A series of back-to-back provocative speeches during campaigning in India’s parliamentary elections has brought the issue of “hate speech” in focus.
But politicians accused of inflammatory speeches have rarely been punished, leading to questions about the effectiveness of the current laws.
According to the UN human rights body, hate speech is a term for speech intended to degrade person or group of people based on their race, gender, age, ethnicity, nationality, religion, sexual orientation, gender identity, disability, language ability, ideology, social class, occupation, appearance (height, weight, hair colour, etc), mental capacity, and any other distinction that might be considered by some as a liability.
Hate speech is monitored by a number of laws in India.
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Promoting enmity between different groups on grounds of religion, race, place of birth, language etc is a criminal offence, according to Indian Penal Code (IPC), while the Representation of People’s Act (RPA) forbids the use of undue influence, appeal on grounds of religion, promoting enmity or hatred between different classes of citizens on the ground of religion, race or community and character assassination.
According to the legal experts, many sections of the IPC and RPA forbid hate speech unlike the US elections, in which a politician can employ all kinds of speeches to ridicule a political opponent.
These laws limit freedom of expression with spiteful intention of outraging the religious feelings of any class of citizens of India. The guilty politician could be disqualified from contesting polls too.
“But that has not stopped politicians from making provocative hate speeches,” Colin Gonsalves, a top Indian civil liberties lawyer, told Al Jazeera.
“In fact, this is one of the worst polls in the Indian history which is showing signs of rising communalism. Hopes are being sold by ridiculing caste, religion and sects. These elections have marked a new low in the already strained atmosphere,” he said.
Although the Election Commission (EC) of India – the body that conducts elections – keeps a watch on provocative speeches for political gains, recent events have shown how some politicians have flouted the Commission’s Model Codes of Conduct.
Amit Shah, a close aide of the opposition prime ministerial candidate, Narendra Modi, was momentarily banned by the EC after calling for “revenge” and “to teach a lesson” to people who he said had committed “injustices” in the riot-hit Muzaffarnagar district of northern Uttar Pradesh state.
Shah was banned from making political speeches, but after tendering an apology he was let off.
Azam Khan, senior leader of Samajwadi Party, was banned as well for provocative speech. He is yet to apologise and has in fact, threatened to move the apex court against the Commission’s order.
Last week, Bharatiya Janata Party (BJP) leader from eastern state of Bihar, Giriraj Singh, raised the “hate speech” bar too high in his poll address when he suggested that those opposed to Modi would have to shift base to Pakistan after the election results. Three police cases have been lodged against him, but no arrest has been made so far.
That was not all, Praveen Togadia, leader of a nationalist Hindu party, Vishwa Hindu Parishad (World Hindu Council), part of an umbrella right-wing Rashtriya Swayamsevak Sangh (RSS) of which BJP is also a member – reportedly insisted that Muslims be stopped from “buying Hindu properties”.
The latest in the series of “hate speeches” came from the leader of Shiv Sena – another Hindu right-wing organisation – Ramdas Kadam, who reportedly said “Narendra Modi will destroy Pakistan in six months”.
No strong action has apparently been taken against the leader, leading to questions whether the law has been lenient?
“Courts have been very slack,” said Gonsalves. “And this slackness has a history. If we go back by 15 years we will find the courts have been hesitant to deal with hate speech mongers like late Bal Thackery (a Hindu demagogue).”
“Back in 1995, when the BJP leader Murli Manohar Joshi appealed voters to vote for ‘Hindutva’ [Hinduness] the Supreme Court termed it a ‘way of life’. The problem thus lies in the courageless judiciary. The courts have failed to go against big political figures involved in breaking the society.”
Experts say the electoral body has been over burdened with poll-related work that it is not easier for it to always monitor campaigns and rallies.
The commission, which has recently unveiled new technology to monitor provocative speeches, does not have authority to arrest or enforce laws. Rather it directs police to lodge a case when a complaint is received.
Why does Supreme Court need to wait for the law commission to explain what constitutes 'hate speech'? This is just an excuse for not acting against the politicians
The law, as usual, takes a long time in such cases. In many cases, politicians have easily made it out of the jails, after securing bails. And disqualification upon conviction has not really curbed the criminalisation of politics, because of long delays in trials and rare convictions.
“Our Election Commission is very pro-active. They are trying very hard to make polls a successful exercise. But our legal and judiciary is slow,” another top Indian Supreme Court lawyer, Kamini Jaiswal, told Al Jazeera.
“In the current hate speeches row,” she said, “the accused have been dealt very leniently. The crucial law has to be brought in motion. It also depends on how many people who have witnessed the hate speech report it. People too need to be pro-active.”
An email questionnaire sent to the office of Akshay Rout, Director General, Election Commission of India, yielded no response.
In the sub-continent, Indian Supreme Court is known for many landmark judgments. But the apex court lawyer Gonsalves says when it comes to hate speeches “Supreme Court’s history is generally not good”.
Dichotomy within judiciary
In fact, the dichotomy within judiciary, experts say, is reflected in some of the Supreme Court’s recent orders.
In one such case, for example, the top court dismissed a plea on March 3, 2014 seeking court’s direction to check politicians from making “provocative and hate speeches” saying that it cannot curtail people’s fundamental right to free speech.
“We cannot curtail fundamental rights of people. It is a precious rights guaranteed by Constitution,” the court observed, adding, “we are a mature democracy and it is for the public to decide…One is free not to accept the view of others.”
On March 12, another bench of the top court asked India’s Law Commission to examine as to what would constitute the term “hate speech”.
“Why does Supreme Court need to wait for the law commission to explain what constitutes ‘hate speech’? This is just an excuse for not acting against the politicians,” argued Gonsalves.
Interestingly, the Law Commission has recently suggested its recommendations to the Indian government on reforms in electoral laws, upon the direction on Supreme Court only.
But legal experts say no government would like to frame laws by adopting such recommendations on electoral reforms.
“Election is a game of numbers. No party would like to adopt the law that risks their chances of getting to these numbers,” said Jaiswal.
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