Civil society must mobilize to push back political divisions even as the law runs its course

Stricter standards than those applicable in the United States have been specified in international instruments such as the Convention on the Prevention and Punishment of the Crime of Genocide, abbreviated CoG, the International Convention on the Elimination of Racial Discrimination (ICERD) and the International Covenant on Civil and Political Rights (ICCPR).

The CdG, for example, makes “direct and public incitement” to commit genocide, which in turn is defined with a fair measure of rigor, a punishable crime. The CoG was applied in a real situation after the horrific mass violence against the Tutsi tribal group by the Hutus of Rwanda in 1994, when between 500,000 and 1,000,000 were killed in the space of three months. It was a campaign of violence aided by virulent messages of racial hatred broadcast on Radio Rwanda.

This distinction between “hate speech” as actual incitement and as part of the contextual conditions in which the crime of genocide occurs creates further ambiguities. It gives rise to a possibility, in the opinion of the ICTR, of “hate speech which does not incite violence”. Again, diligent adherence to these distinctions may well ensure that interventions come too late to stop an outbreak of violence.

Other international instruments, such as the ICCPR, opened for signature in 1964 and ratified by India in 1979, enjoin member states to prohibit by law “any appeal to national, racial or religious hatred which constitutes a incitement to discrimination, hostility or violence ”. The ICERD, opened for signature in 1967 and ratified by India in 1969, contains an article that specifically prohibits speech advocating discrimination on the basis of identity.

The term “hate speech” as a term is rarely, if ever, used in the Indian legal system, although there is apparently a glut of laws dealing with similar offenses. In addition to general guarantees of fundamental rights, specific identity-based protections are available for indigenous communities and those traditionally disadvantaged under the caste system: Dalits and Adivasis in common terminology. Although all forms of discrimination are prohibited by fundamental rights, the Constitution adds an additional level of protection with the formal abolition of untouchability under Article 17.