Will all states and union territories take SC order seriously and try to implement it in their respective states?

By Narender Nagarwal* and Mohd Naushad Khan^

IN A LANDMARK ruling, the Hon’ble Supreme Court of India considered the hate speeches a deeper problem in Indian society.

In response to Writ Petition (Civil) No.940/2022, Shaheen Abdulla v. Union of India & Others., the court mandated the police force of all Indian states to take suo moto cognizance of hate speeches in their jurisdiction and register the FIRs even if no complaints are filed and any failure to do so will amount to the contempt of the court.

At regular intervals, controversy is purposefully created to instill fear psychosis in the minds of minorities, particularly Muslims with divisive narratives.

The Supreme Court order on hate speech has been welcomed widely but there are many questions which require further explanation like can SC order be implemented when there is political patronage for hate speech?

Will all states and union territories take SC order seriously and try to implement it in their respective states?

Will SC order discourage hate speech in India? Who will be accountable if there is any defiance of the order of SC?

Will state remain neutral and transparent in its identification of hate speeches or will it go down through communal prism as usual in other cases?

Undisputedly, the menace of hate speech has long plagued India’s sociopolitical and legal systems and confronts both constitutional scheme of secularism and pluralism pacification. It is the hate speech that poisons the young minds and instigates them to attack minorities and their places of worship.

The latest court decision is significant, but how it is carried out is mainly up to the State government’s discretion because law enforcement and prosecution are under state jurisdiction.

In the past, the court has also issued a number of preventive orders to forbid religious gatherings and rallies where hate speech was likely to be delivered. For example, on February 3, 2023, the court ordered the Maharashtra government to make sure that no hate speech is delivered at the February 5 rally. The administration was likewise asked to document the rally and submit it in court.

In many cases, when an inflammatory speech was given and the police did nothing, the court has ordered punitive action against the speakers and organizers but they were booked under minor offences. All this happened because the perpetrators of hate speeches having close proximity with the ruling party as they enjoyed state-patronage.

For example, the Delhi Police initially declined to register FIR against Sudarshan News editor Suresh Chavhanke for taking an oath to “die for and kill” in order to turn India into a “Hindu Rashtra,” or a Hindu nation, at a gathering hosted by the religious organisation Hindu Yuva Vahini in December 2021. Nevertheless, the Delhi Police registered the FIR against the channel and its editor after five months delay.

The order of the Hon’ble Supreme Court serves as a welcome deterrent against the backdrop of an upsurge in hateful speeches, whether they be communal, castiest, linguistic, or other types. The latest ruling from the apex court may be useful in discouraging individuals or groups from making such speeches out of concern for police action and criminal prosecution.

But the real challenge is how to implement this order in State where communalism is the substantial apparatus to garner political mileage.

The supreme court ruling can be effectively operationalized if the State administration is serious to curb the hate speeches but it would be challenging to book perpetrators of hate speeches where State itself encouraging or indulging in hate speeches and communal rhetoric against minorities.

To substantiate this argument two cases have been examined-firstly, the BJP spokesperson insulting comments on Prophet Muhammad and Islam on mainstream news channels remained unnoticed by the authorities and courts.

Ms Nupur Sharma comments on Prophet Muhammad were well thoughtful and delivered in planned way aiming to hurt the religious sentiments of Muslim minorities, the comments targeted against Islam were outrageous and nastiest form of hate speech but no action has been taken so far.

The issue becomes protuberant when some Middle East countries reacted sharply and condemn the comments made by BJP spokesperson and even called to boycott Indian goods and citizens working in Gulf region.

In another appalling instance of hate speech, where union minister made open call for Muslims genocide in a political rally in Delhi.

Anurag Thakur’s verbal onslaught against Muslims remained unnoticed by the authorities. Instead the politician was elevated to bigger portfolio in union cabinet. This gesture from the government is nothing but an endorsement of their minister’s verbal attack on minorities.

During election seasons, the politics of compulsive religious hatred pursued by the majoritarian ruling party and its myriad affiliates can hardly be overlooked. The issue is not about whether legal provisions are available or not to contain the hate speeches but political will is paramount.

Even during the government’s response to the COVID-19 outbreak, hatred and religious hostility intensified with the support of media. Notably, the word “Corona Jihad” was first mentioned by the mainstream news channels, which is nothing but worst form of hate speech targeted against Muslim minorities.

The unsubstantial claims and fake stories cooked-up by the channels to malign the Tablighi Jamaat and others but no action has been taken against their poisonous reportage broadcasted daily during the pandemic. Due to malevolent and beleaguered hate campaign by the mainstream channels all Muslims were soon viewed with suspicion.

Markaz was consistently identified by the governments as the epicenter of this “anti-national conspiracy” of the “Corona Jihad”, despite that fact that not a single case come forward where Markaz or Tablighi Jamaat people deliberately or intentionally violated the Covid-19 protocols.

In India, as a whole, Muslims experienced prejudice, hostility, and assaults from both the police and ordinary people. All of this occurred because they were demonized by the government as “spreaders” of the virus and demonized in the mainstream media, this is another form of hate speech broadcasted through national news channels.

There are ranges of hate speech cases-a few of them are highlighted with the support of social media but majority of hate speech cases remained unnoticed. For instance, the HaridwarDharmSansad hate speech programme was not highlighted by the mainstream news media but the social media and finally due to court intervention the police forced to act.

Unfortunately, the case registered against the main perpetrators of Haridwar Dharm Sansad was weak as the police authorities booked Yati Narsinghanand – the main speaker in the event under lighter provisions of law thus enabling him get bail easily.

Shockingly, even after securing the bail, the perpetrators continue to spew their venom against Muslims on different occasions and law enforcement agencies remained mute spectators. The controversial religious leader named Yati Narsinghanand has recently given a number of anti-Muslim hate speeches, including one in which he called for the destruction of mosques.

Even though his hate rant was extensively shared on social media, the Uttarakhand law enforcement officials did nothing to stop him. In majority of cases, law enforcement agencies are reluctant to act against those who spew venom against Muslim minorities out of concern for possible political repercussions.

Yati Narsinghanand has close association with ruling party and its sister organisations, which may have made it challenging for law enforcement to act against him in this instance. Another factor contributing to the sluggish prosecution of speakers of hatred like Yati Narsinghanand is the police forces’ poor application of the law.

Despite the fact that hate speech is prohibited by a number of laws in India, these restrictions are not always properly implemented. Law enforcement agencies might not have the tools or expertise necessary to find and hold accountable who spew hate speech.

Very recently, after the SC order, BasanagoudaPatilYatnal, MLA belonging to the ruling BharatiyaJanata Party (BJP), in the Bijapur constituency of Karnataka recently said, “If you speak about our faith or about India, then you will be shot.”

This open threat was issued by the said MLA as he was speaking about the murder of Atique Ahmed in Uttar Pradesh, saying that this same method will be used in Karnataka too, where decision will be taken on the road.

Raising concern on the implementation of SC order, Praveen Rai who is a Political Analyst at the Centre for the Study of Developing Societies (CSDS), Delhi said, “The SC directed the police to register suo motu FIRs against the offenders in incidents of hate speech without waiting for a formal complaint and any hesitancy to act will be contempt of the apex court. The order seems like an ivory tower due to two primary reasons:

1. It does not take into account the role of media nor puts any reasonable restrictions on social media platforms that make such speeches viral and indirectly provoke religious polarization and social animosity.

2. 2. The police neither have legal intelligence nor training to differentiate between ‘hate speech’ and ‘freedom of speech’, which makes its implementation at ground zero quite difficult.

A better way to handle this communal problem would have been issuing directives to district judges to take suo motu cognizance of hate speech and initiate law enforcement and media to refrain from using hate speeches for political manipulation and stoking religious hatred, and any violation be treated as contempt of high court.

“In this frustrating scenario; Court orders are needed, we must appreciate it. However, we know our system works where it wants to. We do not know how and against whom this order will be used. We have this problem because there is no accountability. Even if we start fixing accountability, considering the way of working, there is doubt that all errant will be held accountable,” said MR Shamshad, senior Supreme Court lawyer.

*Assistant professor, Campus Law Centre, Faculty of Law, University of Delhi 

^Sub-Editor Radiance Views Weekly

___________

Also Read:

TRUTH VS FALSEHOOD: BBC – Who is afraid?

Mughal Gardens – Name Changed, But Why?

Industrialization versus Environmental Degradation

75 years of hope and despair

Punjab – How a deadly cocktail of Agri-Water-Energy nexus going to destroy it?

North Pole and the ideological conflict of RSS & Hindutva