The rules and regulations of hate speech have been found to be
challenging now-a days. The anti-hate speech law is a challenge because
of its collision with article19 (freedom of speech and expression). In
practice, the law standing between the regulation and restriction
forming a thin line in between.
Despite new and strict laws, the number
of cases of hate speech is increasing day by day. To restraint this,
more rigorous laws were proposed by the Law Commission of India in 2017.
This has led to a situation where bulk of laws and a state of over criminalisation of speech related offences are present at the same time.
In order to eradicate the hate speech it is important to change the
framework of the current system and start addressing the hate speech
according to legal framework. Legality and framework and where we lack
are discussed herein.
In times of huge political, social and economical views, the world is
witnessing a battle against each other through words. It won't to say
that the times is not far when a new kind of war will start by these
speech through social media and social gathering. Dehumanizing and
defaming are new weapons of the society which they use to humiliate one
person over mass level. People now-a-days has misapprehended the term
freedom of expression with hate speech. Availability of social media has
given people enough opportunity and liberty to present their point of
views on an idea or on a person.
Hate is an emotion which we all face at some point in our lives. Hate
speech has gained its popularity in very recent times when the mass
media has become most famous source of spreading news. Now-a-days the
best way to harm someone's reputation to make people suffer is HATE
SPEECH. Hate speech at a mass level can ruin people's life, their
agendas like few speeches given by the leader at the time of CAA which
led to riots. In this article we will be discussing about the different
dimensions of hate speech and its legality in India.
Hate is an emotion which we encounter in our day to day life; it is
omnipresent in our society. Hate speech can be seen in the statement of
many legislators, scholars and jurists and so on.
According to reports, 2018 was declared ‘THE ERA OF ONLINE HATE', a lot
of people chose online platform to spread hate through their posts at
Speech that demeans on the basis of race, ethnicity, gender, religion,
age, disability, or any other similar ground is hateful; but the
proudest boast of our free speech jurisprudence is that we protect the
freedom to express “the thought that we hate
Directed Action + Hate Speech = Hateful Conduct
A speech becomes hateful conduct when it targets a particular person and
is responsible for the after effects.
Freedom Of Expression
Article 19(1) (a) of the Constitution of India states that, “all
citizens shall have the right to freedom of speech and
expression”.The idea behind this article is to give voice to the
Indian citizen the license to express thoughts with some reasonable
The principle behind freedom of speech and expressions is as under:
- Only the Indian citizen has the liberty to enjoy this right, the
right isn't given any foreign citizen.
- This right gives liberty to express one's view through any
medium e.g.:-by words in writing speaking, in pictures etc.
- Since the freedom of speech and expression is not an absolute
right, the government is given powers to frames law for and against
Restriction imposed on freedom of speech and expression is:
Article19 (2) deals with the restriction that are imposed on the freedom
of speech and expression.
- Security of the state: Liberty to express one's view is
prohibited in cases where a question is raised on the security of
- Friendly relation between foreign countries: in case one's
speech or expression or words violates the relation between India and
other foreign countries, it will treated as a crime and it is prohibited
under article19 (2).
- Public order: since public order are different from security of
the state. It is important to safeguard the public order and
maintain its authenticity in cases where the order is put under
- Contempt of court: any words which contemptthe decorum of the
court prohibited under freedom of speech and expression
- Incitement of an offense: Any statements in any sense which
incite the population to commit an offense are prohibited.
- Sovereignty and integrity of India: any person is prohibited to
make statements though which the sovereignty and integrity of India
at put at stake.
- Defamation: any statement given by an individual at any level
through any medium, which defame other individual or society in any
way is prohibited unless it is made for public good.
Hate speech is prohibited in India under several provisions:
The Indian Penal Code, 1860 Section 124A penalises sedition
Section 153Apenalises ‘promotion of enmity between different groups on
grounds of religion, race, place of birth, residence, language, etc.,
and doing acts prejudicial to maintenance of harmony'.
Section 153B penalises ‘imputations, assertions prejudicial to
Section 295A penalises ‘deliberate and malicious acts, intended to
outrage religious feelings of any class by insulting its religion or
Section 298 penalises ‘uttering, words, etc., with deliberate intent to
wound the religious feelings of any person'.
Section 505(1) and (2) penalises publication or circulation of any
statement, rumour or report causing public mischief and enmity, hatred
or ill-will between classes.
The Representation of The People Act, 1951
Section 8 disqualifies a person from contesting election if he is
convicted for indulging in acts amounting to illegitimate use of freedom
of speech and expression.
Section 123(3A) and section 125 prohibits promotion of enmity on grounds
of religion, race, caste, community or language in connection with
election as a corrupt electoral practice and prohibits it.
The Protection of Civil Rights Act, 1955 Section 7 penalises incitement to, and encouragement of untouchability
through words, either spoken or written, or by signs or by visible
representations or otherwise
The Religious Institutions (Prevention of Misuse) Act, 1988
Section 3(g) prohibits religious institution or its manager to allow the
use of any premises belonging to, or under the control of, the
institution for promoting or attempting to promote disharmony, feelings
of enmity, hatred, ill-will between different religious, racial,
language or regional groups or castes or communities.
The Cable Television Network Regulation Act, 1995 Sections 5 and 6 prohibit transmission or retransmission of a programme
through cable network in contravention to the prescribed programme code
or advertisement code. These codes have been defined in rule 6 and 7
respectively of the Cable Television Network Rules, 1994.
The Cinematograph Act, 1952
Sections 4, 5B and 7 empower the Board of Film Certification to
prohibit and regulate the screening of a film.
The Code of Criminal Procedure, 1973 Section 95 empowers the State Government, to forfeit publications that
are punishable under sections 124A, 153A, 153B, 292, 293 or 295A IPC.
Section 107 empowers the Executive Magistrate to prevent a person from
committing a breach of the peace or disturb the public tranquillity or
to do any wrongful act that may probably cause breach of the peace or
disturb the public tranquillity.
Section 144 empowers the District Magistrate, a Sub-divisional
Magistrate or any other Executive Magistrate specially empowered by the
State Government in this behalf to issue order in urgent cases of
nuisance or apprehended danger. The above offences are cognizable. Thus,
have serious repercussions on liberties of citizens and empower a police
officer to arrest without orders from a magistrate and without a warrant
as in section 155 CrPC.
Punishment for hate speech
Hate is an emotion which can be hidden behind the curtains of a
statement which people might take logical and natural. Besides being
hidden there are few key points that help in the discovery of the hate
in a statement or speech.
According to a report, anyone who is found to be involved in hate
speech for one's origin, region or place of birth will be imprisoned for
2 years or 5000fine or both.
Influence of internet and social media
Internet is a boon and a bane to the society. Now-a-days it is very
difficult to imagine our lives without internet but despite being so
useful and important in our lives it is somehow invading our privacy and
also provokes hate speech
With the internet the number of hate speech and hate crime rate is
immensely increasing. It is said that the things said online are the
product of an offline chaos and since geography and time doesn't affect
internet; the hate speech affects a large mass beyond boundaries.
According to Delhi police, social media is spreading hate speech at
a vast level for which no clear laws have been made so far to provide
justice. To maintain the level of hate and fear among the people of the
nation a plea was filed demanding for strict laws against hate
Social media platforms have made specific guidelines under which hate
speech is governed if we talk about YouTube it is clearly mentioned that
any video which violates someone's image in respect of age, gender,
nationality, disability, ethincit6y, race, religion and based on the
content of someone else, will be removed from the YouTube on the grounds
of promoting hatred. Recently a vlogger's video was removed by YouTube
by the higher authority for promoting hatred towards other artist. This
doesn't happen for the first time, any video which violates someone
reputation by spreading hatred in the society is removed by YouTube.
Facebook which is very popular among youth also have guidelines to
prevent hate speech , it is mentioned in their guidelines if any content
which spread hatred and the intention behind it is unclear, the content
will be removed.
Social media relies on special kind of team which includes artificial
intelligence, user reporting and content moderators. All of them works
to enforce their guidelines related to the appropriate content.
How does India regulates hate speech online?
Social media has made new rules regarding the hatred which has been
spreading through it. Now the government can order the authorities to
take such post down within 24 hour with all the details of the users so
that actions could be taken against him. Though social media platforms
such as Facebook, YouTube and Twitter etc. have taken enough measures to
stop the hatred by forming certain guidelines yet it is difficult to
stop hate speech when it comes to leaders who intentionally or
unintentionally spreading hatred through their speeches which results
into riots and damage to the humankind.
People's perspective on hate speech
When a leader tends to speak at a mass level, the population follows. We
all are aware of the Delhi riots 2020, when some leaders came
forward and said things to spread hatred among the youth and the
population which directly gave birth to the anger, which resulted in
destruction and loss of lives.
This was the perfect example of hate
speech causing harm to the society as well as the people and the
environment around them this proved that hate speech w not only affects
the people involved in it but the people who are innocent are also
affected by it.
Recently Ayaz Khan
 was arrested for allegedly spreading hate speech
through a Facebook live session for which he was arrested and sent to
the Khar police station in Mumbai. This was not the first time when he
was involved in spreading hatred at communal level.
Examination of hate speech
Hate speech has always been a favourite topic of discussion India. The
question has been raised time to time in before the legislature and
certain amendments have been made from time to time.
In Pravasi Bhalai Sangathan v. Union of India
the petitioner prayed
the state to take actions against those who make hate speech, though the
court didn't go beyond the existing laws as it would amount to the
judicial overreach and suggested the matter to law commission of India
to examine the situation and recommendation to the election commission
against those who made hate speech, irrespective when it was made.
Though it was found difficult to confine the prohibition on hate speech
at a manageable level.
Again in Jafar Imam Naqvi v. Election Commission of India, the
question on hate speech aroused, in this case a writ petition was filed
questioning the speeches made by the candidates during election thought
the court dismissed the petition saying the speeches doesn't qualify as PIL.
How widespread is the hate speech problem?
If we talk about the hatred emotion, it is been in every continent most
of the world is connected through internet and social media.
In Germany, a relation was found between the anti refugee and Germany
party through facebook posts. It was found that the upticks of attacks
such as arson were found in the hate post.
In United States executioners of recent attacks was found to be
circulated through online and used social media to spread hatred against
the white supremacy
In India rumours on whatsApp groups initiated a lot od lynched mobs and
riots specially communal riots.
Different countries have different stories of crime based on hate
Will hate speech be criminalize in India?
The government is proposing a ‘code of conduct' for media agency such as YouTube, Twitter and Facebook to stop hate speech.Law commission was
asked to prepare a bill which would govern speech across social media
and other messaging application.. In September 2015, the Supreme Court
struck down section 66 A of IT act saying that its ability invades the
right of freedom of speech and expression and upsets the balance between
the restrictions and the itself. It was said that any information which
is spread over the internet must not incite anybody at all, written
words must be completely and purely in the realm of discussion of a
particular point of view and not against it. With section 66A of IT act
gone all the hate speech which were listed under this section are now
filed under other sections of IT act and sedition.
According to 153C of IPC, any speech will be criminalised only if it
follows two conditions that is it advocates hatred and causes incitement
of an offence. The Supreme Court distinguished advocacy and incitement
and said that the latter will be punished according to the law i.e.
incitement of lawless actions only, will be criminalised.
Impact of hate speech on article 19
Right of freedom of speech and expression is one of the essential
liberties which are given to the people in the country. The basic
concept of Liberty was to have variety of opinions regarding any new
issue. The right of freedom of speech and expression is mainly guided
the diversity in the opinion which are given by the people thus, a
speech which is unpleasant or cause harm is also protected by the
state its .hate speech is not property defined anywhere though an
application is there which describes the standard of hate speech.
Free speech has always been considered as an essential part of every
democracy. The doctrine of free speech is rather against State Power to
regulate speech. An overview of international legal regime on hate
speech said that the working of freedom of speech is often treated as
freedom to discriminate and offend people of some society.
The issue of
hate speech is assumed to have a great significance in the era of
internet where it is reachable to a large audience in a very short span
of time for which human right council in the report, restricted the
freedom of expression on the following grounds in certain cases:
- child pornography
- Hate speech which affects the community.
- Defamation to protect the reputation of other.
- Incitement to commit offence.
- Incitement to discrimination or violence on National racial or
Essentials to determine hate speech
Once it was found that there has been an interference with the freedom
of speech for which the court adopted threefold analysis to determine
whether the interference is legitimate or not and whether it amounts to
hate speech or not.
Three fold analysis is as follows:
- Whether the interference is prescribed by the law or not ?
- Whether the interference has a legitimate in or not?
The court in Handyside versus United Kingdom, said that that the
restrictions which are imposed by the state on freedom of expression
must be proportional to the legitimate aim persuaded.
- Whether the interference is required for the society or not?
Identifying criteria of hate speech
Freedom of speech is an important part of the democratic society. In Shreya Singhal versus Union of India
, differentiation between the
forms of hate speech as speech, discussion and advocacy and incitement
was concluded. the court held that any speech can only be limited on the
grounds mention in article 19(2).
All the speeches weather offensive or
not will be covered under article 19(1).the criteria was set to identify
- The extremity of the speech: Any speech to qualify as
hate speech, must be offensive in the extreme form. Though every
offensive statement cannot be considered as hate speech, the
expressions and discussion of any sensitive and unpopular issue is
unprotected by the constitution.
- Incitement: In Shreya Singhal case, it was said that the speech
must be proved incited to be restricted. United State Supreme Court also
says that the imminent threat to lawless action must be restricted. Hate
speech often crosses the path of two concept liberty and equality,
though both of them are complementary and aims to provide liberty to the
weaker section of the society to step forward and present their ideas
and point of view regarding any new policy or any new agenda.
- The status of the author of the speech: The position of
the author of the speech plays a vital role in determining the
legality of the speech that is why the interference with the freedom
of expression of a politician is called as the closed scrutiny by
- Status of the victim of the speech: Determine whether the
speech is a hate speech or not it is very important to see the point
of view of the victims to determine the extent of damage.
- Potentiality of the speech: The speaker's state of mind
can be judged by the impact of the speech on the society, the damage
caused to the society. It when the actual motive of the speaker
- context of the speech: Context of the speech is very
important when it comes to decide whether the speech is a hateful
speech or not; every hateful speech cannot be considered as hate
speech hence the context in which the statement is made is essential
to determine permissibility of it thus the context of the statement
plays a very vital role in determining whether the speech is to be
considered as a hate speech or not.
The hate speech is a topic for debate because of its intellectual
nature. Since hate speech is considered as a part of article 19 freedom
of speech and expression it becomes very difficult to differentiate it
from healthy speech. The hate speech can be manipulated in different
ways , so it becomes difficult to criminalize it under the provisions in
IPC due to which to prosecute the hate speech charges becomes difficult
when it comes to the court.
After studying every aspect of hate speech
and freedom of speech and expression it can be said that there is a need
to revise and strengthen the pre-existing laws and revising the
punishments for it. Hate speech has become a universal problem nowadays
because of the internet availability to every single person at an
immense level; it is reachable to every pact of the society.
To make sure that it does not affect the society and does not damage or
defame any person's reputation and beliefs, there is a huge need of
having a transparent system. Speech which spreads violence and
discrimination based on several aspects could be penalised. To fight
against hate speech we require a wider platform where everything can be
discussed in a transparent manner and result could be drawn out of it,
as it is a fight which cannot be fought alone.
“Raise voices not hate
- 2018 was the year of online hate. Meet the people whose lives it
changed on https://www.washingtonpost.com/business/technology/2018-was-the-year-of-online-hate-meet-the-people-whose-lives-it-changed/2018/12/28/95ac0558-f7dd-11e8-8c9a-860ce2a8148f_story.html?noredirect=on
- Matal v. Tam, 2017 on http://www.ala.org/advocacy/intfreedom/hate
- People's union of civil liberties(PUCL)v. union of India
- Romesh Thapar's case[AIR1950SC124]
- Section2 of the contemptact,1971
- E.M.S. Namboodripad v. T.N. nambar(1970)2SCC235;AIR 1970SC2015
- Was added by the constitution(sixteenth amendment)act,1963
- Affecting the religious believes or background or place of birth
or colour or caste
- Law commission of India ,hate speech, report267, March2017
- Report given by the commission, headed by justice B.S. Chauhan
- hate speech continues on social media -the print
- K.N. Govindacharaya's plea in Delhi high court
- Community standards;facebook.com
- Hate Speech on Social Media: Global Comparisons, https://www.cfr.org/backgrounder/hate-speech-social-media-global-comparisons
- Delhi Riots 2020: Who Fanned The Flames of Hatred? Is Kapil Mishra
Only To Blame? The outlook India
- AIR 2014 SC 1591
- AIR 1966 SC 740
- Will India Criminalise Online Hate
- Handyside v. United Kingdom, Application no. 5493/72(1976)
- New York Times v. Sullivan, 376 U.S. 254 (1964)
- Delfi AS v. Estonia, Application no. 64569/09 (2015)
- Handyside v. United Kingdom, Application no. 5493/72(1976).
- AIR 2015 SC 1523.
- Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972)
- 4Incal v. Turkey, Application no. 41/1997/825/1031 (1998)
- Ramesh v. Union of India,
- Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846