Context

On January 12, 2022 , the Supreme Court of India agreed to hear petitions asking for legal action to be taken against the organisers of, and speakers at, the “Hardwar Dharma Sansad”.

What constitutes hate speech

• Hate speech is speech that targets people based on their identity, and calls for violence or discrimination against people because of their identity.
• There is an absence of any legal or social consensus around what constitutes “hate speech.”
• As societies around the world have long understood, the harm in hate speech is not restricted to direct and proximate calls to violence.
• Inciting discrimination is part of hate speech: Hate speech works in more insidious ways, creating a climate that strengthens existing prejudices and entrenches already-existing discrimination.
• This is why – with the exception of the United States of America – most societies define hate speech in terms of both inciting violence, but also, inciting discrimination.

Challenges in dealing with hate speech

• Legal challenge: Our laws – as they stand – are unequipped to deal with the challenges of hate speech.
• The laws commonly invoked in such cases are section 295A of the Indian Penal Code (blasphemy) and section 153A of the Indian Penal Code (creating enmity between classes of people).
• Hate speech will not always be self-evident: Hate speech, by its very nature, will not always trumpet itself to be hate speech.
• Rather, it will often assume plausible deniability – as has been seen in the Hardwar case, where statements, worded with the right degree of ambiguity, are now being defended as calls to self-defence rather than calls to violence.
• Any comprehensive understanding of hate speech is a matter of judgment, and must take into account its ambiguous and slippery nature.
• Lack of social consensus against hate speech: No matter how precise and how definite we try to make our concept of hate speech, it will inevitably reflect individual judgment. 
• If, therefore, social and legal norms against hate speech are to be implemented without descending into pure subjectivity, what is needed – first – is a social consensus about what kind of speech is beyond the pale.
•  In Europe, for example, holocaust denial is an offence – and is enforced with a degree of success – precisely because there is a pre-existing social consensus about the moral abhorrence of the holocaust.

Conclusion

Achieving this social consensus is an immense task, and will require both consistent legal implementation over time, but also daily conversations that we, as a society need to have among ourselves.

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