A report by the Association of Democratic Reforms and National Election Watch revealed that there are 107 MP/MLAs who have hate speech cases registered against them, and 39 per cent belong to the ruling BJP. According to statistics provided by the National Crime Records Bureau (NCRB), there has been a significant increase in instances encouraging hate speech and inciting hatred in society. The number of cases filed under this category rose from 323 in 2014 to 1,804 in 2020, a 500 per cent increase.
A study by Hindutva Watch found that the first six months of 2023 saw over 250 documented gatherings with anti-Muslim hate speech, the majority of which took place in states ruled by the BJP; nearly 70 per cent were reported in states that will have legislative elections in 2023 or 2024. According to the research, 205 (or 80 per cent) of the 255 reported hate speech rallies against Muslims in the first half of 2023 took place in BJP-ruled states and Union Territories.
The study also examined the effect of elections in aggravating hate speech, finding that 33 per cent of hate speech incidents occurred in states that have either had or are scheduled to have legislative elections in 2023. Also, 36 per cent of these incidents happened in places where legislative elections are scheduled for 2024. Nearly 70 per cent of them were recorded in states with legislative elections in 2023 or 2024.
Section 295(A) uses extremely broad language. It cannot be said that intentional disregard for religion or religious sensibility always amounts to provocation. The Supreme Court has stated on various occasions that the objective of hate speech legislation is to combat prejudice and achieve equality. Unfortunately, there is a significant difference between this interpretation and the real text, which means that this law is still being used at all levels of government.
In the case of Superintendent, Central Prison, Fatehgarh vs Ram Manohar Lohia, the Supreme Court stated that the link between the speech spoken and any public disorder caused as a result of it should have a close relationship for retrieving Section 295(A) of the IPC and that it is always open to the State to make such reasonable restrictions as are acceptable under Article 19(2).
In the recent past, standup comedians have been arrested just because they included a religious allusion in their act. On January 1, 2021, the Indore Police arrested Munawar Faruqui for allegedly hurting people’s religious sensibilities. The Madhya Pradesh High Court denied him bail, stating that such people should not be spared. After several months, the Supreme Court intervened.
The cases of Mohammad Zubair and Nupur Sharma highlight the shortcomings of our free speech laws. Mohammad Zubair of Alt News was jailed for tweeting a still image from a movie with a religious background. An FIR was filed against him and he was arrested for insulting religious modesty. On the other hand, Nupur Sharma, who insulted Prophet Mohammad on national television, has gone missing, with no coercive action taken against her.
Similarly, on September 22, 2023, Ramesh Bidhuri, a BJP MP representing South Delhi, used religious slurs against Danish Ali, a BSP MP, throwing the sanctity of Parliament out of the window. Bidhuri’s speech was later expunged from the House records for being unparliamentary. But MPs enjoy certain rights and privileges in the House so as to work swiftly in Parliament. Thus there can be no action against Bidhuri for his remarks.
So, in the context of a modern society, whose religious views must be accepted when questioned in a breach of Section 295(A)? Of course, it should be the members of the religion whose faith has been insulted, and these rules should not be used to target a specific segment of society. Insulting religions or religious leaders may be debated or denounced, but it should not be legally prohibited or punished. This is because hate speech laws are based on the critical distinction between criticising or ridiculing religion and encouraging prejudice or aggression against individuals because of their faith, and blasphemy laws that prohibit religious criticism, in general, are incompatible with societal principles.
These rules do not distinguish between criticism and intentional hate speech. Indeed, failure to specify these distinctions reduces the Section’s fair use and makes defining and penalising the real offence of hate speech more difficult.
There should be no screening of discourses and dissent in a free and democratic society as these are the basic foundations of a liberal and free society. A majority of individuals find such dissent or criticism insulting and hostile. The only viable approach that walks the fine line between protecting faith and challenging hate speech is to preserve blasphemy in the statutes but decriminalise it.
(Giri is a practising advocate in the SC and high courts. Kartikeya is a legal researcher)