Radical Jurisprudence And Hate Speech Laws In India – OpEd

With the rise of the right-wing Bharatiya Janata Party (BJP) in India, there has been a renewed focus on the country’s hate speech laws. The ruling dispensation and its Sangh Parivar affiliates have been misusing legal provisions regarding hate speech to silence those who are critical of the government and oppose its communal policies (Alam 2022).

In response to this weaponization of law, legal scholars have insisted on how anti-hate speech legislation can’t be distorted to benefit powerful interests. On the contrary, it has to target only that speech which leads to psychological harm, discrimination, ostracism, deportation, violence, and, in extreme cases, genocide (Lokur 2022). Even as we recognize the merits of this legal argument, we have to recognize the deficiencies of its formalist reference to certain supposedly self-evident parameters which determine the contours of “true” hate speech. The definitional relations which compose these criteria are subject to political contestation, which ultimately determines their legal interpretation. 

In the case of hate speech laws, the underlying rationale is that there are forms of speech that limit one’s ability to speak freely. However, without criteria for what constitutes “good” speech, we are left with a relativist deadlock in which different sides argue for the validity of their speech and call for censorship of the speech that they believe limits their own. To break out of this loop, we need to establish criteria for what constitutes “good” speech and then use the resultant normative gridlines for the determination of hate speech. Here, it becomes evident that anti-hate speech legislation is, at its core, a matter of political struggle, in which certain guiding values serve as the yardstick for judging the legitimacy of different kinds of speech. The recognition of the politicality of law can allow its practitioners to acknowledge the historically discrete jurisprudential formations that form the background for their legal pronouncements. This, in turn, will enable the adjustment of law to the political requirements of the conjuncture. In order to facilitate the historicization of law, we need to develop a theoretical matrix that emphasizes the contingency of any legal order. 

The Groundlessness of Law

The existence of the Indian constitution is dependent on the prior consent of the people, but the people themselves are created through the law that purports to represent them, but in reality, it also constitutes them. This illustrates the reciprocal relationship between law and the nation, as the discursive construction of the Indian people requires laws that distinguish them from other people and places. However, the law itself cannot exist unless the people actively desire it. Since law is performative (it creates and enacts the very people that it claims to represent), it can’t be grounded in a transcendental a priori. Rather, its pure immanence means that it harbors within itself a dimension of non-law. Any act of establishing a new law involves the violent overthrowing of the old law, which means that “there is a risk: the negation of law. Establishing manifests a disregard for law as it perversely (or criminally) turns crime into law. This paradox, this traumatic identity of law and crime, is the repressed origin of law” (Dean 2006). 

Insofar as the formation of law is dependent upon a founding moment of violence, we can’t take recourse to any abstract first principles to form legal judgements. Instead, the determinateness of constitutional law is established through the social force of conjuncturally specific national imaginaries. These imaginaries delineate particular hermeneutic boundaries to curb the textuality of legal discourse i.e. the ability of legal signifiers to be re-appropriated by different groups according to their own interests and perspectives. The ineradicable pluralism of juridical discourse flows from the general condition of différance, which refers to how any object in reality has to establish its identity through its localization in an ontological system of differential relations and forces, which prevents any ultimate semantic closure. 

National imaginaries can tend either towards the strengthening of law or its subversion. This means that law in a democratic architecture is autoimmune i.e. it has a vulnerability to critique and contestation as it is a product of a historical and contingent process, rather than being based on an incontestable ground. This process essentially refers to how a particular legal discourse relates itself to the differential and relational system that forms the structural context for its existence. Every legal decision involves a singular orientation to différance, wherein the exercise of power closes certain possibilities and opens others. Instead of having any ultimate legitimacy, these instances of decision-making can be challenged on the basis of what they exclude. This structural undecidability of law is an absolutely necessary condition for the pursuit of any form of politics. Politics would not exist if decisions were wholly determined by their structure, because any intervention would be useless. This would result in everything being predetermined, leaving no room for the transformative impact of political struggle. Conversely, if there is an inherent undecidability, no legal decision possesses innate normative superiority, as its effects are to be examined in their historical interaction with a conjuncture that is capable of changing. 

The autoimmunity of law accounts for the manner in which right-wing political actors have been using democratic mechanisms to subvert democracy itself. Jacques Derrida (2005) notes: “Democracy is the only system, the only constitutional paradigm, in which, in principle, one has or assumes the right to criticize everything publicly, including the idea of democracy, its concept, its history, and its name. Including the idea of the constitutional paradigm and the absolute authority of law.” In other words, democracy is the only system of governance which brings out the structural undecidability constitutive of politics. Political negotiations are required for all aspects of democracy, as there are no foundational maxims that can provide a transcendental guarantee for any decisions. Instead of offering solutions for politics, democracy provides an institutional apparatus for acknowledging that no solution or norm can be justified once and for all. The open-ended nature of democracy means that it is both infinitely perfectible and infinitely corruptible, with the latter threat being concretized in present-day right-wing movements. 

Affirmative Vision 

An emphasis on the groundlessness of law may seem to push us towards a post-modern irrationalism wherein the fact of structural undecidability can be used to articulate the impossibility of any truths. However, this form of angelic disinterestedness is characteristic of liberal jurisprudence, which hides behind the reified encrustations of neutrality to avoid any form of contact with the political question of normative values. A philosophical position of hyper-politicality, by contrast, uses the ontological fact of différance to bring to light the excess that is excluded by any legal decision.

A juridical discourse is always incomplete, since it is haunted by the infinity of signifiers which it can’t possibly encompass. Instead of being paralyzed by the inherent incompleteness of any significatory statement, law has to focus on how its excluded excess exercises a powerful destabilizing force upon juridical thought and pushes it towards the elaboration of new criteria whereby to foreground those problems and search for their resolution. Christopher Norris (2012) articulates this epistemological model as “the relationship between what is actually the case with regard to some present stage of scientific advance or state of social being and what might conceivably become the case through some signal transformation the advent of which can as yet be discerned only through the localized emergence of stress-points, anomalies, recalcitrant data or signs of increasing conceptual or social-political strain.”

In the current Indian conjuncture, legal action towards hate speech has to bring to light the politically excluded excess (minorities) whose unthinkability is the condition of possibility of the Hindutva status quo, and then expand this element into a new truth through the discursive connections that unfold during the juridical procedure. In this way, we will be able articulate a positive vision of a just society, instead of relying on merely negative references to the prevention of harm and violence, which can be easily misused by fascistic agents. By centering the discursive position of Indian minorities, we can outline a secular vision, which serves as the axiological criteria for speech regulation. The philosophical affirmationism of this form of jurisprudence is radically different from liberal thinking, which uses a consensual definition of evil to construct a system of juridical cautions. According to Alain Badiou (2001), the liberal-ethical stance on evil is dominated by a focus on the negative, or what needs to be eliminated from society, rather than a positive vision of what needs to be created. This focus on the negative shares with fascism a belief in the necessity of eradicating elements that pose a threat to society. Since a consensual ethics of the negative leads to a preoccupation with a supposed enemy, we urgently need to articulate radical jurisprudential theories that don’t shy away from the proclamation of a new future. 

References

Alam, Shahrukh (2022): “The Prima Facie Anti-National,” The Wire,4 April, https://thewire.in/law/umar-khalid-bail-order-court-muslims-hindu. 

Badiou, Alain (2001): Ethics: An Essay on the Understanding of Evil, London/New York: Verso. 

Dean, Jodi (2006): Zizek’s Politics, New York: Routledge. 

Derrida, Jacques (2005): Rogues: Two Essays on Reason, Stanford: Stanford University Press. 

Lokur, Madan B. (2022): “How the Supreme Court Has Interpreted Hate Speech Over the Years,” The Wire, 6 October, https://thewire.in/law/watch-how-the-supreme-court-has-interpreted-hate-speech-over-the-years. 

Norris, Christopher (2012): Derrida, Badiou and the Formal Imperative, London/New York: Continuum International Publishing Group.