Phantom Law: Hate Speech, Digital Frontiers, and the Re-interpretation of Criminal Law in Nationalist India

Abstract

As the Indian government has embarked on a policy of majoritarian Hindu nationalism over the past decade, verbal assaults against religious minorities, and Muslims specifically, have risen steeply. So-called hate speeches against Muslims have ranged from mere verbal insults to outright calls for the Hindu majority to eradicate the Muslim community (Bhat 2020). Against the backdrop of these developments, human rights activists and independent media outlets have consistently criticized the Indian Supreme Court for failing to intervene and for neglecting to consistently define the contours of hate speech (Alam 2021). Many have accused India’s highest judiciary of corruption of pro-government bias. 

However, a closer look at the social life of India’s highest court tells a different story. As online and offline political discourses have systematically cultivated public affects of hostility against Muslims, and strategically rewritten national histories and memories of belonging, judges and advocates at India’s highest court have begun to feel like ‘legal ghosts,” whose work amounts to mere juridical “theatre” (natak). 

This lecture analyzes the everyday bureaucratic tasks Indian Supreme Court advocates perform, to prosecute hate speech against Muslims, in conjunction with the narratives Supreme Court judges tell about the recent transformation in India’s court rooms. In doing so, it explores a simple question: what makes a legal system real? It proposes that India is now seeing the emergence of a phantom legal system, in which nationalist discourses have captured legal imaginaries and interpretations, while convergences between digital and non-digital spaces have created new challenges for the production of evidence. As a result, India’s legal structure has become one that functions in process but has served the ties between legal procedures and real-life consequence.