'Are We Now Reaching The Extreme Of Genocide?': Justice Madan Lokur Decries Executive Inaction Against Hate Speech Incidents; Calls For Special Law

Justice Madan B Lokur, former judge of the Supreme Court of India on Sunday underscored the urgent need to ensure that the Parliament enacts a law on hate speech considering the fact that hate speeches against minorities in India are on an alarming rise. Justice Lokur was speaking at a webinar titled 'Hate Speech In India' conducted by the organisation Manthan. 

Justice Lokur highlighted several recent instances of hate speech and the purported 'silence' of the Executive and the Judiciary in effectively taking measures to curb such incidents. 

"Are we now reaching the extreme of genocide? Is it not time to act? Is it not time for the public opinion to build up to say-  let's have a law, lets get down to action. Let's not just be silent spectators whether we belong to the Executive or whether we belong to the Judiciary. As members of cilvil society we deserve a civil society and how can we have a civil society if we have events like this happening around us and how long are we going to tolerate it?", Justice Lokur remarked. 

Statutory provisions 

Justice Lokur stated that at present the law in India does not contain a specific definition of hate speech. However, he referred to various provisions of the Indian Penal Code which could broadly encompass within its ambit an offence of hate speech. He referred to Sections 153A, 153B and 505 that criminalises attempts made to cause public mischief, tamper with national integrity, promote disharmony between different groups on the grounds of religion, race, place of birth, residence, language, etc.

"The moment you are attempting to do it or trying to create this kind of a friction between religions, between castes, between communities in regions and so on, you are committing a punishable criminal offence. So I think the way I look like it, hate speech would come in one of these definitely and it has a very broad sort of a meaning", Justice Lokur averred further. 

He also referred to the provisions of the Representation of the People Act, 1951 such as Sections 123 and 125 which prohibits promotion and the attempt to promote feelings of enmity or hatred between different classes of the citizens  on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person. Furthermore, it was highlighted that Section 8 of the Representation of the People Act, 1951 only disqualifies a candidate only upon conviction. 

NCRWC report

Justice Lokur also referred to the report of the National Commission to review the working of the Constitution (NCRWC) chaired by former Justice M.N  Venkatachaliah. The Commission had recommended that punishment for electoral malpractices must be made mandatory. 

Furthermore, Justice Lokur also stated that the Commission had recommended the disqualification of a candidate even in an instance where candidate's election agent or somebody at the instance of the candidate tries to bring about disharmony between communities. 

"So it is one thing for a candidate to say "I did not say anything" or my election agent did not say anything But if somebody at your instance, at the instance of the candidate, at the instance of the election agent tries to bring about this disharmony or hated between communities then the candidate is responsible.. the committee wanted to broaden the scope of hate speech and to make it into a more serious electoral offence which is punishable with mandatory punishment and also disqualification", Justice Lokur enumerated further. 

Judicial decisions 

Justice Lokur made a reference to the Supreme Court decision in Pravasi Bhalai Sangathan v. Union of India wherein certain fundamental principles had been laid down. The Apex Court had held that hate speech would include an intention to or having the effect of deligimatising, marginalising people belonging to a religion, community, caste creed etc and beyond causing mere distress. 

Justice Lokur pertinently mentioned that the Supreme Court in this case did not make any reference to violence  and had held that an act could be categorised as hate speech even if no violence takes place as a consequence to it. "So it is not just saying something or upsetting a person, it is something much more than that. Criticising a person for example may cause distress, may cause unhappiness but it is something beyond that. What I find important in this is there is no mention of violence. They have said deligimitised, marginalised, beyond causing distress. There is no mention of violence", he stated further. 

The Apex Court had also stated that hate speech lays the ground work for discrimination and even genocide. Opining that this is extremely significant in the current circumstances, Justice Lokur remarked further,  "The second thing that Supreme Court said and which I think is very very important in today's context is that hate speech lays the ground work for discrimination, ostracisation, segregation, deportation, violence and in extreme cases genocide."

267th Report of the Law Commission 

The Supreme Court in Pravasi Bhalai Sangathan v. Union of India had directed the Law Commission to look into the entire aspect of hate speech and prepare a report. Subsequently, the Law Commission in its 267th report had made certain recommendations in this aspect. 

Opining that no action had been taken on the recommendations of the Law Commission, Justice Lokur remarked,

"The troubling aspect is the report of the Law Commission..of course it was tabled in Parliament, it is for the government to act upon the report if necessary but nothing has happened. The 267th report is where it is somewhere lying on the shelf."

Opining further that the Law Commission has almost become a defunct body, Justice Lokur stated further, 

"What is worse is that the Law Commission has now been abandoned. It does not have a Chairman for the last couple of years, I don't know what they are going to do eventually. Whether it has become a defunct body, whether they are going to have a Chairman, I have no idea. There is no Law commission for the last couple of years."

Is a Minister who puts a garland on persons convicted of lynching a reasonable person?

Justice Lokur made a reference to Canadian jurisprudence and stated that they interpret hate speech from the perspective of a 'reasonable person'. Making reference to recent alarming incidents, Justice Lokur remarked, 

"Now when I was a student of law and continued as a lawyer and as a judge I knew exactly what a reasonable person is . But today I don't know what a reasonable person is. Is a Minister who gives hate speech, is he a reasonable person? A minister who puts a garland on persons who are convicted of lynching, is he a reasonable person?  If these are reasonable persons, then reasonableness has a completely different meaning from at least what I have understood as a student of law and as a lawyer. So perhaps in Canda they still understand what a reasonable person is but we have a bit of a problem in understanding what is a reasonable person."

It may be noted that reportedly Union minister Jayant Sinha in 2018 had found himself amidst a raging controversy after he put garlands on eight men who were convicted for killing a meat trader. 

Chilling effect on targeted groups 

Justice Lokur further averred that hate speech has a chilling effect on targeted groups. "When you put a journalist in jail for saying something or writing something, you have a chilling effect on other journalists. When you have NGOs being raided, you have a chilling effect on other NGOs", he remarked further. 

Referring to an incident in 2012 when thousands of panic-stricken people of the northeast had fled back to the north east from various parts of the country following rumours of violence targeting them, Justice Lokur underscored further, 

"You will remember in 2012 there were these images of violence which had happened in Myanmar few years ago. They were being distributed as evidence of violence in Assam. Fake news..completely fake news. This resulted in some citizens of our country belonging to the North East becoming victims of violence and it is estimated that something like 50,000 persons from the North East went back to the North East over a couple of months. I remember watching on television railways stations overflowing with people from the North East going back to their home state. There were instances of violence but not necessarily all of them were victims of violence but that was the chilling effect kind of thing."

International jurisprudence does not mandate violence to be a component of hate speech 

Justice Lokur made references to existing laws in various countries- United Kingdom, Australia, South Africa, Germany among others wherein it is not necessary that an act has to result in violence for it to be labelled as hate speech. 

"The important  point is in all these countries violence is not a consequence of hate speech. When you indulge in hate speech it may or may not result in violence that is important and that is what constitutes hate crime. What are the Courts in India doing about it? I am sorry to say but we have tried to bring about the concept of violence in hate speech. Like I said all through Indian Penal Code, Representation of the People Act, 195, cases in foreign countries, international conventions- violence is not a part of hate speech but we have introduced it in some form or the other", he stated further. 

An expression of hate- Bulli Bai, Sulli Deals, burning of Santa Claus effigies, complicity of Union Ministers 

Justice Lokur also emphasised that the country in recent times has seen various incidents of alarming hate speech targeting minority communities. He remarked,

"You have in the recent past Sulli Deals of auctioning of muslim women. You have Bulli Bai again an offshoot or progression from Sulli Deals again auctioning of muslim women. There is no violence in this, but is it not hate speech? Can you say, oh its okay freedom of expression? There is no violence, what is wrong with it? But this is hate speech. These people are promoting something, they are doing something which is likely to cause an offence in terms of respect in terms of dignity, delegitimisation, marginalisation of these people whose photographs are appearing on the social media that they are being auctioned. Where is the violence? But there is hate. That is hate speech."

He also referred to recent incidents of hate speech wherein school students were targeted, effigies of Santa Claus had been burnt. 

"You have schools- a particular school that was targeted during examinations in Madhya Pradesh. Children were giving their examination, suddenly people came with iron rods also, started throwing thrones. You have in Agra effigies of Santa Claus being burnt a day before Christmas or on the day of Christmas— no violence but an expression of hate. You have a Minister garlanding a person who had been convicted of lynching..lynching in itself is violence, hate speech resulting in violence."

Significantly, Justice Lokur also referred to the 'Goli Maro' slogans raised by Union Minister Anurag Thakur(without naming him) during the 2020 Delhi elections campaign.

"We have had in Delhi a Minister..now he has become a Cabinet Minister saying Goli Macro.. what is that if not incitement to kill? But he said I never said it you know I just said you shoot I didn't say whom you shoot..Those listeners said you shoot traitors, I never said. "

Dharam Sansad incident- it is hate speech and genocide under the Genocide Convention, 1951

Justice Lokur also made a reference to a recent incident wherein a large collection of major religious leaders, right-wing activists, and Hindutva organisations came together at Haridwar for an event called the 'Dharma Sansad' or 'Religious Parliament'. Over the course of three days, this event witnessed an extraordinary outpouring of hate speech, mobilisations to violence and anti-Muslim sentiment. 

Justice Lokur stated, "You have a Dharam Sansad which was held in December over a period of 3 days where there was a call for ethnic cleansing, genocide. Remember the Supreme Court had said that in extreme cases hate speech can lead to violence and genocide. Now this Dharam Sansad talked about genocide."

Opining that the Executive has been a mute spectator, Justice Lokur further remarked, 

 "Here you have the Executive which is either silent, it took no action so far as the Dharam Sansad is concerned until the matter came up in the Supreme Court and the Supreme Court said, well what's going on? Then they arrested some people, those people have got bail, by the way."

Justice Lokur also made a reference to Article 3 of the Genocide Convention, 1951 which stipulates that direct and public incitement to genocide is also genocide. He also stated that although India is a contracting party, no domestic legislation had been enacted yet. He further remarked, 

"You don't have to go around killing people. You just have to directly and publicly incite people to genocide. That too is genocide. We have not enacted any legislation so when people talk about genocide, ethnic cleasing, call it what you like? What is it? It is hate speech but not genocide because we have not enacted any legislation."

Amish Devgan case- Component of violence introduced by SC which is retrograde 

Justice Lokur also made a reference to the Supreme Court decision in Amish Devgan v Union Of India wherein the Apex Court had introduced the component of violence in cases of hate speech. In this regard, he remarked further, 

"You have had the case of Amish Devgan which came in 2020. The Supreme Court said alright we protect you but don't do these things again, there is a prosecution going on we are not going to say anything about the prosecution, let the courts decide. But the important thing is they introduced the concept of violence. Supreme Court said that hate speech is an incitement to violence. If it is an incitement to violence it is punishable...But Supreme Court has brought in the concept of violence inspite of the earlier decision of Pravasi Bhalai , inspite of Law Commission, in spite of laws in different parts of the country. The concept of violence has been introduced in the Amish Devgan case which I think is retrograde."

Case Of Sudarshan TV's 'UPSC Jihad' show- delay in adjudication by SC 

Justice Lokur also expressed dissatisfaction to the delay in adjudication by the Supreme Court in the case of Firoz Iqbal Khan v. Union of India pertaining to Sudarshan TV News telecasting g episodes of the 'Bindas Bol' show about Muslims clearing the UPSC exam. 

"The Court said very important case.. urgency.. this and that we prohibit further episodes of this program being telecast. But since August 2020 that is more than a year and a half the case has not been taken up. So you have instances of hate speech taking place frequently resulting in violence resulting in delegitimisation, loss of dignity but the law has been going in the direction of violence which should not be there and in spite of the fact that it is a matter of great urgency", Justice Lokur averred further. 

Sort of an acceptance that hate speech is okay- cycle of hate speech continues 

Justice Lokur further raised concerns about the impunity guaranteed to perpetrators of hate speech by observing,

"So you have the police or the prosecution not doing anything about it you have the government not doing anything about..On the other hand you have some people from the government being proactive garlanding them..these persons who have committed lynching you know making provocative speeches one of them just before the riots in Delhi. So you have a sort of an acceptance that hate speech is okay. We as the prosecution or we as the State are going to be silent spectators. I am not alleging conspiracy or any such thing but you know we are just going to keep silent about it..And the courts are going to say or are saying unless there is some violence involved we are not going to do anything. So the cycle of hate speech continues. "

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