Courts cannot be the only hope for those fighting hate speech. Countering its effects on the ground takes more effort.
With our political parties unwilling to put in that amount of effort, it's left to citizens to do so, points out Jyoti Punwani.
In 2020, the Election Commission of India (ECI) found 'Goli maro saalon ko/desh ke gaddaron ko' so offensive that it barred then Union minister Anurag Thakur from campaigning for 3 days after he raised the slogan on January 27 at an election rally for the February 2020 Delhi assembly polls.
The slogan was still new; it had first been raised by Bharatiya Janata Party leader Kapil Mishra a month earlier, at a march in favour of the Citizenship (Amendment) Act (CAA), which had just been passed, and against those Muslims who had made Delhi's Shaheen Bagh their base to protest against the CAA and the impending National Register of Citizens (NRC).
After the ECI's action, even the Delhi police, who had taken no action against any of the communal rants by BJP leaders during the election campaign, started stopping BJP supporters from raising the slogan.
In the same campaign, the ECI also barred BJP leader Parvesh Verma for 3 days. On January 28, Verma described the Shaheen Bagh demonstrators as predators who would rape Hindu women in Delhi. Only Modi could save Hindus from them, Verma said.
Yet, last week, these same utterances were held by the Supreme Court as not constituting hate speech, because they didn't refer to any specific community. Hence no 'cognisable offence' could be made out against Thakur and Verma.
Significantly, that's exactly the reason given by the Delhi police to the Delhi high court for not registering FIRs against Thakur and Verma, an argument that was accepted by that court in 2022.
Only one judge found these utterances actionable. On February 26, 2020, even while the riots were on, Justice Muralidhar ordered the police to file an immediate FIR against these worthies. But he was transferred out of the Delhi high court on the same day.
Significantly, two people actually did what the slogan asked them to. On January 30 and February 1, 2020, separate attempts were made to shoot at the Shaheen Bagh demonstrators.
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'Goli maaro saalon ko' became a battle cry against Muslims after the Delhi elections. In the 2021 Bengal assembly polls, the slogan was raised by supporters of Suvendu Adhikari, who had then just joined the BJP. Unlike the Delhi cops, the Bengal police considered the slogan an offence and arrested those raising it.
Later that year, the slogan was raised by Kapil Mishra when he led a rally against Muslims performing namaaz in public in Gurgaon. With the BJP ruling Haryana, the BJP leader wasn't arrested.
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It is with this history that the slogan came to the Supreme Court. In 2023, the apex court issued notice to Thakur and Verma to respond to the allegations of hate speech made by the petitioners. They didn't bother to reply.
Their disregard towards a notice from the apex court was validated by last week's judgment. Now, Thakur, Verma, currently Delhi's deputy CM, Kapil Mishra, currently Delhi's minister for law and justice, and any other hate monger can raise the slogan with confidence.
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This is not the first time that words that are clearly incitements to violence and hatred towards one community, are not seen to be so by the courts. The closest parallel to last week's Supreme Court judgment came way back in 1994.
There too, a politician who used his newspaper to pour venom against Muslims even as communal violence was raging, was exonerated by a high court, which felt that seen as a whole, his writings did not target an entire community but only one section of it.
Bombay (as it was then called) erupted in violence hours after the Babri Masjid was demolished on December 6, 1992. That phase of the riots lasted till December 12, 1992.
All through, Shiv Sena chief Bal Thackeray wrote editorial after editorial in his Marathi newspaper Saamna, demonising Mumbai's Muslims and instigating violence against them. He did the same through the second phase of the riots in January 1993.
As in Delhi 2020, in Bombay too, the police did not act against Saamna's editor. It was left to citizens to approach the court. Nine Saamna editorials published during the riots formed the focus of the petition filed by J B D'Souza, former Maharashtra chief secretary, and journalist Dilip Thakore.
Forced to act, the Sharad Pawar government, on the eve of the court hearing, filed four cases against Bal Thackeray -- not for the edits, but for reports that appeared in Saamna during the riot period.
These reports were inflammatory, but carried no byline. They were certainly not as powerful as the editorials that conveyed the newspaper's policy.
The court held that the edits referred only to 'anti-national Muslims'. However, when the epithet was used to describe Muslims repeatedly, the reader could well believe that Muslims were by definition anti-national.
Saamna's circulation went up to more than a lakh during the riots; among its keenest readers were Mumbai's policemen. Indeed, a couple of editorials addressed policemen directly.
'Police, your weapons are meant to kill traitors. Those leaders and officers telling you not to do so are bigger traitors than those living in Behrampada (a Muslim slum in north west Mumbai). Obeying anti-national orders is also an anti-national act. The police must think -- should guns be trained on traitors or innocent people?' (January 5, 1993, around the start of the second phase of the riots.)
Additionally, in some edits, the words 'anti-nationals' or 'traitors' were used instead of Muslims. For instance: 'Just because the anti-nationals' stalls were demolished, must the corporation's hall be made into a Bhendi Bazar?' (December 5, 1992)
In other edits, the entire community was described as being disloyal and violent.
'All masjids have become storehouses of unauthorised arms.' (December 8, 1992). 'Streams of treason and poison have been flowing through the mohallas of this country. These mohallas are inhabited by fanatical Muslims. They are loyal to Pakistan....That is one of the 7 bombs Pakistan has placed in Hindustan.' (December 9, 1992)
In contrast, Hindus were referred to as 'patriots', attacks on them were described as 'attacks on the nation'.
Ironically, Saamna itself didn't hesitate to describe its role during the riots: 'In this war, we and our Saamna fought like men. We revived withered wrists... Saamna burnt with intense fire ...We've prepared a generation on fire. Saamna's job is to keep it smouldering...We must burn like torches, and in the forest fire that ensues, the traitors will be burnt to ashes.' (January 23, 1993, Thackeray's birthday)
After the high court verdict, Saamna's editorial thundered: ''Saamna will forever light the spark to destroy traitors. Fighting traitors is no crime is what the high court says.' (September 28, 1994)
Saamna's writings came up frequently in the hearings of the B N Srikrishna Commission set up to investigate the riots. Every time, the high court's clean chit was flaunted. Incidentally, this clean chit was upheld by the Supreme Court.
However, in his report, Justice B N Srikrishna listed Saamna as one of the causes of the second phase of the riots. '...the communal passions of the Hindus were aroused to fever pitch by the inciting writings in print media, particularly Saamna...'
Unfortunately, no such judicial commission will set the record straight for the hate speech delivered during the Delhi riots.
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These two rulings, 32 years apart, give rise to the question: Given that our police will never act against those who spew hatred against Muslims (in today's times, BJP MLAs Nitesh Rane and T Raja Singh from Maharashtra and Telangana are testimony to that), what kind of statement would our courts accept as hate speech against Muslims?
There is no dearth of Hindutva leaders abusing and instigating violence against the entire community. They have yet to be indicted, however.
But there has been one instance of a Hindutva leader being convicted for hate speech. That remains the only conviction of Shiv Sainiks for offences committed during the 1992-1993 riots.
A special magistrate's court set up in 2008 to try riot cases convicted Madhukar Sarpotdar, then a Shiv Sena MLA, Jaywant Parab, then a Shiv Sena municipal corporator, and Ashok Desai, a Shiv Sena up vibhag pramukh, under Section 153 A (promoting communal enmity) for their speeches and slogans, and the placards and banners they displayed during a rally on December 27, 1992, between the two phases of the riots.
This conviction came about not because of any special zeal shown by the government to book those responsible for the riots. The police produced no evidence worth the name. It was purely the result of a conscientious magistrate who went through every word of the evidence produced.
The crucial piece of evidence came, in fact, in the documents produced by Sarpotdar's lawyer, during his cross-examination of the police.
In her judgment, Magistrate Rajeshwari Bapat-Sarkar castigated the accused for making provocative speeches which could lead to violence, despite being elected representatives. Punishment was essential she wrote, to 'to send the correct signal that wrong doing would be punished.'
Five years later, Sessions Court Judge Dilip Murumkar upheld the verdict, pointing out that India was a secular country, and freedom of speech did not mean hurting the feelings of others. Two of the accused, Sarpotdar and Parab, died before the high court could decide on their appeal.
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Elected representatives Anurag Thakur and Pravesh Verma have, alas, not been read out the lesson by the Supreme Court that the lower judiciary read out to the Shiv Sena leaders. Yet, hope lies in the fact that though their incendiary speeches may have gone unpunished in law, they were punished soon after they made them -- by the people. Their party lost the 2020 assembly elections. That the BJP won in 2025, with Verma defeating Delhi CM and AAP chief Arvind Kejriwal, is another matter.
What these two judgments tell us is that courts cannot be the only hope for those fighting hate speech. Countering its effects on the ground takes more effort. With our political parties unwilling to put in that amount of effort, it's left to citizens to do so.
Feature Presentation: Aslam Hunani/Rediff