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DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
Semester II

POLITICAL SCIENCE PROJECT

HATE SPEECH IN INDIA
SUBMITTED FOR THE PROJECT WORK UNDERTAKEN IN
PARTIAL FULFILLMENT OF B.A. LL.B. (HONS) 5 YEARS
INTEGRATED COURSE AT Dr. RAM MANOHAR LOHIYA
NATIONAL LAW UNIVERSITY, LUCKNOW.

SUBMITTED TO SUBMITTED BY

Dr.Monika Srivastava RISHABH BHANDARI

Assistant Professor, SEMESTER II, SECTION B
Dr. RMLNLU .
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Table of contents

 Introduction……………………………………….…………3

 The concept of Hate Speech……………………..………..5

 The Constitutional Provision………………………..……..7

 Contemporary Issues of Hate Speech in India…..……..9

 Conclusion…..……………………………….……………….14

 Bibliography………………………………….………………17
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Introduction
This project analyses the term hate speech and its regulation in India but
before entering into the debate of hate speech we should know the
importance of free speech. Freedom of speech has both intrinsic and
instrumental value. It is fundamental to the operation of a democracy and
an important instrument for the functioning of the political process.
Democracy requires that an individual in society be able to hear, form,
and freely express their opinions on a wide range of matters. Freedom of
expression is also important in the search of truth. Freedom of
expression, however, by permitting a variety of viewpoints, will better
contribute in the search for the truth. Freedom of speech allows a
marketplace of ideas leading to a more vibrant and progressive society,
which leads to the next important justification. Freedom of expression is
intrinsically important in that it allows the growth of the human
personality. It is a freedom that allows human beings to express and
define themselves.

Written constitutional and bills of rights invariably protect freedom of

speech as one of the fundamental liberties guaranteed against state
suppression or regulation. Political philosophers have argued for liberty of
opinions and discussions, or for a free speech principle under which
speech is entitled to a greater degree of immunity from regulation than
other forms of conduct which cause similar harm or offence.1 Yet
philosophers and lawyers disagree about the justifications for a free
speech principle or indeed whether there are any good reasons for
treating free speech as special. As one leading philosopher has put it,

1
J.S. Mill’s classic essay, ’of the Liberty of Thoughts and Discussion’, available at
http://cw.routledge.com/textbooks/philosophy/downloads/a2/unit4/mill/MillTruth.pdf.
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‘freedom of expression is a liberal puzzle’. It is prized by liberals for

reasons they may not understand.2 It is difficult to determine what type
of speech is restricted. Even when it is possible to infer a particular
intent, it should hardly be decisive for litigation arising some decades or
centuries after the constitution was framed. Political and social
circumstances will have changed so radically that it would be absurd to
be limited to the particular conceptions of a freedom entertained by the
members of a constitutional assembly.

Freedom of speech and expression ”constitutes one of the essential

foundation of such a society, one of the basic conditions for its progress
and for the development of every man.” But however vast the scope of
freedom of expression, some restrictions to the exercise of this right may
in some circumstances be necessary. Unlike the right to freedom of
thought, the right to freedom of expression is not an absolute right. The
exercise of this freedom carries with it certain duties responsibilities and
is subjected to certain restrictions as set out in the provision of a legal
system. A hatred speech must be restricted, because it is anti-social and
any promotion of it can destroy a society. Every society is based on
some moral fabric, and if the moral fabric of that society is destroyed
then a society may collapse. So a free speech and some reasonable
restriction on it both are essential for a society.3

2
R.M. Dworkin, Taking Rights Seriously, 132-7.
3
<https://book.coe.int/ftp/3342.pdf> accessed 7 oct, 2013.
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The Concept of Hate Speech

No universally accepted definition of the term “hate speech” exists,
despite its frequent usage. Though most states have adopted legislation
banning expressions amounting to “hate speech”, definitions differ slightly
when determining what is being banned. Only the Council of Europe’s
Committee of Ministers” Recommendation 97(20) on “hate speech”
defined it as follows: “ the term “hate speech” shall be understood as
covering all forms of expression which spread, incite, promote or justify
racial hatred, xenophobia, anti-Semitism or other forms of hatred based
on intolerance, including: intolerance expressed by aggressive nationalism
and ethnocentrism, discrimination and hostility against minorities, migrants
and people of immigrant origin.” In this sense, “hate speech” covers
comments which are necessarily directed against a person or a particular
group of persons. The term is also found in European case-law, although
the Court has never given a precise definition of it. The court simply
refers in some of its judgments to “all forms of expression which spread,
incite, promote justify hatred based on intolerance.” It is important to
note that this is an autonomous concept, in so far as the court does not
consider itself bound by the domestic courts” classification. As a result, it
sometime rebuts classifications adopted by national courts or, on the
contrary, classifies certain statements as “hate speech”, even when
domestic courts ruled out this classification. The concept of “hate
speech” encompasses a multiplicity of situations :

 Firstly, incitement of racial hatred, or in other words, hatred

directed against persons or groups of persons on the grounds of
belonging to a race;
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 Secondly, incitement of hatred on religious grounds, which may be

equated to incitement of hatred on the basis of a distinction between
believers and non-believers; and
 Lastly, incitement of other forms of hatred based on intolerance
“expressed by aggressive nationalism and ethnocentrism”

The concept of hate thus, is as follows:

“Hatred connotes an emotion of an intense and extreme nature, in that it

is clearly associated with vilification and detestation. It is an emotion
that, if exercised against members of an identifiable group, implies that
those individuals are to be despised, scorned, denied respect and made
subject to ill-treatment on the basis of group affiliation.”4

The problem of hate speech is that its contents are not certain. The
concept of hate speech keeps changing. But again we have to consider that
the concept of hate speech is based on a hatred emotion against a
particular group or community. The ill will behind the expression is the
key to determine the concept of hate speech. So any hatred emotion is
the base to determine the concept of hate speech.

4
The Canadian Supreme Court in R.V. Keegstra (1990) 3 S.C.R. 697.
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The Constitutional Provision

Article 19(1)(a) guarantees the right of all citizens ‘to freedom of speech
and Expression’. This right, however, is not expressed in absolute terms
(as in the American Constitution) Rather, it is subject to article 19(2),
which allows the State to make laws imposing ‘reasonable restrictions’
upon freedom of speech and expression 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 of an offence’. It
is under the ground of ‘public order’ that India has prohibited and penalized
‘hate speech’. The Supreme Court have justified the restrictions on free
speech imposed by article 19(2) on utilitarian grounds: some restrictions
on freedom may be necessary so that others may also enjoy their
liberties. As noted by Sastri J in A. K. Gopalan (1950):

‘Man, as a rational being, desires to do many things, but in civil society

his desires have to be controlled, regulated and reconciled with the
exercise of similar desires by other individuals… Liberty has, therefore, to be
limited in order to be effectively possessed.’5

As defined in Ram Manohar Lohia (1960), such public order is necessary

for citizens to ‘peacefully pursue their normal avocations of life.’6 As the
Supreme Court put it in Praveen Bhai Thogadia (Dr) (2004), the right to
freedom of expression ‘may at times have to be subjected to reasonable
subordination to social interests, needs and necessities to preserve the very
core of democratic life – preservation of public order and rule of law.’7

5
A. K. Gopalan v. State of Madras AIR 1950 SC 27, 69.
6
Superintendent, Central Prison v. Ram Manohar Lohia AIR 1960 SC 633.
7
Baragur Ramachandrappa and ors v State of Karnataka (2007) 3 SCC 11.
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In stark contrast to the United States,8 ‘public order’ restrictions upon

free speech in India may include ‘content based’ restrictions, penalising
speech based upon the opinions or ideologies expressed within in the
interests of public order.9 ‘Hate speech’ may hence be lawfully prohibited or
restricted.

8
Police Department of Chicago v Mosley, 408 US 92 (1972); Boos v Barry, 485 US 312
(1988); R. A. V. v City of St Paul, 505 US 377 (1992).
9
Ramji Lal Modi v State of Uttar Pradesh AIR 1957 SC 620 (“Ramji Lal Modi”); Virendra v
State of Punjab AIR 1957 SC 896; V. Vengan and ors, In re (1951) 2 MLJ 241.
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Contemporary Issues of Hate Speech in India

1. Ayodhya riots

In the valance of Ayodhya , main role was played by Hindu associations

like Vishva Hindu Parishad, Bajrang Dal ,Shiv Shena and Bhartiya Janta
Party. Main leaders of temple movement of Ayodhya were Mahant Ram
chand Das Paramhans from Digamber, Akhada Ashok Shinghal, Praveen
Togadiya, Acharya Giriraj Kishore, Uma bharati, Sadhavi Ritambhara
,Mahant avaidh nath, Kalyan Singh, Atal bihari Vajpayee, Lal Krishan
Advani, Murli manohar joshi, Rajmata vijya raje sindhiya. Mahant nritya
gopal das is the chief of the committee which initiated this temple
movement. Lal krishan Advani is another important leader who is the
main leader of this movement because he started rath yatra to bring the
awareness about the movement.

Role of various leaders in Ayodhya movement:

Kalyan Singh –

He was the chief minister of Uttar Pradesh at the time of babri masjid
demolition and he is famous for his remarks made by him in the answer
of mulayam singh yadav’s comment on babri issue. During his
government, Babri masjid was demolished by the extremist after which
he resigned from the post of chief minister and said that “Ram ke naam
par ek nahi saikdo satta kurban” when he was sent to jail for one day
by the court he said “ram ke liye ek din kya poori jindagi bhi jail me
gujarne ko tayar hoon” and due to his furious speeches he was
successful to become the chief minister of uttar Pradesh once again, in
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the year of 1997. He is the person who got the maximum advantage of
the temple movement.

Dr. Murli Manohar joshi –

He was the professor of physics in the Allahabad university later he

came in the role of speaker of hardcore Hindutva. He was the chief
spokesperson from BJP during the period of temple movement, on the
date of 6th December he was in Ayodhya with Advani and he was one
of the major speakers after whose speech public became aggressive and
destroy the Babri masjid. Before this, he travelled across India with his
“Ekta Yatra” and try to create a wave of communalism against Muslims
and in the favor of the temple movement.

Vinay Katiyar –

He was the chief coordinator of Bajrang dal and leader of BJP at the
time of Babri demolition . He is the main person who attract youth
towards the temple movement . He is famous for his unique speaking
skills which attract the attention of not only domestic media but also
international media.

Ashok Singhal

He raised the issue of temples at Ayodhya, Kashi and Mathura in the

year of 1982 and by this he brought the issue of Hindutva at the centre
of the nation’s politics. He is main person in the Ram janambhumi
movement. He is the person who converted the simple movement of
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Ramchand paramhans in to the big Ayodhya movement, as he brought all

the religious leaders at one stage.

2. HATE SPEECH BY VARUN GANDHI

Varun Gandhi in his election speeches (march 2009) has been pouring
vitriol against minority community. He presented the usual prejudices and
biases in a very hateful manner. He pointed out that arms are being
smuggled into ghettoes(i.e. Muslim community locality). As far as the
issue of communalism is concerned, it would be surprising to know that
the number of people killed in communal violence in the last 50 years is
lesser than the people killed in street crimes in the city of Detroit alone.
Two million people were killed during the Partition violence, which again
is below the five million people involved in separatist movements in
various parts of the country. These statistics reveal that communalism is
not as grave and hopeless a problem as is made out to be.10

During the communal riots that rocked the nation in 1992, following the
demolition of the Babri Masjid, a Hindu family gave refuge to an old
Muslim man. The man was provided refuge in the room of their young
daughter-in-law. When the rioters went scouting door-to-door to kill any
Muslims they could get hold of, the host family saved the old man’s life
by introducing him as their daughter-in-law’s uncle. While this entire
drama was unfolding, the son of the house went missing. Many days
later when the riots subsided and the old man rejoined his family, a
prayer was held for the safe return of the son. It was only later that
they came to know that the son who had gone missing was a part of
the mob that destroyed the Babri Masjid. This story reveals two facts: 1)
10
<http://www.hindustantimes.com/India-news/NewDelhi/Varun-Gandhi-fixed-hate-speech-case-
Report/Article1-1060612.aspx> accessed 11 oct, 2013.
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There can be internal contradictions between the members of a single

household on communal issues; and 2) Common people of both
communities have come to each other’s rescue during riots. All these
prove that communalism is a complex phenomenon and has many facets.

3. HATE SPEECH BY RAJ THACKERAY

Raj Thackeray, whose Maharashtra Navanirman Sena has made impressive

strides in a short time after breaking away from the Shiv Sena, by
making ill-advised remarks about North Indians in Mumbai has a
promising political future. According to him North Indians are snatching
the job of Marathi people and also destroying Marathi culture and
tradition.11

The notion that any city or part of India belongs only to its ‘natives’ is
unconstitutional, repugnant and injurious to the idea of national unity and
integration. From time immemorial, our people have freely moved from
one part of the country to another, believing all of India to be their
own. As far as Mumbai is concerned, although it is the capital of
Maharashtra, people from every corner of the country have migrated to
this city of dreams and opportunities since its inception. Mumbai is what
it is today because of the contribution of diverse communities inhabiting
it. In particular, the two sources of its national and international profile
— business and Bollywood — would be unthinkable without a grateful
recognition of the role of non-Marathi speaking communities. It would be
a great misfortune if Mumbai degenerated into a provincial capital.

11
<http://www.ndtv.com/topic/thackeray-hate-speech> accessed 11 oct, 2013.
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Small regional leaders like Raj Thackeray don’t have any ideology and
their politics is totally based upon the hatred. They have no issue so
they rise up the issue of regionalism which is not permitted in Indian
law. Instead of knowing this fact they come again and again on the
same issue of regionalism they tried to build their politics on.
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Conclusion
“kaun si baat kab, kahan, kaise kahi jaati hai agar is baat ka salika hai
to har baat suni jaati hai.”

-Wassem brelvi.12

The meaning of above sentence is, everyone will listen you if you have
the proper manner of talking, you have to think before speaking because
your word can cause harm to others. So the power of ‘word’ is limitless,
no one can imagine how far it can harm the humanity or human being.
It goes too far and disrupts the security or stability of the community by
inciting members of the public to harmful action or deceiving them on
an important public matter. By the history we can see that word can
cause genocide or massacre, it can provoke people, it can humiliate
people and it can destroy people. A committee which is constituted on
communal violence, reported that the speech by an eminent person of
society against a particular group of members is mostly the main element
of any riot. The report of committee shows the impact of speech. An
offensive speech has power to cause religious riots, communal riots or
massacre.

Fair use of free speech is a concept which depends on the context in

which it is said. They serve different ends at different times. Sometimes a
speech is just a speech other times it become hate speech. Context is
clearly of the greatest important in assessing whether particular statement
is likely to incite hatred- as it may have bearing on both intent and
causation- and many of the hate speech cases refer to contextual factors.
12

<http://www.kavitakosh.org/kk/%E0%A4%B5%E0%A4%B8%E0%A5%80%E0%A4%AE_%E0%A4%AC%E0%A4%B
0%E0%A5%87%E0%A4%B2%E0%A4%B5%E0%A5%80> accessed 11 oct, 2013.
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The exercise of the right to freedom of expression carries with it special

duties and responsibilities. These special duties and responsibilities are of
particular relevance within a social system.

Deciding factor for harm principle

Consider a case of hate speech, incitement of violence or making of

death threats. A clear and intended causal effect must be drawn between
the act of expression and the harm done. This is the only legitimate way
in which the Harm Principle can be evoked to restrict certain forms of
speech.

In order to violate the harm principle, there must be some kind of action
with intent to humiliate, insult, degrade or harass a particular group,
religion, cast, race or community. That is, one must express intent
towards furthering harmful acts for the harm principle to be violated.

Hence to prevent harm Government takes positive measure to cap the

hate speech and while taking the action against hate speech, Government
must consider the general moral standard of society. A government may
put restraints upon the free speech principle, but only when;

1. The restrictions are determined by law;

2. The restrictions exist to secure the respect for the rights and
freedoms of others and;

3. The restriction is meant for the purpose of “meeting the just

requirements of morality, public order and the general welfare in a
democratic society.”

A HATE SPEECH is an expression which is abusive, insulting,

intimidating or harassing and which incites violence, hatred or
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discrimination against a religion, caste, race, community, nationality,

colour or gender.

The identification criterion of hate speech is, if it;

a) Is intended to insult or stigmatize an individual or a small number

of individuals on basis of their sex, race, colour, handicap, religion,
sexual orientation, or national and ethnic origin; and

b) Is addressed directly to the individual or individuals whom it

insults or stigmatizes; and

c) Makes use of insulting or “fighting” words or non-verbal symbols.

But the problem of hate speech is that its contents are not certain. The
concept of hate speech is keep changing. Again we have to consider that the
concept of hate speech is based on hatred emotion against a particular
group or community. The ill will behind the expression is the key to
determine the concept of hate speech. So racial hatred, religious hatred,
caste hatred and incitement of other forms of hatred is the base to
determine the concept of hate speech.
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BIBLIOGRAPHY

WEBSITES
1. http://communalism.blogspot.in/2009/03/varun-gandhi-hate-speech-
shocks-india.html

2. http://articles.timesofindia.indiatimes.com/keyword/communal-violence
3. http://in.reuters.com/article/2012/08/21/india-violence-internet-twitter-
assam-fa-idINDEE87K09Z20120821

4. http://indiatoday.intoday.in/story/india-today-editor-in-chief-aroon-purie-
on-communal-violence/1/214544.html

5. http://twocircles.net/2012jul30/communal_violence_muslims_india.html

6. http://www.siasat.com/video/hyderabad/akbaruddin-owaisi-anti-hindu-
communal-hate-speech-nirmal-adilabad

7. http://www.ndtv.com/topic/owaisi-hate-speech

BOOKS
8. Communalism & Communal Riots In India : A Historical Preview
by Pravin Kumar

9. COMMUNAL RIOTS IN POST INDEPENDENCE INDIA(CC) by

A. A. Engineer

10. Constitution of India