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The Law Commission's Recommendations On Hate Speech—Be Fearful and Alarmed

An assured way to entrench bigotry is to drive it underground.

12/04/2017 11:53 AM IST | Updated 14/04/2017 12:48 PM IST
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These are not sunny days for the freedom of expression in India. In the last few years, the Supreme Court has drastically limited what can be said by us: it has held poems satirising "historically respected" personalities to be illegal; directed search engines to block certain keywords (putting us on par with "the Great Firewall of China"); upheld the constitutionality of the odious criminal defamation section in the Penal Code; and is now considering drastically limiting the right of politicians to comment on heinous offences. All these judgments have been passed by benches involving Justice Dipak Misra, who will soon be our Chief Justice.

As per the report, a person using "gravely threatening" or "derogatory" words on grounds of... religion, race and sexual orientation with the intent to cause "fear" or "alarm" should go to jail...

The latest attempt at squelching speech in this country comes in the form of the Law Commission of India's recent report titled "Hate Speech". If its recommendations are accepted by the Central government, it would lead to the addition of two new crimes in the Penal Code—ostensibly to deter the marginalisation of vulnerable groups. As per the report, a person using "gravely threatening" or "derogatory" words on grounds of, among other things, religion, race and sexual orientation (which is ironic, given that the Penal Code itself makes homosexuality a crime) with the intent to cause "fear" or "alarm" should go to jail, and the police ought to be able to arrest such a person without even the necessity of procuring a warrant (as one of the two proposed offences is cognisable and non-bailable).

Down the slippery slope we slide. "Fear" and "alarm" are hopelessly vague terms. How are the police qualified to determine if certain words have the effect of causing fear or alarm? And why should words that cause fear or alarm be criminalised in the first place? Fear and alarm are often the consequences of challenges to orthodoxy. Surely we don't want to turn our backs to the winds of change? The whole point of freedom of speech is for the general public to benefit from witnessing the thrust and parry of arguments and counterarguments. As John Stuart Mill put it in On Liberty, "If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error." Even demonstrably wrong opinions and arguments are valuable in a democracy. The problem with the report's proposed offences, and all similar restrictions on free thought and discussion, is that they gag the airing of controversial views, thereby allowing these views to harden into prejudices.

If the Commission truly believes that public discussion needs to be neutered by the State to prevent the rise of totalitarianism, it could not be more misguided.

To build up the case for its recommendations, the report begins with a paragraph on "the complete subversion of rights and loss of freedoms" during Adolf Hitler's Third Reich. Supposedly, the draftsmen of the Indian Constitution, "conscious of the burdens of history", never intended that freedom of expression be absolute. This reflection prompts the Law Commission to make the leap to endorsing government-monitored debates:

"The assumption that a rule denying the state power to restrict speech on the basis of its content will produce the broadest possible debate is problematic as this might produce debate that is informed by the prejudices of the public."

If the Commission truly believes that public discussion needs to be neutered by the State to prevent the rise of totalitarianism, it could not be more misguided. In fact, the laws of the Weimar Republic which preceded Nazi Germany had broad prohibitions on hate speech. Hundreds of Nazis were prosecuted, helping them claim victimhood and gain public sympathy. Turns out that an assured way to entrench bigotry is to drive it underground.

Contrary to what the Law Commission thinks, we don't need the introduction of more speech-restrictive criminal offences to our Victorian-era Penal Code. We need the freedom to speak our minds, even if we are grievously, woundingly wrong. Sunlight is the best disinfectant.

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