Is Calling an Indian Muslim a ‘Pakistani’ a Crime in Law?

Introduction

Hate speech is a critical issue that affects social harmony and legal frameworks worldwide. In India, the use of certain terms as slurs, particularly calling an Indian Muslim a “Pakistani,” has sparked legal and social debates. This report explores whether such usage constitutes a criminal offence under Indian law, the legal precedents, and the broader implications of hate speech.

Legal Standpoint

Supreme Court’s Ruling

In February 2024, the Supreme Court of India ruled that calling someone a “Pakistani” in private does not amount to hurting religious sentiments, though it may be considered distasteful. The court emphasized that context plays a crucial role in determining whether a statement qualifies as hate speech.

Delhi Court’s Judgment

On March 7, 2024, a Delhi court ruled that Bharatiya Janata Party (BJP) leader Kapil Mishra’s reference to Citizenship (Amendment) Act protestors as “Pakistanis” was an attempt to promote enmity on religious grounds. This falls under Section 196 of the Bharatiya Nyaya Sanhita, which replaced Section 153A of the Indian Penal Code.

Legislative Framework

The following laws address hate speech and promoting enmity in India:

• Section 196, Bharatiya Nyaya Sanhita (formerly Section 153A IPC) criminalizes speech promoting enmity between religious groups.
• Section 197, Bharatiya Nyaya Sanhita (formerly Section 153B IPC) penalizes assertions that undermine national integrity.

Context Matters

Legal experts agree that context is key in determining whether the term “Pakistani” qualifies as hate speech:

• Public Speech: If used in a way that incites violence or discrimination, it can be prosecuted under hate speech laws.
• Private Speech: The law does not regulate private conversations unless they pose a direct threat to public order.

Historical Precedents

• Bal Thackeray Case (1994): The Bombay High Court dismissed a case against Shiv Sena leader Bal Thackeray for inflammatory remarks, citing the need to interpret statements in context and avoid reigniting past conflicts.
• Recent Developments (2024): The Delhi court’s ruling against Kapil Mishra marked a shift in judicial interpretation, acknowledging the broader social implications of such remarks.

Broader Implications

Social and Political Dimensions

Indian politicians have historically used references to Pakistan to attack Indian Muslims, reinforcing exclusionary narratives. The phrase “mini-Pakistans” has often been used to delegitimize Muslim political participation.

The Need for an Anti-Discrimination Law

Experts argue that existing hate speech laws are insufficient. A comprehensive anti-discrimination law could:

• Address structural discrimination beyond criminal penalties.
• Provide civil remedies against hate speech.
• Encourage cultural and social interventions against prejudice.

Challenges in Implementation

• Misuse of Hate Speech Laws: Some experts caution that broad interpretations could lead to misuse, giving excessive power to law enforcement.
• Legal Harassment: Accusations under hate speech laws could lead to prolonged legal battles without convictions.

Conclusion

Calling an Indian Muslim a “Pakistani” may qualify as a criminal offence if used in a way that promotes enmity or incites violence. However, legal intervention must be balanced with broader anti-discrimination measures. Addressing hate speech requires a combination of legal, social, and political responses to ensure justice while preserving free speech rights.