While the line between hate speech and free speech is too thin to be overlapped, it is being crossed in many countries by both State and non-State actors to inflict violence and death on religious and ethnic minorities.
ON November, 2020 The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 came into being, which was subsequently passed by the UP Legislative Assembly in 2021 as an Act. Under this Act, a person can’t change their religion without giving a prior notice to the district administration. In fact, a marriage where either of the parties have changed their religion without going through a thorough governmental scrutiny is void in the eyes of this law.
On January 1, six students from a government college in Udupi were not allowed to enter their classrooms, because they were wearing the hijab. Later on, it became a state-wide issue when the Karnataka government altogether banned the hijab inside the classrooms of Pre-University colleges. Aggrieved by this ban, Muslim students filed several petitions before the Karnataka High Court on January 31, where they sought the right to wear Hijabs inside their classrooms under Articles 14, 19 and 25 of the Constitution of India. Subsequently, on March 15, the Karnataka High Court upheld the hijab ban, and held that wearing the hijab is not a part of essential religious practices for Muslim women.
In the last few months, several hate speech assemblies have been conducted by Hindu clerics, where calls were given for boycotting Muslim businessmen, raping Muslim women and what not. Both State and non-State actors were involved in these incidents, where not only the rights to freedom of religion and belief were harmed, but an environment of hostility against people based on their religious identity was created.
When an individual’s freedom to follow or practise any religion is robbed against their wishes, it not only alienates them in the eyes of the State, but takes away their right to freedom of expression altogether.
When an individual’s freedom to follow or practise any religion is robbed against their wishes, it not only alienates them in the eyes of the State, but takes away their right to freedom of expression altogether. It becomes especially dangerous, when they belong to a religious minority, making it hard for them to express their needs in the face of a majority not understanding such needs under the garb of legality. So, how do these policies encompass a whole community even when in the face of it only a few individual actors are harmed? And what does the International Human Rights Law say about this?
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Right to freedom of religion and belief
The right to freedom of religion and belief is a fundamental right which enables individuals the freedom of thought, conscience and religion. This also includes the freedom to change one’s religion or belief, and to manifest either alone or in community with others, in public or in private one’s religion or belief in worship, teaching, practice and observance.
The freedom of religion and belief has an individual element in it, but in countries where systemic discrimination on minorities is meted out, religious discrimination from both State and non-State actors has a trickling effect, for even when non-State actors are responsible for such instances, they happen because the State has created an atmosphere where culminating such instances doesn’t have any consequences.
Article 18(1) of the International Covenant on Civil and Political Rights, 1966 (‘ICCPR’), Article 18 of the Universal Declaration of Human Rights, and Article 9(1) of the European Convention for The Protection of Human Rights (‘ECHR’) explicitly enable these, and not only protects theistic, non-theistic and theistic beliefs, but the right to not profess any religion or belief, altogether.
The freedom to manifest one’s religion or belief covers a broad range of acts across worship, observance, practise and teaching. It includes ritual and ceremonial acts giving a steady expression to such belief, practices which are integral to such acts, that is, the places of worship, display of symbols, following certain dietary habits, wearing distinctive clothing or head coverings, and so on.
Article 18(2) of the ICCPR bars coercion that would impair an individual’s right to have or adopt a religion or belief, including the use of threat or physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Article 1 of United Nations (‘UN’) Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief of 1981 also provides the same assurances of the freedom of religion and belief, which also includes the “freedom to have a religion or whatever belief of his choice”, and further provides in Article 1(2) that no one will be subjected to any form of coercion which would result in an impairment of their freedom to have a religion or belief of their choice.
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Restrictions on freedom of religion and belief
Essentially, the freedom of religion and belief has an individual element in it, but in countries where systemic discrimination on minorities is meted out, religious discrimination from both State and non-State actors has a trickling effect, for even when non-State actors are responsible for such instances, they happen because the State has created an atmosphere where culminating such instances doesn’t have any consequences. In essence, both State and non-State actors feed into each other, which in the end results in such discrimination. Some of such discrimination can be overt, while some is protected under the garb of legality and State sanctions.
Under international human rights law, freedom of religion and belief has been categorised into two parts – the right to freedom of thought, conscience and religion, and the right to manifest one’s religion or belief. The right to freedom of thought, conscience and religion implies the right to hold or to change one’s religion , which is absolute in nature. It can’t be interfered with in any way. But Article 18(3) of the ICCPR and 9(2) of ECHR provide for restrictions on the right of manifestation of religion by an individual. Such restrictions can be imposed, when they are prescribed by law and are necessary in nature, for the protection of public safety, public health, or morals, or for the protection of the rights and freedoms of others.
According to the European Court of Human Rights, the term ‘necessary in a democratic society’ implies that such interference must fulfil a pressing social need and must be adequately proportionate to the aim pursued. Proportionality implies that the interests of all the stakeholders must be taken into consideration and balanced against each other. This involves a serious consideration on whether such restriction can be achieved with less discriminatory or restrictive means; a balancing of interests where nobody loses but rights come out as victorious in the end.
So, when a State without any consideration directly bans practices which are part of an individual’s religious belief or their right of manifestation, that action is not only contrary to the principle of proportionality, but shows a lack of intent on their part to accommodate the other person’s interest, especially when they belong to the minority community.
While religious discrimination in its entirety targets a particular religion, it can take adverse forms for linguistic, gendered, ethnic or caste groups across such a religion.
Freedom from discrimination
Discrimination on the basis of an individual’s religious belief, because that person belongs to a certain religion, is a common phenomenon. It is a type of violence inflicted on those people who, according to the religious majority, don’t fit into the part of the national fabric or culture. This type of narrative, in the long run, runs through various organs of the State. Many UN Special Rapporteurs have attested to this through their reports and investigations.
Some of such discriminations include disproportionate bureaucratic restrictions, structural discrimination, and exclusion on various sectors of a society such as education, labour market, housing market or healthcare system. In fact, social and economic boycotts of such communities are very much common in practice.
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Article 27 of the ICCPR provides that in States where ethnic, religious and linguistic minorities exist, such persons in community with the other members of their group, can’t be denied the right to enjoy their own culture, to practise or profess their own religion, or to use their own language. While Article 30 of the UN Convention on the Rights of the Child provides that a child belonging to ethnic, religious or linguistic minorities or indigenous origins can’t be denied the right to enjoy their own culture, or to profess and practice their own religion, or to use their own language.
The 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities talks about these same rights for different categories of minorities, especially Articles 1(1) and 2(1). While religious discrimination in its entirety targets a particular religion, it can take adverse forms for linguistic, gendered, ethnic or caste groups across such a religion. For instance, in India, Bengali-speaking Muslims have been systematically harassed for decades now. They have been otherised in such a way, which not only endangers their identity but brings into question the authenticity of their citizenship in India. Bureaucratic exercises like the National Register of Citizens have categorically aided this narrative over the years for not only Bengali-speaking Muslims, but the Bengali-speaking population in general. In fact, in the cases of women of such minority groups, the danger is maximised.
The Rabat plan of action
There is no definite definition of the term ‘hate speech’. Different organisations and authors have defined it differently according to their own standards. Yet they all have one common aspect, that is, they all have linked hate speech to hatred for particular groups or communities, which has the capability of inciting violence. The UN defines ‘hate speech’ as any kind of communication which attacks, or uses pejorative or discriminatory language, with reference to a person or a group on the basis of their religion, race, colour, descent, gender or any other identity factor.
In the quest between free speech and hate speech, the two human rights are in conflict. On one hand, it is the freedom to convey distasteful opinion or false information, while on the other, the right to not be a victim of discrimination or prejudice, for free speech is not always about statements backed by factual accuracies and reason, but the freedom to speak whatever one wants to.
The Rabat Plan of Action was adopted by the Office of the UN High Commissioner for Human Rights in October 2012 to bring into existence guidelines for domestic legislation worldwide, which would prohibit hate speech against religious, ethnic or racial minorities. While it was understood that the line between hate speech and free speech was too thin to be overlapped, it also came out that this was in fact being crossed in many countries by both State and non-State actors to inflict violence and death on religious and ethnic minorities.
It was also held that while many countries did have laws penalising hatred against racial and religious minorities, they were vague and broad in nature, which led to arbitrary application of such laws. Therefore, the Plan recommended distinguishing expressions in three forms: expression which is criminally punishable, expression which is not criminally punishable but justifies a civil or administrative suit, and expression which comes into none of the three categories, and yet raises alarm on its intensity and expression. Legality, proportionality and necessity which are generally taken into consideration for restricting freedom of speech and expression, should also be considered in cases of incitement to hatred.
The Rabat Plan recommended distinguishing expressions in three forms: expression which is criminally punishable, expression which is not criminally punishable but justifies a civil or administrative suit, and expression which comes into none of the three categories and yet raises alarm on its intensity and expression.
Now, while curbing free speech should be an exception, it’s also important to understand that in an atmosphere where hate against minorities is normalised, frameworks like the Rabat Plan of Action show us a way forward on how to navigate it.
Also read: Right to dissent without violence and hate speech part of freedom
Under the framework of international human rights law, taking into consideration all the stakeholders’ issues, disputes relating to individual rights and State actions are resolved when the aim is to establish a broad framework of rights by establishing a delicate balance. It tries to bring the individual and the State on an equal footing, which domestic legislation and laws are often reluctant to do, where such reluctance leads to impunity, and a blatant disregard for the marginalised and oppressed.
Therefore, outrightly banning pieces of clothing and overlooking hatred for minorities does nothing but shake the balance between State actions and individual rights. It also, at some point, merges the majority and the State into one which, with the State’s already humongous power, dangerously tilts the balance precariously for the individual and their community. This balance is what the international human rights law maintains in a rights-based framework.