Since 2014, India is witness to an alarming rise in communal aggression and hatred in the name of majoritarian Hindutva nationalism. In what has been identified as an aggressive fascist regime, the Sangh Parivar has utilized hatred as it means, both socially and electorally, and have captured both state and non-state actors to turn a blind eye or act in furtherance of their agenda.

One of the chosen means of creating, spreading, and consolidating this hate, is through hate speech. Hate speech is speech that falls outside the ambit of protected speech / free speech, and is speech that Waldron terms “group defamation”. Certain groups, on account of historical discrimination, are particularly vulnerable, including gender, caste, and religion. Hate speech is the expression of hate specially targeted at the members of a vulnerable community, meant to dehumanize a group and attack the individual dignity of a member of the group, as argued by Waldron. This speech has the effect of denying equal citizenship, educational or employment opportunities, reducing members of these groups to second class citizens.

As recognized by the Supreme Court in Pravasi Bhalai Sangathan v. Union of India ((2014) 11 SCC 477), hate speech rises beyond causing distress to individual group members, and lays the groundwork for later broad attacks on the vulnerable that range from discrimination, ostracism, segregation, deportation, violence, and in extreme cases, genocide. It affects a vulnerable groups’ ability to fully participate in democracy. In Amish Devgan v. Union of India ((2021) 1 SCC 1), the Supreme Court appreciated the definition of hate speech based on three distinct elements – content based element involving the open use of words and phrases generally considered to be offensive to a particular community, intent-based element involving the speaker’s message being intended to promote hatred, violence or resentment against a particular class, and the harm based element involving the consequences of hate speech which includes harm to the victim which can be violent or a loss of self-esteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena. These three elements are not watertight silos, and overlap. The Court also relied on the definition of hate speech as language intended to demean a group which a reasonable person would recognize s a “racial insult”. It further held that in a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy, and, in fact, repudiates the right to equality.

As held in the case of Shreya Singhal v. Union of India ((2015) 5 SCC 1), offensive speech is only criminalized when it presents a clear and present danger and threatens imminent lawless action, wherein a proximate nexus must be established between the words spoken and its outcome. Thus, hate speech falls well outside the fences of free speech, and is not protected speech that is free from curtailment. In effect, hate speech hinders an individual and group’s ability to enjoy their fundamental rights, especially the right to live with dignity. Although hate speech has not been explicitly delineated as an offence of its own right, it largely falls under offences in the Indian Penal Code pertaining to incitement of hatred and ill-will.

The manufacture of hate speech

Post-2014, with the BJP led Government coming to power at the center, hate speech has reached dangerous proportions. The BJP Government, representing the Sangh Parivar, came to power with the sole agenda, and promise, to turn India into a Hindu Rashtra. Thereafter, their policies, speeches, laws, and even stance in courts became a reflection of this core agenda. They utilized several legislative and non-legislative means to create, spread and justify hatred. Indicatively, hate speech can be traced through the following timeline:

• The creation of a discourse of “anti-nationals” being Muslims, Dalits, Christians, Communists, dissenters, lawyers, students, and anyone who opposed the ideology of the Sangh Parivar. This is heightened during the anti-CAA NRC NPR protests, wherein students, activists, lawyers, are imprisoned and branded as anti-nationals.
• The demonizing of the Muslim community during COVID-19, by attempting to blame them for the spread of the deadly virus and inaction on the part of the state to stop millions of deaths. By spreading terms such as “Nizamuddin virus” and “corona jihad”, amongst other means, the State tacitly blamed an entire community for COVID-19 by not only actively propagating this propaganda themselves, but also by failing to take action against big media houses who were doing so.
• The dehumanizing of Muslims has also taken on perverse forms such as “Sulli Deals”, wherein Muslim women were being “sold” on a mobile application, in a gross affront to their very right to life. Muslim women were also threatened with sexual violence on social media platforms.
• Cultural policing has become the norm with not just inter-faith relationships being targeted but any form of inter-faith social interaction being demonized. Women were abused for travelling in the cars of the Muslim friends, medical students were assaulted for travelling on bikes with Muslim men, and a steady atmosphere of fear was created.
• The calls for economic boycotts of Muslim businesses were given, by creating an atmosphere of false victimhood, that Hindus must only support Hindu businesses, and that Muslims must not be allowed to economically advance. Groups such as VHP put up posters and publicly campaigned against Muslim businesses, acting as vigilantes preventing Hindus from buying from a Muslim business.
• The creation of fake news and misinformation about alleged “forced conversions” of Hindus by Christians and Muslims, leading to so-called “freedom of religion” laws being enacted in several states across India. This was buttressed in hatred targeted against these communities for supposedly attempting to reduce the Hindu population. These laws canonized the fake information that the Sangh Parivar had been attempting to spread about vulnerable communities, that they are marrying women to convert them in “love jihad”, and that educational institutions etc. are merely engaging in conversions.
• The Government’s actions intended to curtail any expression of religious identity of Muslims, by restricting their ability to pray publicly (curtailment of using loudspeakers) and prohibiting the wearing of hijabs (headscarves) in educational institutions. in effect, no aspect of Muslimness was to be exhibited publicly, as an affront to the very right to dignity of an individual and group.
• The enactment of cow-slaughter laws with stringent criminal provisions that enable state and non-state actors to attack Dalits, Christians, Muslims, and a host of persons reliant on cattle for their sustenance and livelihood, and enabling demonizing of the communities in the name of religion. In fact, even the judiciary has in judgments stated that all the problems on the earth will be solved the day no drop of blood of the cows is dropped, comments regarding the cultural significance of cows to deny bail, and rulings declaring the cow the national animal.
• The open calls for genocide of the Muslim community in Dharam Sansads, mahapanchats, and Sangh Parivar gatherings wherein arms are worshipped (swords, guns), oaths are taken to make India a Hindu Rashtra and remove Muslims from the country, and declarations are made to perpetrate sexual and communal violence against Muslims. This creation of hate created a frenzy of non-State actors, supported by the State, giving massive group calls for rape, violence, and murder of those who oppose their ideology. The Hinduvta militant group, Hindu Jagarana Vedike, organized public rallies calling for violence and brandishing swords in Udupi, imploring every Hindu to have a weapon in their home, worship weapons and utilize them against Muslims. The Bajrang Dal similarly held poojas with swords in the presence of the police, with no repercussions. The Hindu Raksha Dal declared that only those who say “Jai Shri Ram” can stay in India, that Muslims will not be allowed to rise up and, “We will get mullahs out of graves and finish them from their roots”. Another mahapanchayat held at Pataudi, with BJP spokespersons asking to “Remove them from this country”, and the Dharam Sansad in Uttar Pradesh organized as a “Sant Sammelan Against Islamic Jihad and for the creation of Hindu Rashtra.” These are example of open calls for genocide of the Muslim community in India.
• The war cry for the creation of a “Hindu Rashtra” became ubiquitous, with both elected representatives, the executive, and sometimes even members of the judiciary echoing the cry. The then BJP Government’s Chief Minister of Karntaka Basavaraj Bommai in October 2021 had justified mob violence and majoritarianism on the ground that, “When sentiments are hurt, it is natural that there are actions and reactions. Even the youth should keep in mind these sentiments and act accordingly. Can we live without morality? No, we cannot. Relationships and peace are maintained by this morality.”

In order to create an atmosphere that is conducive to spreading hate speech, the BJP-Government assumed the role of both fact-checker and fact-creator, by taking onto itself the role of the highest authority in a grievance redressal mechanism under the Cable Television Networks (Amendment) Rules, 2021, requiring registration of self-regulatory bodies of broadcasters (such as republic TV and Times Now), and 3-tier mechanism for grievance redressal with the Government at the top of this mechanism. This came along with passage of laws that controlled free speech but at the same time protected hate speech, through laws such as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 that fundamentally alter speech on the internet by imposing onerous conditions on social media intermediaries to cooperate with the Government and take down content, powers to the Government to take action against social media intermediaries, and granting the executive of the Government the power to exercise judicial powers. In fact, the Government gave unto itself emergency blocking powers, which the Government was quick to utilize to direct YouTube and Twitter, blocking sharing of the BBC’s documentary on Narendra Modi’s role in the 2002 Gujarat pogrom.

The Union Government again in 2023 amended the Rules, establishing a fact checking unit at the discretion of the Union Government to “fact-check” supposedly false, fake or misleading information regarding the Union Government and can also order action against this content. Thus, the Government has effectively whittled down means of free-speech, curtailed genuine fact-checking, created a ripe environment for the creation and spreading of misinformation and lack of independent mechanisms to address hate speech.

Having weakened measures of accountability and self-regulation, hate speeches from political leaders and leaders of the Sangh Parivar enjoyed impunity. In fact in Karnataka, from 2019 to 2023 alone, the BJP government ordered the withdrawal of prosecution in 182 criminal cases of hate speech, cow vigilantism and communal violence.

This hate speech is a precursor to the escalating violence against religious minorities, women, and Dalits in India. Even during elections, candidates and their agents freely engaged in hate-mongering to gather momentum and votes.

The Impact

Hate Speech is key part of the stages of genocide, which have been identified as classification (distinguishing us v. them), symbolization (by dress or any symbol), discrimination (legitimizing victimization and exclusion), dehumanization (indoctrination to deny humanity, eg. Branding a community as cockroaches), organization (state-enabled organization of violence), polarization (driving of groups apart, passing emergency laws etc.), preparation (preparing for apparent “solutions”), persecution (victims identified and separated out based on their identify, deprived resources), and extermination.

During the COVID-19 pandemic for example, Muslim street-vendors were harassed and attacked, kicked out of apartments, denied medical treatment, due to the fact that media houses at the instance of the Government perpetrated hate speech against them blaming them for the spread of COVID-19. Inter-faith and inter-caste couples were attacked, removed from hotel rooms, and even killed. Evidently, hate speech has a real and apparent impact on protected groups, which is often immediate.

Hate speech operates in a culture of impunity created by the State, which both implicitly and explicitly propagates hate speech as well as protects it. In Tehseen Poonawalla v. Union of India (AIR 2018 SC 3354) the Supreme Court had issued a slew of directions to the State Governments to take preventive, remedial and punitive measures to prevent mob lynching and violence, including a special task force to be set up in each state to prevent hate speech, which has not been complied with. Often, the police will refuse to register FIRs against hate speech, despite it clearly comprising an offence under the Indian Penal Code. The State has also ignored the dictum in Navtej Singh Johar and Ors. v. Union of India ((2018) 10 SCC 1) that constitutional morality cannot be martyred at the altar of social morality, and it is only constitutional morality that can be allowed to permeate into the rule of law.

Conclusion

India is witnessing a proliferation of hate speech, wherein the manufacturing of hated is not only politically profitable, but is also economically profitable. It is spread through means as small as WhatsApp forwards claiming an imaginary reduction in Hindu population, to entire shows dedicated to exposing some controversy of the Muslim Community (such as UPSC Jihad). To effectively combat and prevent the creation of such hatred, hate speech must be both legally and politically recognized as a weapon of the Sangh Parivar, and countered, as an affront to our core constitutional values.