The nefarious project of drenching a large section of the society into the crucible of majoritarian communalism by the Hindutva forces is corroding India's pluralistic and social fabric..—–.THE vitiation of public discourse by injecting a continuous and visceral dose of hate speech by Hindu Right has reached an alarming everydayness in India. It is not just the hate-mongers who revel in spewing anti-Muslim hatred, even ministers and members of the ruling Bhartiya Janta Party (B.J.P.) actively participate in it. Some, who cannot, owing to constraints of their constitutional post, resort to subtle dog-whistle. .This may make many wonder whether we will soon have a constitution sans constitutionalism..This observation, at first blush, may sound to be dreary to some, and misplaced to others. However, if one were to survey the incidents of the last few years, where violence and cruelty were preceded by hate speech, the egregious transformation of India's political ethos won't be much difficult to identify. Recently, Muslim traders were not allowed to set up their stalls during temple festival by relying on some obscure law. The physical violence, discrimination, and dehumanization against Muslims has now become endemic, and is gradually getting normalized. .Meanwhile, the shadow of impunity under which the 'smugglers of hate' operates, and purveys raw hate sans any fear of backlash either from the state or society, has both emboldened the hate-mongers and exacerbated the menace of divisive politics in India. Ideally, one would have expected that the democratic institutions- both created by the constitution and State – would contain, if not stop, the onslaught of this rabid majoritarianism. However, these institutions have utterly failed either by their omission or commission. .Although there are many target groups at which these hate speeches are directed, in that order, Muslims are at the top and even an all-time favorite of the Hindutva forces. A recent report released by the Delhi-based socio-cultural organization, Act Now for Harmony and Democracy (ANHAD), in the form of a book entitled Hate Grips the Nation, details cases of rising hate speech and hate crime in India. The reports show, with empirical data, the upward spiraling of hate crimes against the minorities, especially Muslims (73.3%) and Christian (26.7%) communities in India. .Also read: The Rwandan genocide case and its eerie parallels in today's India.Hollowing of democracy .Hate speech is a contested terrain; therefore, it is no surprise that there is no consensus as to what constitutes it. However, there is a general understanding globally that speech that incites violence or discrimination against racial, religious, or ethnic groups, constitutes hate speech. Political scientist Bhikhu Parekh identifies three essential features of hate speech :.It is directed against a specific or easily identifiable individual or, or more commonly, a group of individuals based on an arbitrary and normatively irrelevant feature. It stigmatizes the target group by implicitly or explicitly ascribing to it qualities widely regarded as highly undesirable.Because of its negative qualities the target group is viewed as an undesirable presence and a legitimate object of hostility..What is happening in India has all the above elements mentioned by Bhiku Parekh which constitutes hate speech. Additionally, in India, given that those who indulge in hate-mongering and the party which is in power at the Centre subscribe to the same ideology, makes things pretty alarming. .If one looks at the narrative of love-jihad, mob vigilantism in the name of cow protection, anti-conversion laws, and the language and symbols used to convey the message to its constituency by the Hindutva forces, they simply qualify as hate speech. .Moreover, there is an instrumentality of hate speech. According to historian Charu Gupta, "Hate speech is always repeatable speech, drawing its strength from stereotypes and rhetoric… Different events are made to appear to follow a similar pattern- a narrative of luring by Muslim male in the name of love and Hindu female victimhood. In repetition lies its strength, and one of the primary sources of communal power: its ability perpetually to renew itself through reiteration, and its authority as supposed truth and "common sense"..The worldview of Hindutva is essentially guided by constructed myths, and hate speech acts as a vehicle that facilitates the dissemination of these myths to a wider audience. There are different actors who work in a coordinated manner in the communal scheme. One such, according to political scientist Paul Brass, an authority on communal violence, is 'fire tenders', who "receive information, coordinate activities of their party workers, go to scenes of actual or potential conflict, and make speeches that can either dampen, arouse, or inflame local sentiments". .It needs to be noted that violence (necessarily but not always) is innate in hate speech. This violence has both short and long-term consequences. Besides the immediate physical bodily harm that the victim of hate speech has to go through, it even changes the inter-community relations forever at the societal level. Discrimination against the victims of hate, over a period of time, also gets entrenched by robing them of their dignity. All these lead to a situation where the notion of citizenship in which individual dignity and equality are inbuilt gets undermined. .Also read: Hate speech and hate crimes: Law and politics.Another spine-chilling aspect of hate speech is that it's the prelude to genocide. What happened in Germany to the Jews under Nazis in the 1930s or the massacre of Tutsis in Rwanda at the hands of Hutus are cases in point. And in both the cases the acts of inhumanity started initially with fomenting hatred against the respective minority. Genocide was just the culmination of this year-long hatred that was supplied in the society. .What happened in the fall of 2021 at Haridwar- where, in the name of ostensible religious gathering, calls for the mass killing of Muslims were made by saffron-clad Sadhus – was a step towards this genocidal road. .“"Ideally, one would have expected that the democratic institutions- both created by the constitution and State – would contain, if not stop, the onslaught of this rabid majoritarianism. .Genocide is not just an act, but a process. Gregory Stanton, the founding president of 'Genocide Watch' said in an interview with TheLeaflet that there are noticeable signs of the genocide of Muslims in India. Pratap Bhanu Mehta recently observed with a deep lament that "Almost all the preconditions for widespread pogrom-type violence are now placed in India. You must dread the thought that India has reached a point where the question is not "if" but "when"..Anti-hate speech laws .There is a philosophical and academic debate on whether hate speech should be regulated or not in a liberal democratic polity. The proponents who are of the view that hate speech should not be regulated reason that no matter how obnoxious an idea or opinion is, it should be contested in the "marketplace of ideas" so that the truth comes out. The proponents who think that hate speech should be regulated argue that hate speech does much more harm than what it claims to uphold or safeguard. .As Bhiku Parekh perceptively observed while making a case to regulate hate speech, "Social harmony, public faith in the legitimacy of the political system, equality of treatment, and the right to live one's life without harassment and intimidation are also an important value. It is difficult to see on what grounds free speech can be made a "preferred right" and allowed always to trump them. …Hate Speech …[even] weakens democracy by arousing passion…" .Political philosopher Jeremy Waldron in his book The Harm in Hate Speech argues that hate speech should be regulated for two reasons- that is, it harms the public good of inclusivity and dignity. .Also read: How far smugglers of hate have taken their battle against the Indian Constitution.Free speech is very important in a democracy, and normally speech should neither be curbed nor regulated, provided it doesn't become detrimental for the public at large. Hate Speech should be allowed insofar as it criticizes, satirizes, or, even be obnoxious; however, when this threshold is crossed, and it reaches the level of incitement to violence or hatred, regulation should kick in. So, hate speech per se is not problematic, but the context, content, who, and where it is being said also are determinants that need to be taken into account before any regulation is considered. .The response to this debate is quite mixed, and it also corresponds to and is inspired by the historical and cultural context in which it takes place. Therefore, different jurisdictions have different mechanisms to cope with the issue of hate speech. .For instance, in the U.S.A, given its strong liberal tradition and owing to the principle incorporated in the First Amendment, except few limitations like imminent danger, national security, etc., there is absolute freedom of speech, which even includes hate speech. .However, in other jurisdictions like Germany and South Africa which has a history of anti-Semitism and apartheid, respectively, there are limitations on the right of speech, if it amounts to incitement to violence or hatred pertaining to anti-Semitism or racialism. In Canada, violations of "human rights" by way of hate speech is also a ground to regulate it. However, in India, the protection of religious sensibilities and from caste-based slurs is the objective of anti-hate speech laws. .Marketplace of outrage .In India, there is no categorical law which is designed to deal with hate speech crimes. However, there are a slew of other laws in India that are in place to address the issue of hate speech. They are Sections 153A, 153B, 295A, 298, and 505, of the Indian Penal Code. Further, there is a set of governmental and judicial guidelines. Despite these legal instruments, India has been grappling with the issue of hate speech, especially pertaining to religious ones. .This problem exists due to various reasons. Prominent among them are, vagueness in the law; inconsistency in the application of the law; and subjectivity. A quick perusal of the judicial history of these laws shows that it has colonial provenance, and post-independence, India adopted it the way it was or made amendments to it as and when required. In short, the words of the laws may have got modified, but essentially the spirit and design of the law to tackle hate speech has a colonial understanding of India's culture, society, and Hindu-Muslim relations..Smarika Lulz and Michael Riegner argue in Freedom of Expression and Hate Speech that the hate speech laws in India mainly capture the tension between particularistic understanding of free speech and universalistic understanding of free speech. The former's rationale to regulate hate speech is "public order" and "morality", however, the latter is guided by the principles of inclusion, 'equal dignity', and 'equal participation' in regulating hate speech. The emerging jurisprudence on this issue corresponds more to the rationale of the latter than the former. .This is best captured in the judgment of Pravasi Bhalai Sangathan versus Union of India (2014) where the rationale behind regulating hate speech was based on the protection of the marginalized communities rather than the "public order" or "morality" considerations which is usually the case. .Even in the case of Sudarshan T.V and Amish Devgan cases, the Supreme Court has acknowledged the harm caused by hate speech. However, nothing substantial was done by the court in these two cases except that the accused were reprimanded mildly. This, perhaps, was the opportune moment for the court, given the social and religious disharmony India is witnessing, to come up with judicial legislation addressing the issue of hate speech; however, the court let this opportunity go..The major problem on the part of the judiciary is that there is stark inconsistency, if not a double standard, in the application of laws, especially when it comes to cases related to hate speech or speeches that lead to incitement to violence. .Take for example, the judicial treatment meted out to Umar Khalid for organizing protest against the controversial Citizenship Amendment Act,2019 (CAA) by a lower court in Delhi, and to those who organized a counter-protest/mobilization against Khalid's protest by the Delhi High Court. .It was said by the lower court that Khalid, in creating a 'critical mass' of Muslim protests, communalized the political space and incited violence. While the Delhi High Court said in regard to the counter-protest/mobilization that "if you are saying something with a smile then there is no criminality [no matter how inciteful the statement is] …" .In her observation of this judicial dichotomy, Supreme Court advocate Shahrukh Alam wrote that, "Judicial reasoning very often involves subjective assessment, and judges often interpret and understand facts on the basis of perception, and social and political views." .Consistency, uniformity, and objectivity, are very important while adjudicating any case. However, in cases related to hate speech and hate crimes, the judge needs to be extra conscious in the uniform application of law because the repercussions of these crimes are not just confined to an individual, but it even hampers society. And doing this would only act as a deterrence against hate speech and hate crime. .“"The major problem on the part of the judiciary is that there is stark inconsistency, if not a double standard, in the application of laws, especially when it comes to cases related to hate speech or speeches that lead to incitement to violence. .The problem with hate speech is also that it leads to structural violence, and there is an element of power play in the way this politics of free speech operates in India. Often, the hate speech laws are used simply for the sake of mobilization by the dominant class or religious group for asserting their social status or to force people to respect their religious sensibilities. Even the judiciary in such cases has privileged "public order" over "free speech", which has further exacerbated the crisis. .Thus, these hate speech laws are indeed protecting the religious sensibilities, but only of the socially and politically powerful. In India, hate speech laws are more about providing legal immunity to the moral injury of power welders than furthering the cause of free speech. Thus, the Indian hate speech laws, and its interpretation by the courts, are guided more by the principle of "marketplace of outrage" than the "marketplace of ideas". .Democratic backsliding .The spate of violence against Muslims owing to hate speech has pushed them outside the public space, making them stand on the margins. This, therefore, has served a severe blow to democracy as public space with element of pluralism and diversity is one of its constitutive elements . .India has been witnessing democratic backsliding since the last few years. Things have come to such a pass that international reports and political scientists argue that India has morphed into an "ethnic democracy". Though there are many indices on which these findings and observations are based, one such is the continuous persecution of minorities at the hands of militant mob, that is, non-state actors. Hate speech has enabled and facilitated this democratic degeneration to a large extent, among other things. .The culture of violence, which is the consequence of these hate speeches, besides undermining the rule of law, has also veered Indian democracy on an authoritarian path..Quest for new politics.There is a method in this madness, and this can be explained by the logic of electoral considerations. The script, if one examines the communal violence of the past few years closely, incited mainly by hate speeches, suggests that the objective is to compartmentalize the society into two permanent communal blocks..This perverse understanding of democracy in the form of permanent majority and minority is shared by almost all right-wing forces globally. .Another explanation of this brimming communalism can be explained by the framework of 'cumulative radicalization'. This formulation by British historian Ian Kershaw was formulated to study Nazi Germany as to how a modern society got so radicalized during the 1930s. .“"The dramatic spurt of Dharma Sansads, mainly by unemployed communal entrepreneurs, shows how there is a madness among them to demonstrate one's rabid communal credentials. The objective is to ingratiate oneself towards the power centers..The dramatic spurt of Dharma Sansads, mainly by unemployed communal entrepreneurs, shows how there is a madness among them to demonstrate one's rabid communal credentials. The objective is to ingratiate oneself towards the power centers. .The solution, or the antidote to hate speech, according to academics and philosophers, is counter-speech. But would it be efficacious given the trend of rabid communalism, and anti-Muslim hatred constituting the core of the political culture, in India? The answer to this seems hopeless, if not a clear no. .The nation has no option, but to imagine a new politics, one based on the values of the constitution, to put a brake on the menace of hate speech in India.
