Hate Speech in India

• Debates around the regulation of hate speech are

highly contested globally. There is little agreement
over what constitutes hate speech, what part of hate
speech should be regulated by law, and where to
draw the line between freedoms of speech and hate
speech that is deemed illegal. However, the range of
international, domestic and theoretical material that
has emerged around this theme, helps us understand
and situate hate speech and the impulse to legally
define and regulate such hate speech.
• In a civil society like ours, man is regarded as a doer of
rational things but when it comes to his expressions, he
has to be controlled, modulated, monitored and balanced
with the expression and thoughts of another man who
inculcates the similar desires. With the baggage of a
population of diverse caste, creed, religion the importance
of delivering a responsible speech becomes a mandate for
backing the principles of liberty and democracy enshrined
in the Constitution
• One of the greatest challenges is not to exercise the
principle of autonomy and free speech principle that are
detrimental to any section of society. Free speech is
necessary to promote a plurality of opinions where hate
speech becomes an exception to Article 19(1) (a).
• Thus, even if a speech that is vehement, caustic,
and sometimes unpleasantly sharp is protected
from State intervention. It acts as palisade against
the States power to regulate speech. The value
accorded to the expression is greater in the lists of
the rights that become the reason of the reluctance
of the lawmakers and judiciary in creating
exceptions to it that might curtail the spirit of this
freedom provided. Perhaps, this could be one of the
important reasons behind the reluctance in defining
hate speech. Whether the provisions as prescribed
in the Constitution allow them to do so?
 Legal Aspect of Hate Speech
• The Indian Penal Code, 1860: Section 124A;
Section 153A; Section 153B; Section 153 C;
Section 295A; Section 298; Section 505 & (2)
[10].
• 2. The Representation of the People Act, 1951:
Section 8; Section 324; Section 123(3); 123(3A)
and Section 125.
• 3. The Protection of Civil Rights Act, 1955:
Section 7
• The Religious Institutions (Prevention of Misuse) Act,
1988: Section 3(g)
• 5. The Cable Television Network Regulation Act, 1995:
Sections 5 and 6 of the Act prohibits transmission or
retransmission of a program through cable network in
contravention to the prescribed program code or
advertisement code. These codes have been defined in
rule 6 and 7 respectively of the Cable Television Network
Rules, 1994.
• 6. The Cinematograph Act, 1952: Sections 4, 5B and 7
empower the Board of Film Certification to prohibit and
regulate the screening of a film.
• 7. The Criminal Procedure, 1973: Section 95, 107, 144.
• The mentioned laws may not directly deal
with the issues of hate speech but the
Constitution has been interpreted elaborately
by the Supreme Court to confine these
provisions under the reasonable restrictions of
Article 19(2).
 Pravasi Bhalai Sangathan v. Union of India
(AIR 2014 SC 1591)
•  Where the petitioners found the existing laws related to
hate speech inadequate and prayed that the State should
enact stricter regulation and take peremptory action against
people promoting hate speech. But the Court observed that
the implementation of existing laws would solve the problem
of hate speech to a great extent. The matter of hate speech
deserved deeper consideration by the Law Commission of
India. Therefore, the Commission after taking into view the
laws and various pronouncements on hate speech had
submitted its Report No.267 before the Government of India
in March 2017 for consideration.
Subramaniam Swamy v. Union of India: (W.P.
(Crl) 184 of 2014)
• In this case arguments were raised on the
reasonableness of the restrictions imposed by
Sections 499-500 IPC on free speech in light of
settled law that restrictions should be
narrowly tailored and should not be excessive,
arbitrary or disproportionate. Subramanian
Swamy argued that half a dozen sections of
the IPC should be declared unconstitutional
for violating Article 19(1) (a).
• Therefore, it can be observed that there are
mixed feelings regarding the concept of hate
speech in our country where because of no
concrete platform about it makes its
implementation ineffective. The doers escape
challenging the laws to be restrictive in nature
while some who are the victims of this hatred,
demands for stricter provisions for their safety
and prosperity.
 Shreya Singhal v. Union of India: W.P. (CRL.)
NO.167 OF 2012
• Issues were raised about Section 66A of the
Information Technology Act, 2000 relating to
the fundamental right of free speech and
expression guaranteed by Article 19(1) (a) of
the Constitution, where the Court
differentiated between discussion, advocacy,
and incitement and held that the first two
were the essence of Article 19(1).
Arup Bhuyan vs State of Assam: (CRL. APPEAL
NO(s). 889 OF 2007)
•  The Court held that a mere act cannot be
punished unless an individual resorted to
violence or inciting any other person to
violence.
 S. Rangarajan Etc vs P. Jagjivan Ram: (1989
SCC (2) 574)
• In this case, the Court held that freedom of
expression cannot be suppressed unless the
situation so created are dangerous to the
community/ public interest wherein this
danger should not be remote, conjectural or
far-fetched. There should be a proximate and
direct nexus with the expression so used.
• The Judicial decisions depict that India follows a
speech protective regime, meaning the words that
are used by the people to express themselves are
critically heard and then reacted on them if the
words go against public morality. Although the
Courts are extremely cautious about putting
restrictions on Article 19 because of the sole
reason for it to be misused by the State negatively.
Despite numerous precedents on this subject, it
remains a challenging task to identify a a particular
type of words or expressions that may have the
capability to wake violence in the country.
• The injury caused to the public is large because
hate speech severely affects fraternity, dignity of
individual, unity and national integration. Hate
speech has potential of provoking individuals &
society to commit acts of crime, genocides,
ethnic cleansing etc. Offensive speech has real
and devastating effects on people’s lives and
risks their health and safety. It is harmful and
divisive for communities and hampers social
progress. Hate speech also offends fundamental
rights guaranteed under Article 19 and 21.
• We do agree that responsible speech is the essence of the
liberty granted under Article 21 of the Constitution. One of the
greatest challenges before the principle of autonomy and free
speech principle is to ensure that this liberty is not exercised to
the detriment of any individual or the disadvantaged section of
the society. In a country ours, with diverse castes, creed,
religions and languages, Hate Speech poses a greater
challenge and threat. The Article 19 guarantees freedom of
speech and expression to all citizens but it is subjected to
certain restrictions, namely, 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. Hate speech
has not been defined in any law in India but legal provisions in
certain legislations prohibit select forms of speech as an
exception to freedom of speech.
• The hate speech has always been a live debate in our country.
The issue has been raised time and again before the legislature,
court as well as the public. In Pravasi Bhalai Sangathan v. Union
of India [AIR 2014 SC 1591] case, the Supreme Court dealt with
a case where the petitioners prayed that the State should take
peremptory action against makers of hate speech. The Court
did not go beyond the purview of existing laws to penalize hate
speech as that would amount to ‘judicial overreach’. However,
the Supreme Court observed that the implementation of
existing laws would solve the problem of hate speech to a
limited extent. Therefore, the matter was referred to the Law
Commission of India to examine if it ‘deems proper to define
hate speech and make recommendations to the Parliament to
strengthen the Election Commission to curb the menace of
‘hate speeches’ irrespective of, whenever made.’ However,
Executive did nothing to implement the report since 2017.
• While recognizing the adverse and
discriminatory impact of hate speech on
individuals, the Court in Pravasi Bhalai
Sangathan [AIR 2014 SC 1591] also expressed
the difficulty of ‘confining the prohibition to a
manageable standard’. The apprehension that
laying down a definite standard might lead to
curtailment of free speech has prevented the
Court to define hate speech.
• The Honble Supreme Court again went into
the question of hate speech in Jafar Imam
Naqvi v. Election Commission of India [AIR
2014 SC 2537] case. The petitioners filed a
writ petition challenging the vitriolic speeches
made by the candidates in the election and
prayed for issue of writ of mandamus to the
ECI for taking appropriate steps against such
speeches.
• Political speeches often assume a divisive tone in order to
exploit social prejudices for electoral gains. However, this
discourse must take place in an environment that does not
foster abusive or hateful sentiments. Though, political
rivalry might encourage use of unwarranted language, it is
unwise to restrict speech that merely showcases tendency
to evoke unwanted situations without intention. In order to
promote robust and healthy debate, it is important that a
fine balance is struck between freedom and restrictions.
Elections are the manifestations of popular consent in
democratic society. History assents that it has significant
repercussions on making of a nation’s governance and the
nature of its policies. The Constitution makers were
concerned that religion race caste community or language
may be misused for electoral gain. Similarly a lot of
discussion was made regarding inclusion of the word
“secularism”.
• The Goswami Committee on Electoral Reform in its Report
in 1990 had suggested parallel recommendation: “Election
Commission shall have the power to make
recommendations to the appropriate authority (a) to refer
any matter for investigation to any agency specified by
Commission (b) Prosecute any person who has committed
an electoral offence under this Act or (c) appoint any
Special Court for trial of any offence or offences under this
Act.”. Further under Section 123 RPA, appeal on the
grounds of religion, race, caste, community or language
etc. and promotions of feelings of enmity between
different classes constitute corrupt practice but same can
be questioned only by way of election petition and the
Election Commission of India cannot order the investigation
even when Model Code of Conduct is in force.
• There is no provision to challenge the corrupt
practice of candidates, who lost the election.
Thus, the appeal on the grounds of religion, race,
caste, community or language etc. and
promotions of feelings of enmity between
different classes cannot be questioned even by
way of election petition. It has been observed,
particularly, since 1990 onwards that not only in
Parliament and State Assembly Elections, even in
local body elections; hate speech is made to
support particular party and candidate, which is
against the basic dictum of a ‘sovereign socialist
secular democratic republic’ like ours.
• These technical capacities determine the level and effectiveness
of regulation of content, as much as   laws formulated by states.
In the current scenario, the ability or inability of governments to
intercept or block material on messaging platforms such as
WhatsApp, Instagram, and Snapchat have led to both the ability
to escape state regulation and enhance extreme measures by
the Central and state governments. These extreme measures
include suspending all internet services for extended periods of
time, and blocking particular platforms such as Facebook,
Twitter, and WhatsApp. In India, there is no proper institutional
monitoring mechanism for monitoring social networking sites,
and that Law Enforcement and Intelligence / Security Agencies
monitor   the internet on a case-to-case basis.
• The hate speech has potential of provoking individuals to
commit acts of riot, terrorism, genocides, ethnic cleansing etc.
 Recent Cases
• There have been many instances of hate speech not only in India but
worldwide where Facebook, the social media giant, in its Transparency
Report disclosed alarming statistics wherein it ended up taking down 3 million
hateful posts from its platform[23], YouTube, which allows free sharing of
video content on its site, removed 25,000 videos in a single month alone.[24]

In 2017, #notinmyname or Not In My Name a campaign was launched on

social media where prominent public figures supported the response to several
incidents of mob-lynching, violence based on religion. In 2018, the Supreme
Court sought a response from the Uttar Pradesh government about the hate
speech case against Yogi Adityanath in 2007 where he gave a speech at the
time of BJP parliamentarian from Gorakhpur that caused riots.
• Again in 2018, When JNU student leader Umar
Khalid was attacked the former Jammu and
Kashmir Chief Minister Omar Abdullah
condemned the attack as a hate campaign
using social and mainstream media. In 2018,
the police in Tamil Nadu arrested a folk singer
for singing a song at a protest meeting that
criticized Prime Minister Narendra Modi.
• In 2019, the Supreme Court gave the Election Commission
of India (ECI) exactly 24 hours to explain its lawyers
submissions that the poll body is
largely powerless and toothless to act against religious
and hate speeches by candidates during the on-going Lok
Sabha election campaigning.
• The government has drafted The Information Technology
[Intermediaries Guidelines (Amendment) Rules] 2018
where it explicitly states about the diligences that the
intermediaries shall have to observe while discharging
their duties.
• Likewise, there have been several incidents of hate
speech where some have received justice while others
still hang in the mid-way.