By New Age Islam Edit Bureau
21 September 2020
•Define the Contours of Hate in Speech
By Suhrith Parthasarathy
•Freedoms Exercised by All Mediums Disseminating News Are the Cornerstone of Our Republic
By Kapil Sibal
•Search for Peace in Afghanistan Will Not Succeed Unless All Parties Relinquish Entrenched Thinking
By Vivek Katju
•The Real Enemy Is the Ego That Hinders
By Praveen Nagda
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Define the Contours of Hate in Speech
By Suhrith Parthasarathy
September 21, 2020 00:02 IST
On September 15, the Supreme Court of India injuncted a Hindi-language television channel, Sudarshan News, from continuing its broadcast of a series titled “Bindas Bol”. This decision marked a departure from an order delivered on August 28, when the Court said that it must be circumspect in imposing any prior restraint on speech, especially since statutory authorities were vested with powers to ensure compliance of the law. But circumstances changed — following the Court’s original order, four episodes in the series were aired, portraying what the channel described as a jihadi conspiracy by Muslims to infiltrate India’s civil services.
To this allegation, the show added a number of evidently false statements. For example, it claimed that the upper age limit for Hindus attempting the civil service examination was 32 years, while the age limit for Muslims was 35; that Muslims were entitled to nine attempts at the examination when Hindus were entitled only to six. These assertions, the Court noted, were not only “insidious” but were also made in “wanton disregard of the truth”. Therefore, even on the face of it, the episodes had brought the entire Muslim community into “public hatred and disrepute”, and, in the process, had breached the Programme Code that regulated cable television.
Delineating The Ambiguous
The channel’s contempt for facts, and its attempt to denigrate Muslims, might appear to be an obvious case of hate speech, but our laws present several complications when an attempt is made to distinguish permissible speech from hateful criminal conduct. The Supreme Court’s own past precedent has scarcely helped clarify matters. This case, therefore, represents something of an opportunity: to infuse clarity in our legislation by identifying the distinction between merely offensive speech and hate speech, and by making clearer still those categories of exceptional cases where the Constitution permits prior restraint. To be sure, this exercise has to be delicately handled. But that it is fraught with difficulties must not deter the Court from delineating what has long remained ambiguous.
A working definition of hate speech will have to be gleaned by interpreting our laws in conjunction with the constitutional right to free speech. But in attempting to draw a line, it might be valuable to study the basic thesis that undergirds a consensus across most liberal democracies — with the notable exception of the United States — on why states must deny protection to hate speech. This view is predicated on a philosophical defence which is perhaps best exemplified in the works of the scholar, Jeremy Waldron.
In Prof. Waldron’s definition, hate speech refers to utterances that incite violence, hatred, or discrimination against people on the basis of their collective identity, be it race, ethnicity, religion, gender or sexuality. He says the limitation in these cases should be restricted to those categories of minorities who are vulnerable. Under this conception, a merely offensive statement would not qualify as hate speech. For example, a mockery of Buddhism’s tenets would not be illegal simply because it offends the sensibilities of its practitioners; on the other hand, speech that describes all Buddhists as amoral would qualify. Similarly, a work of satire on a religious figure that outrages the sentiments of his followers will be safeguarded, but speech that vilifies an entire community by describing them, say, as “anti-nationals” would go unprotected. This is because hate speech, as Prof. Waldron argues, attacks two key tenets of a democratic republic: the guarantee of equal dignity to all, and the public good of inclusiveness.
Downside To More Speech
Prof. Waldron’s thesis has been met with substantial resistance from First Amendment scholars in America.
They argue that censorship is a bottomless pit, that it is impossible to conceive bright-line rules that can distinguish between speech that only offends and speech that arouses hatred. They do not deny that a right to absolute freedom of speech can be abused. But they believe the only answer to misused freedom is more speech. While there is some merit in this response. it ignores at least three significant factors.
One, that even under the First Amendment, not all speech is equal — commercial speech, libel, and fighting words are afforded a lower standard of protection. Two, that almost all laws are a matter of construction; after all, most European democracies adopt principled standards that distinguish hate speech from merely offensive or rebarbative speech. Three, that countering speech with more speech is plausible only when there is a balance of power across society. Experience shows us that there can be no assurance that hate speech will somehow be sieved out of the veritable marketplace of ideas.
India’s Laws
Prof. Waldron’s theory is also appealing because it fits with India’s democratic vision. Specifically, it animates the values of liberty, equality and fraternity that the Constitution’s framers viewed as foundational. Until now, however, the country’s hate-speech laws have suffered from a Delphic imprecision. Read literally, Section 153A and Section 295A of the Indian Penal Code (IPC), which criminalise, respectively, speech that seeks to promote enmity between different groups and speech/acts that outrage/s religious feelings, are no more than a poor imitation of what hate speech laws ought to be. They are vaguely worded, and they are frequently invoked to quell speech that so much as offends a person’s belief. As a result, they militate against the permissible grounds for limiting free speech enumerated in Article 19(2) of the Constitution, and, in particular, the restrictions allowed on considerations of public order and morality.
The first of those grounds demands that speech must reach a level of incitement to be criminalised. That is, the utterance in dispute must go beyond advocacy. The second ground requires a re-imagination of our hate speech laws. It obliges us to read morality not as societal morality but as constitutional morality. Seen this way, speech that merely causes offence and is no more than disparaging or unpleasant, would continue to remain shielded. But speech that treats communities with disparate concern, by creating in them a sense of dread, a sense of exclusion from civic life, will go unprotected.
Issue Of Prior Restraint
While it is clear that the Constitution offers no protection to hate speech, the state’s failure to apply the Programme Code uniformly is linked to a wider incongruence in the law’s contents. Just like the substantive hate speech provisions in the IPC, the Programme Code is also much too vague. The Supreme Court must chisel its contents into a feasible, constitutionally committed model. Hard as this exercise sounds, this is the easy part — it is in deciding whether a prior restraint on speech can be imposed that the Court must tread a finer line.
We have repeatedly seen the deleterious impact that injunctions on speech have on the right to information and democracy. Only last week the High Court of Andhra Pradesh gagged the press from reporting on a charge made against a former Advocate General of the State, despite the manifest public interest in the case. Likewise, the pitfalls of a rule of absolute prior restraint under the Cinematograph Act have been all too evident. We certainly do not need an analogous regime for the broadcast media. But, at the same time, a rule against prior restraint cannot be unconditional. When it becomes evident that the basic objective of a broadcast is to evoke hatred and to vilify a vulnerable minority the law must find a way to foil the harm. A lot will ride on how the Court strikes this balance — for hate speech, once uttered, not only leaves little room for restitution but can also ramify to serve all manners of undemocratic ends.
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Suhrith Parthasarathy is an advocate practising at the Madras High Court
https://www.thehindu.com/opinion/lead/define-the-contours-of-hate-in-speech/article32655176.ece
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Freedoms Exercised By All Mediums Disseminating News Are The Cornerstone Of Our Republic
By Kapil Sibal
September 21, 2020
In recent years, significant players in mainstream electronic media, instead of discharging their responsibilities as watchdogs, have passed the test of being lap dogs with flying colours. (File)
At last, a ray of hope. On September 16, the Supreme Court granted interim stay, preventing Sudarshan TV from further telecasting the programme “UPSC Jihad”. As the matter is sub-judice, it would not be fair to comment either on the content or the quality of the programme. The Court analysed the programme in the context of our constitutional edifice founded on values of co-existence of communities, India being a melting pot of diverse civilisations and cultures. The petition, seeking to prohibit its broadcast, was moved by five distinguished citizens who also hoped to persuade the court to draw up standards for programmes in the electronic media. This ray of hope will be realised if the Supreme Court mandates the setting-up of Citizens’ Panel for TV channels to ascertain whether the programmes being viewed conform to the standards that the court may prescribe and evolve in the context of our constitutional values. The road ahead is a slippery slope. While we cherish the freedom of speech as a constitutional right, those who exercise it, have also to conform to their constitutional responsibilities. The parameters for such standards which deal with the right to free speech and the responsibilities involved in exercising it have to be carefully engrafted, ensuring that one is not eclipsed by the other.
The government’s submissions in this regard were telling. It was contended that any guidelines framed would affect the freedom of the press, leading to disastrous consequences, amounting to exercising control over the media. For this government to espouse the cause of freedom of the press and pretend to be its votary is ironic, given the perception that the present establishment has sought to silence and control the media far too often, and that too unabashedly.
We know that mainstream electronic media can be controlled, disregarding existing statutory guidelines. The fourth estate was conceived to act as a watchdog of the three organs of the state. In recent years, significant players in mainstream electronic media, instead of discharging their responsibilities as watchdogs, have passed the test of being lap dogs with flying colours. If the fourth estate functions in tandem with the ideology of the ruling class, extolling virtues of its policies and taking forward its agenda through slanging matches on screen, where the anchor acts as a votary of the ruling establishment’s policies and positions, such an outcome has certain unsavoury consequences. First, the voice of dissent is not allowed any space in mainstream electronic media. It is silenced whenever a contrary point of view is expressed. Second, the shouting brigade, singing the tune of the anchor, is given undue space and time which leads to a biased outcome. Third, the bloodbath on such channels, leads to an increase in TRPs, enriching the business houses funding these channels. Fourth, is the reach of such mainstream media whose salacious appetites are whetted by display of diatribes polluting minds, thereby serving the cause of a particular ideological mindset. Fifth, the increase in TRPs results in increased advertisement revenues, which again fuels such bloodbaths for yet another encounter. Opposition to setting standards for programmes in the electronic media as that will impact “freedom of the press”, in fact, means that the government does not wish the Court to regulate the war-cries of ideological mindsets polluting young minds and serving desired political objectives.
Democratic freedoms exercised by all mediums disseminating news are the cornerstone of our republic. However, such mediums have onerous responsibilities to discharge towards the following outcomes. First, they ensure that all points of views are heard for the public to be informed — the essence of freedom of speech. Second, it saves young minds from being polluted. Third, no ideological mindset is wantonly served through the media. Fourth , anchors do not fuel agendas, which strike at the root of our democratic values.
That apart, it is imperative that the structure of media, which allows for such outcomes is also looked at in the context of our constitutional freedoms. Perhaps, free speech is not always “free” since it is fuelled by commercial interests. Free speech is tainted if business houses who wish to protect their empires are willing to compromise with governments. We have moved far beyond the age when print media would fund itself through contributions so that independent opinions could be shared. Our national leaders would write editorials to ensure that independent voices of those seeking freedom are heard. But in the 21st century, often the voices of those seeking to silence free speech, particularly in the electronic media are heard.
The shift has taken place because to run a TV channel requires enormous resources. While the voices that pollute are part of a significant section of mainstream media, those who have no platform for exercising free speech are now part of the social media. That is yet another problem which the Court will have to deal with in the near future. The nature of social media is such that even there, armies are employed to serve partisan ends: Independent voices are sought to be silenced. But social media is perhaps even more powerful because content is transmitted at breakneck speed. Fake news, images that churn stomachs, have resulted in mayhem in the digital world. While the print media is regulated by law, social media platforms epitomise lawlessness. They cannot be regulated as many operate under the mask of anonymity. Global players make money while the victims of social media have no recourse to law.
It is time for the state to ensure that our republic is not defaced and damaged by shrill voices and agendas masquerading in the name of free speech. It is time for the courts to stand up and hold the scales of justice, making sure that they are balanced evenly. Otherwise, the tilt may endanger freedom itself.
https://indianexpress.com/article/opinion/columns/supreme-court-sudarshan-tv-upsc-jihad-freedom-of-press-6603892/
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Search for Peace in Afghanistan Will Not Succeed Unless All Parties Relinquish Entrenched Thinking
By Vivek Katju
September 21, 2020
Taliban delegates shake hands during talks between the Afghan government and Taliban insurgents in Doha, Qatar September 12, 2020. REUTERS/Ibraheem al Omari
The enormity of the challenges confronting intra-Afghan talks that commenced in Doha on August 12 can only be appreciated if they are placed in the context of the turmoil that has continued in Afghanistan for over four and a half decades. For the first time, far-reaching changes involving the polity are being attempted through dialogue without the gun being the sole arbiter.
The country has witnessed the overthrow of the monarchy, a nationalist dictatorship, communist rule, the mujahideen era, the Taliban’s Islamic Emirate and the current Islamic Republic. It has also experienced almost three decades of the presence of foreign forces and outside interference, especially from Pakistan. The balance of Afghan society and polity, shaken in 1973 with the monarchy’s departure, has never been restored. Instead, sharpening ethnic divides, extremist ideologies and theologies, large migration to foreign lands, internal displacement, spread of narcotics and violence have become endemic. At the same time, over the past 15 years, a section of Afghan urban youth linked to the world through the social media wants more open systems within an Islamic framework.
Negotiators representing the Taliban and the rest of the Afghan political establishment and their masters bear in large or small measure the psychological and, in some cases, physical scars of this painful history. Hence, the search for durable peace and stability will not succeed unless all parties and, in some cases their foreign patrons, especially Pakistan, are willing to substantially relinquish entrenched thinking. If they fail to do so, the talks will fail too. This may result in a collapse of existing political structures, splintering of the Afghan armed forces and higher levels of violence and criminality.
As the talks begin, the Taliban is in a position of strength. If the Kabul-based Afghan political class had succeeded in consolidating the republic and had kept the Taliban confined to a small area, it would have had the upper hand. That has not been so. Indeed, the Taliban with Pakistani support has shown remarkable resilience and has gained great confidence. It has inflicted a strategic defeat on the world’s pre-eminent power. To effectively tackle them, American troops would have had to enter Pakistan territory and carry out a sustained operation. That, none of the three presidents who had to deal with the Taliban after 9/11 were willing to do.
While the Taliban is largely cohesive, the Kabul political class is not. The 2019 presidential election was deeply flawed. The declaration of the incumbent president, Ashraf Ghani, as victor was dubious. Ghani was forced to accept his rival Dr Abdullah as the head of the Peace and Reconciliation Council, implying that he would have to share authority in decision-making in the peace negotiations. Also, other members of the Kabul team represent civil society and other political forces including the Hizb-e-Islami. This will give opportunities to the Taliban and others to create disunity in their ranks.
The most significant issue in these negotiations will relate to the nature of Islam in Afghanistan. The constitution of the Islamic Republic, adopted in 2004, begins with the Islamic shahada and commits the state to the “Holy religion of Islam”. It also seeks to uphold the universal declaration of human rights. The Taliban accept Hanafi jurisprudence like the majority of Afghans but believe that the Islamic sharia in its extreme Deobandi interpretation along with distorted Pashtun social codes must be uncompromisingly followed. That manifests itself in the approach to other faiths, other Islamic mazhabs, gender issues, social conduct and apparel and even facial hair.
It is almost impossible to predict how common ground can be found to accommodate fiercely held beliefs on all sides on the issues of religious interpretation and social codes. Goodwill among the negotiators and leaders buttressed with creative Islamic jurisprudence and scholarship would be needed. At the same time the Taliban leadership and Pakistan would be aware that despite its strategic defeat and desperation to withdraw, the US retains the capacity to deny them the fruits of “victory”. Also, the third decade of this century in not the last decade of the last millennium; the world has been transformed. To what extent will all this make the Taliban flexible is an imponderable. The Kabul elite would also have to make concessions on political issues and social codes.
However laudable it may be, it would be unrealistic to expect the Taliban to agree to a ceasefire though they may calibrate violence as the talks progress. The Taliban would fear that if cadres are not used, they may just fritter away. Also, Kabul would not take them seriously if it lost the ability to inflict damage. For the movement, power sharing, especially at the Centre, while significant, may not be as important as gaining charge of some provinces, a prospect Kabul will be chary about, irrespective of the facts on the ground.
At its core the Taliban is Pushtun. Its treatment of non-Pushtun Afghan ethnicities during its rule generated hatred and fear among them. Since then it has tried to put forward a pan-Afghan image and has succeeded in making some headway in a few non-Pushtun areas. However, old fears remain strong among many non-Pushtun especially in the cities. It will have to address these concerns.
How is India placed in Afghanistan as this dialogue begins? Clearly, Indian policy-makers refused to modify their Afghan approaches even as it became increasingly evident that the Taliban had gained ground in the country and was getting international legitimacy. Even while the Kabul authorities were trying to persuade the Taliban to the negotiating table, India continued to shun it. It saw the situation in black and white terms because of the Taliban connection and dependence on Pakistan. This resulted in India putting itself into a corner. It could have continued to strengthen its ties with Kabul and at the same time opened links with the Taliban. Diplomatic contradictions have to be managed. All other major powers were doing so. In India’s case, this was especially needed because the Taliban was signalling that it was not a Pakistani proxy. That assertion should have been tested.
External Affairs Minister Jaishankar correctly emphasised that the talks should be Afghan owned and led. In addition, India should also stress that in the interests of Afghanistan and the region the talks must succeed, that their failure would be catastrophic for the Afghan people and the region. Finally, that India would continue with its traditional policy of fostering close ties with any legitimate Afghan government.
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Vivek Katju is former Indian Ambassador to Afghanistan
https://indianexpress.com/article/opinion/columns/the-opening-in-doha-6603890/
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The Real Enemy Is the Ego That Hinders
By Praveen Nagda
September 21, 2020
Enemies and friends coexist in the material world. We create them for ourselves, and we do it with our thoughts, feelings, and actions – knowingly most of the time and unknowingly probably some of the time. On the one hand, we form relationships, build bonds, make attachments, establish connections, nurture friendships, develop acquaintances and on the other hand, we detach from people and relationships, experience break-ups, disconnect physically and mentally with loved ones, face deceptions in partnerships, and go through separations followed by emotional upheavals.
It is either the way we see ourselves and others’ interactions with us, or the way we see others and our interactions with them – these define how the relationships will develop, grow, mature, sustain, survive, collapse – and destroy or tarnish our physical and mental worlds. Deep in our own minds, perception and attention-seeking often form a self-image. This image of our own self is in continuous discussion with our own thoughts, and simultaneously relates to others whom we interact with and keeps making impressions about them.
‘Aham’ means ‘I’ but in the limited sense, it is always used in contexts that are complex. It is often referred to as a short form of ‘ahamkara’, ego. When a simple expression of ‘i am’ or ‘Aham’ gradually leads to enforcing thoughts, ideas, beliefs and imposing of i, me, and myself over everyone else, it becomes ahamkara, ego, where there is no space for others.
Arrogance, pride, self-driven approach, aggression, competitive behaviour, being opinionated, judgmental and critical are clear signs of egoistic behaviour, also leading to stress, suffering, anxiety, destructive mindset, sorrow and pain, as the ego doesn’t allow for joy and happiness anymore.
In the Mahabharata, Arjuna’s ego was the attachment to his body, due to ignorance, until he was taught otherwise by Krishna. He then decided to follow the path of karma after understanding that the real true Self is eternal, and it doesn’t perish. Duryodhana’s ego was amplified by those he was surrounded with. The praise, admiration, applause and the respect he always received from his cronies led to his arrogance that eventually destroyed him.
Similar to incidents in the Mahabharata, we, too, are constantly fighting battles of ego all the time. Whether we are engaging with family, friends, relatives, acquaintances, or business associates, we tend to make comparisons and judgments, with reference to what they have or don’t have vis-à-vis ourselves. Doesn’t it create a tempest, turbulence, an uneasiness, often in our own minds, with our own thoughts? Doesn’t it interfere with our normal life, work and interactions with people?
The ego in us goes on creating enemies among friends, well-wishers, and thereby valuable relationships are compromised, bringing misery, pain and sorrow into our lives.
A part of our brain seems to be responsible for consciousness, for maintaining the ego. Scientists are working towards deciphering the mystery of our mind. However, various spiritual masters all over the world have given us enough guidelines, teachings, methods and practices that can help us manage our egos well enough for it to play a constructive role in our lives and save us from being devastated or from saving others from being devastated by us. Any time is a good time to move from ego, to let go!
https://timesofindia.indiatimes.com/blogs/toi-edit-page/the-real-enemy-is-the-ego-that-hinders/
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