parallels in today's India.Q: Why is it that civil society activists arrested for alleged hate speech during the anti-CAA protests have been in detention and denied bail for years, while Hindutva leaders arrested recently for delivering communal hate speech on multiple occasions are let off easily on bail?.A: The troubling question is what do you do when these laws are selectively invoked. We won't be able to approach the issue as a simple legal issue. The question of hate speech, in the original form as well as in the aggravated form, is a political question rather than a legal question. Of course, it depends upon the political climate. The law's invocation invariably depends upon the political climate. Merely because you have certain laws and certain judgments doesn't mean that those have sanctity as if we are in an ideal democracy ..“We need to invent an alternative politics. This is not a new politics, but constitutional politics. That is why it requires a re-constitutionalization of the polity and of the society..You'll find that many judgments during the Nazi regime rendered by German courts lost their precedential value in the time that followed after Hitler's defeat. That means that at that time, it had political support and therefore, legitimacy. But once you revert back to democracy after the dictatorial/fascist politics of Nazism, you don't attribute sanctity to the judgments rendered in a different political climate, namely the context of Nazi Germany..Like that, in the Indian context, you'll find that the polity and the quality of regime, the quality of day-to-day politics reflects in the application of law..Currently, we have a kind of situation where a majoritarian politics and ethnic democracy are developing. Populism based on religious majoritarianism, divisive politics, communal division, and electoral advantage aimed at by way of divisive strategies have become the norm. When we discuss hate speech and the laws related thereto, we cannot segregate legal and theoretical discussion from the ongoing political process in the country. It is the politics which determines the application of law. That is the reason why you find a contradiction where even a genocide call is taken lightly, or rather taken for consideration only after judicial interference, and many instances of divisive calls for mob lynching or similar calls go unnoticed or ignored or sometimes even abetted by the regime, on the one hand..On the other hand, some people are treated as criminals for innocent jokes or harmless tweets or mere expression of opinion. You've seen what has happened to legislator Jignesh Mevani in Assam, and many others, including many journalists, intellectuals, writers and activists, are put in jail even now for what they did as part of their job or mission. Even they don't know what offence they have committed. So this is how in an ethnic, populist democracy, the law is applied. This is not just a question of theory of law, but of application of law, which is a political question..Also read: Umar Khalid and Jignesh Mevani experience the high-handedness of law.Once we understand this, we shall be able to have a clear idea regarding how the laws are invoked in the country. Taking it through from what I've tried to indicate, it is rather advisable not to have an anti-hate speech statute, as the one available in Canada. In Canada, there is a separate charter prohibiting hate speech and making it an offence. This special charter was discussed and elaborated in the Canadian Supreme Court judgment in Saskatchewan versus Whatcott (2013). Here, the jurisprudence of hate speech was elaborately discussed. A part of this judgment was quoted by our Supreme Court in Pravasi Bhalai Sangathan..Let us imagine that we clear off the deficit of a hate speech law in India. Suppose we make a law; then also the same problem is there, namely the selective application of law. Therefore, you cannot treat it as a mere legal deficit. It is actually a deficit in the quality of polity where hate speech operates in, such as the Haridwar event. What we lack is not a special enactment, but a democratic politics that reflects Constitutional morality. Unless we are able to evolve or get back a polity based on the Constitution, any promulgation of a special law is not going to solve the issue..“In the present scenario, in which aggravated hate crimes, including the open, public appeal for genocide, is recurring at an enormous level, the Supreme Court should step in, and seriously think of making a judicial legislation on this aggravated call for genocide, or aggravated instances of hate speech, especially when it is happening in an organized manner, with the support of formal political groups..Now, we are under a regime that doesn't believe in the ideology of the Constitution. You cannot therefore expect the application of Constitutional morality in day-to-day affairs. Even invocation of penal laws ignores application of constitutional morality. It is not just a definitional application of certain provisions here or there. At the end of the day, in a sentence, even the law, in theory and in practice, reflects political ideology..I've written elsewhere that every piece of legislation, for that matter, is a political statement. You take, for example, the recent Criminal Procedure (Identification) Act, 2022, which gives wide powers to the executive to have data of persons suspected, not even convicted, which sees the citizenry as a whole as potential prisoners. Now, where the State gets unlimited power over the body and mind of each and every individual, dispensing the very idea of bodily integrity and individual privacy, that is a political statement in the theoretical realm of the law. Political statements can happen both in the text of the law, as well as the application of the law..Therefore, what happens is that in the Indian context, we need to strengthen institutions of the Constitution on the one hand, and strengthen the political consciousness of the public at large, along with the institutions, on the other. Rather, to put it very bluntly, we need to re-constitutionalize the society which is currently being de-constitutionalized by the regime and the political front running the regime. Unless and until you are able to induct constitutional politics into the existing state of affairs, you won't be able to have a meaningful discourse on hate speech. It is closely interconnected with day-to-day politics, and with the electoral or political regime governing all of us. Therefore, there is a political issue..Q: What are the means to tackle this?.A: First, we need to act at the institutional level. The Supreme Court has intervened in the Haridwar genocide call (I won't call it as 'Haridwar hate speech case'; it is the 'Hardiwar genocide call case'), albeit in a limited manner. Certain directions were issued, which were not properly implemented but for some cosmetic purpose, certain registration of crimes here and there after being compelled by court directives, have occurred. That is one indication that implies that the judiciary as an institution can intervene in such instances..Even in the Sudarshan TV case, the Supreme Court has intervened, and there was an injunction against the telecast of the programme, which is still continuing. These are definitely positive signs, which indicate institutional possibilities. This is something which we need to preserve, encourage, and enhance. This stream of Constitutional interventions by institutions under the Constitution, especially the judiciary, could be efficacious. This is one silver line which we see, the protection of which requires public support, which will enhance the legitimacy of court directives..Along with these silver linings, we need to cultivate popular/public perception against hate speech and aggravated forms of hate speech. This is the second level..You'll find that after the unfortunate violent attacks in Jahangirpuri, people joining together against hate mongers, against divisive politics, and against strategies of persons who take hate speech as an ideology. The people, irrespective of religion or community, raise their voices against divisive politics. That again, is a silver lining..“In the Indian context, we need to develop the first positive stream of constitutionally motivated interventions of the judiciary, and we should discourage the process of abusive judicial review, for which also there is potential in the Indian context. That kind of discouragement can only happen with the help of an alert media, a democratically evolved stream of journalism, and the activism of public intellectuals..These two areas indicate two streams which are absolutely required for the restoration of polity and democracy in our country, which alone will be able to deal with continuing instances of hate speech and aggravated hate speech. One is institutional, and the other is a purely people's movement. These two also have some direct linkages with each other. Therefore, a movement including the media, public intellectuals, social activists, even residents' associations, lay[wo]men, everyone – a mass movement at the level of consciousness, needs to be developed against the politics which flourishes on hate speech. We need to invent an alternative politics. This is not a new politics, but constitutional politics. That is why it requires a re-constitutionalization of the polity and of the society..Also read: The Haridwar hate assembly: The answer to divisive politics is not law alone, but also civil society mobilisation.Q: You say that right now, this is not a legal problem, but a political one, and have suggested certain structural, long-term changes. In the immediate short-term, because you're saying that the political regime is responsible for the selective application of laws, do you think that there's a larger role for the judiciary to play because the judiciary is not a political institution? In the Haridwar case, you pointed out that due to the Supreme Court's intervention, certain cosmetic steps were taken. But one of the perpetrators who was let out on bail, is participating in similar events in other parts of the country, in flagrant violation of his bail conditions. Should the judiciary therefore play a more proactive role in the short-term?.A: In the Indian context, very often, instances of hate speech involve horizontal rights' violation. It need not be necessarily the State violating the rights of the individual at the vertical level. It can also be one social group, such as the majoritarian religious group, attacking the rights of the minority group. You'll find such cases in the Western context. For example, Shelley versus Kraemer (1948) by the U.S. Supreme Court deals with horizontal right violations. Similarly, the German Luth case (1958) also deals with horizontal right violation. Certain indications have been given on horizontal right violations by our Supreme Court. But this is a branch of law that remains rather underdeveloped in the Constitutional context in India..Suppose a societal group or a person belonging to that group, violates a fundamental right of a person, such as dignity, which is now protected under Article 21 of the Constitution, or privacy, which is also protected under Article 21, especially after Puttaswamy. What is the legal remedy? Is it a situation where a party can only go to a civil court or a criminal court? I think that there should also be a kind of larger Constitutional remedy in such situations resembling the intervention of the U.S. Supreme Court in Shelley or the German court in the German Luth case..Take, for example, that hate speech happens, and someone is subjected to damages on account of that. Because every instance of hate speech has the effect of creating hostility, making someone isolated from the mainstream, and diminishing the human dignity of certain persons, among other things. In such situations, rather than invoking conventional remedies of civil suit for damages, or criminal prosecution by way of a police case or a private complaint, the Constitution should also find such instances as cases of rights violations, and there has to be interference and interventions in those kinds of situations. The Court should prompt the institutions and individuals running them to act timely and effectively..Look at the genocide call, where at least for the time being I find a deficit in the court's intervention. The court has been, so far, trying to invoke conventional mechanisms, like the local authority in a particular state. You'll find interim directions issued in the Haridwar genocide call case. The court has issued certain directions enabling the petitioner to approach the local authorities. The court has also called for certain reports from the bureaucrats concerned. Of course, so much so good. But in such cases, follow up actions are absolutely necessary. That is needed in the Haridwar episode..Ultimately, in cases like this, Indian courts may have to evolve mechanisms where the targeted groups or affected individuals are compensated, or rather, certain prohibitory orders are issued, as it has been ideally issued in the Sudarshan TV case. That is the proper approach. The Supreme Court bench in the latter case said that the gag order is an extraordinary step, but in the Constitutional sense, that was an imperative. That was rightly done in the Sudarshan TV case. This type of intervention is needed..As of now, genocide calls are occurring day-by-day. Then, I'd suggest that it should not be left to the lawmakers (because lawmakers might not be interested in tackling this, since they are often the political beneficiaries of this – they abet it, indulge it, or sometimes even get involved in it with a certain political agenda). If you think that the Parliament is going to make a law dealing with hate speech, you're wrong. That's not going to happen. Therefore, I'd say that in the present scenario, in which aggravated hate crimes, including the open, public appeal for genocide, is recurring at an enormous level, I think the Supreme Court should step in, and seriously think of making a judicial legislation on this aggravated call for genocide, or aggravated instances of hate speech, especially when it is happening in an organized manner, with the support of formal political groups..Therefore, you're in a dilemma. On the one hand, you find the serious repercussions and dangers of hate speech or its aggravated form, and on the other hand, you find that the existing political regime is not going to prevent it by legislative means or executive action. This is the kind of dilemma in which citizens are placed; this is the dilemma which the court is concerned with. Yet this is an Indian reality. Therefore, rather than thinking that the Parliament will pass a law against hate speech or aggravated forms of hate speech, or that there will be Parliamentary desire to deal with instances of genocide call, the Supreme Court may have to evolve, in the Vishakha line, judicial legislation dealing with instances of hate speech and its aggravated form, and particularly guaranteeing that such instances are not dealt with selectively by the Administration based on the diktats of the political regime of the time..Also read: Concerns over increasing hate speech and judicial inaction.Also, there has to be a judicial watch. There must be a juridical mechanism ranging from the Magistrate level to the Supreme Court level. So, some mechanism, some device would need to be evolved while formulating this judicial legislation governing instances of genocide call or aggravated forms of hate speech. Constitutional courts should take the issue of horizontal rights seriously. The impact of those violations at large will have to be taken care of in judicial legislation. That is what happened in the Saskatchewan case at the Canadian Supreme Court. The court said three things when dealing with hate speech:.Firstly, apply your provisions on hate speech objectively, which means that it cannot vary from person to person, or one political party to another, one community to other community, majority to minority. There has to be uniform and objective application of law, which the judiciary should be able to take care of..Secondly, you will have to give a restrictive meaning to hate speech. Only when it has an extreme manifestation of raising emotions so as to damage social or communal fabric, you should apply it. The idea should be to limit the restrictions, so that the action does not meddle with freedom of expression. In a democracy, many kind of expressions or opinions could be offensive. Right to offend must be different from hate speech. You always need to have the right to offend, which is distinct from the right to hate speech. So, this distinction will have to be drawn by a restrictive application of the law..Thirdly, institutions will have to assess the effect of expression. Something which is styled as hate speech may be disparaging, unwarranted, or in distaste. Even in that case, you'll have to see its effects on society to call it an instance of hate speech. That kind of distinction is also important..All these guidelines laid down by the Canadian Supreme Court may be relevant in India too. The Amish Devgan judgment of the Indian Supreme Court clearly lays down the law on this point. Yet, a judicial legislation on aggravated forms of hate speech, which is capable of dealing with incidents such as the one in Haridwar, will be extremely important in the Indian context..Q.: Do you anticipate or expect the Supreme Court, as it is today, to take a step like it did in Vishakha, and come up with such a judicial legislation?.A: That depends upon how the process of judicial review is carried out by the constitutional court in hard times, in tough political times. You find examples of both. You'll find a famous paper on abusive judicial review by American legal academic David Landau and Australian legal academic Rosalind Dixon, in which the authors raise the proposition that in certain populist democracies, the judiciary is abetting democratic erosion, or rather the judiciary abets the executive action of sabotaging democracy or destabilising Constitutional institutions. Take the example of Brazil or Russia or Poland – many such countries – where the court as an institution is abetting democratic erosion. That is why they term such situations as instances of 'abusive judicial review'..“The public criticism of the Supreme Court has yielded good results, and that played a significant part in altering the people's perception of the Supreme Court within the institutional limits..Even in the Indian context, in the instances where there were blatant attacks on constitutional ethos – take for example the demolition of the Babri mosque (and we know what the Supreme Court has said in the judgment – it justified an action which according to it was illegal, and it wanted the secular State to construct a temple at the place where a mosque was situated). If the court goes in that direction, there is little to hope for..Also read: How far smugglers of hate have taken their battle against the Indian Constitution.But this is only one line of process that could happen. There could be positive judicial interference as well. Even recently in Pakistan, where there was a democratically permitted no-confidence motion; we know how the Imran Khan regime had attempted to sabotage it. But for the Supreme Court's intervention, the fate of that country would have been different. Even during hard times, in a relatively weaker democracy in which the military has a large role to play, you find the judiciary working to preserve the larger Constitutional and democratic ethos..It all depends on the way the court reacts to it. In the Indian context, at least in recent times, there have been certain positive interventions by the court. For example, its intervention in the Pegasus espionage case, an interim order was issued by Chief Justice N.V. Ramana's bench. There are certain other instances, like mob lynching. Take the case of the recent Supreme Court order suspending the sedition law, which indeed is a radical judicial move that has occurred even in an extremely unjust political climate..Another case – take the Brexit judgment of 2019 from the U.K. You'll find that when the executive was trying to suspend the Parliament, the U.K. Supreme Court intervened. That is another indication that in a populist regime, constitutional courts are capable of acting so as to restore democratic ethos. Even when the executive is aggrandizing, even when there are majoritarian impulses, the counter-majoritarian judicial review can work, in appropriate context..In 2018, in Sri Lanka, when the President dismissed the Prime Minister Wickremesinghe, who enjoyed a majority in the House, and inducted Rajapaksa as prime minister, the Supreme Court came down heavily and issued orders preventing Rajapaksa from functioning as PM. As a result of that intervention, Wickremesinghe was reappointed. Now there is a crisis again, which, however, is not merely constitutional but political and economic..So even in concrete political turmoil, you have the card of Constitutional courts intervening in issues. Take the recent Building Bridges Initiative case from Kenya – when the President wanted to prolong his term, the Kenyan Supreme Court intervened. When the President issued a lot of directives in the guise of reformation, which had ultimately the effect of strengthening the seat of power that would have allowed the President to continue as Prime Minister even in a situation when he might have lost the election – that kind of so-called reformation – was blocked by the Kenyan Supreme Court. These are instances which tell you that the court can really interfere..At the same time, you find situations in Hungary, Venezuela, Poland, Nicaragua, and Russia, among others, where the judiciary is simply abetting the executive action of damaging the Constitution for immediate political gains, which Landau and Dixon have described as instances of abuse of judicial review..There is also a dark side of the picture, where there is a long jurisprudence of deferral, as important Constitutional matters like demonetisation or the Kashmir issue or the Citizenship (Amendment) Act [CAA] continue to be delayed indefinitely waiting for decision. You are not deciding it, but prolonging it, keeping things in abeyance, and sitting over that. That has the effect of encouraging whatever is happening. It really fulfilled the purpose of, for example, demonetisation. Now that case is practically infructuous; it has only academic value, not any practical application. It has happened with the CAA also, to some extent. Same happened with the farm laws; ultimately, the Centre was constrained to withdraw it, which didn't happen on account of judicial intervention. That is the second stream, where there is a kind of jurisprudence of prolongation; you're just deferring the adjudication, and aiding the executive..In the Indian context, we need to develop the first positive stream of constitutionally motivated interventions of the judiciary, and we should discourage the process of abusive judicial review, for which also there is potential in the Indian context. That kind of discouragement can only happen with the help of an alert media, a democratically evolved stream of journalism, and the activism of public intellectuals. Lawyers and legal journalists need to be public intellectuals, and we share the responsibility of re-constitutionalizing the country. That is the best and most effective safeguard against all kinds of hate speech..Also read: In the face of orchestrated hatred, silence is not an option, journalists appeal to India's Constitutional institutions.Q: You've indicated the possibility that courts can intervene, and why there is a case for them to, but you haven't answered whether you think it is likely that the current Supreme Court will provide the kind of judicial legislation and moral intervention that is called for..A: You will find that our Supreme Court has been consistently subjected to criticism by intellectuals, lawyers and activists. Some of this has been positive criticism. You'll find that when there is constructive criticism of our institutions, that yields good results..We all know the committed judiciary we had during the National Emergency. After the Emergency, we find that the PIL [public interest litigation] jurisdiction, and PIL as an institution was developed by the Supreme Court itself. The judiciary, and especially the Supreme Court, was trying to regain its glory, lost during the emergency, in the post-emergency scenario. You'll find a lot of socialist interventions, based on the amendments to the Constitution, in the early 1980s and even the 1990s..At the theoretical level, you'll find a lot of judgments highlighting socialist jurisprudence, pro-workmen, pro-common man, pro-adivasi, ranging from environmental protections, to human rights, to prisoner rights, to tribal rights, and so on. You'll find that over a period of two decades, we had a different kind of Supreme Court, which was drastically and qualitatively different from the Supreme Court we had during the emergency. In the like fashion, when we criticise the Supreme Court during the 2018-19 period, and we continue the criticism, there is some deviation, and some positive signal here or there (although I admit that not everything has changed), as indicated in the Pegasus order and the recent intervention in the two hate speech cases, and many other such cases. The Supreme Court made an effective intervention in the COVID vaccine policy case as well. The interim order on May 11 by the Supreme Court on sedition also illustrates this point. So that kind of change is also happening..How do institutions change? Institutions, including the judiciary, don't change on their own. Institutions change only when there is a political climate warranting, or rather constraining, them to change, imposing that kind of thinking upon the institutions. That happens only through public criticism and popular interventions – interventions by the media, the public at large and different sections of the society..Also read: Reforms that India needs to fulfil its Constitutional goals.Viewed so, the change which is now happening in the Supreme Court, at least indicates a Supreme Court of possibilities. I won't say that everything has changed for the good in the Supreme Court; nor I would say that the Supreme Court is going to be a perfect guardian of the Constitution, by all counts. There are issues that are yet to be tackled; there are serious cases which are still pending adjudication; there are cases which have even lost their relevance on account of the jurisprudence of deferral adopted by the Court. Still, I think that the public criticism of the Supreme Court has yielded good results, and that played a significant part in altering the people's perception of the Supreme Court within the institutional limits. Therefore, I think there are possibilities. Yet, we need to be vigilant about the functioning of the Supreme Court, and of any other institution under the Constitution, for that matter.
'We need to re-constitutionalize the society which is currently being de-constitutionalized by the regime and the political front running the regime. Unless and until you are able to induct constitutional politics into the existing state of affairs, you won't be able to have a meaningful discourse on hate speech.'.—–.THE issue of hate speech occupies centre stage in India's legal-political discourse today, as organized hate speech events have started coming up in various parts of northern India under the misnomer of 'Dharm Sansad'..At this juncture, The Leaflet spoke with Kaleeswaram Raj, a lawyer practising at the Supreme Court and the Kerala High Court, who has successfully argued several important Constitutional matters before the Supreme Court, as well as been appointed as amicus curiae by courts in various cases. His writings have appeared in most major newspapers and legal journals, and he has also written multiple books on law..In a free-wheeling conversation, we discuss with him how we got here, the existing legal framework to tackle hate speech in India, what kind of reforms this framework needs, the distinction between hate speech simpliciter and aggravated hate speech with penal traits, and the judiciary's role in tackling this menace..Edited excerpts are as follows:.Q: What are the existing laws and judicial guidelines in place to tackle hate speech in different forms in India?.A: We first need to have a correct understanding, rather than a definition, of what is hate speech, as a concept, or as an offence, or as something which challenges human dignity, or something which lowers the level of tolerance in society. The first and foremost thing would be to understand what is hate speech so that we will then be able to make a distinction between mere hate speech on the one hand, and the real incitement to violence, on the other. Once there is an incitement to violence (for example, in the Haridwar speech from last year), when you reduce it to the level of hate speech, you are actually losing the gravity of what has been done. A call for genocide, for example, cannot be reduced to a mere instance of hate speech. This distinction is very important, and only when we understand this distinction, we will be able to look at which are the statutory provisions or judicial precedents dealing with hate speech..“Once there is an incitement to violence, when you reduce it to the level of hate speech, you are actually losing the gravity of what has been done. A call for genocide, for example, cannot be reduced to a mere instance of hate speech..We need to make a clear, categorical distinction first. We need to have the idea that hate speech is not free speech. Or rather, hate speech does not have the protection which free speech is entitled to have under Article 19(1)(a) of the Constitution. This distinction is significant..Hate speech doesn't get constitutional protection. It is something different, and it goes against constitutional morality in public discourse. In a way, it also reflects the quality of our polity. From different spheres of history and different stages, you get different levels of national discourse. Those levels of discourse also indicate, in one way or another, the quality of politics at that relevant point of time in history..Also read: Why is free speech different from hate speech?.To understand it better, take for example, the Constituent Assembly Debates. The kind of morality which was encompassed in the entire polity during the freedom struggle, that quality you get in the deliberations as well. It is not just the manifestation of the education level of the assembly members; there were many people who weren't educated from the West, who didn't even have indigenous higher levels of education, but who performed very well during the debates. This means that the discourse reflects, in any deliberative democracy, the quality of the polity..In contemporary India, hate speech also indicates the low level of politics, especially communal politics, going on..Now, coming back to your question as to what are the laws. We need to understand that there are certain provisions in the Indian Penal Code [IPC], and also in special statutes, such as the Representation of the People Act, 1951, or the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, dealing with certain instances which are styled as offences, which might include instances of hate speech as well..Take for example, Sections 153 (wantonly giving provocation, with intent to cause riot), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence), 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) and 298 (uttering words, etc., with deliberate intent to wound the religious feelings of any person) of the IPC, as well as, in certain instances, Sections 120B (punishment of criminal conspiracy) and 120A (definition of criminal conspiracy) of IPC. When you analyse these provisions, you might find a component of hate speech in these offences, specifically those defined in the IPC. Incitement to violence, for example, or any kind of offence falling under these categories, may involve hate speech. But hate speech need not always be an offence. These provisions may contain elements of hate speech, but every instance of hate speech need not necessarily be an offence either..“Hate speech, even when it doesn't fall within the ambit of penal offences, is equally dangerous to democracy, to a plural society, to a society based on Constitutionalism, especially a Constitution having in its Preamble notions such as equality, dignity, fraternity and liberty..This distinction is very important. For example, see two cases before the Supreme Court. One is the Sudarshan TV case, which is currently pending and is being considered by the Supreme Court. There, a programme was telecast by Sudarshan TV describing a particular community or its members involved in certain activities which results in obtainment of higher share of employment in the UPSC services. It was not supported by any cogent or scientific material or data. But that in itself may not probably lead to incitement to violence. Therefore, what is involved in the Sudarshan TV matter is something like hate speech simpliciter, which nevertheless is equally pernicious in the moral or political parlance. Merely for the reason that it doesn't attract a provision in the IPC or in any special statute doesn't mean that it doesn't harm the society, or that it doesn't harm the nation..You will find a famous speech by British Parliamentarian Lord Bhikhu Parekh about hate speech in which he says that it lowers the tone of public debate, or rather it refuses to accept others as equal citizens; it enhances the level of mistrust and hostility in society; it diminishes the dignity of citizens. All these are instances that harm the nation and the people. That's why even when some comment might not amount to a particular offence, it is offensive in the broader sense of the term to the society at large. Therefore, we need to guard against instances of hate speech as it happens on social media, or on other digital platforms or elsewhere..This kind of hate speech has been the subject matter of certain judgments even in the Indian context. For instance, the Supreme Court, in Babu Rao Patel versus State of Delhi (1980), talked about the impact of hate speech on society at large. Another relatively recent Supreme Court judgment would be Pravasi Bhalai Sangathan versus Union of India (2014). These are cases in which the Supreme Court has not extended protection of Article 19(1)(a) to instances of hate speech..There is no fundamental right to hate speech in the Indian context, unlike the situation in the U.S., where to some extent hate speech is protected by the First Amendment, unless there is some kind of incitement or capacity to incite or produce imminent lawless action. In the latter situation, such speech would be impermissible. That is what the U.S. Supreme Court said in Brandenburg versus Ohio (1969)..The Indian Supreme Court has delivered several recent judgments on hate speech: Tehseen S. Poonawalla versus Union of India (2018), Kodungallur Film Society versus Union of India (2018), and Amish Devgan versus Union of India (2020).The Amish Devgan judgment draws a fine distinction between hate speech and hate crimes. It is jurisprudentially correct and doctrinally impressive..“When we discuss hate speech and the laws related thereto, we cannot segregate legal and theoretical discussion from the ongoing political process in the country. It is the politics which determines the application of law..To put it in a single sentence, hate speech, even when it doesn't fall within the ambit of penal offences, is equally dangerous to democracy, to a plural society, to a society based on Constitutionalism, especially a Constitution having in its Preamble notions such as equality, dignity, fraternity and liberty. This is one part of it..The second part involves situations where there are aggravated forms of hate speech that have the tendency to incite violence in society. The glaring example is the so-called Haridwar hate speech. It's actually a call for genocide, and shouldn't be reduced to an instance of hate speech. We need to understand that U.S.-based non-profit organization Genocide Watch has warned that India is moving towards a dangerous situation because of calls like this. We should guard against the possibility of such unfortunate divisions and other kinds of happenings in the future..This kind of aggravated forms of hate speech which have the tendency to incite violence or genocide should be treated as a category in itself which is not hate speech simpliciter; which definitely falls within the ambit of penal offences like sections 153, 153A, 295A, 298 etc. of IPC and other specific offences under the respective enactments, depending upon the content and context of the speech..Whether these amount to an offence, or not, they pose danger to the society: how do you deal with them? As I said, we have certain provisions in special enactments and the IPC. There are judgments such as the ones obtained in Pravasi Bhalai Sangathan, Babu Rao Patel and Amish Devgan. But we don't have a special statute on hate speech..Also read: The Rwandan genocide case and its eerie parallels in today's India.Q: Why is it that civil society activists arrested for alleged hate speech during the anti-CAA protests have been in detention and denied bail for years, while Hindutva leaders arrested recently for delivering communal hate speech on multiple occasions are let off easily on bail?.A: The troubling question is what do you do when these laws are selectively invoked. We won't be able to approach the issue as a simple legal issue. The question of hate speech, in the original form as well as in the aggravated form, is a political question rather than a legal question. Of course, it depends upon the political climate. The law's invocation invariably depends upon the political climate. Merely because you have certain laws and certain judgments doesn't mean that those have sanctity as if we are in an ideal democracy ..“We need to invent an alternative politics. This is not a new politics, but constitutional politics. That is why it requires a re-constitutionalization of the polity and of the society..You'll find that many judgments during the Nazi regime rendered by German courts lost their precedential value in the time that followed after Hitler's defeat. That means that at that time, it had political support and therefore, legitimacy. But once you revert back to democracy after the dictatorial/fascist politics of Nazism, you don't attribute sanctity to the judgments rendered in a different political climate, namely the context of Nazi Germany..Like that, in the Indian context, you'll find that the polity and the quality of regime, the quality of day-to-day politics reflects in the application of law..Currently, we have a kind of situation where a majoritarian politics and ethnic democracy are developing. Populism based on religious majoritarianism, divisive politics, communal division, and electoral advantage aimed at by way of divisive strategies have become the norm. When we discuss hate speech and the laws related thereto, we cannot segregate legal and theoretical discussion from the ongoing political process in the country. It is the politics which determines the application of law. That is the reason why you find a contradiction where even a genocide call is taken lightly, or rather taken for consideration only after judicial interference, and many instances of divisive calls for mob lynching or similar calls go unnoticed or ignored or sometimes even abetted by the regime, on the one hand..On the other hand, some people are treated as criminals for innocent jokes or harmless tweets or mere expression of opinion. You've seen what has happened to legislator Jignesh Mevani in Assam, and many others, including many journalists, intellectuals, writers and activists, are put in jail even now for what they did as part of their job or mission. Even they don't know what offence they have committed. So this is how in an ethnic, populist democracy, the law is applied. This is not just a question of theory of law, but of application of law, which is a political question..Also read: Umar Khalid and Jignesh Mevani experience the high-handedness of law.Once we understand this, we shall be able to have a clear idea regarding how the laws are invoked in the country. Taking it through from what I've tried to indicate, it is rather advisable not to have an anti-hate speech statute, as the one available in Canada. In Canada, there is a separate charter prohibiting hate speech and making it an offence. This special charter was discussed and elaborated in the Canadian Supreme Court judgment in Saskatchewan versus Whatcott (2013). Here, the jurisprudence of hate speech was elaborately discussed. A part of this judgment was quoted by our Supreme Court in Pravasi Bhalai Sangathan..Let us imagine that we clear off the deficit of a hate speech law in India. Suppose we make a law; then also the same problem is there, namely the selective application of law. Therefore, you cannot treat it as a mere legal deficit. It is actually a deficit in the quality of polity where hate speech operates in, such as the Haridwar event. What we lack is not a special enactment, but a democratic politics that reflects Constitutional morality. Unless we are able to evolve or get back a polity based on the Constitution, any promulgation of a special law is not going to solve the issue..“In the present scenario, in which aggravated hate crimes, including the open, public appeal for genocide, is recurring at an enormous level, the Supreme Court should step in, and seriously think of making a judicial legislation on this aggravated call for genocide, or aggravated instances of hate speech, especially when it is happening in an organized manner, with the support of formal political groups..Now, we are under a regime that doesn't believe in the ideology of the Constitution. You cannot therefore expect the application of Constitutional morality in day-to-day affairs. Even invocation of penal laws ignores application of constitutional morality. It is not just a definitional application of certain provisions here or there. At the end of the day, in a sentence, even the law, in theory and in practice, reflects political ideology..I've written elsewhere that every piece of legislation, for that matter, is a political statement. You take, for example, the recent Criminal Procedure (Identification) Act, 2022, which gives wide powers to the executive to have data of persons suspected, not even convicted, which sees the citizenry as a whole as potential prisoners. Now, where the State gets unlimited power over the body and mind of each and every individual, dispensing the very idea of bodily integrity and individual privacy, that is a political statement in the theoretical realm of the law. Political statements can happen both in the text of the law, as well as the application of the law..Therefore, what happens is that in the Indian context, we need to strengthen institutions of the Constitution on the one hand, and strengthen the political consciousness of the public at large, along with the institutions, on the other. Rather, to put it very bluntly, we need to re-constitutionalize the society which is currently being de-constitutionalized by the regime and the political front running the regime. Unless and until you are able to induct constitutional politics into the existing state of affairs, you won't be able to have a meaningful discourse on hate speech. It is closely interconnected with day-to-day politics, and with the electoral or political regime governing all of us. Therefore, there is a political issue..Q: What are the means to tackle this?.A: First, we need to act at the institutional level. The Supreme Court has intervened in the Haridwar genocide call (I won't call it as 'Haridwar hate speech case'; it is the 'Hardiwar genocide call case'), albeit in a limited manner. Certain directions were issued, which were not properly implemented but for some cosmetic purpose, certain registration of crimes here and there after being compelled by court directives, have occurred. That is one indication that implies that the judiciary as an institution can intervene in such instances..Even in the Sudarshan TV case, the Supreme Court has intervened, and there was an injunction against the telecast of the programme, which is still continuing. These are definitely positive signs, which indicate institutional possibilities. This is something which we need to preserve, encourage, and enhance. This stream of Constitutional interventions by institutions under the Constitution, especially the judiciary, could be efficacious. This is one silver line which we see, the protection of which requires public support, which will enhance the legitimacy of court directives..Along with these silver linings, we need to cultivate popular/public perception against hate speech and aggravated forms of hate speech. This is the second level..You'll find that after the unfortunate violent attacks in Jahangirpuri, people joining together against hate mongers, against divisive politics, and against strategies of persons who take hate speech as an ideology. The people, irrespective of religion or community, raise their voices against divisive politics. That again, is a silver lining..“In the Indian context, we need to develop the first positive stream of constitutionally motivated interventions of the judiciary, and we should discourage the process of abusive judicial review, for which also there is potential in the Indian context. That kind of discouragement can only happen with the help of an alert media, a democratically evolved stream of journalism, and the activism of public intellectuals..These two areas indicate two streams which are absolutely required for the restoration of polity and democracy in our country, which alone will be able to deal with continuing instances of hate speech and aggravated hate speech. One is institutional, and the other is a purely people's movement. These two also have some direct linkages with each other. Therefore, a movement including the media, public intellectuals, social activists, even residents' associations, lay[wo]men, everyone – a mass movement at the level of consciousness, needs to be developed against the politics which flourishes on hate speech. We need to invent an alternative politics. This is not a new politics, but constitutional politics. That is why it requires a re-constitutionalization of the polity and of the society..Also read: The Haridwar hate assembly: The answer to divisive politics is not law alone, but also civil society mobilisation.Q: You say that right now, this is not a legal problem, but a political one, and have suggested certain structural, long-term changes. In the immediate short-term, because you're saying that the political regime is responsible for the selective application of laws, do you think that there's a larger role for the judiciary to play because the judiciary is not a political institution? In the Haridwar case, you pointed out that due to the Supreme Court's intervention, certain cosmetic steps were taken. But one of the perpetrators who was let out on bail, is participating in similar events in other parts of the country, in flagrant violation of his bail conditions. Should the judiciary therefore play a more proactive role in the short-term?.A: In the Indian context, very often, instances of hate speech involve horizontal rights' violation. It need not be necessarily the State violating the rights of the individual at the vertical level. It can also be one social group, such as the majoritarian religious group, attacking the rights of the minority group. You'll find such cases in the Western context. For example, Shelley versus Kraemer (1948) by the U.S. Supreme Court deals with horizontal right violations. Similarly, the German Luth case (1958) also deals with horizontal right violation. Certain indications have been given on horizontal right violations by our Supreme Court. But this is a branch of law that remains rather underdeveloped in the Constitutional context in India..Suppose a societal group or a person belonging to that group, violates a fundamental right of a person, such as dignity, which is now protected under Article 21 of the Constitution, or privacy, which is also protected under Article 21, especially after Puttaswamy. What is the legal remedy? Is it a situation where a party can only go to a civil court or a criminal court? I think that there should also be a kind of larger Constitutional remedy in such situations resembling the intervention of the U.S. Supreme Court in Shelley or the German court in the German Luth case..Take, for example, that hate speech happens, and someone is subjected to damages on account of that. Because every instance of hate speech has the effect of creating hostility, making someone isolated from the mainstream, and diminishing the human dignity of certain persons, among other things. In such situations, rather than invoking conventional remedies of civil suit for damages, or criminal prosecution by way of a police case or a private complaint, the Constitution should also find such instances as cases of rights violations, and there has to be interference and interventions in those kinds of situations. The Court should prompt the institutions and individuals running them to act timely and effectively..Look at the genocide call, where at least for the time being I find a deficit in the court's intervention. The court has been, so far, trying to invoke conventional mechanisms, like the local authority in a particular state. You'll find interim directions issued in the Haridwar genocide call case. The court has issued certain directions enabling the petitioner to approach the local authorities. The court has also called for certain reports from the bureaucrats concerned. Of course, so much so good. But in such cases, follow up actions are absolutely necessary. That is needed in the Haridwar episode..Ultimately, in cases like this, Indian courts may have to evolve mechanisms where the targeted groups or affected individuals are compensated, or rather, certain prohibitory orders are issued, as it has been ideally issued in the Sudarshan TV case. That is the proper approach. The Supreme Court bench in the latter case said that the gag order is an extraordinary step, but in the Constitutional sense, that was an imperative. That was rightly done in the Sudarshan TV case. This type of intervention is needed..As of now, genocide calls are occurring day-by-day. Then, I'd suggest that it should not be left to the lawmakers (because lawmakers might not be interested in tackling this, since they are often the political beneficiaries of this – they abet it, indulge it, or sometimes even get involved in it with a certain political agenda). If you think that the Parliament is going to make a law dealing with hate speech, you're wrong. That's not going to happen. Therefore, I'd say that in the present scenario, in which aggravated hate crimes, including the open, public appeal for genocide, is recurring at an enormous level, I think the Supreme Court should step in, and seriously think of making a judicial legislation on this aggravated call for genocide, or aggravated instances of hate speech, especially when it is happening in an organized manner, with the support of formal political groups..Therefore, you're in a dilemma. On the one hand, you find the serious repercussions and dangers of hate speech or its aggravated form, and on the other hand, you find that the existing political regime is not going to prevent it by legislative means or executive action. This is the kind of dilemma in which citizens are placed; this is the dilemma which the court is concerned with. Yet this is an Indian reality. Therefore, rather than thinking that the Parliament will pass a law against hate speech or aggravated forms of hate speech, or that there will be Parliamentary desire to deal with instances of genocide call, the Supreme Court may have to evolve, in the Vishakha line, judicial legislation dealing with instances of hate speech and its aggravated form, and particularly guaranteeing that such instances are not dealt with selectively by the Administration based on the diktats of the political regime of the time..Also read: Concerns over increasing hate speech and judicial inaction.Also, there has to be a judicial watch. There must be a juridical mechanism ranging from the Magistrate level to the Supreme Court level. So, some mechanism, some device would need to be evolved while formulating this judicial legislation governing instances of genocide call or aggravated forms of hate speech. Constitutional courts should take the issue of horizontal rights seriously. The impact of those violations at large will have to be taken care of in judicial legislation. That is what happened in the Saskatchewan case at the Canadian Supreme Court. The court said three things when dealing with hate speech:.Firstly, apply your provisions on hate speech objectively, which means that it cannot vary from person to person, or one political party to another, one community to other community, majority to minority. There has to be uniform and objective application of law, which the judiciary should be able to take care of..Secondly, you will have to give a restrictive meaning to hate speech. Only when it has an extreme manifestation of raising emotions so as to damage social or communal fabric, you should apply it. The idea should be to limit the restrictions, so that the action does not meddle with freedom of expression. In a democracy, many kind of expressions or opinions could be offensive. Right to offend must be different from hate speech. You always need to have the right to offend, which is distinct from the right to hate speech. So, this distinction will have to be drawn by a restrictive application of the law..Thirdly, institutions will have to assess the effect of expression. Something which is styled as hate speech may be disparaging, unwarranted, or in distaste. Even in that case, you'll have to see its effects on society to call it an instance of hate speech. That kind of distinction is also important..All these guidelines laid down by the Canadian Supreme Court may be relevant in India too. The Amish Devgan judgment of the Indian Supreme Court clearly lays down the law on this point. Yet, a judicial legislation on aggravated forms of hate speech, which is capable of dealing with incidents such as the one in Haridwar, will be extremely important in the Indian context..Q.: Do you anticipate or expect the Supreme Court, as it is today, to take a step like it did in Vishakha, and come up with such a judicial legislation?.A: That depends upon how the process of judicial review is carried out by the constitutional court in hard times, in tough political times. You find examples of both. You'll find a famous paper on abusive judicial review by American legal academic David Landau and Australian legal academic Rosalind Dixon, in which the authors raise the proposition that in certain populist democracies, the judiciary is abetting democratic erosion, or rather the judiciary abets the executive action of sabotaging democracy or destabilising Constitutional institutions. Take the example of Brazil or Russia or Poland – many such countries – where the court as an institution is abetting democratic erosion. That is why they term such situations as instances of 'abusive judicial review'..“The public criticism of the Supreme Court has yielded good results, and that played a significant part in altering the people's perception of the Supreme Court within the institutional limits..Even in the Indian context, in the instances where there were blatant attacks on constitutional ethos – take for example the demolition of the Babri mosque (and we know what the Supreme Court has said in the judgment – it justified an action which according to it was illegal, and it wanted the secular State to construct a temple at the place where a mosque was situated). If the court goes in that direction, there is little to hope for..Also read: How far smugglers of hate have taken their battle against the Indian Constitution.But this is only one line of process that could happen. There could be positive judicial interference as well. Even recently in Pakistan, where there was a democratically permitted no-confidence motion; we know how the Imran Khan regime had attempted to sabotage it. But for the Supreme Court's intervention, the fate of that country would have been different. Even during hard times, in a relatively weaker democracy in which the military has a large role to play, you find the judiciary working to preserve the larger Constitutional and democratic ethos..It all depends on the way the court reacts to it. In the Indian context, at least in recent times, there have been certain positive interventions by the court. For example, its intervention in the Pegasus espionage case, an interim order was issued by Chief Justice N.V. Ramana's bench. There are certain other instances, like mob lynching. Take the case of the recent Supreme Court order suspending the sedition law, which indeed is a radical judicial move that has occurred even in an extremely unjust political climate..Another case – take the Brexit judgment of 2019 from the U.K. You'll find that when the executive was trying to suspend the Parliament, the U.K. Supreme Court intervened. That is another indication that in a populist regime, constitutional courts are capable of acting so as to restore democratic ethos. Even when the executive is aggrandizing, even when there are majoritarian impulses, the counter-majoritarian judicial review can work, in appropriate context..In 2018, in Sri Lanka, when the President dismissed the Prime Minister Wickremesinghe, who enjoyed a majority in the House, and inducted Rajapaksa as prime minister, the Supreme Court came down heavily and issued orders preventing Rajapaksa from functioning as PM. As a result of that intervention, Wickremesinghe was reappointed. Now there is a crisis again, which, however, is not merely constitutional but political and economic..So even in concrete political turmoil, you have the card of Constitutional courts intervening in issues. Take the recent Building Bridges Initiative case from Kenya – when the President wanted to prolong his term, the Kenyan Supreme Court intervened. When the President issued a lot of directives in the guise of reformation, which had ultimately the effect of strengthening the seat of power that would have allowed the President to continue as Prime Minister even in a situation when he might have lost the election – that kind of so-called reformation – was blocked by the Kenyan Supreme Court. These are instances which tell you that the court can really interfere..At the same time, you find situations in Hungary, Venezuela, Poland, Nicaragua, and Russia, among others, where the judiciary is simply abetting the executive action of damaging the Constitution for immediate political gains, which Landau and Dixon have described as instances of abuse of judicial review..There is also a dark side of the picture, where there is a long jurisprudence of deferral, as important Constitutional matters like demonetisation or the Kashmir issue or the Citizenship (Amendment) Act [CAA] continue to be delayed indefinitely waiting for decision. You are not deciding it, but prolonging it, keeping things in abeyance, and sitting over that. That has the effect of encouraging whatever is happening. It really fulfilled the purpose of, for example, demonetisation. Now that case is practically infructuous; it has only academic value, not any practical application. It has happened with the CAA also, to some extent. Same happened with the farm laws; ultimately, the Centre was constrained to withdraw it, which didn't happen on account of judicial intervention. That is the second stream, where there is a kind of jurisprudence of prolongation; you're just deferring the adjudication, and aiding the executive..In the Indian context, we need to develop the first positive stream of constitutionally motivated interventions of the judiciary, and we should discourage the process of abusive judicial review, for which also there is potential in the Indian context. That kind of discouragement can only happen with the help of an alert media, a democratically evolved stream of journalism, and the activism of public intellectuals. Lawyers and legal journalists need to be public intellectuals, and we share the responsibility of re-constitutionalizing the country. That is the best and most effective safeguard against all kinds of hate speech..Also read: In the face of orchestrated hatred, silence is not an option, journalists appeal to India's Constitutional institutions.Q: You've indicated the possibility that courts can intervene, and why there is a case for them to, but you haven't answered whether you think it is likely that the current Supreme Court will provide the kind of judicial legislation and moral intervention that is called for..A: You will find that our Supreme Court has been consistently subjected to criticism by intellectuals, lawyers and activists. Some of this has been positive criticism. You'll find that when there is constructive criticism of our institutions, that yields good results..We all know the committed judiciary we had during the National Emergency. After the Emergency, we find that the PIL [public interest litigation] jurisdiction, and PIL as an institution was developed by the Supreme Court itself. The judiciary, and especially the Supreme Court, was trying to regain its glory, lost during the emergency, in the post-emergency scenario. You'll find a lot of socialist interventions, based on the amendments to the Constitution, in the early 1980s and even the 1990s..At the theoretical level, you'll find a lot of judgments highlighting socialist jurisprudence, pro-workmen, pro-common man, pro-adivasi, ranging from environmental protections, to human rights, to prisoner rights, to tribal rights, and so on. You'll find that over a period of two decades, we had a different kind of Supreme Court, which was drastically and qualitatively different from the Supreme Court we had during the emergency. In the like fashion, when we criticise the Supreme Court during the 2018-19 period, and we continue the criticism, there is some deviation, and some positive signal here or there (although I admit that not everything has changed), as indicated in the Pegasus order and the recent intervention in the two hate speech cases, and many other such cases. The Supreme Court made an effective intervention in the COVID vaccine policy case as well. The interim order on May 11 by the Supreme Court on sedition also illustrates this point. So that kind of change is also happening..How do institutions change? Institutions, including the judiciary, don't change on their own. Institutions change only when there is a political climate warranting, or rather constraining, them to change, imposing that kind of thinking upon the institutions. That happens only through public criticism and popular interventions – interventions by the media, the public at large and different sections of the society..Also read: Reforms that India needs to fulfil its Constitutional goals.Viewed so, the change which is now happening in the Supreme Court, at least indicates a Supreme Court of possibilities. I won't say that everything has changed for the good in the Supreme Court; nor I would say that the Supreme Court is going to be a perfect guardian of the Constitution, by all counts. There are issues that are yet to be tackled; there are serious cases which are still pending adjudication; there are cases which have even lost their relevance on account of the jurisprudence of deferral adopted by the Court. Still, I think that the public criticism of the Supreme Court has yielded good results, and that played a significant part in altering the people's perception of the Supreme Court within the institutional limits. Therefore, I think there are possibilities. Yet, we need to be vigilant about the functioning of the Supreme Court, and of any other institution under the Constitution, for that matter.
