Referring to several recent examples of hate speech at public events, a petition has been moved in the Supreme Court asking it to take action against the police and authorities for failing to carry out their duties to deal with incitement of communal violence.
The PIL, filed by activist Dr Syeda Hameed and former DU and IIT professor Alok Rai, notes that the recent communal speeches at Jantar Mantar on 8 August were the fifth such rally in the last three months across Delhi/NCR and Haryana "where speeches calling for ‘direct action’ against Muslims were made."
Providing video links and articles relating to the events, the petition notes that these speeches include false propaganda against the Muslim community as 'invaders' and predators', and directly incite violence against the Muslim community.
The examples cited include Yati Narasinghanand's speech at a Bharatiya Sant Parishad press conference and the mahapanchayat in Haryana involving Suraj Pal Amu and Jamia shooter Ram Bhagat Gopal.
The petition argues that there is a 'cause and effect' between these increased instances of hate speech and actual violence and subsequent events on the ground. Two incidents are used to illustrate this link:
The beating of a Muslim man in Kanpur while being made to say 'Jai Shree Ram' on 12 August; and
The march through a bazaar in Muzaffarnagar by Hindu outfits to stop Muslim men from applying mehndi for Hindu women on Teej, on 11 August.
In addition to causing direct physical violence against the targeted community (in this case Muslims), the petitioners also argue that widespread hate speech of this nature leads to 'structural violence', ie economic and cultural marginalisation; eviction of individuals from tenanted premises, loss of livelihood.
This kind of structural violence creates an atmosphere of discrimination against the targeted community, which is a continuing attack on the fundamental rights of equality and life with dignity (Article 14 and 21).
Both these aspects – direct and structural violence – essentially result in the shrinking of participation for the targeted community in the democratic and public sphere.
As a result, the petition argues that the act of 'hate speech' must be considered a constitutional wrong and therefore come within the purview of a constitutional court.
It cannot be argued that the targeted community should just take up the issue in the political sphere given the very nature of the exclusion hate speech creates. This is also why filing criminal cases regarding incidents of harm is not enough, as such cases dealing with, say cases of physical hurt do not cover the full extent of the harm hate speech causes.
Police Failing to Comply With Previous Supreme Court Judgments?
The petition, drawn by advocates Shahrukh Alam, Warisha Farasat, and Rashmi Singh, goes on to list several Supreme Court judgments, which are argued to already create a 'duty of care' for the police and government authorities to protect communities against hate speech and its effects.
In the landmark Shreya Singhal vs Union of India judgment (2015), the court had reiterated that speeches which are akin to a 'spark in a powder keg', ie which make more direct calls for violence, are not permissible.
In the recent case of Amish Devgan vs Union of India (October 2020), the court made a distinction between 'hate speech' and other offensive and even hateful speech. The distinction rests on the vulnerability of the targeted group to direct or structural violence. Offensive speech against the government for instance does not make it vulnerable to discrimination.
On the other hand hateful speech consistently and continuously targeting a minority/marginalised group might make them vulnerable to both structural and direct violence. Such speech qualifies as hate speech and even when not 'acting as spark in a powder keg' causes constitutional harm, as per Amish Devgan.
In Tehseen Poonawalla vs Union of India (2018), the court, dealing with the spate of mob lynchings across the country, recognised a duty of care for police and the government to prevent hate crimes, not just investigate them after they had occurred. Breaches of this duty of care also invite punitive measures against the officials responsible.
The petitioners argue that the Delhi Police, for instance, failed in this duty when it came to the Jantar Mantar communal speeches, as they were aware of the event taking place, and were even present at the scene.
What Does the Petition Ask the Supreme Court to Do?
The petitioners ask the Supreme Court to pass orders to:
Direct the Union Government, Delhi Government and Delhi Police to assume a duty of care towards hate speech as defined in the Amish Devgan judgment.
Direct the Union Government, Delhi Government and Delhi Police to comply with the guidelines laid down by the Supreme Court in the Tehseen Poonawalla case and take punitive action against the officials who have failed in their responsibilities under these guidelines in recent incidents.
Further define the contours of the duty of care when it comes to investigation of hate speech and communal violence, or a tort of negligence in investigations by the authorities.