By Apar Gupta
“We, Tanmay Bhat, Gursimran Khamba, Ashish Shakya, Rohan Joshi at AIB hereby offer an unconditional apology to the entire Christian community for any offence that may have been caused to its members as a result of the AIB Knockout.
While performing our acts, no matter the subject, we never intend to hurt anyone, though as an unfortunate consequence of the nature of our profession we sometimes do. We are sorry.”
These lines make up the only complaint that most have with the comedy collective All India Bakchod — their apology to the Archbishop of Bombay. While many legitimately point out that this move will further calls for censorship from religious groups, others believe this is hypocritical. Those pointing out the purported duplicity are generally conservative Hindus who believe similar apologies should be offered to them by AIB for mocking Hindu gods. The touchstone of this argument rests on the penal sanctions that follow offending religious sentiments, which brings into focus the provisions with regard to hate speech and insults to religion as contained under the Indian Penal Code.
The provisions are listed in the recent Supreme Court judgement of Pravasi Bhalai Sangathan vs Union of India, where the court expresses an opinion that, “penal law provides a sufficient remedy to curb the menace of hate speeches”. The problem is not in the law’s deficiency, but in its overreach as it permits subjectivity, which in turn provides the most easily offended a legal right to approach a police station or a court. These provisions are routinely used by conservative factions of religious groups to legally channel any perceived moral offence. When these abuses are highlighted, many Right-wingers (as well as those on the opposite end of the ideological spectrum) suggest a complete deletion of these laws from the statute books.
Scrapping the laws pertaining to hate speech and religious offence may sound timely at first glance, but it’s an extreme approach and to understand the reasoning behind the laws’ continued existence, it’s important to consider some legal history.
In 1950, two cases were filed in the Supreme Court in which the court gave similar judgements on the same day. The first concerned the communist publication of Romesh Thappar called Cross Roads and the second related to the official mouthpiece of the RSS, Organiser. The Supreme Court held that banning them was unconstitutional. It was reasoned that doing so would go against the fundamental right to freedom of speech and expression. The Court said that though the right is not absolute, the legislations were beyond the grounds of those reasonable restrictions that permit restricting freedom of speech. The Indian parliament responded with the 1st Amendment to the Constitution of India, amending these reasonable restrictions and making them broader.
The effects of this amendment were far reaching. Subsequent challenges against the constitutionality of the hate speech provisions were unsuccessful. As far back as in 1957, Ramji Lal Modi, editor of a magazine called Gaurakshak, challenged the constitutional validity of Section 295 A arguing it impinged upon his freedom of expression. (Curiously enough, the bone of contention was a cartoon that was considered anti-Muslim and Modi insisted he had the right to publish it.) The Supreme Court dismissed Modi’s application, saying Section 295A places “reasonable restrictions on the exercise of the right to freedom of speech and expression ‘in the interests of’ public order.
Over the years, several penal offences for speech (in which an arrest could be affected) became constitutional. Worse, many of these offences were broadly framed and did not contain objective standards permitting their abuse. Their growing misapplication is evidenced by the AIB fiasco.
This has made some commentators pose solutions, like repealing the hate speech laws in India and replacing our 1st Amendment (which limits the right to freedom of speech and expression) with the 1st Amendment of the United States Constitution, which furthers it. Unfortunately, these approaches are misplaced and dangerous to an understanding of not only free speech values, but also minority rights.
There is no dispute that the hate speech laws as they are now stand require change. However, the change has to be in the nature of reform: to limit their abuse, rather than radical notions that call for their complete abolition.
Our constitution distinctly envisages the protection of minorities under various provisions. It recognises a multicultural ethic in which equals being treated equally as well as unequals being treated distinctly is recognised. It further contains express guarantees to minorities. Put simply, our constitution recognises that a pluralistic society requires the protections of minorities.
Second, international human rights conventions, notably the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, require countries to have domestic legislations to prohibit hate speech. India is a party to both of them.
Finally, there is also the need to maintain law and order, which is why all forms of speech cannot be simply decriminalised. Imagine what kind of toxicity could be spread through political speeches if there was no law criminalising hate speech, for instance. Even the United States recognises that some forms of speech, which lead to a direct incitement of violence, are not in conflict with their right to free speech. Speech when it is brigaded with action, such as a direct call to kill someone or inciting violence against a cultural or a religious group, requires criminal sanctions.
The solution to the routine abuse of hate speech laws in India is not through competitive offence of conservative voices or demonising minorities. Nor is it through proposing radical solutions that will provide comfort to the cynical politics of hate in our country. Today, we need to discuss meaningful reform rather than pure abolition.
Our goal has to be to reach legal standards that prevent any abuse. At its heart should be removing the tremendous subjectivity that permits the most easily offended to have their day in court as the author, artist or activist spends a night in jail.
Apar Gupta is a litigator. Generally works on civil and commercial litigation with a blend of civil liberties. Focus areas, technology, media and telecoms.