The order passed by the SC bench led by Justice D.Y.Chandrachud releasing Mohammed Zubair on bail and clubbing together all six cases filed by UP and Delhi police comes as welcome relief at a time when the extraordinary judgment of another bench ordering prosecution of Teesta Setalvad,well-known human rights activist, seemed to be the culmination of courts’ indecisive and hesitant responses to the grim attacks of the government on liberties of citizens.That development had caused widespread alarm and distrust in our justice system.The order of the SC bench also refused to grant the prayer of the police to forbid him to keep on posting messages on Twitter on eminently sound grounds putting liberties of citizens out of reach of the claws of an aggressive government.
It also provides an opportunity to return to the tired old subject of hate speeches.The term originally coined to cover speeches with rabid and violent communal animus has of late been turned inside out as the police in some states appear to be targetting people flagging their occurrence rather than those spreading them.The distinction is important and must not be blurred.And those who are really guilty of disturbing communal harmony and tranquil relations among people of different faiths and creeds need must be brought to the book.
Everyone knows which political group goes by the credo of action necessarily causing reaction,and how it applies the formula to suit its propaganda needs.It is in states like U.P.where the misuse of the term to harass minorities has been most egregious.So that point need not be labored here.But the question arises as to how one may evade the confusion to spot and flag real hate speech as the term had been originally intended to do.Actually strict guidelines in a special manual should be provided to the police so they do not use it too loosely and mindlessly.
First,hate speech is not simply any critical comment on a community or religion.Among friends on social media meeting on internet for mere exchange of views and interaction one may conceivably offer opinions critical of any religion or institution or creed or community.As long as it is not given out for circulation,and as long as the language is sober and free from venom, it is under protection of freedom of speech.And that freedom is vital for a free society as circulation of blood is to the body.If,however,someone else who comes across it by chance and deliberately circulates it with intent to cause ill-will and mischief in society at large without the author’s knowledge,he should be charged with the crime.On the other hand there are plenty of pretty toxic spiteful posts intended merely to provoke and offend which certainly deserve to be flagged and charged with this crime,and their sources must be booked.However,if it is taken up by someone and hyped and shared among like-minded gnomes creating an uproar,then the person actively circulating it should share major part of the blame.
Supposing there had been some such post on social media on the face of it hurtful and offensive but left alone and causing no turmoil for more than a year.In that case its source or originator may simply be warned and asked to take it down.Otherwise the police and authorities will be overburdened with complaints, will have no time to deal with serious matters.
The procedure now in place is also messy and should be streamlined and made less open to subjective and biased response.The current procedure has any complainant anywhere in the country spotting such a hate post and filing a complaint with the police of his area,whereupon the police registers a case even without considering if the complaint is frivolous or malicious.It will be better to have dedicated police panels to consider such cases first and people merely reporting such posts in stead of lodging a formal complaint.Since it conceivably concerns state security,the panels should study the reports and prepare FIRs if and when the case meets certain prescribed norms.This may help remove the waywardness visible at present in such cases.
What has regrettably become quite common and vicious is politically motivated police not only targeting the innocent and the unwary,but also piling up more and fabricated evidence to load the scales against their victims.There also appear to be armies of trolls working in tandem with the police as their accomplices.Or there is overenthusiasm on the part of the police to please their political bosses.
Hence prosecution should be required to provide evidence of the application of mind by police at a higher level to check proliferation of cases and wasting the time and resources of courts.Further there should be a provision for exacting the costs of such a suit from the police as well as official punishment visited on erring policemem should the case turn out to be trumped up.
If the procedure thus gets regulated and made responsible at every step,and the usual hype and hoop-la pared away,it will help control and eliminate not only a lot that threaten peace and tranquility in our society but also tend to undermine the secular democratic foundations of our state.
Hiren Gohain is a political commentator
We received the article on July 22nd