Words hurt us but are courts capable of healing those wounds? Sometimes, the courts themselves can inflict and deepen those wounds, argues Lawrence Liang
LOVE AND hate — in law as in life — are extremely complex states of being that defy our taxonomical attempts at naming them with any precision, and to me it seems that the greatest danger of hate speech laws is not that they are ineffective in policing hatred but that they are too effective in doing so. There is often an assumption that the law exists merely to settle disputes and conflicts, but anyone who has ever experienced the adversarial legal system will testify that laws and the legal system do not just settle conflicts but often exacerbate them or are the means for their expansion and perpetuation.
Section 153A and Section 295A of the Indian Penal Code (IPC), which deal with hate speech in India (‘promotion of hatred, enmity’, ‘outraging religious feelings’, ‘insulting a religion’, etc) are not provisions that merely describe an objective, affective state called hatred, but through such descriptions also constitute a legally and socially recognisable category called hate. When these laws were introduced in the colonial period, an underlying assumption was that there was a need for a rational and neutral arbiter (the colonial State) to govern the relationship between ‘emotionally excitable subjects’ prone to emotional injury and physical violence. But this was a self-fulfilling prophecy because once you have a law that allows for the making of legal claims on the basis of charged emotional states, you begin to see the emergence of cases that steadily cultivate a legal vocabulary of hurt sentiments. This is understandable given that if the legal demand is for the empirical demonstration of hurt sensibilities, the evidence that will be presented for prosecution is exactly that: hurt sentiments.
Asad Ahmed, in his work on blasphemy in colonial India, demonstrates how court cases around hate speech in the late 19th and early 20th century became public events by way of their circulation in media and through rumours so that legal claims of emotional hurt become the basis of mobilisation of affective communities centred on the public performance of emotion. In adjudicating effects of hateful speech or images on the general public, the law and judges, in particular, act as intermediaries between the realms of the personal and the public, mediating the transmission of affect between these realms. The danger, of course, is that there is always a risk of mistranslation involved in understanding how various thresholds of intensities are experienced or articulated. An intensely local affair that could easily have been resolved through various non-legal mechanisms gets intensified and taken to a higher threshold the moment the law is brought into the picture.
Additionally, it is important to remember that the judiciary itself is not outside of the politics of communal hatred and there are instances when the adjudication of hate speech laws itself become the site for the production of hate speech. An example of this was the Bombay High Court’s decision in the Joseph Bain case, where a former IAS officer filed a complaint under Section 153A of the IPC against Bal Thackeray for his role in the incitement of violence after the demolition of the Babri Masjid. As evidence, he produced a number of extracts from articles written by Thackeray in Saamana, in which he exhorted people to act against the “Muslim traitors” of the country. In interpreting whether these words fell within the ambit of Section 153A of the IPC, the court ended up producing its own version of hate speech, and held that the section is intended to take action against people who incite hatred against a community and “If we take into consideration the article as a whole, it is clear that the criticism is against anti-national or traitors’ section of Muslims and their selfish leaders who are creating rift between Hindus and Muslims and in the aforesaid portion reference is also made that Muslims should understand the sentiments of Hindu majority and merge themselves in the national mainstream instead of being carried away by the selfish leaders who were prompting to attack Hindus.”
In interpreting the evidence against Bal Thackeray, the court ended up producing its own version of hate speech
TO THEIR credit, the Indian judiciary, at least at the appellate levels, have generally been more careful about how to interpret hate speech provisions. The courts have argued for a need to establish a stricter nexus between an utterance and its effects, whether as physical violence or as wounded sentiment. In raising the burden of proof on what has to be demonstrated for a legitimate claim that hatred has been caused, or an insult has occurred, the courts play an important dual role. First, they demarcate the difference between a thick and thin idea of hurt, and they recognise that not all materials that can be seen as offensive can be brought within the ambit of causing hatred. This is vital because if we lower the threshold of what can qualify as hateful material, we do not just open the floodgates of legal claims but also devalue the very idea of a strong affect such as hatred itself. As with any other strong emotional tie or wounded attachments, we must use them sparingly if they are to remain sensible categories. Secondly, by maintaining a higher standard of proof for claims of hatred, the courts effectively disallow the amplification of sectarian rhetoric into actionable claims. The problem, of course, is that despite a range of appellate court cases that have warned us of using hate speech laws in a frivolous manner, as long as the actual wording of the provisions of the IPC remain in their current vague and general form, nothing precludes their use for either political reasons or for malicious prosecution.
What then are we to make of the actual possibilities that either individuals or members of a community may actually feel violated by an utterance? A number of free speech advocates are forced (often as a result of the continuing abuse of the law) to take an almost cavalier position on this question, demanding that the right of free speech should be absolute.
In a strange way, if the overuse of hate speech laws overdetermines the powers of words and images, then an advocacy of absolute free speech undermines the social life of words and images. Saba Mahmood, in her discussion of the Danish cartoon controversy, makes a compelling case for avoiding the trap of the liberal secular versus religious fundamentalist binary and suggests instead that we take the idea of ‘moral injury’ seriously. For her, the question is not merely one of representation but of understanding the very structure of relationships that images, for instance, create between an individual and a community of believers. Her argument then is that the offense that the cartoons committed was not necessarily against a moral interdiction (“Thou shalt not make images of Muhammad”), but against a mode of habitation and being that feels wounded. Mahmood argues that while this wound requires moral action, its language is neither that of juridical remedy nor of street protest, because it does not necessarily belong to an economy of blame, accountability, and reparations, and the action that it requires is internal to the structure of affect, relations and virtues that predisposes one to experience an act as a violation in the first place. She goes on to warn us that in fact subjecting this sense of injury to the language of legal claims and criminal liability entails a risky translation since mechanisms of law are not neutral but are encoded with their own cultural and epistemological presuppositions.
OUR CAPACITY to be hurt by words testifies to our linguistic vulnerability as beings whose form of life is enmeshed within language. Thus the violence of language can manifest itself in several ways, including injurious naming (‘nigger’, ‘faggot’, ‘katua’), through threat and force, through false claims, etc. But it is precisely because we live in language that we also have to take care to ensure that we do not narrowly circumscribe the outer boundaries of our habitus. If language has an agency of its own, the ethical and political challenge is how do we recover our agency through a more sustained and reflective engagement with ethical speech, rather than invite law or sovereign power to define what is unutterable. The appropriation of terms like nigger and queer as strategies of political mobilisation is evidence that hateful words can sometimes lose their force and fail to become sovereign utterances, but the legal regulation of speech necessarily grants them a sovereign force, which is difficult to recall or deflect, or at least forces us to act as though that were the case.
As long as the wording of IPC provisions remain in their current vague form, nothing precludes their use for political reasons
American philosopher Judith Butler cites a parable by Toni Morrison, which to my mind captures the potential of violence in language, even as it allows us to imagine ways of deflecting this violence. A group of young boys decide to play a cruel joke on a blind woman. They hold in their hands a small bird, and they ask the woman to guess whether the bird is dead or alive. If she were to answer in the affirmative, then they would merely have to kill the bird, and if she were to answer in the negative then they would free the bird. The blind woman refuses to participate in their hateful language game, and instead replies, “I don’t know if the bird is dead or alive, I only know that it is in your hands”. Butler reads the children’s question as an act of cruelty that attempts to humiliate the woman through a seizing of language.
If like the bird, language is indeed in our hands in terms of what we choose to do with it, then it remains alive when we refuse to allow it to freeze us in fake names or fake choices. It is only in a Kafkaesque world, where a freed bird goes in search of a cage. Let’s take seriously Morrison’s claim that while death may be the only assured meaning in our lives, we do language, and that is the measure of our lives, a measure that needs to be accounted for in terms of grace, style and taste and not just legal ideas of threat and force.
Liang is a lawyer and writer at the Alternative Law Forum