A few days ago, a minor girl was gang-raped in the Dhing area of Nagaon district, Assam, allegedly by three Muslim men. As anger over the horrific incident and against the community escalated, Chief Minister Himanta Biswa Sarma, who has called Muslims a “communal organisation” in the past, said he would not allow “Miya Muslims” to “take over all of Assam” (‘Miya Muslim’ is a derogatory term used against the minority Bengali Muslim community.) Mr. Sarma has made such remarks in the past, which have been slammed by the Opposition and termed by some people as hate speech.
The objection to Mr. Sarma’s statements is twofold. First, he is a Chief Minister who took an oath saying he will bear true faith and allegiance to India’s secular Constitution. Second, by making such remarks, he is denigrating an entire community and furthering an already deeply rooted bias against them, in a State which has suffered ethnic violence.
Some may argue that Mr. Sarma is exercising his right to free speech. While free speech is a fundamental right, the Constitution allows for certain “reasonable restrictions” to it. Others may argue that this is hate speech. There are many provisions in Indian law that criminalise offences characterised as hate speech. However, hate speech is not defined in the Indian legal framework.
The harm principle
In order to understand free speech and the extent to which it can be restricted or controlled either by society or government, it is worth revisiting the 19th century philosopher John Stuart Mill’s seminal work, On Liberty. Mill’s work is the bedrock of what we refer to today as libertarianism. Mill believed that true societal happiness (utilitarianism) can be achieved only when people are free to exercise their choices. He urged for minimal state intervention in the exercise of liberties, arguing that “the only power that can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”. This is called the ‘harm principle’.
His point was seemingly simple and straightforward: if any act that you do physically injures another person, you can be punished for it. For example, if you walk around with a cane, you do not hurt anyone, but if you slam that cane against a person’s head, that constitutes harm or assault, which can call for state intervention. To put it theoretically, Mill separated our actions into two categories: ‘self-regarding actions’ and ‘other-regarding actions’. Self-regarding actions affect only the individual and not others, while other-regarding actions affect others or society.
However, this distinction is not always clear. We can argue that all our actions affect the people around us or society at large. For instance, if a person develops a drinking problem, he may not be harming anyone else, but his excessive drinking may be causing immense stress to his family and he could be turning emotionally and physically abusive.
Mill believed that that the state or society do not have any justification in restricting self-regarding actions. However, the state or society can control other-regarding actions. While society can control actions which may hurt others but do not violate any legal rights (by, say, ostracising an individual), the state can control other-regarding actions when there is a violation of legal rights (by imposing a punishment). In Navtej Singh Johar vs. Union of India, the Supreme Court of India buttressed its conclusion that the state cannot criminalise homosexuality by recalling Mill’s theory.
Freedom of speech and expression
In short, Mill said liberties can be restricted only when our actions cause harm. But that brings us back to the question: what really constitutes harm? We could define harm as an act that makes a person worse off because of another person’s actions. But this is still tricky terrain. If a family or a doctor decides that a terminally ill patient, who has been bedridden for 40 years, is better off dead, will their decision constitute a harm or will it help the patient by putting an end to her suffering and indignity?
Is harm also only physical? Nowadays, we have many debates on the harms caused by disinformation and misinformation. Mill, being a libertarian, believed that there must be complete freedom of thought and expression. He argued, “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had power, would be justified in silencing mankind...
“The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” Here, Mill essentially says that if we disregard an opinion as false, we will not have any challenge to our views and we may even be wrong (he cites the example of Socrates). False beliefs provide us with the opportunity to constantly defend our beliefs, making sure that they remain a living truth rather than dead dogma. It is only when our beliefs are constantly challenged that they are strengthened. And if we disregard an opinion which is actually true, then we would be deprived of knowing the truth and correcting our false views. Therefore, all opinions must be allowed to flourish.
However, Mill does acknowledge that freedom of expression could be limited under some cases. He cites an example: “An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard... The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people.”
This seems logical when the potential harm is apparent. But what happens when Bengali Muslims are referred to as ‘Miya Muslims’ and consistently dehumanised with the potential harm not immediately clear? According to Mill’s theory, it could always be argued that it is not right to completely ban it since we could be deprived of that shade of opinion. At the same time, allowing hate speech could psychologically harm a group and could even incite other groups to violence. In Rwanda, for instance, the radio station RTLM, which had allied with leaders of the government, had been inciting the ethnic majority called Hutus against the Tutsi minority, by repeatedly describing them as inyenzi (“cockroaches”) and as inzoka (“snakes”). The constant hate-mongering over time culminated in a genocide.
What happens when state actors themselves promote speech that could cause harm and agencies that are meant to keep them in check fail to do so?
Mill’s case for free speech is not built on a foundation of universal rights. Rather, it is based on the belief that free discussions will correct our errors and benefit humanity in the long term. Such unhindered discussions, as we know, are often threatened by both societal and state power.
While Mill’s vision of a liberal-minded world is not what we see today, his ‘harm principle’ continues to be discussed and impacts law even today.
