On Monday mornings, I often find myself rushing to court to defend an accused who has been arrested or is about to be arrested for tweeting or saying, for instance, ‘I don’t like the Prime Minister’. At court, I argue that if he doesn’t like the Prime Minister, so be it, there’s nothing illegitimate about that opinion. But on Wednesday mornings, I find myself again rushing to court, though this time to argue that a person screaming he doesn’t like Muslims should be stopped. When I leave the court, I hear people smirk at me and say that I am a partisan. Thus, I ask myself often:

How does one distinguish the defence of free speech—that it shouldn’t be an offence to criticize the government or its ideology—from the argument that speech which targets certain groups should be restricted.

Such an argument is based on the presumption that society and polity are intersected by the dynamics of power and speech or actions that align themselves with power, or reiterate the established dynamics of power, are fundamentally distinct from speech that challenges such dynamics of power.

One may find oneself at a talk extolling the virtues of ancient Indian culture disrupted by invaders in the medieval period, now waiting to be revived. Whether the speaker does or does not make a directly snarky remark about the invaders, or Muslims generally, his speech is exclusionary, in that it frames the idea of India in a time that was allegedly free of later ethno-religious ‘impurities’. One might then observe a young student get up and protest such a framing. The latter speech may appear momentarily disruptive but it is the former lecture that is actually more exclusionary, that reiterates power in its current social forms. The democratic impulse is thus more sympathetic to the young student’s intervention which challenged social power.

The law, however, tends to negate the social and political dynamics of power and treat every speech or situation as loosely equal. In fact, when it comes to speech that targets another group, courts often work in conciliatory ways. In hate speech cases, for instance, every time the courts pass an order restricting a potentially virulent rally, they make the directions general and rule that ‘both sides’ must not hurt sentiments, or call each other names, or generally indulge in hate speech. The ‘both sides’ formula negates the distinction between speech which targets power and speech which reiterates it. This is one way of looking at the court’s interventions: it restricts speech equally across communities.

In many cases, though, especially when it comes to dissenting speech, current practice—and quite contrary to the response in hate speech cases—does not treat all speeches as equal. A recent example: on the one hand, the writer Arundhati Roy is to be prosecuted under ‘anti-terrorism’ laws for a speech she made almost fourteen years ago, where she endorsed the claims for Kashmir’s right to self-determination. On the other hand, a panellist speaking on a national podcast recently advocated for a militarist (‘Israel-like’) suppression of the self-determination claim without any legal reprobation. They are both speech acts, one voicing a marginal claim and the other the statist position; one challenges state power while the other aligns itself with it. The state has decided to prosecute the former as an instance of ‘terrorism’. Thus, the legal response to speech that aligns itself with power and that which challenges it seems disparate.

Free Speech and the Democratic, Inclusive Impulse

It is sometimes argued that free speech includes hate speech in that it includes the right to offend another person. This proposition suggests that hate speech is unpleasant but it is complementary to free speech. Is this a fair argument? Can hate speech be posited as part of free speech?

Free speech absolutists really do believe in the ‘marketplace of ideas’: let everybody speak openly and let the best thoughts and ideas win. This notion comes from the presumption of neutrality of the free marketplace of ideas, where everybody is free to profess what they wish without any encumbrance. However, markets are hardly ever neutral—we might say what we want but then special features like the laws of defamation or sedition or the UAPA come in the way. Corporate media and TRP ratings, data manipulation and algorithms do not let the marketplace of ideas remain neutral at all. The marketplace of ideas isn’t entirely free—some ideas have more space than others.

The free speech absolutists also dismiss the phenomenon of hurt sentiments or taking offence. Eggshell sentiments need not be encouraged by law and political culture in any society. To always be careful and politically correct, to always consider what one is about to say is tiresome.

I largely agree with this view; however, we oppose hate speech, or even discriminatory speech, not to protect sentiments. Jeremy Waldron argues that hate speech is not a problem of offensive speech but that of discrimination and marginalization. Exclusionary or targeted speech, or hate speech, is a process whereby a community is pushed out of social, economic and political spaces and rendered unable to respond politically, socially, economically or in any other way. It is a process of marginalization and discrimination. It has to be framed quite differently from speech that is offensive, although the two might overlap.

Seen thus, it may well be argued that hate speech is in fact not part of free speech. The latter emerges from a democratic impulse—to give space to ideas, to let everyone have their say. The former, on the other hand, comes from an instinct to bully, marginalize and scurry for power in a way that pushes people out. It often reiterates power and crystallizes social and political status quos.

Speech as a Law and Order Problem

In the provisions of the Indian Penal Code that frame the restrictions on speech, besides defamation and sedition, there are the Sections 153A and 153B (promoting enmity between communities; disturbing peace and public tranquillity), Section 295 (hurting religious sentiments), among others. These sections identify the offensive quality of such speech as the problem: that certain speech, which is episodic, is hurtful and has the potential to offend and provoke. By episodic, I mean that the law looks at each speech as construing a separate instance of giving offence, or hurting sentiments, or provoking people and thus disturbing public tranquillity. In terms of criminal law, the problem with ‘hate speech’ is that it has the potential to disturb the peace, and this is where the law comes in. The law doesn’t like public tranquillity to be disturbed and the courts think that it is their duty to maintain law and order, the status quo. Thus, if a particular speech has the potential to disturb law and order because it is offensive, or provocative, then it is considered as causing offence. But I believe that such a formulation doesn’t even begin to grasp the problem of hate speech.

This particular framing of episodic hurtful speech or episodic offensive speech presumes that the public space is made up of slightly touchy and sensitive but otherwise equal parties: I can say something to you which will offend you and you will be in a socio-political position to react to this, which may cause public disorder. This is a presumption that is often out of touch with ground reality because people often say what they want about communities but these communities are in no position to react, let alone disturb any kind of peace. Ironically then, there may be situations where even though a speech is intentionally hateful and offensive and targeted at a particular group, that group may not be in a position—socially, politically—to take offense and protest, or get provoked and breach the peace. Sometimes, then, marginalized groups absorb the insults and the humiliations. And without any evidence of breach of peace, there may not even be a good case alleging provocative or offensive speech against the speaker.

Equally, there have also been cases where the speakers are too marginal to be taken note of—they are indulging in offensive speech about the establishment and are being completely ignored because they are so incidental. In such cases too, there is no provocation and the courts have at times quashed criminal charges against such speakers giving exactly this logic: that nobody reacted and no peace was disturbed. On 31 October 1984, the day that Indira Gandhi, then prime minister of India, was assassinated, two government employees, Balwant Singh and Bhupinder Singh, walked out of their offices in Chandigarh and raised certain slogans in a crowded public place. The prosecution claimed that the slogans they raised included: ‘Khalistan Zindabad’; ‘Raj Karega Khalsa’ and ‘Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da.’ They were immediately arrested and convicted of sedition (under Section 124A) as well as promoting enmity between communities (under Section 153A). The Supreme Court, however, set aside their conviction by ruling thus:

The casual raising of the Slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the Government as established by law in India. [ . . . ] Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans [ . . . ] Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established nor could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.

I want to argue that there is a difference between the courts choosing to rightly quash cases such as the one above, where speech is directed at a group that is socially and politically as strong as the speaker or speech that is directed at the establishment, and where the stronger group chooses to ignore it, and cases where the lack of reaction is due only to the marginalized socio-political location of the targeted group.

Once again, the distinction in approach is justified by the difference in social and political power.

Hate Speech is Cumulative

Hate speech is not episodic but rather systemic and accumulative—it builds up over time. I remember years ago when I was in school, it was very common for people to ask: Who do you support in a cricket match—India or Pakistan? And this is before this present crisis of hate speech came about. I’ve supported neither team, I didn’t even like cricket. Eventually, we learnt to laugh it off and sometimes snap at the question. But I see that cumulative effect—which always presumes a lesser right for Muslims to be in India—manifest in various, more direct ways now—in speech and in action. The idea that Muslims can be asked to leave the ‘Dev Bhoomi’ of Uttarakhand, for instance, or a particular district or village of the state, derives from that cumulative effect of the idea that presumes lesser rights for Muslim citizens; the belief that they do not really belong here, but in Pakistan. It is not sudden or episodic. It is systemic and cumulative.

As an aside, now that I think about it, I feel that it is to our pedagogy’s discredit that a child should be taught to align with past kings and empires and should feel proud or embarrassed by the deeds of rulers—Hindu or Muslim. I don’t know how we have trained our children to either ally with figures from history or consider them active enemies. We are not training our children to think as citizens but rather to form some kind of alliance or enmity with rulers—that itself is a problem. I can recall being slightly embarrassed when Mughal history, and particularly the chapter on Aurangzeb, was taught to us. And now, I see the manifestation of the cumulative effect of all that—in the ideas around land-jihad or love-jihad, Muslims as predators, imposters and interlopers who are always after your land, women or livelihood.

Cumulative Hate Speech and a ‘Democratic Deficit’

The third proposition—drawing from Charles Lawrence—is that hate speech can sometimes incite immediate, direct violence. But equally, at other times, though the violence is not direct, it can still cause material harm.

Consider the recent cases of evictions from housing societies, the ‘economic boycott’ of Muslim businesses, etc. When a person evicts Muslim tenants, it is, of course, not a criminal offence—there’s no direct violence taking place. But there are layers of structural violence being cemented that can be linked to speech and the cumulative effect of hate speech.

Hate speech causes a serious deficit in the democratic process, which is defined by a group being pushed out of social and political spaces in a structural way—lack of political representation, withdrawal of political and economic spaces, etc.

Hate speech is the constant narrative that accompanies and provides a rationale for acts of exclusion, for causing a democratic deficit. We need not have Muslim ministers because Muslims generally did not vote for the winning party: such circular narratives can cause a democratic deficit in such a way that the targeted communities are not able to come back and protest.

Majoritarianism

Here is the fourth proposition: hate speech is really a majoritarian problem and is always targeted at marginalities—the people at the margins—and it can never be the other way around. If somebody says, ‘I don’t like the Prime Minister,’ she is not causing a democratic-process deficit. If at all, she is attempting to correct a skewed power dynamic and challenging the status quo and the centralization of power. Or if someone says, in a very offensive or violent way, that he has problems with Brahminism and Hindutva, it may well be considered offensive speech, and yet it may not be ‘hate speech’, because saying such a thing will not cause material harm to the targeted group, nor will it cause any kind of democratic-process deficit. I can’t push somebody out of the social and political spheres when that someone is at the centre of power. The best I can do is hope to correct that particular dynamic of power. I must also note that such a formation is contextual, bounded by region and time.

Dissent, then, which is offensive towards people and ideologies in power, is a correction. It speaks to power. Whereas hate speech is speech made with the aid of power. It reproduces power.

When the courts pass a direction forbidding representatives of both the ruling ideology and a minority, marginalized perspective from making a speech and going to a rally, they are being indifferent to the power dynamic, or perhaps even reiterating said dynamic. Because in doing this they are equating something that is not equal in time and space. They are distorting the idea of hate speech and only looking at it through the lens of offensive speech. Offensive speech may be covered by the notion of (and the protection due to) free speech, but hate speech has an explicitly anti-freedom, anti-democratic impulse and is contrary to free speech. This is something that has been recognized by law, particularly in Europe and in Canada. The courts there speak of ‘variable context’, which considers the context of the speaker and the speech. Because people and groups—in any society—are not equally powerful, the position of the speaker is important.

Hate speech is always inflected with social and political power. It is in the aid of power, as opposed to offensive speech and political dissent, which are against power. This is not such an odd or unusual thought either; even in our country, we have laws that recognize such dynamics of power, albeit in a very specific context. Look at the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act that makes any speech that is insulting or hateful towards a person of such groups an offence. This legislation recognizes the difference in the dynamic of power between people of Scheduled Castes and Scheduled Tribes and the privileged castes. This law also recognizes the historical baggage that we are carrying, the cumulative effect of years of incendiary practices and rhetoric culminating in discrimination. Similarly, in the context of women, the law frequently recognizes that there is no substantive social equality between men and women and here too, the cumulative impact of sexist speech is recognized as being discriminatory. Yet, the courts still find it difficult to engage with this idea outside of specific legislations, especially in the context of hate speech, where they tend to consider all offensive speech as being equally harmful.

I suppose they have at least three good reasons for doing so.

Three Good Reasons

When I am talking generally about speech that targets certain communities, I am in a way simplifying the identity of the members of that community and making it homogenous. I am perhaps suggesting that speech that targets Muslims, for instance, causes a democratic deficit for all Muslims. This may be true but such a simplification also invisibilizes class and caste within the community and the fact that all Muslims may not experience a similar loss of democratic space. Identities are layered and there is a lot of intersectionality at play. How, then, do the courts find their way through those nuances? If a Hindu worker is railing against his Muslim employer, partly because the employer is Muslim and also partly because he is not a good boss, how does one frame it as hate speech? Here, at least one identity is marginal and the other dominant.

The second problem with hate speech is that it is cumulative. So where do the courts find a threshold to stop something? Can the law step in when I am asked whether I support Pakistan in a cricket match? Or can the law step in when the guest speaker makes a case for ancient Hindu culture to the exclusion of other histories and cultures? That would be too low a threshold. When can the law then intervene to regulate or criminalize speech—when should the law intervene and forbid someone from saying something? This is a question I want to ask teachers because it is something that is more at play in classrooms. The law can’t have a low threshold but can you as teachers have a much lower threshold and how would you go about it? What will that threshold be? How will you distinguish difference of opinion from bigotry? If the threshold were too low, would that not make for a very sterile and politically correct classroom? With the law, the threshold is sometimes too high. With culture and education, we need to find a middle ground.

The third difficulty is the fact that the dynamics of power keep shifting. In this moment, it is very easy to identify hate speech, where it is coming from and who it is directed at. But what if it changes spatially—in Kerala or West Bengal and not in Nuh or Uttarakhand. But the courts say that once we describe the contours of hate speech and lay down the law, it is set in stone. Therefore, once we lay down that any speech targeting Muslims in that moment is a problem, how will we deal with things that are happening even internationally to a Muslim Indian citizen? If the Muslim Indian citizen is saying something in Delhi, it may not be a problem of hate speech. If he travels to Pakistan and says something, it changes the dynamic. And courts are very hesitant to lay down anything that is not permanent.

So this is where the courts are. But having defended at least some of the court’s reasons for not framing hate speech as causing specific kinds of ‘democratic deficits’, I must also note that the courts have criminalized dissent and thus the kind of speech that seeks to expand democratic spaces much more willingly. Courts like to think that they are neutral and that social and political realities don’t affect them but the language of politics is quite insidious. When a particular kind of language makes it to the law courts, through prosecution documents (FIRs, charge sheets, etc.) and in the form of state arguments, the logic of the law seems to change with it too. I say this in the context of the way the courts have engaged with dissent and protest in recent years: the same are now being framed in a new faux legal language.

Law and Administrative Exigencies

I had said earlier that the law looks at the problem of speech mostly as a law-and-order problem. Many a time, the courts and the executive turn a blind eye to very egregious speech when they feel that intervening would actually escalate the problem. This is because they don’t want to address systemic and structural violence, and wish for the hate speech to just die down. This is not the rule of law at work, rather it is merely administrative exigency: a political realism that is distinct from the rule of law that has crept into judicial and administrative practice.

And even with the question of variable context, which allows courts to interpret who is a marginalized person and who is in a position of power, the courts do this task with a lot of subjectivity. The courts sometimes judge women, survivors of sexual violence, for their actions in the immediate aftermath: this woman tidied up her hair after being raped or sexually molested, so we don’t think she is marginalized or telling the truth. Many times the courts ask how a Muslim is a marginalized person when they have been appeased for all these years: what is the problem and why are they ranting against the government despite being beneficiaries of such-and-such minority schemes? So even when variable context is actually at play, it is to reiterate the status quo and the position of power, not the other way round.

Language and the Changing Logic of the Law

I want to read a short extract from the infamous FIR 59 of 2020, registered in the aftermath of the Delhi pogrom on the complaint of the sub-inspector of police who claimed that he had been told by informants that:

The anti-CAA protests are a deep-rooted conspiracy to internationally further the propaganda that minorities in India were being oppressed and to embarrass the government during President Trump’s visit.

The state has made an offence out of this. They have registered a criminal complaint. Now, even if it were ‘propaganda’, it is an act of speech and political mobilization, although who is to know if it is propaganda or not. But to cite narrative speech and to call it propaganda, and then to criminalize it and register an FIR—I think this is the first of its kind to happen in Delhi. And then repeatedly afterwards, during the bail hearings of several of the accused, the same argument was reiterated. I’ll read out some of the arguments made in court:

The prosecution case says that the accused conspired to provide Muslims an articulation of their grievances and a methodology for its articulation.

Again, look at how the state criminalizes speech. It has made an accused of a person who, according to them, is providing a vocabulary for the articulation of grievances.

Further the prosecution argued:

These people created a critical mass of Muslim protest and communalized political space and incited violence. These grievances are false, fabricated and funded by external agencies. These people visited Muslim majority areas and campaigned the protests and even coordinated with local imams at mosques.

This is the prosecution’s case in part. And it is reminiscent of the questions I was asked in school: Whom do you support, Pakistan? And you see the same fear and panic of Muslims mobilizing politically. Nobody is saying this but the implication is that when Muslims mobilize, it leads to secession. And thus, it is a security threat.

The accused have all been booked under the Unlawful Activities (Prevention) Act (UAPA), which implies that such mobilizing speech was seen as a security threat. The point is that all these FIRs that frame dissenting speech as a threat and criminalize it have entered the court’s vocabulary without any basis in law and the Constitution. Yes, I am mobilizing but it is my democratic right to mobilize. How is that an offence and that too a terrorist offence? This framing of speech as a terror offence has not been questioned by the courts.

And similarly, there is another very interesting shift. Section 15 of the UAPA defines terrorist acts challenging the unity, security, sovereignty and integrity of India by using bombs, dynamite, or other explosive or inflammable substances, or firearms, or other lethal weapons or other poisonous or noxious gases, or any other substance of a hazardous nature. It is very interesting that all these charge sheets allege that Muslim youth out on the street, protesting against the CAA, were actually indulging in terrorist activities. There is an implication that Muslim bare bodies are noxious—they are like lethal weapons. They have not alleged that these men and women were carrying any bombs, or firearms, or lethal weapons or chemical substances. These men and women were just there, their bare bodies were there. Yet, they have been booked under Section 15, which only talks about lethal weapons and noxious gases and similarly hazardous substances. And the courts have again allowed this imperceptible shift in language. Bare bodies as lethal and noxious—this imperceptible, insidious use of language that just remains there, unchallenged, until even the defence starts to meekly justify their actions in the protest, and make their case around this language. They don’t loudly, explicitly proclaim that we are not noxious or lethal. We are spending all our time defending ourselves in the courts saying, ‘I was not really there, I was not doing anything,’ rather than saying that ‘Yes, I was there, now tell me how that is wrong.’ Or, ‘Yes, I was there protesting, now tell me how that is wrong.’ Or, ‘Yes, I was coordinating with imams and politically mobilizing Muslims and giving them a vocabulary for the articulation of grievances, now tell me how that is wrong.’ This is not what is happening at the moment.

I want to read out parts of two petitions that have been filed at the Supreme Court. The first petition was a challenge to allegedly forced ‘conversions’ in India:

Hinduism and Hindutva is the ancient culture and the lifeline of India. Hinduism is a dharma and not really a religion. In fact, there is no word in English equated to dharma. Hindu dharma is sarv samveshi, which embraces all and does not spread hatred against anyone like other religions such as Islam and Christianity. In their zeal of converting people to their own religion, both Muslims and Christians killed millions of people, raped millions of women, and destroyed millions of temples and other worship centres. They have completely destroyed Mesopotamia, India and Egypt.

This ‘pleading’, if one can call it that, breaches the very basic rule of pleadings. When you come to court with a case, when you are allegedly making a statement of fact, you have to back it with some kind of evidence, or you have to say that fact on solemn oath on affidavit, so you may be held accountable for the statement. The statement above is not based on any kind of evidence, and yet—unless specifically challenged and withdrawn, as it was in this case—the pleadings form part of court records. The court has not given a ‘finding’ on it, not endorsed it, yet it is part of the pleadings in the formal court records.

There is another petition that wanted the establishment of a ‘re-naming commission’:

We need the renaming of cities named after barbaric foreign invaders in order to maintain our own sovereignty and to maintain the right to dignity and culture.

The court has dismissed this petition but while dismissing it, it said, ‘Hinduism is the greatest religion in terms of metaphysics. It does not allow bigotry. India has managed to assimilate everyone. We can’t wish away invasions. Our greatness should lead us to be forgiving.’

All this language forms part of the legal archives of the time. Ten years from now, when we revisit these petitions and orders, it may well be that the logic of law would also have changed. The logic of law would accept such statements as valid premise and then move on from there.

On Badtameezi (Impudence)

The last issue I wish to address is the idea of sedition, which the courts have actually put in abeyance now. The police is not supposed to be booking people for sedition at the moment and the courts are hearing the constitutional challenge to the crime. But the state continues to prosecute people for it—I don’t think the police stations have received that particular memo.

I’ve argued elsewhere that we have always understood badtameezi (impudence) in terms of hierarchy. It’s not so much about what is being said as about who is saying it. So in the classroom, in my school, in Patna, ‘back-answering’ was the greatest form of badtameezi. The teacher could be unfairly shouting at you but if you answered back, that was bad form. Similarly, if you just look at social hierarchies, we are never badtameez to the watchman, or the maid but the maid or vendor or watchman is always the one doing the badtameezi. Now the logic of this hierarchical social arrangement is being transplanted into how the law frames problematic speech, generally, and how it frames ‘bad speech’ in terms of sedition, or national security specifically. If you say that I don’t like the Prime Minister or his policies, the CAA or farm laws, then that is considered a challenge to authority and hierarchy and hence, problematic speech in law—for no apparent reason other than the fact that we are looking at speech through the lens of badtameezi. Why are you challenging a figure of authority? Inherently, that is bad and therefore it must be seditious, or a threat to national security. And that is something that needs to be thought about with teachers and within the context of classrooms.

In Conclusion: Embers in the Wind and Spark in a Powder Keg

In law, when you talk about dissent, the jurisprudence is actually very clear. You only problematize speech that has the potential to disturb law and order in the immediate. If I am inciting violence by saying: ‘Get up now, let’s go kill someone,’ then that is speech that is an offence. And the test is whether my words of incitement acted like a ‘spark in a powder keg’ (deliberately incited an already charged crowd), and whether they actually resulted in violence or not. But lately, the courts have been making it broader. Gautam Bhatia has written about how the ‘spark in a powder keg’ test has given way to ‘embers in the wind’ applications. You said something somewhere in more general terms and somebody else picked it up, built on it and passed it along. Even if several weeks later, and several degrees of separation away, there is an act of violence, you may be held responsible. That’s a very, very wide application of the test and a rather broad way of restricting speech. That is also one way of restraining dissent, critical thought or any kind of analysis or commentary.

‘Embers in the wind’ applications are more suited to hate speech because hate speech is, in fact, cumulative and systemic. But the courts are transplanting hate speech jurisprudence into dissenting speech—‘embers in the wind’ instead of ‘spark in a powder keg’—and at the same time, quiet unjustifiably, treating hate speech as episodic and contained in the moment. That may be because it is always so much more difficult to engage with structural violence because it doesn’t manifest so easily. The establishment always finds it easier to respond to immediate violence or direct violence, where it can actually see blood.

Question and Answer Session

Audience Member 1: Good afternoon, I am Karthika, a secondary school teacher. We teach students that freedom of speech and expression comes with certain reasonable restrictions. When I was teaching this, we had a discussion about The Kerala Story—the movie on love-jihad. My students had a few things to say about this: if this is based on a true story, why are we scared to watch it? And be it a Muslim woman or any woman, why do we attach religion to a crime against women? Some of the parents were not allowing them to watch it and because my native state is Kerala, they asked if I had watched it, and what the real story was. Naturally, I gave a very neutral stand as a teacher. What would your reply be to my students?

SA: My reply to your students would be to not watch it, primarily because it is a very bad film. It’s a very badly made film—horrible aesthetics, etc. I just discourage bad art. But no, the other question on facts—if it’s based on facts then there is no problem. First, it is not based on facts—the makers themselves have said so. There’s a lot of extrapolation and exaggeration, lot of generalization. So they are not actually claiming—at least when they had to give an affidavit in the court of law—that it is based on facts. But unfortunately, like your students, the court also accepted the argument that even if it is not based on facts, what is the problem; this could happen to someone of any religion; it’s just a film, etc. But I think that you are again here treating this as episodic—one bad film or one misinformed film. The point is, in the given context, it is not a film about the bad experiences of just some women (it’s not a film about women at all). It is part of a narrative about ‘love-jihad’. Its primary function is to take forward the false narrative of ‘love-jihad’, which to my mind does cause a ‘democratic deficit’. It is particularly egregious if it’s admittedly not factually accurate, embellished or exaggerated. The effects of the film are not episodic but cumulative. It has been preceded by The Kashmir Files and is now being followed by Accident or Conspiracy: Godhra and many other files. And together those files will create a dossier, which is directed only at a particular community for a particular purpose. So even for political and ethical reasons, unless your students understand the dynamic here, I think it’s bad for students to go see a film and treat it as one episode. It is not that, it is systemic.

Audience Member 2: I would like to draw your attention to a specific point mentioned by you. The truth should be always depicted, never hidden. We should not provoke enmity against any community, be it religious, regional or any other, but my question is: Why is there no balance found in our school textbooks? I have taught in Jharkhand, Rajasthan and now in Bihar. All my students know who came after whom in the Mughal dynasty. But ask them about who Varahamihir was—and they have no idea. Ask them about Chanakya and Arthasashtra—we barely teach one or two lines about it. They have no idea about King Porus as well.

SA: There are experts here who will be able to address that particular question much better. I just want to say that I do agree that the way the history syllabus is designed is North India–heavy. You don’t learn much about tribal kings or many South Indian dynasties, for example. I don’t actually know who came after Aurangzeb, do you? When you say everyone knows all the Mughal kings, then that is already a qualification, right? I don’t know who came after Aurangzeb, and who came after him. We know Aurangzeb and Bahadur Shah Zafar and that’s it. But I think this pitching of Mughal kings against—even in your example, the kings of ancient India—is also a particular framing. You could’ve taken other examples. I don’t know if we know enough about Abdul Bari Siddique from Patna, Kunwar Singh of Patna. It’s not a Mughal vs ancient India problem, it is a larger problem that can be framed in another way. But I think creating this binary between Hindu kings and Muslim kings is also perhaps problematic. We don’t know enough about all the Hindu kings—North Indian and South Indian, and not a lot about Muslim kings either. So it is top-heavy and designed in a particular way, but I would suggest that we don’t need to frame it in terms of Hindu and Muslim.

Audience Member 3: I would like to share one of my personal experiences with you. A long time ago, when things were not this bad, I was teaching a class in the ninth grade, when a boy asked, ‘Ma’am, you must be celebrating because Pakistan won the match yesterday?’ I said, ‘Listen, I don’t even know if you score runs or score goals in cricket, so you don’t ask me all these nonsense questions.’ Next, I had gone to Delhi for some council work. Within one week, the local police officer came to my place asking me whether I had visited Delhi. I said, yes. He then asked if I had gone to the markaz, I said no, but I went to Nizamuddin. He then wanted to know if I was in contact with the Tableeghi Jamaat. And here I am, just a teacher.

SA: Just a thought: When you were telling me about the Pakistan–India match experience, I realized that all of us who have been asked this question have responded in the same way—we don’t even care about cricket. That’s become our defensive stance. What if somebody, who actually cares about cricket had said—yes, I was supporting Pakistan and I’m very happy they won, would the discourse have been different cumulatively? I don’t know.

Audience Member 4: Hi, I am a research fellow at Goldsmith University at London. Firstly, thank you for the lovely talk. My question pertains to the relationship between intersectionality and hate speech that you briefly touched upon and also the fact that you spoke about who engages in offensive speech. My question would be: In a hypothetical situation, what if a person belonging to the majoritarian community, say a Hindu, who is also a sexual minority or a disabled person is hurled an offensive comment by a Muslim based on the fact that they belong to a sexual minority; or a heterosexual Dalit man hurling an offensive comment to an upper caste lesbian person, not based on their upper-caste-ness but because they belong to a sexual minority. So, first, would that be offensive speech or hate speech, and second, what would then be your idea of the democratic deficit here? How would you process two things, as we know the ‘who’ is never a unified category? It is always structurally bifurcated into several other categories.

SA: Thank you. These are exactly my doubts and these are the kind of questions that the courts might ask too while attempting to define hate speech or lay down law. To answer your question—it is offensive? There is no doubt about it. Whether instances of such speech would cause a democratic-process deficit would depend on the context. Your example is a realistic one: the Jamiat-e-Ulema Hind, which is a non-governmental religio-cultural body, had filed an intervention application in the case for ‘marriage equality’ that was being heard by the Indian Supreme Court. The case demanded recognition of marriage rights for the queer community; the intervention application indicating that they were not original parties to the case, yet wanted to intervene since the judgment would have an effect on public policy. There were other religious and secular groups too that had filed such interventions in opposition. In the event, marriage rights for queer people were not recognized. I can’t say whether it was the Jamiat, or all conservative groups coming together on a single platform, or just the intricacies of law that resulted in the dismissal of the petition for marriage equality. But broadly I would argue that the intervention petition—and even the statements that some of their representatives have given in the press—would still not cause a democratic-process deficit. It is offensive but I don’t think it will push sexual minorities out—particularly coming from a Muslim person—out of political spaces. It can happen for other reasons, it may happen because the RSS also does not like the idea of marriage equality. But I doubt it will happen because the Jamiat is saying it. Just as a broad example. But this is a struggle, this is something to think about all the time. And to that there is no clear answer. It is forever shifting.

Krishna Kumar: I wanted to say that a teacher’s neutrality is problematic. I first learnt that very sharply while sitting in class two weeks after the riots in Delhi in 1984, when schools reopened in the national capital after that terrible period. I was sitting as a supervisor in an English-language class. I think it was a public school and the children possessed considerable fluency in English. The usual practice is, when a lesson is finished, you want to see if the children are familiar with the vocabulary in that lesson, so that they can use it. One of these words was ‘arrive’. Among the various children who wanted to show that they knew this word was one student who gave the following example: When a Sikh arrived in Delhi, he was killed by Hindus. Now the teacher instinctively framed it as a question of grammar and since it was grammatically correct, she moved on. I could’ve empathized with that teacher in that charged atmosphere in Delhi at that time but I could not accept her neutrality. You are absolutely right that courts and teachers, who are always rushing to complete tasks, have very little time in our country. But a teacher’s neutrality is a way to get out of a difficult situation, where we know in so many parts of the country teachers and headmasters have been at the receiving end of great hostility. Yet it’s a terrible idea that teachers should be neutral.

SA: And the courts as well. They think that they can get out of difficult situations by being somehow ‘neutral’ when the situation doesn’t deserve any neutrality. The ‘both-siding’ of all situations.

KK: It’s a moral question, actually—one cannot afford to be neutral if we are moral creatures.