Balancing freedom of speech and hate speech in digital media is crucial as online content continues to push the boundaries of expression and regulation.
NEW DELHI : In recent years, India has witnessed several hate speech controversies involving various groups and individuals, highlighting the complex interplay between free expression and societal harmony. One significant incident was the Haridwar Hate Speech Controversy (December 2021), where a religious assembly saw Hindu ascetics delivering speeches calling for violence against Muslims, sparking widespread condemnation from civil society and legal professionals.
Similarly, in Karnataka (2021), multiple attacks on Christians and their places of worship were reported, with human rights organizations documenting disruptions of prayer meetings, church vandalism, and assaults on worshippers by Hindutva groups.
The Sri Ram Sena has also been involved in hate speech, with its leader, Pramod Muthalik, in 2023 urging Hindu youths to “trap” Muslim girls as a retaliatory measure, a statement widely criticized for inciting communal discord.
Additionally, members of the Bajrang Dal have been implicated in multiple incidents targeting minorities, including violence and vandalism against minority communities during the Ram Temple inauguration in Ayodhya (2024). These incidents emphasize the urgent need for a clear legal framework and proactive measures to curb hate speech while ensuring the protection of all communities and upholding the right to free expression.
While freedom of expression is a fundamental right, it is not absolute and must be balanced against the potential harm caused by certain speech acts. The incident highlights the necessity for clear guidelines and a nuanced approach to address speech that may be offensive or harmful, without unduly restricting creative expression and dissent.
In a diverse society like India, it is crucial to protect individuals and communities from speech that dehumanizes or incites discrimination, while also safeguarding the right to free expression. This delicate balance requires continuous dialogue, legal clarity, and a commitment to upholding the dignity and rights of all citizens.
Some people believe that restricting speech too much can harm the right to free expression, which is guaranteed under Article 19(1)(a) of the Constitution. However, others argue that hate speech is not a part of free speech and that it falls under the reasonable restrictions listed in Article 19(2).
What is Hate Speech?
The Supreme Court, in Pravasi Bhalai Sangathan v. Union of India (2014), examined the issue of hate speech and observed that it serves to marginalize individuals based on their identity, often laying the groundwork for further attacks—including violent ones—on vulnerable groups. The Court stated:
“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.”
Despite its far-reaching consequences, India’s legal framework does not define hate speech through a specific statute. Instead, various provisions of the Indian Penal Code (IPC), along with laws such as the Representation of the People Act, 1951 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are used to address hate speech-related offenses. Additionally, the Code of Criminal Procedure empowers the state to curb speech or expressions of hatred through bans and other measures.
Since India’s independence, there have been multiple instances of the state prohibiting books or other forms of expression to appease certain sections of society. More recently, there has been a growing trend of public figures and politicians making statements—often in rallies and processions—that target and marginalize specific communities.
Before delving into how hate speech can be distinguished from speech that is satirical or humorous, it is essential to examine the legal provisions India currently employs to regulate hate speech.
The legal framework governing hate speech in India can be broadly categorized into two branches: the Penal Code and specific laws.
Penal Code Provisions on Hate Speech
Several sections of the Indian Penal Code (IPC) are relevant in addressing hate speech, including Sections 153A, 153B, 295A, 298, and 505.
- Section 153A criminalizes acts that promote enmity between different groups based on religion, race, place of birth, residence, or language and that disrupt societal harmony.
- Section 153B deals with assertions or imputations that undermine national integrity.
- Section 295A focuses on deliberate and malicious acts intended to outrage religious sentiments by insulting a religion or religious beliefs.
- Section 298 penalizes speech specifically intended to wound religious sentiments.
- Section 505 addresses statements that incite public mischief, though it is broader in scope compared to the other provisions.
Additionally, Section 95 of the Code of Criminal Procedure (CrPC) grants state governments the authority to ban books, newspapers, or documents that contain content punishable under Sections 153A, 153B, or 295A.
The Representation of the People Act, 1951 also contains provisions concerning hate speech, particularly in the context of elections. Section 125 states that anyone who, in connection with an election, promotes enmity or hatred between different groups based on religion, race, caste, community, or language shall be punishable with imprisonment of up to three years, a fine, or both. While similar to Section 153A, this provision is specifically aimed at preventing communal divisions in the electoral process, aligning with India’s commitment to secularism as an essential constitutional principle.
Specific Law – The SC/ST (Prevention of Atrocities) Act, 1989
Under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, anyone who intentionally insults or intimidates a member of a Scheduled Caste or Scheduled Tribe in a public space, with the intent to humiliate, faces imprisonment ranging from six months to five years.
This provision is significant in differentiating hate speech from satire or humor. Unlike general hate speech laws that focus on inciting enmity, this provision directly addresses dehumanization and humiliation, acknowledging that such speech fosters a hostile environment for an entire community. Meanwhile, Section 3(1)(u) of the same Act deals with promoting enmity against SC/ST communities, reinforcing the distinction between general speech promoting ill-will and speech that actively devalues marginalized communities.
The Need to Redefine Hate Speech in Indian Law
India’s current hate speech laws largely stem from colonial-era statutes, which define hate speech primarily in terms of its impact on public order rather than its effect on targeted communities. Presently, offenses under Section 153A of the IPC require proof that speech has incited enmity between two groups; however, there is no standalone legal provision to criminalize speech that systematically dehumanizes and devalues a particular community.
In Bilal Ahmed Kaloo v. State of Andhra Pradesh (1997), the Supreme Court held that merely hurting religious sentiments does not constitute an offense under Sections 153B or 505 of the IPC. The judgment stated:
“The common feature in both sections being promotion of feeling of enmity, hatred or ill-will ‘between different’ religious or racial or language or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. Merely inciting the feelings of one community or group without any reference to another cannot attract either of the two sections.”
Thus, for an act to be punishable under Section 153A, there must be a clear intention to pit one group against another. However, equating this with hate speech is a fundamental error. Hate speech is distinct from speech that simply incites enmity; it operates gradually and insidiously, eroding the confidence and dignity of entire communities over time. Similar distinctions can be observed in the SC/ST Act, where Section 3(1)(x) targets hate speech specifically, while Section 3(1)(u) deals with promoting enmity.
Given the unique and long-term harm inflicted by hate speech, a separate legal approach is necessary—one that recognizes its cumulative impact on the dignity and social standing of marginalized groups, rather than treating it solely as a threat to public order.
Understanding Hate Speech Restrictions in India
Article 19(2) of the Indian Constitution provides exceptions to the fundamental right to freedom of speech and expression under Article 19(1)(a). It states:
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”
Thus, any law restricting freedom of speech must be formulated within the grounds specified under Article 19(2). In the context of hate speech, the most relevant grounds for restriction are incitement to an offence, public order, decency, and morality.
A strong legal framework against hate speech would derive its legitimacy from the harmful consequences it generates, including inciting violence, fostering discrimination, and undermining equality and dignity. The constitutional principles of public order, decency, and morality are intended to ensure that all individuals are treated as equals and can live free from discrimination and intimidation. However, these principles should not be interpreted based on fluctuating public perceptions but rather on the fundamental values enshrined in the Constitution.
A key question in determining whether a law restricting hate speech aligns with constitutional morality is:
“Does allowing the debasement and dehumanization of marginalized communities—whether based on gender, religion, or caste—create an aggressive and hostile environment that contradicts constitutional values?”
The answer must be no, given that Articles 14, 15, 16, 17, 21, 25, 26, 27, 28, 29, and 30 of the Constitution guarantee equality, dignity, and special protections for minorities and marginalized groups. These provisions indicate that constitutional morality does not permit an environment where vulnerable communities are subjected to demeaning treatment or systemic discrimination.
In Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, the Supreme Court examined the scope of the term decency under Article 19(2). The Court held:
“The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with the current standards of behavior or propriety, etc. In a secular polity, the requirement of correct behavior or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion, which by itself is no index of the suitability of a candidate for membership of the House.”
This reasoning reinforces the conclusion that restrictions on hate speech are well within the scope of Article 19(2).
Takeaways from This Discussion
- The current legal framework on hate speech is inadequate, as it primarily focuses on maintaining harmony and preventing enmity between groups, rather than addressing the deeper impact of hate speech on dignity and social inclusion.
- Restricting hate speech does not violate Article 19(1)(a) since such restrictions are justified under the grounds of incitement to an offence, decency, and morality, as interpreted within the framework of constitutional values.
The final issue to be addressed is the precise definition of hate speech to determine when restrictions may be imposed. A critical question arises—should humorous or satirical remarks about a particular group or identity be considered hate speech? Arguably, they should not. A definition that is too restrictive could be misused by the state to suppress dissent, and even if not, such a broad prohibition would likely be unconstitutional.
Jeremy Waldron distinguishes between offending an individual and undermining their dignity. He argues that
“while offensive speech may cause discomfort, hate speech directly attacks the dignity of individuals, affecting their ability to participate as equals in society”
For example, consider the statement:
“The fashion sense of gays is so gaudy that I feel the need for an eye check-up after all that glitz.”
While such a remark may be offensive or annoying to some, it would not qualify as hate speech under Article 19(2).
However, a statement like:
“Homosexuality is an unnatural disorder that corrupts younger generations and should be eradicated from homes and workplaces.”
goes beyond mere offense—it dehumanizes and marginalizes individuals, attacking their dignity and fostering discrimination. This distinction should guide policies restricting free speech.
In conclusion, distinguishing between free speech and hate speech in India remains a complex challenge, especially in a diverse society where multiple identities coexist. While the Constitution guarantees freedom of speech under Article 19(1)(a), it also imposes reasonable restrictions under Article 19(2) to prevent harm to public order, morality, and individual dignity.
Recent incidents, such as the controversy surrounding India’s Got Latent, highlight the evolving nature of digital expression and the growing need for clear, enforceable guidelines. While creative freedom and dissent must be protected, speech that incites hatred, discrimination, or violence cannot be justified under the guise of free expression.
Ultimately, the goal should be to strike a balance between protecting fundamental rights and ensuring that speech does not contribute to societal harm. This requires continuous legal scrutiny, policy reform, and a commitment to constitutional values that uphold both freedom and responsibility in public discourse.
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