There are roughly four sections in Indian criminal law and election law that clearly and unequivocally restrict or restrain the use of such hate speech and writing and empower the executive i.e. the government (state and central) and the police as also the judiciary with the task of enforcing them. Sections 153A and 153B of the Indian Penal Code (IPC – offences for promoting enmity between different groups on grounds of religion, race, place of birth, language, etc and indulging in acts prejudicial to maintenance of harmony or prejudicial to national integration) and Sections 123A and 123B of the Representation of the People Act, 1951 (RPA – which, under the definition of a ‘corrupt practice’, forbids the use of undue influence, appeal on grounds of religion, promoting enmity or hatred between different classes of citizens on the ground of religion, race or community and character assassination) are the most relevant examples.

Quite apart from the fundamental rights to equality, equal protection by the law, right to life, freedom of expression, association and residence and freedom to promote, practice and propagate one’s faith and the rights of religious minorities to run their own institutions, the consistent and honest application of these sections of the IPC and the RPA are critical to ensure and assert the protection of basic democratic and human rights and especially the constitutional rights of Indian religious minorities. As importantly, the regular application of these sections of the law in the public arena by actions of the executive and judiciary whenever violations of these laws takes place is necessary for upholding the secular intent of the Constitution of India.

The purposes of these sections of Indian criminal law and Indian election law, apart from being in consonance with all jurisprudence, law or the Constitution of India, all democratic and secular, are intended to preserve public tranquillity by containing or severely restricting those individuals, groups or political parties that use hatred or enmity as political currency and as a result of such use perpetrate enmity and the demonising of certain sections of the Indian people.

In short, the systematic and straightforward application of Sections 153A and 153B of the IPC at normal times and Sections 123A and 123B of the RPA at election time – provisions that should impel the executive and the judiciary into prompt action – is vital to both safeguard and deepen the provisions of equality and justice detailed in the Indian Constitution and specifically imperative if the secular thrust of this document is to be enforced.

These principles within our Constitution and other laws should not merely be upheld when complaints/cases are filed by private complainants but ought to be enforced by the state, especially the judiciary, even when the executive or legislative wings of the government are being pressured or compromised into inaction against the perpetrators of hate speech and writing. How else can a committed adherence to the secular fabric of our laws be assured? Today’s unfortunate reality is that these laws are observed in their breach and violation. It has become the unprecedented and worrisome norm to let the offenders off and thereby sanction the corrosive influence of such methods of speech and writing on public life and public tranquillity.

The continued use and overuse of hate speech has become an unfortunate part of public discourse today. The police, which is part of the executive wing that is empowered to preserve public tranquillity, has repeatedly made claims that the restriction of the legal provision that stipulates the obtainment of sanction before prosecutions can be launched against such perpetrators are impediments in their systematically applying and upholding these provisions of the law. Apart from these fairly legitimate claims by the police, independently researched and accepted trends such as the sharp politicisation of the police force – a trend that over past decades has also been transformed into an abhorrent lack of neutrality especially when it comes to dealing with members of the religious minorities – self-restrict the actions of police officials further.

Political expediency delays the grant of sanction by the executive i.e. the governments and their legal and judiciary departments, further. Technical bars that the laws contain – such as periods of limitation or time bars against prosecutions – do not take into account the harsh realities of judicial delays for which courts themselves are either responsible or which are, unfortunately, condoned by the judicial authorities. And for the litigation that overcomes all these initial obstacles to make its presence felt in our courts, the judiciary itself has been wary of clear-cut interpretations of these penal legal provisions.

What has been the role of Indian courts in promoting public tranquillity and against the systematic propagation and use of hate speech and writing that has become the unfortunate and corrosive fibre of our public life? Has the court ever addressed itself to pivotal and key questions such as, for instance, ‘should sanction be a necessary prerequisite for application of these sections of the laws or is it a limitation provision that is being used by the executive to actually curtail effective implementation of these sections’? Why cannot the police be empowered to act independently when such violations of hate speech and writing are manifested?

Indian courts have been conspicuous by their refusal to initiate any suo motu action in the matter of use of such hate speech. Our newspapers, unfortunately or fortunately, regularly publicise the use of such hate speech by political leaders and other groups so judges cannot afford to claim oblivion from these disturbing trends. Some crucial questions arise here. In a democracy, dynamic and diverse, with multilingual and multi-religious groups, can the courts be immune from processes at work in civil society?

We are speaking here of the insidious legitimacy being accorded to hate speech and writing; the continuous, unchallenged and unrestrained use of such speech and writing whereby the phenomena itself becomes the active agent for a general, threatening, poisonous and violence prone atmosphere in public life. There are dozens of examples to illustrate that hate speech and hate writing are being used as agents provocateurs in systematically organised rounds of violence against Indian religious minorities.

The Indian courts delivered four or five historic verdicts on this issue in the late eighties and nineties. The first such, delivered by justices SP Bharucha, Hosbet Suresh and Sam Variavar of the Bombay High Court, made significant headway on these pivotal issues of jurisprudence.

Justice Hosbet Suresh, in the Subhash Desai petition (Subhash Desai vs Sharad J. Rao, AIR 1994 SC 2277) and Justice SP Bharucha in the Ramesh Prabhoo case (Ramesh Yeshwant Prabhoo vs Prabhakar Kashinath Kunte (1996), 1 SCC 130:1996 AIR SCW 652:AIR1996 SC 1113) followed by Justice Halbe in the Vimal Mundada case, were straightforward in interpreting certain statements with candidates or their ‘agents’ whether or not these statements attracted the provisions of the RPA and constituted an appeal during an election on grounds of religion.

Justice Suresh, in the Subhash Desai case, clearly held that the speeches made by agents of candidates at electoral rallies, exhorting workers (of their party, the Shiv Sena) to disrobe Muslim women in burkhas to ascertain whether they were women were clear threats to ensure that women would not vote at all. Phrases and speeches like "garv se kaho hum Hindu hain (say with pride that we are Hindus)" were held by justices Bharucha and Suresh to attract the penal provisions of these sections as also 10 speeches made in which a speaker said that the saffron flag would fly over Kashmir and Islamabad (use of a religious symbol), speeches that the flame of Hindutva would be lit (if one voted for the BJP/Shiv Sena candidate) and that the Congress was responsible for the desecration of temples and the molestation of Hindu women (Justice Halbe).

Barring these judgements – which, incidentally, have played by far the most crucial role in exercising restraint on the perpetrators of hate writing and speech, including a bar on Shiv Sena chief Bal Thackeray’s right to vote or contest an election (July 1999) – the Bombay High Court and worse still, the Supreme Court have also been responsible for seriously damaging the history of Indian jurisprudence in the matter of preservation of public tranquillity and the rule of law with regard to upholding the applicability of Sections 153A and 153B of the IPC and Sections 123A and 123B of the RPA.

To substantiate this charge (or claim), the history of two sets of litigation needs to be traced and understood. One is the history of an election petition against Shiv Sena MLA and former Maharashtra chief minister Manohar Joshi, in which Justice Variavar of the Bombay High Court passed a strong judgement debarring the candidate, declaring his candidature null and void. Specifically, the judge held that Bal Thackeray making a speech invoking the ‘dream of Hindutva’ as his agent and the contents of his appeal were in violation of the relevant sections of Indian election law.

A three-member bench of the Supreme Court substantively diluted the high court judgement and averred that "in our opinion a mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for voters on the grounds of (their) religion but the expression, at best, of such a hope" (Justices JS Verma, NP Singh, K. Venkataswamy, Supreme Court, 1995). As a result of this judgement, the Bombay High Court judgement, which had set aside Manohar Joshi’s election was itself set aside.

Worse still was the fate and history of a historic public interest litigation filed by former chief secretary of Maharashtra JB D’Souza and journalist Dilip Thakore against the state of Maharashtra in a writ of mandamus asking that sanction be granted for the criminal prosecution of Bal Thackeray for his blatantly provocative writings against Bombay’s Muslims which encouraged Shiv Sainiks to launch a full-fledged pogrom against their lives and property in December 1992 and January 1993. In December 1992 and January 1993, Saamna, a self-proclaimed mouthpiece of the Shiv Sena, published a series of editorials that were prima facie violations of Sections 153A and 153B of the IPC.

The question before the court was whether the nine articles cited by the petitioner attracted Sections 153A and B i.e. whether they promoted enmity between Hindus and Muslims on the grounds of religion, race and residence.

Abuses, threats and assaults are integral to the culture of the Shiv Sena and other political outfits and have been shamelessly used to stifle criticism and browbeat the opposition into silence. Instead of showing vision and stature during the course of arguments in this case – a critical one in sharpening Indian jurisprudence on these issues of rule of law and public tranquillity – instead of having their ears to the ground and responding to threats and threats of threat with the fearlessness associated with path-breaking courage – both the Bombay High Court, which justified Thackeray’s hate speech and writing, and justices Punchi and Jayachandra Reddy of the Supreme Court, by dismissing the special leave petition filed in appeal without even entertaining arguments, failed the Indian Constitution and Indian democracy.

A division bench of the Bombay High Court (justices Majithia and Dudhat) were, from the outset of the petition’s hearing, more concerned with extraneous issues surrounding the personality of the respondent (Bal Thackeray) rather than the crucial legal, ethical and moral issues that this piece of litigation had raised. In April 1993, when arguments in favour and against the admission of the petition were being heard in open court, Vidyasagar Kanade, the advocate for the respondent issued an unmistakeable warning, "My Lord," he said, "Bombay will burn if the petition succeeds and sanction to prosecute Mr Thackeray is accorded." At this stage the state government was given time to respond on whether or not it had given sanction to the police to pursue the prosecution of the respondent

Bal Thackeray is the head of a political party that has repeatedly belittled democracy. Thackeray has repeatedly scoffed at both the law and the courts: "Main adalaton ke phaislon par laghooshanka karta hoon (I piss on the judgements of the courts)," he was quoted as saying in the Saanj Jansatta, June 29, 1995.) Despite these insults and belligerence on justice issues and the rule of law and notwithstanding his explicit and crude contempt for judges and the courts, no suo motu action was initiated against Thackeray for his provocative ranting. Can criticism of this major lacuna in Indian jurisprudence and public criticism of this failure by Indian courts to hold Thackeray accountable for violations of the Indian law attract ‘contempt of court’ provisions when the man who openly professes contempt for both the rule of law and the courts escapes even mild censure from the higher judiciary?

For a further analysis of the judicial response to this litigation, I reproduce excerpts from an exclusive opinion from noted constitutional expert, the late HM Seervai (dealing with one issue raised by the judgement): "I will only deal with one gross instance of the untenable interpretation put on the editorial in Saamna dated December 9, 1992… At page 37 of the judgement, the court observed: ‘…In this article, it is true that reference is made to 25 crores of Muslims in India and relying on this, Shri Setalvad argued that Muslims as a whole are criticised. It is an admitted position that in fact in India at that time there were 11 crores of Muslims and therefore the figure given in the editorial appears to be a typographical mistake and hence from the reference to 25 crore Muslims one cannot draw an inference that whole dig in the editorial is against Muslims as a whole. If one reads the editorial published on December 9, 1992 as a whole, though some caustic language is used, the dominant impression that the reader is likely to carry is definitely not ill will, spite or hatred towards Muslims in general but it may carry ill will and hatred against unlawful behaviour of anti-national Muslims, including leaders like Imam Bukhari and Shahabuddin.’

"In my (Seervai’s) opinion, the interpretation given to this exhibit is absurd and perverse. The statement that 25 crore Muslims was a typographical error is based on no evidence. It does not seem to have occurred to the judges that the respondents may exaggerate the number of Muslims in India in order to emphasise the dangers which Hindus and Muslims would face.

"Further, the passage divides the population of India between Muslims and Hindus and also states that Pakistan was said to have seven bombs. The seventh bomb was planted in India because Pakistan need not lead an invasion of India: 25 crores of Muslims loyal to Pakistan would stage an insurrection to destroy India. A clearer violation of Sections 153A and 153B is difficult to imagine.

"In the last two paragraphs, which are not conspicuous for their clarity in substance, the court said that if sanction were given, it would reopen wounds between Hindus and Muslims. Public interest required that sanction to prosecute should not be given. This is contrary to the evidence on record: ‘Government is prosecuting Shri Thackeray for some articles. Government is normally a better judge of the public interest.’

"The government of India has ordered the prosecution of a number of persons, including a member of parliament at the time when riots broke out principally directed against the Sikh community. Such a prosecution would open up old wounds but justice demanded that the guilty should be brought to book.

"In my (Seervai’s) opinion the summary dismissal of the petition for special leave against the judgement of the Bombay High Court by justices Punchi and Jayachandra Reddy can only be described as amazing and subversive of the rule of law…

"The two Supreme Court judges had observed that they agreed with the high court’s conclusion that it was not in the public interest that the issue should be raked up. But the two Supreme Court judges overlooked the fact that in the whole elaborate judgement (except the last two paragraphs) the court held that the respondents were not guilty. The necessary consequence of the summary dismissal is that the Supreme Court confirmed the high court’s conclusion that respondents 3 and 4 (Bal Thackeray and Sanjay Raut, Shiv Sena MP and executive editor of the Marathi daily, Saamna) were not guilty.

"Justice means justice to both sides in a petition. Not to decide the guilt or innocence of respondents 3 and 4 is a grave abdication of judicial duty to uphold the Constitution and the laws.

"For the second reason, namely, that the high court ‘had its fingers on the pulse of the situation’ and public interest would be better served by leaving the situation where it was, there is not a title of evidence that the two judges had their fingers on the pulse of the situation. On the contrary, the government which must have its fingers on the situation, did not leave the situation as it was and ordered four prosecutions in respect of articles published by respondents 3 and 4 and one Shri Desai (Subhash Desai, publisher of Saamna). In respect of these prosecutions the government upheld the rule of law…

"In my opinion, the Supreme Court should recall its order, admit the special leave petition and decide the matter on merits" (Senior constitutional expert, HM Seervai, in an exclusive legal opinion given to Communalism Combat and published in CC, January 1995).

On July 28, 1999, a decade after Shiv Sena chief Bal Thackeray had been found, in four election petitions, to have violated Indian election law, he was debarred from voting or standing for an election. The offences committed by Thackeray under Sections 123A and 123B of the RPA related to seeking votes on grounds of religion and spitting venom against one section of the Indian population. Unfortunately, it took 10 long years for the election commission (EC) to act on judgements delivered by the Bombay High Court and the Supreme Court in 1989 and 1995 respectively. Even after the decision was delivered, the term of Thackeray’s punishment was reduced from six years to two. Moreover, no restrictions were placed on Thackeray against violating this section of Indian law yet again, during the concurrent election campaign in 1999.

The offence against which action was initiated was committed twelve years earlier on November 29, 1987 and later, during three election speeches made by Thackeray in support of his candidate, Ramesh Prabhoo, in the course of the same election campaign. Due to predictable delays in the legal and judicial processes, it took a dozen years for the guilty to be brought to book. Should not the punishment, when it was finally applied, have extended, at the very least, to the entire six-year period for which it was intended? The reduction of the punishment’s duration (to two years) cannot be an arbitrary decision. This belittles a grave crime, in this case, the misuse of religion for political purposes and hatemongering against one section of our people.

More than the letter of the law, its very spirit and essence has been violated by its tardy application. This spirit, this essence was then in serious danger of being rendered meaningless since the EC chose to merely observe a formality and placed no restrictions on Thackeray’s participation in the Shiv Sena’s election campaign.

The spirit behind this section of Indian election law – which Thackeray violated – is, surely, that the strident proponents of a divisive and corrosive agenda during an election campaign should be taught a severe lesson. When our law-givers framed the law, they believed that a citizen who committed such an offence should be punished with the highest indignity, to be divested of that very basic right all citizens are entitled to – the right to vote and contest an election. Our law-makers had not then encountered or lived with a Bal Thackeray.

Action was finally initiated 10 years after the Bombay High Court had found Thackeray guilty of crimes under Indian election law. In July 1999 a presidential notification based on recommendations decided unanimously by Chief Election Commissioner MS Gill and his colleagues, awarded Bal Thackeray the highest possible punishment, stripping him of a basic citizen’s right for six years.

In 1987, in the first speech for which he was held guilty, Thackeray appealed "to all my Hindu brothers, sisters and mothers gathered here to please send the Shiv Sena to the legislative assembly". Unless they did so, he warned, "It will be difficult for us to live because there will be a war of religions and Muslims will come…" "Who are these laandye (a derogatory term for the circumcised Muslim commonly used in Maharashtra)? They should bear in mind that this country is of Hindus, it shall remain of Hindus."

His second speech was even more explicit. On December 9, 1987, referring to Prabhoo’s contesting the Vile Parle legislative assembly seat, Thackeray said, "The victory will not be mine or of Dr Prabhoo or of the Shiv Sena but the victory will be that of Hinduism… Whatever masjids are there, if one starts digging below, one will find Hindu temples." Similar election speeches were made throughout that month.

Since 1987, when the offensive speeches were first recorded, Thackeray has used several occasions to spew a similar kind of venom. Several state and national elections have been coloured by his special brand of campaigning: 1991, 1995, 1996, 1998, 1999 and thereafter. More than adequate grounds for the EC to act and effectively restrain, under imaginatively applied Indian election laws, Bal Thackeray’s public presence in the Shiv Sena’s election campaigns.

The words of both Bal Thackeray in the Saamna and his editor Sanjay Nirupam in Dopahar ka Saamna, both before and after these significant verdicts, is testimony to the fact that they have been encouraged by the courts to carry on with their political projects based on hate speech and writing. By failing to restrain these tendencies, the judiciary also plays a role in the destruction of public tranquillity. For example, on June 27, 2000, in a piece published in Dopahar ka Saamna and titled "Chori bhi zori bhi (Brazenness of the thief)", Sanjay Nirupam wrote: "Every child in the country knows that Muslims are involved in 90 per cent of the anti-national crimes committed in India. Everyone also knows that 89 per cent of these acts are committed by Muslims who are either pro-Pakistani or Bangladeshi infiltrators. The remaining one per cent of this 90 per cent is perpetuated by Muslims who are forced by poverty, unemployment or other compelling circumstances to assist the anti-national Muslims… The time has come for swift action now. Such elements should be dug out from wherever they are, thrashed and hanged in a public place. If the police faces any legal hurdle in this it should adopt extralegal methods."

When Hindu pilgrims on an annual pilgrimage to Amarnath were targeted by militants of the Lashkar-e-Toiba, Dopahar ka Saamna carried this headline: "Hindi ilakon mein shokh, Muslim mohallon mein jashan (Hindus mourn, Muslims celebrate)" (Dopahar ka Saamna, August 1, 2000).

When Mumbai’s citizens protested the Shiv Sena-BJP government’s scrapping of the Justice BN Srikrishna Commission, Sanjay Nirupam, in his weekly column, this one titled "Secular worms crawl out of their holes", wrote: "Mumbai’s French-cut dadhiwalas and khadidharis (reference to the city’s Marxists, ‘pseudo-secular’ intellectuals and Gandhians) have suddenly found a new business for themselves. The entire lot of them have been so wounded by the scrapping of the Srikrishna Commission as if they had been orphaned… Who knows in which holes these dadhiwalas hid themselves when Mumbai’s anti-national and pro-Pakistani Muslims butchered mathadi workers and even attacked policemen who were trying to bring back peace in the Pydhonie area"(February 3, 1996).

Later the same year, a virulent piece targeting MF Husain was published in Dopahar ka Saamna on October 6, 1996. Titled "Halkat Husaini (Base Husain)", it said: "Maqbool Fida Husain, by depicting Hindu gods and goddesses naked has displayed his innate Muslim fanaticism. But if he had any guts at all he would have painted the prophet of Islam copulating with a pig. Then his co-religionists would have cut him into pieces and thrown his body away." Three days later, a follow-up article titled "Harami Husain (Bastard Husain)", written by the same author, appeared on October 9, 1996: "But Hindus, do not forget Husain’s crime! He is not to be forgiven at any cost! When he returns to Mumbai he must be taken to Hutatma Chowk and publicly flogged until he himself becomes a piece of modern art."

In sum, put differently, the systematic use of hate speech and writing in the context of an India that is a rich, diverse polity consisting of different sections of Indians, distinguished by class, caste, community, gender, language and race, these critical sections of the law cannot simply exist on paper. They need to be vigorously enforced by the executive and the judiciary to ensure that hate speech is not used actively, as it has frequently been, to spread venom against a section of the people thereby demonising individuals belonging to this section and leaving them prone to physical and mental forms of violence, exclusion and segregation.

A close scrutiny of judicial commissions of inquiry probing outbursts of intercommunity violence has shown (see "Who is to blame?", CC, March 1998) that three-six months before the outbreak of violence, the crime of hate speech, venom and writing is committed and used to build up a climate to ensure that the first stone is cast, that violence does break out. Despite this documented history of jurisprudence, why do we frequently see a studied reluctance in both judges and the courts to nip this trend in the bud and thus play a critical role in cleansing public life of poison and vitriol?