Muslim man's murder: India's courts simply don't punish hate speech with the severity it merits

What are the implications of Justice Mridula Bhatkar’s January 12 order granting bail to three men accused of killing an unarmed innocent Muslim man in Pune in June 2014?

The Bombay High Court judge, in words now gone viral, argues, “The accused had no other motive such as personal enmity against the innocent deceased…[his] fault was only that he belonged to another religion. I consider this factor in favour of the accused... it appears that in the name of religion they were provoked and have committed the murder.”

So, killing an innocent man because you have been instigated by hate speech is less serious than killing someone for personal reasons.

How valid is that argument?

Hate speech and violence

Undoubtedly, ordinary men and women who may never have harboured violent intentions do get stirred up after listening to powerful speakers berating other communities, especially if the speaker’s allegations confirm the former’s prejudices.

To what extent can such speeches provoke violence is not known, but it is noteworthy that after listening to the testimonies of victims, policemen and politicians on the causes and events of Mumbai’s 1992-’93 riots for over five years, Justice BN Srikrishna concluded in Volume I of his inquiry report into the riots that in January, 1993:

  “the communal passions of the Hindus were aroused to fever pitch by the inciting writings in Saamna and Navakaal … Shiv Sena pramukh Bal Thackeray like a veteran general, commanded his loyal Shiv Sainiks to retaliate by organised attacks against Muslims…”  

Indeed, Thackeray himself described his newspaper Saamna’s role through the riots as having “prepared a burning generation, Saamna’s job is to keep this generation smouldering. Every word of Saamna was like a flame”.

In 2008, when fast-track special courts were set up to try offences of the 1992-’93 Mumbai riots, many ordinary men would turn up to face trial for crimes they had allegedly committed 15 years back. Almost all were acquitted, but a few of those acquitted were guilty. They admitted to this reporter that as youngsters, they had been swayed by the rhetoric of those days.

“God knows what happened to me, I was just 20,” said one.

A Shiv Sainik wept as he clasped the hands of his Muslim victim outside court. The latter had just testified that this accused was not the man who he had named as having attacked his home, thereby paving the way for the Sainik’s acquittal.

Another Sainik, speaking about how his frequent requests for leave to attend court had affected his job, vowed tearfully that never again would he be swayed.

Having seen riot victims struggle in vain for justice for more than a decade, this reporter felt that in the absence of true justice, perhaps these admissions of remorse could be seen as a kind of redressal. But none of these men had committed murder. Their brains addled after reading and listening to Thackeray’s and the Rashtriya Swayamsevak Sangh’s hateful rhetoric against Muslims, they had thrown stones, and damaged Muslim property.

Nailing instigators

But can those who, overwhelmed by such poison, kill innocents, be seen as deserving of bail, which would normally be denied to those who have had personal motives for killing? If so, then those who provoke such communal attacks should be considered the greater criminals, for whom jail without bail must be the rule.

In this particular case, the instigator, Dhananjay Desai of the Hindu Rashtra Sena, has been behind bars for two-and-a-half years. His bail application is coming up. If he also gets bail, Justice Bhatkar’s reasoning will become meaningless.

But we have had hatemongers more powerful than Desai. Some have ruled us: Bal Thackeray, who was the remote control of the Maharashtra government for five years, and commanded the state police’s loyalty for decades; LK Advani, who having led a rath yatra in 1990 which left a trail of riots in its wake, and having presided over the demolition of the Babri Masjid, became our home minister in 1998; Narendra Modi, whose inflammatory statements after the 2002 anti-Muslim violence in Gujarat and during his election campaign later that year, led him to victory in his state. None of these three have ever been arrested for hate speech.

Thackeray had cases filed against him, but his party, which ruled Maharashtra in alliance with the Bharatiya Janata Party from 1995 to 1999, had all but two of them withdrawn. Advani’s days in power ended in 2004. Why didn’t Congress home ministers who succeeded him expedite the Babri Masjid demolition case against him? Why didn’t the Congress, the main Opposition party in Gujarat, file cases for hate speech against Modi all these years?

There’s no doubt that the party that has ruled us for more than 50 years, has preferred to indulge, not punish, hatemongering politicians.

It gave Thackeray a state funeral in 2012. In 2008, it also gave a state funeral to Salahuddin Owaisi, the chief of Hyderabad’s All India Majlis-e-Ittihad-e-Muslimeen, known for his incendiary speeches, which in 1984, were followed by riots. The case against Akbaruddin Owaisi, his younger son and Telangana MLA, is gathering dust since 2013. Congress Prime Minister Rajiv Gandhi even justified the massacre of innocent Sikhs in Delhi after another prime minister, his mother Indira, was assassinated by two Sikhs. He then went on to win the biggest ever majority in Parliament, seconded only by our current Prime Minister Narendra Modi of the Rashtriya Swayamsevak Sangh.

What the law says

Electoral politics may be amoral, but what about the law?

The maximum punishment for hate speech is three years, which goes up to five years if it is made inside a place of worship. In 2008, a Special Court convicted Shiv Sena ex-MP and ex-MLA Madhukar Sarpotdar, party corporator Jaywant Parab, and up-vibhag pramukh (deputy chief of one locality) Ashok Shinde for anti-Muslim speeches made in December 1992. Judge Rajeshwari Bapat-Sarkar ruled that provocative speeches made by elected representatives well aware that they would lead to violence, deserved punishment “to send the correct signal that wrong doing would be punished”.

For the first time, leaders of a party that thrived on hate speech were convicted for it. This was the only riots case conviction upheld in the Sessions Court. Yet, these three hatemongers didn’t get the maximum punishment – the trial court sentenced them to one year in jail, which the Sessions Court reduced to two months.

In 2012, Maharashtra Samajwadi Party president Abu Asim Azmi was convicted for hate speech – and sentenced to two years.

If we accept the argument that demagogues who inspire killings are more culpable than the killers themselves, then punishment for hate speech must be enhanced. But first, politicians who indulge in hate speech must be charged, arrested and deprived of bail.

Neither is likely to happen. Justice Bhatkar’s order therefore, snatches away even the crumbs of justice that our system gives to those killed only for their religion.