Courts and law enforcement must combat hate together
The Uttarakhand saga revealed a gap between the law on hate speech, and what happens on the ground. Here, law enforcement and higher courts must play joint role
Over the month of June, communal flare-ups in Uttarakhand witnessed a disturbing – and, in recent times, disturbingly familiar – trend: Calls for the social and economic boycott of the resident local Muslim community. In the recent events in Uttarakhand, this was taken further, with reports that the doors of the homes of some Muslim residents were marked with specific identifying signs by fringe groups, which also pasted posters and held rallies across town asking Muslims to leave the area (a number of them did so, only returning once the tensions had ebbed). While the situation appears to have subsided over the last few days, these events reveal, once again, the gap between the law on hate speech, and what actually happens on the ground.
In recent times, the Supreme Court (SC) has been in the news for dealing with a batch of cases on hate speech. The court has issued directions to various state authorities to ensure that hate speech cases are dealt with swiftly, and with a substantial number of tools at the disposal of law-enforcement authorities.
However, this is by no means the first time that the top court has dealt with this issue. The first substantive consideration by the court of the issue of hate speech was in its Pravasi Bhalai Sangathan judgment, in 2014, almost a decade ago. The court followed it up in 2020 with another detailed verdict on what constitutes hate speech. In its orders, the apex court has been clear about what hate speech is: It is a form of speech that singles out people on the basis of ascriptive characteristics (such as religion, caste, race, ethnicity, place of origin, and so on), and holds them to be lesser citizens on the basis of those markers. In other words, hate speech creates a climate of discrimination and exclusion based on ascriptive characteristics, which can rise – in extreme cases – to violence.
Under these standards, it is evident that what happened in Uttarakhand constitutes hate speech. Historically, calls to socially and economically boycott members of particular communities have been the precursors to exclusion, discrimination, ghettoisation, and – eventually – violence. In many countries across the world, which have seen violence against specific ethnicities or communities, the process has been a similar one, and has invariably involved – at an early stage – calls for social and economic boycott, as a part of the process of “othering” or excluding a set of people.
Thus, while on the one hand, the law laid down by the top court is unambiguous, it also appears to be entirely powerless to put a stop to repeated events of this kind. There are two reasons for this. The first is a straightforward one: The implementation of the law is in the hands of local law-enforcement authorities. Basic decisions such as when and how to file a First Information Report (FIR), when to grant or decline permission for a rally, and when (and when not) to make an arrest, cannot be litigated at the apex court on every occasion. SC orders, thus, are paper decrees unless the executive arm of the State implements them in the same spirit in which they are issued.
At the same time, however, when it comes to enforcement, the courts themselves appear to be reticent to invoke the authority that is at their disposal, in order to ensure compliance with their orders. The Uttarakhand case is instructive: When the SC was approached, it declined to intervene, on the basis that the Uttarakhand high court was hearing the case (notwithstanding the fact that high courts hearing cases has never stopped the apex court from taking up an issue, if it so chooses). The high court itself was content with the fact that the next scheduled rally was called off and declined to go into the substantive issues before it, instead suggesting that aggrieved persons could take up the matter with law enforcement.
Thus, while the higher judiciary has laid down the substantive principles and legal doctrines, when it comes to actual cases of hate speech, it has preferred to avoid intervening; what the courts have not taken into account, however, is that the real reason why people approach them directly is because a recourse to law enforcement has failed earlier – a proposition that courts have frequently accepted in other contexts.
Thus, while there are limits to what the judiciary can accomplish with respect to curtailing hate speech without the support of law enforcement, the situation is exacerbated if it takes no concrete action at all; doing so only postpones the next instance of hate speech to a later day, as the signal goes out that such speech will not be met with any significant consequences.
It is, therefore, clear that if the scourge of hate speech is to be dealt with, it will require both law enforcement and the higher courts to play a complementary role. It is perhaps a depressing reality that the next opportunity for them to do so will likely be sooner rather than later.
Gautam Bhatia is a Delhi-based advocate. The views expressed are personal.