In January, Gregory Stanton, the founder of Genocide Watch, who had predicted a genocide in Rwanda years before it took place in 1994, sounded the alarm on violence against Muslims in India. He condemned the statements made at the ‘Dharam Sansad’ organised in Haridwar and said that they were intended to incite violence. Genocide Watch is an international organisation established to prevent genocide and other kinds of mass murder and is credited with making critical interventions over the years.
This statement reveals the quick and radical shift in India’s sociopolitical narrative. The Dharam Sansad deserves to be acknowledged as an open call for violence against a community. Moreover, the state’s inaction to proceed against the perpetrators violates principles under the Constitution and international law.
The radical shift
In Modi’s India: Hindu Nationalism and The Rise of Ethnic Democracy (2021), Christophe Jaffrelot argues that the “Indian variant of ethnic democracy is... both informed by the promotion of a Hindu definition of the nation in opposition to the secularism defined in the 1950 Constitution... and its opposition to the Christian and (more especially) Muslim minorities”. While discussing the position of Indian Muslims from “social marginalisation” to “institutional exclusion”, he says that Muslims “may well be India’s new Untouchables.”
So far, the mistreatment of Muslims by the Rashtriya Swayamsevak Sangh, the Bharatiya Janata Party (BJP), the Hindu Mahasabha and other groups has been incremental. In 2017, Reuters reported that “almost all” of the attacks involving cow-related violence were recorded after the BJP government came to power at the Centre in 2014. Legislation such as the Citizenship (Amendment Act) of 2019 coupled with the National Register of Citizens sought to deprive Muslims of citizenship. Hate speeches against Muslims have largely been met with indifference from the state authorities, as we saw in the Sudarshan TV case. Anti-conversion laws such as the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (later replaced by the Act) seek to sow communal discord. The banning of the hijab in institutions in Karnataka indicates discrimination against Muslims.
But the speeches at Haridwar crossed the line between hate speech and incitement to violence. According to reports, a member at the Sansad made an open call for Hindus to pick up weapons and referred to the treatment of the Rohingya in Myanmar. Another advocated for India to be a Hindu nation. This shift from the treatment of Indian Muslims as second-class citizens to making open threats of violence against them is what makes the Haridwar conclave an unfortunate, yet defining moment in contemporary India.
Hate speech is often discussed in the context of the right to freedom of expression. While discussing free speech, the U.S. Supreme Court laid down the test of imminent lawless action in Brandenburg v. Ohio (1969). It held that speech stands protected under the First Amendment unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The Haridwar speeches fall into this category. This must be understood in the national context of the continuing marginalisation and oppression of Indian Muslims through legal and political tools.
The criminal law or the Constitution does not define hate speech. The United Nations Strategy and Plan of Action on Hate Speech defines hate speech as “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.” Some media reports have referred to the Dharam Sansad incident as one of hate speech. Legally and politically, it is vital to distinguish between hate speech and incitement to violence. Every hateful speech need not incite violence. The Haridwar incident went far beyond discriminatory language. By reducing the statements to hate speech, one might be changing the gravity and nature of the offence.
The incident must potentially attract numerous provisions of the Indian Penal Code. For instance, Section 153A punishes “promoting enmity between different groups on grounds of religion, race, place of birth, residence, etc”. “Imputations and assertions prejudicial to national integration” are penalised by Section 153B. Section 505(c) penalises any statement “with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class.” Section 108 criminalises abetment to crimes, including cases where the principal crimes are not committed. Section 120B punishes criminal conspiracy. However, it took enormous public mobilisation and sustained demand to register the FIR in the case, that too with inadequate charges. There has been a significant delay in making arrests and conducting an investigation.
Legal obligations
A global consensus against genocide led to the crystallisation of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. India is a state party to the Convention. The Convention defines genocidal acts as those “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Article III (c) punishes direct and public incitement to commit genocide. Article IV says the perpetrators shall be punished and Article V imposes an obligation on states to impose effective penalties for genocide. Failing to investigate and charge the accused would mean a breach of the obligations under the Convention.
Attempts at marginalising members of a religious community also threaten the secular foundations of our democracy. In S.R. Bommai v. Union of India (1994), the Supreme Court held that secularism is part of the basic structure of our constitution. This must be read along with civil rights guarantees of religious freedom under Articles 25 to 28 of the Constitution. After discussing various constitutional provisions, the Court said: “These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations.”
In Qurban Ali v. Union of India (2022), the Supreme Court has issued notice in the plea seeking investigation into the event at Haridwar. Former chiefs of the Army and Navy, bureaucrats, politicians and academics have strongly criticised the inaction of the authorities in registering cases. Students at Aligarh Muslim University and other institutes have written to the Prime Minister that his silence on intolerance “emboldens the hate-filled voices.” In a federal system, Chief Ministers must also come together to demand immediate action.
It is significant that the civil society guards against inflammatory acts that are likely to cause violence. The failure of democracy begins when the public is complicit through its silence in the excesses of the state.
Thulasi K. Raj is a lawyer at the Supreme Court and the Kerala High Court
