Recently, the Supreme Court has extended the scope of its 2022 order which directed states like Delhi, Uttar Pradesh and Uttarakhand police to take suo motu action against hate speech cases and directed all states and union territories to register cases over hate speech even if no complaint is made. Terming it a serious offence, the court said that hate speech is “capable of affecting the secular fabric of the country”.
The supreme court gave this judgement after considering a bunch of petitions on hate speeches. The bench consisting of justices KM Joseph and BV Nagarathna further said in the order that “We further make it clear that such action be taken irrespective of the religion of the maker of the speech so that the secular character of Bharat as envisaged by the Preamble is preserved”. But wait. Is it going to benefit the oppressed and marginalized communities and people in any way? With the strong interference of the ruling party on court proceedings, the corrupt system as well as the heavy expenditure in any legal fight, how can a layman be happy with this order? If at all there happens to be impartial and honest court proceedings which take place even today though very rarely, what are the ways by which hate mongers escape their call to violence and attack not falling into the definition of hate speech? Let us analyse.
What is meant by hate speech?
Analysing the issue in the case of Pravasi Bhalai Sangathan vs UOI the Supreme Court stated in 2014 that: “Hate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later broad attacks on vulnerable that can range from discrimination to ostracism, segregation, deportation, violence and in the most extreme cases to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.”
But the problem is, hate speech is not clearly defined in any of the sections under IPC or the specific laws that deal with it. We have IPC 153A, 153B, 295A, 298 and 505; section 95 of Criminal Procedure Code; The Representation of People’s Act 1951; The SC ST Prevention of Atrocities Act 1989 etc. But if we analyse them, we understand that there are loopholes for one to prove hate speech as harmless. And it has been used by the powerful to isolate and marginalize the powerless. Moreover, many modern politicians and hate mongers use another strategy called Dog whistle to escape censorship in social media as well as penal procedures because of their potential deniability.
What is dog-whistle?
It refers to the use of words, phrases and terminology that means one thing to the public at large but carries an additional implied meaning only understood by a specific group of audience. It’s a discursive strategy using figurative devices like imagery, memes, euphemism, symbols and cloaked language to hide their violent nature and normalize hate directed towards a particular group or community. It spreads like a slow poison into the body of a social atmosphere and kills the harmony and smooth co-existence before anyone realizes what is happening. Prasanth Bhat and Ofra Klein in their research document titled ‘Covert Hate Speech: White Nationalists and Dog Whistle’ observe that “It has become a popular online strategy especially after the introduction of Google’s perspective tool aimed at detecting insults and online toxity.” The concept is named after ultrasonic dog whistles which are audible to dogs but not to humans. (Wikipedia). The term to indicate hidden hate speech is said to have been first used by Pollster Richard Morin in an article in Washington Post in 1988.
Dog whistle was used more evidently in Australia in mid-1990s in the political campaigning of John Howard. Code words like ‘Un-Australian’, ‘mainstream’ and ‘illegals’ were used to send a different message to the target audience. In Canada, during the 2015 federal election the incumbent prime minister Stephen Harper used the term ‘old stock Canadians’ to exclude Canadians of colour, as observed by many.
The campaign slogan “Are you thinking what we are thinking?” used by the Conservatives during UK general election 2005 is another example of dog-whistle. Like, the use of words like ‘God, homeland, family’ from the Mussolini era slogan by the right-wing politician Georgia Meloni is considered as a dog whistle to signal an antiimmigration stance in Italy. But one can say that it was Donald Trump, the former American President who started using it so widely and violently during his election campaign. Scholars like Lopez have called it the “central feature of American democracy”.
Trump’s MAGA ‘Make America Great Again’campaign, the slogan ‘America first’, and the use of 13% as a code for African Americans who consist of 13% of America’s population are notorious.campaign, the slogan ‘America first’, and the use of 13% as a code for African Americans who consist of 13% of America’s population are notorious.
In India, the situation is going from bad to worse due to the support from the government and the silence of society. The supreme court’s order though late is a positive move and if taken seriously can bring changes. But the expectations are shadowed by the fact that hate speeches by right-wing leaders have become so common that they are getting normalized. In a country where a person accused of hate speech becomes a judge, how much can a layman expect? Apart from hate speeches dog whistles have also been used by the right-wing politicians widely to give signals to their cadre on what to do (maybe due to fearing protest and criticism at international platforms). Statements like “terrorists will be finished in UP”,
“Desh ke gaddaron ko goli maro”, 80 vs 20, abba jan etc are examples. At a time when many rightwing leaders use hate speech loud and clear and go scot free, how can one expect that dog whistles will be identified and stopped?
At the same time, there is a dangerous aspect to the supreme court’s new order i.e., there are more chances of it being misused than used. This can be another weapon to be used against the religious minorities and the downtrodden and any voice of dissent can be stopped and punished defining it as hate speech. As per the present IPC the police have uncontrollable power. So, there should be a proper legal lacuna? Except for 506, all other IPC sections which deal with hate speech are cognizable and non-bailable.