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Laws and Case Laws Related to Hate Speech in India

- Simran Bais

What is Hate Speech?

Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence. as defined by the Black’s Law dictionary. Hate speech covers many forms of expressions which mainly incite, promote or justify hatred, violence and discrimination against a person or a sect of person for a variety of reasons. It poses an imminent threat for the cohesion of a democratic society, protection of human rights and rule of law. It can eventually lead to acts of violence and conflict on a wider scale if these acts are left unnoticed. In this sense hate speech is an extreme form of intolerance which contributes to hate crime. It is to be kept in mind that the speech amounts to hate speech or not should be judged from the standards of a reasonable, strong minded, courageous man and not by those of weak minds who see peril in every motion as upheld in the case of Maharashtra v. Sangharaj Damodar Rupawate.

Hate Speech and its Genesis

In a plural democracy, there is a conflict between different narratives and interpretation as dissent is healthy for a democratic nation however, this should be bound to the boundaries of civil discourse. Further the cause of hate speech can be observed from the fact that there is a kind of stubborness relating to adhering to a particular ideology and not allowing any other one to co-exist and out-rightly refusing the sheer existence of any other ideology which eventually leads to bigotry and intolerance, which echoes its parochialism through hate speech. Hate speech cannot be explicitly related to hate as the name suggests but it can also be considered to be rooted in “love” love for self’s country, ideology, religion, community. Another reason which can give rise to hate speech is the urge for domination or the feeling to set one’s community and ideology above the others.

Laws Governing Hate Speech

Rights are the cornerstone of individual autonomy. They are guaranteed as limits on power of the state. Any act that incites or promotes disharmony or a feeling of enmity or hatred between different religious, racial or linguistic groups, castes or communities will be a punishable offence under s.153A and 153B of Indian Penal Code, 1860. The objective of having such provision was to have a check on the fissiparous and separatist tendencies and secure fraternity so as to promote dignity of an individual and upheaval the unity of the nation.

Any act done with deliberate and malicious intention to outrage the religious feeling of any class of citizens, insults or attempts to insult the religion or the religious beliefs of that class of citizens is punishable under s. 295 A of Indian Penal Code, 1860. However, the Supreme Court in the case of Ramji lal Modi v. State of U.P. held that s. 295A makes crime only grave types of conduct involving abuse to religion or religious beliefs. It is imperative to know that s. 295 A is limited to offending the feelings of Indian citizens only, while the one doing that offending act may be a citizen as well as non-citizen. Under s.298 punishment is prescribed for any act committed with malicious and deliberate intention of hurting the religious feelings of any person. Thus it is restricted to protect hurting of any religious persons only, however, unlike s. 295 A it is not only restricted to citizens but applies to non-citizens as well.

The making, publishing or circulating of any statement or rumour is an offence under s.505 (1) and 505 (2) which is likely to incite hatred or ill-will between different religious, racial, language, caste and communities. One important point of consideration for the application of s.153 A and s. 505 (2) of IPC is that there must be at least two groups or communities involved. Mere abuse of a particular community or religious group without reference to any other group cannot be said to attract these provisions.

S. 8 of Representation of People’s Act, 1951 disqualifies a person from contesting elections if he is found to indulge in practices or acts amounting to illegitimate use of freedom of speech and expression. The s. 123(3A) and section 125 prohibits promotion of enmity on grounds of religion, race, caste, community or language in connection with electoral practices as a corrupt practice and therefore prohibits the same.

Under Article 20 (2) of the International Covenant on Civil and Political Rights, States parties are obligated to prohibit by law “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. The Human rights committee concluded that the Art 19 of the said covenant and Art 20 (2) are compatible with and complement each other.

Case Laws Pertaining to Hate Speech

On the grounds of public order, incitement to an offence and security of the state hate speech can be curtailed under article 19(2). Hon’ble Supreme Court in the case of Brij Bhushan v State of Delhi opined that public order is aligned to the public safety and is considered equivalent to security of the state. When public order was inserted as a ground of restriction under Art 19(2) this particular interpretation was validated by the First Constitutional Amendment.

In Ramesh v. Union of India, the Supreme Court refused to adjudge speech in isolation and held that a movie that intends to impart a message of peace cannot be considered to violate article 19(1)(a) just because it shows fanaticism and violence in order to express the futility of such acts. Thus, it is not the act itself but the potentiality of the act and its effect on public tranquility that justifies restriction under Art 19 (2).


The hate speech in issue is subject to different intellectual and academic debates. The issue which requires due consideration is how the existing laws are dealing with the situation of hate speech. Since it is entrenched in the constitutional provision as freedom of speech and expression and due to the ambiguous nature of laws it is being grabbed by ulterior motives and given different interpretations. If the hate speech is protected under the ambit of freedom of speech and expression then it will lead to violation of principles on which the entire structure of democracy rests. There is a need for proper enforcement for laws too. As it is to be kept in mind that the right of a person terminates when it reaches the nose of another person. It is the responsibility of the state to provide an environment where multicultural, secular, democratic ideals are protected so that peace and harmony prevails.


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