There
are three major hurdles in the fight against hate speech in India. The
first and often the most important hurdle is administrative vacillation.
The second, and associated problem, is the absence of political will in
checking hate speech by leaders. It is because faith and community-based polarisation
often bring electoral dividends. The third problem is legal, because there
is no concrete definition of hate speech.
On
28th April, 2023, the Supreme Court took a big stride in removing the first
hurdle, ordering the immediate registration of first information reports
in cases involving hate speeches.100
In October 2022, against the backdrop of cases where alleged hate
speeches were made, the Supreme Court120
// asked the police chiefs of Delhi, Uttarakhand and Uttar Pradesh to
file suo motu cases. This week, the Supreme Court extended the decision across
India, and reiterated that any violation of its directive will be treated as
contempt of court.
The
court's directive is welcome. The only deterrent for elements who
attempt to drive a wedge between communities is rigorous and persistent
police action. Unfortunately, as seen in recent cases, police and
local administrations are slow in booking bad actors,200 especially if they are politically
connected. The reasons for this are obvious, as is the fact that infirmities
in the legal proceedings often render them inconsequential. The Supreme
Court's insistence that the administration must not wait for complaints to file
cases,240 // holds the potential
to change this depressing status quo, but may require steady monitoring. But
for sustained change to take place, attention needs to be paid to the
other hurdles - political and legal. Unfortunately, polarised political
equations and a near-breakdown of communication between not just the
Government and the Opposition, but also the Centre and some prominent
states, means300 the kind of
compact needed to build a political consensus against hate speech eludes
India today. Moreover, no political party appears willing to rein in
leaders from making sectarian remarks, or make it clear that disparaging
comments will not get them a platform. Indeed, the reverse is often
true. Finally, while India has a bouquet of laws, some with vague360 // provisions prone to misuse, what it
needs are clear guidelines. The Supreme Court and the Government should
consider a clear statutory definition of hate speech, as recommended by a Law
Commission report, to steer away from current practices where prosecution400 is usually under Section 295A of
the Indian Penal Code, which is essentially an anti-blasphemy
law, or Sections 153A and B, which are not equipped to deal with the
whole gamut of hate speech as they are largely focused on maintaining
social order. It is precisely because of these reasons that the Supreme
Court’s October directions saw no great outpouring of cases against bad
actors, or a flurry of prosecutions against them. This480 // is not to say that
the latest order of the Supreme Court is not significant. It is
significant, and it500
represents the first real step taken in India against hate speech. The Court is
right to observe that hate speech is dangerous because it can pierce the
secular fabric of the nation. But to nurture democracy, the nation will have to
move towards political and legal solutions to the problem, in addition to
administrative fixes.
The Supreme Court has rightly and resolutely
observed that judges have no business granting interviews on pending matters. A
Bench led by the Chief Justice of India has taken a serious note of an
interview given by a judge to a news channel about the600 // West Bengal teachers’ recruitment scam. In the
interview, the Calcutta High Court judge reportedly made remarks about
the Trinamool Congress Government and one of its party leaders, who is
on the radar of Central probe agencies that are investigating the scam.
Reacting sharply to the West Bengal Government’s accusation that some persons
in the judicial system were working in league with the BJP, the judge had allegedly
threatened that if such comments were made against him, he would show
how tough the judiciary can be.
The apex court has drawn a line that should
not be crossed by any judge.700 This is a reaffirmation of the Restatement
of Values of Judicial Life, as adopted by a full court meeting of720 // the Supreme Court in May 1997. This veritable
code of ethics states that a judge is expected to let his judgments
speak for themselves and he shall not give interviews to the media. It also
asserts that a judge shall not enter into a public debate or express his views
in public on political matters or on matters that are pending or are likely to
arise for judicial determination. No wonder the judge in question here finds
himself800 under judicial scrutiny for violating
these crystal-clear guidelines.
The people’s faith in the judiciary is
undermined whenever any judge is perceived to be partisan. It is
imperative for judges of the Supreme Court and High Courts to lead by
example840 // so that the credibility of the entire judicial
system is not compromised. Keeping one’s distance both from the powers that
be and the Opposition parties is a prerequisite for maintaining the
dignity of a judge’s august office. The recent farewell party hosted by the
Kerala Chief Minister for the outgoing High Court Chief Justice
has unnecessarily triggered a controversy900 over the impartiality
of the judiciary, as envisaged in the Constitution. It is hoped that the Supreme
Court’s tough stand will deter judges from lowering the bar.928
