The issue of hate speech crops up frequently in India and elsewhere. Politicians, and often other public figures, all over the world are accused of making hate speech. In general, any nasty comment—actually, any remark—that somebody doesn’t like calls it hate speech. Demands are made to criminalize something as nebulous as hate speech.
Before proceeding to establish my assertion—there is no such thing as hate speech—I would like to discuss the concept of hate crime. Merriam-Webster defines ‘hate crime’ as ‘any of various crimes (as assault or defacement of property) when motivated by hostility to the victim as a member of a group (as one based on color, creed, gender, or sexual orientation).’ The US Congress describes a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, ethnic origin or sexual orientation.” Hate itself is not a crime—and the Federal Bureau of Investigation of the US is mindful of protecting freedom of speech and other civil liberties, says the FBI website.
Two points need to be made here. First, hate speech should not be confused with hate crime; the former, however offensive and repulsive be its content, is still speech, a form of expression, and any form of expression is and should be protected in a liberal democracy. The latter, on the other hand, is crime, and should be dealt with accordingly.
Second, hate is not and cannot be a crime in a democracy. On the face of it, this sounds paradoxical. For doesn’t the Preamble of the Constitution of India, the world’s largest democracy, talk about the resolve “to secure”—apart from justice, liberty, and equality—fraternity? How fraternity can be secured without rooting out, or at least checking, hate?
But this line of thinking is fallacious and fraught with the possibility of bolstering totalitarian tendencies, for hate, like love, lies within an individual’s heart and mind; and any move to regulate the hearts and minds of citizens is tantamount to thought control—the defining feature of totalitarianism. The purpose of legislation in a liberal polity is to legislate between individuals, to regulate inter-individual conduct and not intra-individual dynamics. Criminalizing hate would amount to defining thought crime—another totalitarian tendency. Thankfully, the anti-totalitarian streak is implicit in the Preamble, inasmuch as fraternity is equated with “assuring the dignity of the individual.” It is obvious, then, that the dignity of the individual will be destroyed if the state decides to indulge in thoughtcontrol, an endeavor that would necessitate intrusion into the most sacred spaces of the individual. Such Fundamental Rights as freedom of speech and expression (Article 19) and freedom of conscience (Article 25), enshrined in the Constitution, shield these spaces.
Besides, the Preamble of the Indian Constitution, like the Directive Principles of State Policy, is non-justiciable. Therefore, fraternity cannot be legislated; similarly, the government cannot execute and the courts cannot adjudicate all the cherished goals of the Constitution. The three organs of the state—with the paraphernalia of laws, rules, and regulations—can help create an environment conducive for a liberal, fair, just, and peaceable existence. In short, an efficacious state is the necessary but not the sufficient condition for make a country a better place.
If we accept that hate cannot be a crime, we also have to accept that, as a natural corollary, hate speech also cannot be a crime. But, it will be asked, what about the reprehensible comments made by politicians and others? Sample the following statements made by Indian politicians in 2014.
People should vote for Ramzade (children of Ram) and not Haramzade (bastards)—Federal Minister Sadhvi Niranjan Jyoti in the Narendra Modi government.
If you keep petrol and fire together then it will burn. There should be a law to ensure that there should be no nangapan (nudity). Those who wear less clothes should also be banned. Fashion and nudity are responsible for the current situation in India. And in rural India, girls don’t go searching out for boyfriends. I support death penalty for the Delhi rapists but there should also be a law that women should not wear less clothes and roam around with boys who are not their relatives. What is the need for roaming at night with men who are not relatives? This should be stopped—Samajwadi (Socialist) Party leader Abu Azmi
If you insult the mothers and daughters of Trinamool workers, then I won’t spare you. I will let loose my boys in your homes and they will commit rape. I will teach each of you a lesson—Tapas Pal, popular Bengali actor and Trinamool Congress MP.
You Hindus are 100 crore (one billion) and we Muslims are 25 crore (250 million). Just remove police for 15 minutes and we will show you who is more powerful—Akbaruddin Owaisi, prominent Muslim Legislator in the southern state of Andhra Pradesh (2013).
The concept of four wives and forty children just won’t work in India but it is high time that every Hindu woman must produce at least four children to protect the Hindu religion—Sakshi Maharaj, BJP MP from Unnao, UP (2015).
These are some of the more shameful remarks made by Indian politicians. The question is: should the law permit such remarks? The answer is a big ‘yes.’ The only caveat is that the speech should not trigger an immediate violent action.
In fact, allowing the so-called hate speech will have a salutary effect in a democracy. This will enhance transparency in democracy. The electorate will know what disdain Owaisi harbors for the Hindus, his party’s professions for plurality, diversity, and peaceful coexistence notwithstanding. Similarly, the prospective voters of Sakshi Maharaj will get an idea about his views on women, that they are little better than baby-making machines.
We shall scrutinize the concept of hate speech as commonly understood. Collins Dictionary defines ‘hate speech’ as ‘speech disparaging a racial, sexual, or ethnic group or a member of such a group.’ Dictionary.com describes it as ‘speech that attacks, threatens, or insults a person or group on the basis of national origin, ethnicity, color, religion, gender, gender identity, sexual orientation, or disability.’
There are three features of the notion of hate speech: first, it is directed at a collectivity or a member of a collectivity; second, the collectivity is birth-based, and that includes sexual orientation with the assumption it is innate rather than acquired; and, third, it is possible to disparage, attack, threaten, or insult a group by way of expression, be it a newspaper article, a lecture, a song, a novel, or a movie.
There are two main problems with the notion. The first one relates to the first two features: overemphasis on the importance of birth-based collectivities. This is unfortunate and anachronistic, for business, commerce, migration, and globalization have shrunk the world and brought the people of various civilizations, cultures, races, and faiths together. At a time when people are shedding their prejudices and phobias about other nationalities, races, religions, etc., politicians and intellectuals are exacerbating the differences and building news walls between different collectivities.
The second, and graver, problem with the notion of hate speech pertains to the third feature: the very possibility of disparagement, attack, threat, or insult to a group by free speech. My contention is that it is impossible to disparage, attack, etc., a group by way of words or any other form of human expression.
One reason that it is impossible to malign a collectivity or community in a scholarly or any other fashion in this day and age is that nobody has an absolute control over knowledge and information. In ancient and medieval times, monks in Europe and Brahmins in India had a hold over almost all the institutions of imparting knowledge. In India, there was a large section of the society, called Shudras, who were doctrinally barred from receiving canonical education, the only kind of education available.
Such a situation, thankfully, does not prevail in the world today. There are so many and so varied sources of information and means of disseminating information that today it is not possible to keep spreading lies, calumny, and canards against any group—unless, of course, it is a gang of criminals.
We need to remember that within every belief system if there are fringe elements, there are also reasonable thinkers who debunk the extremist and violent doctrines—and the reasonable voices are the dominant ones. Generally, there is regard for common decencies. For instance, former journalist and federal minister Arun Shourie, a most prominent Rightwing ideologue, slammed anti-Christian utterances of Hindu militants in 2015. Similarly, in the wake of the massacre of nine black parishioners in a Charleston church by a 21-year-old racist, Dylann Roof, all mainstream Rightists condemned the outrage.
Therefore, as the third American president, Thomas Jefferson (1801-09), said in his First Inaugural Address, “error of opinion may be tolerated where reason is left free to combat it.”
The law should come into force only when speech immediately triggers harm, or when the speech-maker takes full responsibility of the instigation, as was the case with the son-of-the-soil Maharashtra leader Raj Thackeray. He made hateful remarks about the Hindi-speaking migrants to Maharashtra, leading to violent activities by his followers. It was a clear case of hate crime, which has not been punished till date, despite audio-visual evidence and the boastful admissions of the crimes both by the speech-makers and hooligans.
It is a topsy-turvy world that we, the people of India, live in: all efforts are made criminalize freedom of expression, whereas as blatant criminal activities go unpunished.
This brings us to the final point: in the case of speech, or any other form of expression, criminality should be linked to its effect rather than its content, also because in such matters cure is better than prevention. The situation is similar to the regulation in the economy; regulation should be light, permitting everything that is proper and seeking very few compliances. But fraud should be swiftly, efficaciously, and severely punished, thus instilling the fear of the law in the hearts of wrongdoers. When economic offenders know that the chances of getting caught are high, they are effectively deterred. The high probability of the law catching up with the wrongdoer works as an effective deterrence, strict compliances don’t. It is impossible to deter fraudsters by trying to preclude racket, for they are very ingenious; but it is possible to do so by ensuring punishment.
Similarly, it would be possible to bring down hate crime if the potential perpetrators know that violent consequences would result in prosecution.
In a nutshell, there is no such thing as hate speech; there is only speech, which ought to be free. Sometimes, a speech does spread hatred; if the hatred immediately results in violence, it is a crime, a hate crime, and should be penalized in proportion to the severity of the crime; if not, the worst that can be said about it is that it was in bad taste, deserving condemnation and nothing more.
From There Is No Such Thing As Hate Speech: A Case for Absolute Freedom of Expression, Ravi Shanker Kapoor (Kindle-Amazon, 2015)