If the fictitious concept of hate speech is accepted as real and valid, we may end up banning most books, including classics

A phony concept is haunting India, the concept of ‘hate speech.’ Phony because there are no objective and universal standards that can define hate speech. Politicians and other public figures all over the world are often accused of making hate speeches. In general, if someone doesn’t like a nasty comment—actually, any remark—they often dub it as ‘hate speech.’ Demands are made to criminalise it.

Before proceeding to establish my assertion—that hate speech is a phony concept—I would like to discuss the concept of hate crime. Merriam-Webster defines ‘hate crime’ as “any of various crimes (as assault or defacement of property) when motivated by hostility to the victim as a member of a group (as one based on colour, creed, gender, or sexual orientation).” The US Congress describes a hate crime as “a criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, ethnic origin or sexual orientation.”

Hate itself, however, is not a crime—and the Federal Bureau of Investigation of the US is mindful of protecting freedom of speech and other civil liberties, says the FBI website.

Two points need to be made here. First, hate speech should not be confused with hate crime; the former, however offensive and repulsive, is still speech, a form of expression, and any form of expression is and should be protected in a liberal democracy. Hate crime, by definition, is a crime, and should be dealt with accordingly.

Second, hate is not and cannot be a crime in a democracy. On the face of it, this sounds paradoxical. For doesn’t the Preamble of the Constitution of India, the world’s largest democracy, talk about the resolve “to secure”—apart from justice, liberty, and equality—fraternity? How can fraternity be secured without rooting out, or at least checking, hate?

But this line of thinking is fallacious and fraught with the possibility of bolstering totalitarian tendencies; for hate, like love, lies within an individual’s heart and mind; and any move to regulate the hearts and minds of citizens is tantamount to thought control—the defining feature of totalitarianism.

The purpose of legislation in a liberal polity is to legislate between individuals, to regulate inter-individual conduct and not intra-individual dynamics. Criminalising hate would amount to defining thought crime—another totalitarian tendency.

Thankfully, the anti-totalitarian streak is implicit in the Preamble, in as much as it describes fraternity as “assuring the dignity of the individual.” It is obvious, then, that the dignity of the individual will be destroyed if the State decides to indulge in thought control, an endeavour that would necessitate intrusion into the most sacred spaces of the individual. Such fundamental rights as freedom of speech and expression (Article 19) and freedom of conscience (Article 25), enshrined in the Constitution, shield these spaces.

Unfortunately, even the top judicial experts in India have failed to realise that hate speech is a phony concept. Consequently, they keep debating over the need to curb it. But as the very concept of hate speech is phony, fictitious, and phantasmagoric, it can be grasped in any possible manner.

So, the Supreme Court judges, who are incensed by the falling standards of political debate, hold hate speech responsible for the fall. Last week, a Bench of Justices KM Joseph and BV Nagarathna said, “Hate speeches are like a vicious circle. One person will make it and then another will make it. When our Constitution was founded, there were no such speeches. Now cracks are coming up in the idea of fraternity. There has to be some restraint. Some sort of mechanism needs to be developed by the state so that we can curb these kinds of statements.”

The apex court’s intentions are laudable but its diagnosis of the problem of the perverted political discourse is not very accurate.

Solicitor General Tushar Mehta uses the concept of hate speech to defend the Government’s position, arguing that such speeches are made not just against Muslims and Christians but also against Hindus. But he also highlighted something important. He quoted “a spokesperson of DMK” who said “whatever Periyar says should have been done… If you want equality, you must butcher all Brahmins.”

Evidently, this led to some acrimony, with Justice Joseph reportedly asking if the Solicitor General knew who Periyar was. Mehta said he knew who Periyar was, and that hate speech cannot be justified just because someone great said it.

This brings us to the most important point: a lot of great men and women have said things that would be regarded as hate speech, blasphemous, derogatory, anti-poor, etc. Let’s begin with the beginning. For Plato, slavery was a natural state of affairs, something which never bothered the great philosopher. He wrote, “...nature herself intimates that it is just for the better to have more than the worse, the more powerful than the weaker; and in many ways she shows, among men as well as among animals, and indeed among whole cities and races, that justice consists in the superior ruling over and having more than the inferior.”

His disciple and another great philosopher, Aristotle, justified slavery. According to him, “But is there any one thus intended by nature to be a slave, and for whom such a condition is expedient and right, or rather is not all slavery a violation of nature? There is no difficulty in answering this question, on grounds both of reason and of fact. For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule.”

Should the books by Plato and Aristotle be banned?

Then there was the enfant terrible of Western philosophy, Nietzsche. Here are some of his gems: “Thou goest to woman? Do not forget thy whip!” “Man should be educated for war, and woman for the recreation of the warrior; all else is folly.” “Let woman be a plaything.” “Everything about woman has one solution: pregnancy.”

Another great German philosopher, Schopenhauer, whom Nietzsche considered as his teacher, also made many unedifying comments on fair sex.

Madame Bovary and Anna Karenina could also be accused of glamorizing, if not promoting, adultery. Gone With the Wind, both the novel and the movie, is open to the criticism that it portrays slavery as practiced in the American South in soft focus. Dante’s Divine Comedy depicts the Prophet Mohammad in a bad light.

In India too, great authors have expressed uncharitable views about women. Tulsidas famously said that they, along with others, were fit to be beaten at will. Indian literary works can face charges of exalting ideals and values that would harm any society. Agyey’s Shekhar: Ek Jiwani has shades of an incestuous relationship. Premchand’s Nirmala also has a similar implication. Bimal Mitra’s Sahib Bibi aur Ghulam, on which a great Hindi film was also made, is all about the decadence of feudalism, complete with mentions of debauchery and profligacy.

UR Anantha Murthy’s Kannada novel, Samskara, exposes the hollowness of Hindu traditions. Bankim Chandra’s Anandmath does not have a very charitable mention of Muslims.

The list of great authors who have said politically incorrect things is long. If the fictitious concept of hate speech is accepted as real and valid, we may end up banning most books, including classics.

Ravi Shanker Kapoor is Resident Editor, The Pioneer, Delhi, is the author of There Is No Such Thing As Hate Speech, Bloomsbury (2017)