The regulation of speech is constitutive of democracy. Together, the protection of speech and its limits create the possibility for citizens to participate in collective deliberation without intimidation. Questions about freedom of speech are often framed as a choice between regulating speech and leaving it alone. The actual tension, however, is about how to regulate it and on what terms.Do words carry an intrinsic legal character? If you have been paying attention to some of the recent pronouncements of the Supreme Court of India, you might think that some words are merely expressive, others are inciting, and still others fall outside protection altogether. It might appear that speech comes under legal scrutiny with these qualities already fixed, but that is not the case. Speech becomes legible as “incitement” or “disorder” only through acts of interpretation. The neutrality of the law appears to lie in applying objective standards of incitement, public order, and harm without regard to the speaker. This neutrality is foundational to its legitimacy. But “neutrality” is also, at least in part, a fiction.AdvertisementAlso Read | The case of Umar Khalid and others is a textbook example of what justice is notTake, for example, a case arising from the 2020 anti-CAA protests and the Delhi elections in which the SC recently held that no cognisable offence was made out against Anurag Thakur and Parvesh Verma and refused to direct registering an FIR. Thakur was accused of leading the slogan, “desh ke gaddaron ko, goli maaro s****n ko” at an election rally. Verma was accused of hate speech targeting protesters at Shaheen Bagh, portraying them as threats to the nation. The reasoning for upholding earlier decisions of both the trial court and the Delhi High Court was that, after examining the speeches and materials on record, the threshold for criminal prosecution was not met.Interestingly, these very slogans and statements attracted the Election Commission, imposing bans on these two for violating the model code of conduct in the 2020 election campaign. However, the Supreme Court did not concern itself with this fact and limited itself to the question of whether they constituted criminal offences. In Amish Devgan v. Union of India (2020), the Court acknowledged the harm of hate speech but still required establishing intent and a tendency to disrupt public order. Further, it warned against using criminal law for casual or rhetorical excesses, even when offensive. In general, Indian courts repeatedly acknowledge harm rhetorically, thereby showing that they recognise the “seriousness” of hate speech. However, they also wish to be seen as applying a high threshold for criminal hate speech, requiring something closer to direct incitement with violent consequences, and not what they say was mere political rhetoric, even if offensive.What is interesting is that SC reached the “no offence” verdict in Brinda Karat’s petition, relying on the content and context of the speeches, the status report filed in 2020 and the absence of clear, proximate incitement to violence or disorder. Raising slogans of “goli maro…” — which is literally, incitement to shoot at persons — is seen as deeply troubling “political” speech that fails the test of demonstrable public disorder. The Delhi High Court had even made light of the statements made by the two individuals, suggesting that speech delivered with a smile removes criminality from it.AdvertisementIt is important to note here that the tying (or untying) of a speech act with public disorder is being done in the court by the prosecutors appointed by the government. Effectively, the message is that if hate and incitement are delivered by persons occupying public offices with a smile of hubris that comes with power, then they have nothing to fear. They have impunity to target citizens merely for politically opposing a government policy or legislation.While in the case of Thakur and Verma, courts are not ready to even direct lodging an FIR and investigating the speech as potentially having serious public order implications, in the case of Sharjeel Imam and Umar Khalid, even bail has been difficult, reflecting a willingness to treat the speech as having serious public order implications, the very public order implications that are not yet put on trial. Where can it be argued that the public order implications that arose in February 2020 in Delhi were possibly caused by the speeches of Parvesh Verma, Anurag Thakur, and indeed by other actors who are members of the BJP or outfits aligned to it?What is clear is that the courts have generally accepted the prosecution’s reading of intent and potential impact, even where the speech can be argued to be metaphorical or humorous. In the cases of critics of the state, even calling for accountability and peace can be sanctioned. On the question of context for Khalid and Imam, the courts are willing to ignore that the speech was made by ordinary citizens who were held by the prosecution to have a heightened responsibility due to their intellectual capabilities. At the same time, SC does not appear to have given any weight to the proximity of Thakur and Verma, a Union minister and a Member of Parliament, respectively, to government and state power.In other constitutional contexts, courts do recognise that public officials’ speech carries greater weight and potential impact. In hate speech cases, too, should the courts not look towards a “heightened responsibility” standard for state actors? A Union minister’s speech is inherently more authoritative and amplifiable. It may signal to the officers of the state at all levels of governance that their speech may be an official or policy directive; therefore, it cannot be assessed legally using the same threshold as any other individual’s speech.you may likeDemocracy rests on the simple premise that power must remain open to criticism and dissent, especially against the state, and that this is not a threat but an absolute democratic necessity. Yet, a troubling inversion is underway: Laws meant to curb incitement are increasingly used to silence opposition, while doctrines designed to protect free speech are stretched to shield those in power. This selective application not only erodes the credibility of institutions but also normalises impunity.When criticism is criminalised, and power is insulated, democracy is hollowed out from within, reduced to a form without substance, where rights exist in theory but shrink in practice.The writer is Member of Parliament (Rajya Sabha), Rashtriya Janata Dal