India’s hate speech law is contained in two constutional provisions : 153(A) and 295(A). For the scope of this essay, both are similar in import, against those who commit any act which is prejudicial to the maintenance of harmony between different religious,
racial, language or regional groups
or castes or communities,
and which disturbs
or is likely to disturb
the public tranquility.
If convicted, they shall be punished with imprisonment which may extend to three years, or with fine, or with both.
Going by the punishment, one would have to presume that the crime under these provisions has a range of implication, from minor to serious or severe, which nature is left for the law court to decide. How, on what basis ? Will it be by spontaneous extent of effect or politicised and manufactured rabble rousing by a determined few over a period of time ?
Also, going by its extreme effect on social health, why is the punished capped at 3 years in prison. As such, the law grossly underestimates the power of the word to vitiate social harmony from within, deep in the very way people think, over time that could prove incubatory until its effect actually explodes into open. Very often, too, the viciousness of the effect never attains closure, and continues to simmer for long, to germinate in secrecy and spread through infecting others who would.
These are a few aspects to the vague, non-specific and ill-thought nature of the hate speech law under discussion. As indeed its legislative and judicial history proves.
A book, Rangila Rasul, was published in 1927. The book concerned the marriages and sex life of Prophet Muhammad. On the basis of a complaint, the publisher was arrested but later acquitted in April 1929 because there was no law against insult to religion.
The publisher was later murdered in Court by one Muslim fundamentalist, Ilm-ud-din. As a result, Ilm-ud-din was honored by the “religious” but inhumane elements in the community with the honorifics : ‘Ghazi’ and ‘Shaheed’.
Representative advocates of the same elements in the Indian Muslim community demanded a law against insult to religious feelings. Hence, the colonial British Government enacted Section 295(A).
This failure of the governing polity is glaring : of the unrepresentative government wedded to the interests of the Crown which, clearly uninterested in fostering long term goals of social and inter-faith harmony, failed to bring the people together and unite their will to the higher national purpose of common good.
There were composite villages in India, it must be pointed, who knew how to manage such differences better, and they did all the time. They still do, even today. But not the government of the day because it had no interest in furthering amity among people. The unspoken “divide and rule” dictum was a tried and trusted policy then.
From how successive governments have behaved through post-Independence decades, I am not sure if the same divide and rule policy lapsed in August 1947. Not by how the Civil Services cadre have lived and acted, by their priviledged status, and not by the manner in which our judiciary has functioned, in its deified isolation.