Thackeray and Owaisi: Busting the Myth of Similarity. Hate Speech Laws in India.

There has been the birth of a new martyr on the horizon among the Muslims of Hyderabad, by the name of Akrabuddin Owaisi, as the now deleted blog IndianMuslimPost puts it. For the rest of the India, he might be a trouble maker who thrives on inciting the communal passions of a religious minority of the country. But for that particular religious minority in the bylanes of Hyderabad, he is nothing short of a hero, a man who will go miles to ensure the ‘long denied justice’ for them. It can only be ironic that, Hyderabad MLA’s father, Salahuddin Owaisi was a veteran investigator of communal riots, who had the respect of one and all in the State administration and had been buried with full State honours.

So, what has Akrabuddin Owaisi been accused of? Why is such a hullabaloo being created? Why is the print, electronic and social media chastising him so violently? Why are the right wing activists unanimously protesting against him? The answer is what we, in layman terms, call hate speech. On 24^th December 2012, Owaisi addressed a rally of 25000 people, mostly Muslims, at Adilabad in Andhra Pradesh and made multiple comments against Hindus, Hindu deities, Rashtriya Swayamsevak Sangh (RSS) and Vishwa Hindu Parishad (VHP). There was also a glimpse of pro-Pakistan and anti-Indian attitude in his speech.

But is hate speech something new in India? Let’s have a look. After independence, it has been there since as early as in 1969, when then Shiv Sena supremo Bal Thackeray had incited trouble through his speeches in the majorly violent Maharashtra-Karnataka border disputes. After that, Sena has got into repeated trouble with the police and the authorities for hate speeches and violence against Muslims and non-Marathis. Most recently, Maharashtra Navnirman Sena chief Raj Thackeray, with all his vocal attempts at rousing the “Marathi Manoos” feeling to create trouble for North Indians in Mumbai has time and again faced the media and public ire. And then, we have seen Anti-Muslim speeches by VHP leader Ram Vilas Vedanti and BJP MP Varun Gandhi. Certainly, in the medley of cultures, religions and traditions that India is, hate speech is something that has been thriving here, due to a multiplicity of factors, be it political, social and economic.

In light of the scenario, another question arises. If hate speech has been there in the country since decades and has faced censure, why the insistence on special focus on Owaisi? Is it because he is a Muslim and he was addressing a crowd of Muslims and we, as a country where the majority of the population is Hindu, can’t stand this at any cost? Do we claim to be secular just for the sake of it? Don’t we have an iota of tolerance towards other religions?

The answer to all these questions lies in the negative. Many people have drawn parallels between the infamous Bal Thackeray hate speeches and Owaisi’s speech. However, there are numerous fundamental differences between the two. Agreed, both deal with denigration of another community, both sound out the bugle for arms cloaked in religious terminology, both project themselves as saviour of a particular community. But that’s where the similarity ends. Thackeray used to refer to Muslims in a derogatory fashion in his speeches, but not even once ever did he speak a word about Prophet Mohammed. Owaisi, on the other hand, in his speech, proceeded to abuse Hindu deities, customs and traditions. Secondly, Thackeray’s target was the always the ruling Congress Government at the Centre or the Maharashtra Cabinet. Owaisi, on the other hand, refers to “Hindustan”, not once, but repeatedly. He warns “Hindustan” not to trifle with “us”. One cannot help but wonder, isn’t Owaisi and the community that he claims to represent, a part of “Hindustan: as well? Doesn’t this amount to spreading feelings of separateness from the country in a specific community? If Thackeray was charged with promoting enmity between communities and booked under Section 153(A), shouldn’t Owaisi be charged with spreading feelings of hatred against the country among his community? There is one more difference. Thackeray used to look at issues either through the prism of a communal or regional identity. Owaisi couples the communal angle with a view through a windowsill that is different and distinct from the rest of India. His constant reference to “Hindustan” as a “land of Hindus” vis-à-vis, “us”, the Muslim community, stands proof to this. This outlook permeates Majlis-e-Ittehadul-Muslimeen (MIM), Owaisi’s political party.

However, the Owaisi issue aside, hate speech, as a mechanism, has been used in India systematically in recent times, during and after elections, to whip up communal hatred and even actual violence. It is high time that we look at how repeated misuse of freedom of speech translates into hate speech, polarising communities and in many cases, degenerating into actual violence.

Relevant sections of Indian Penal Code and Representation of People’s Act have appropriate measures to deal with hate speeches but they have been rarely used. There are a few sections in Indian criminal law and election law that unequivocally restricts and restrains the use of hate speech and empowers the Government, the police and the judiciary to enforce them. Sections 153 A and B of the Indian Penal Code (IPC-offences for promoting enmity between different groups on grounds of religion, race, place of birth, language etc and doing acts prejudicial to maintenance of harmony or prejudicial to national integration) and Sections 123 A and B of the Representation of People’s Act (RPA—that, under the definition of a ‘corrupt practice’ forbids the use of undue influence, appeal on grounds of religion, promoting enmity or hatred between different classes of citizens on the ground of religion, race or community and character assassination). These provisions co-exist with other, broader provisions of the Indian Penal Code, with significant implications for ‘hate speech’. These provisions include the following:

Section 295, which prohibits ‘injuring or defiling [any] place of worship with intent to insult the religion of any class’;

Section 295A, which prohibits ‘deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs’;

Section 298, which prohibits ‘uttering words, etc, with deliberate intent to wound religious feelings’;

Section 505(1), which prohibits ‘statements conducive to public mischief’;

Section 505(2), which prohibits ‘statements creating or promoting enmity, hatred or ill-will between classes’.

The approach of the Indian judiciary towards issues of ‘hate speech’ (as they intersect with questions of ‘public order’) has been exemplified, and in many senses established, by the landmark case of Ramji Lal Modi v State of Uttar Pradesh (1957). In this case, where the person concerned had tried to incite a large Hindu crowd against Muslims in Uttar Pradesh, the Supreme Court of India upheld the constitutionality of section 295A of the Indian Penal Code as a ‘reasonable’ restriction upon free speech ‘in the interests of’ public order. The Court rejected the need for any nexus between acts possessing ‘a tendency to cause public disorder’ and the actual occurrence of such public disorder. Indian judiciary, in most cases, has adopted a broad construction of the ‘interests of public order’, while relating to hate speech. It has time and again relied on Human Rights Resolution 13/16, Combating Defamation of Religions, which appropriately addresses the need for a balance between freedom of speech and religious freedom. However most of the actions of the judiciary relating to hate speech are responses to immediate political and religious controversies, not substantial contributions to international human rights jurisprudence.’

Quite apart from the fundamental rights to equality, equal protection by the law, right to life, freedom of expression, association and residence and freedom to promote, practice and propagate one’s faith and the rights of religious minorities to run their own institutions, the consistent and honest application of these sections of the IPC and the RPA are critical to ensure and assert the protection of basic democratic and human rights and especially, the Constitutional rights of Indian religious minorities. As importantly, the regular application of these sections in the public arena, by actions of the executive and judiciary, whenever violations of these laws take place is as much necessary for upholding the secular intent of the Constitution of India.