Incarceration over Ambedkar Skit: Hate speech laws & the need for caution

Seven students of Jain University have found themselves in choppy waters after an FIR was lodged against them for allegedly enacting a casteist skit in a college festival. The students, who called themselves The Delroys Boys, are accused of insulting Dr B R Ambedkar by describing him as ‘Beer Ambedkar’ and cracking insensitive jokes about untouchability.

On February 11, the police registered a case under the IPC and the SC & ST (Prevention of Atrocities) Act. The students and two officials of the college were arrested, and the Special Court sent them to police custody for three days and judicial custody thereafter. By the time they were granted bail, they had spent 10 days in custody. At first blush, the short, cropped clips of the skit can come across as offensive and illegal. However, a deeper look at the consequences that followed would raise questions about the scope of hate speech laws and the prevalence of unnecessary pre-trial detention.

Hate speech has been defined as “speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.” The goal of criminalising hate speech is to protect members of vulnerable groups from the discrimination, violence, and marginalisation that such speech can cause. Unlike orthodox blasphemy laws, hate speech laws are not meant to punish a person for merely offending members of a group or defaming the group. As held by the Supreme Court, freedom of speech and expression extends to the expression of thoughts and ideas that may offend or shock others as long as they do not violate restrictions enumerated in the Constitution, which include public order, the security of the state, etc.

However, apart from criminalising abuse, insult, and intimidation of a member of an SC or an ST in public view, Section 3 of the Atrocities Act criminalises the act of disrespecting “any late person held in high esteem by members of the Scheduled Castes or the Scheduled Tribes”. The police invoked this provision against the students and the officials as they have been accused of insulting Dr Ambedkar. It is hard to miss the provision’s vagueness and the threat it poses to free speech.

Firstly, disrespect is a highly subjective feeling, and the Act does not define ‘disrespect’ or even hint at what amounts to disrespect. While striking down the infamous Section 66A of the Information Technology Act, the Supreme Court recognised the problem of vague laws and deprecated the use of vague, undefined expressions such as ‘grossly offensive’. It went on to opine that vague laws can have a chilling effect on free speech as there would be uncertainty regarding the scope of illegality. Secondly, it is unclear as to which of the constitutional restrictions on free speech would justify protecting a dead person from mere disrespect—that too by prescribing mandatory imprisonment for six months to five years.

Pre-trial detention is bound to be prevalent due to this vague provision, the Act’s severe curtailment of the court’s power to grant anticipatory bail, and the restriction on granting bail without hearing the complainant/victim.

Though the Supreme Court has repeatedly held that bail is the rule and jail is the exception, this principle may seem illusory in cases under the Atrocities Act. While the intent of the restrictions on bail is to protect weak victims who may be threatened, it is noteworthy that even in the absence of such provisions, the general law set out in the Code of Criminal Procedure requires the court to consider the possibility of the accused threatening the victim, influencing the probe, etc. before granting bail. Therefore, the stringent restrictions imposed by the Atrocities Act ought to be re-examined.

Undoubtedly, hate speech that incites violence or discrimination, especially when the speaker wields authority and influence, ought to be firmly dealt with and may even require incarceration. However, incarcerating college students before trial for a fictional skit that admittedly did not incite violence is problematic. In fact, the students urged the court to take note that the video of the skit was cropped and that if the skit were viewed in its entirety, there would be no offence. It goes without saying that they may be suitably punished if they are found guilty after a trial, and right now, we are primarily concerned with pre-trial detention.

Irrespective of whether the skit was illegal or not, it is important to sensitise school and college students towards the suffering inflicted by the caste system and how caste prejudice has robbed several generations of equal opportunities and dignity. Knee-jerk arrests and mechanical incarceration will not address the underlying problem of casteism but will only allow the law to be weaponised selectively.

(The writer is a lawyer)