Author: ZEENAT FAROOQUI, JAMIA MILLIA ISLAMIA UNIVERSITY

“Cultivation of the mind should be the ultimate aim of human existence. An uneducated mind is the breeding ground of caste, hatred, and division.”

Dr B.R. Ambedkar

Understanding Hate Speech

Hate speech is quite complicated to define due to its notional nature. It has no universally recognised definition. It may be described as a speech that is denigrating, abusive, or harassing, which is spoken against a targeted group of individuals based on their nationality, sexuality, racial differences, minority status, disability, religious or other ethnic identity.

The Holocaust started with hate speech against a minority and not with the gas chambers;  the Cambodian genocide started with systematic use of hateful propaganda, labelling the intellectuals, religious and ethnic minorities as “parasites” or “worms”; the 1994 genocide against the Tutsi in Rwanda is considered one of the most brutal genocides of 20^th century which was directly influenced by hate speech through media by spreading rumours filled with hatred against the Tutsi’s; The crises of Rohingya refugee crisis in Myanmar, a campaign of misinformation consisting hatred conducted along with dehumanizing and derogatory language used against the Rohingya Muslims. 

Legislation in India

In our country, there is no comprehensive law to date that addresses hate speech and its repercussions. The Constitution of India guarantees the freedom of speech and expression under Article 19(1)(a) for all citizens, and Article 19(2) deals with the reasonable restrictions on this fundamental right imposed by the state. 

The Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’), not particularly but recognises hate speech under sections 153A, 153B, 295A, 298, 505(1), and 505(2). Sections 153A and 153B of the IPC punish acts causing enmity among the groups on the grounds of religion, race, place of birth, residence, or language. Section 295A punishes acts that, with malicious intention, offend the religious feelings of a class of persons. Section 505(1) and 505(2) make the circulation and publication of content causing hatred or feelings of enmity among groups an offence. The above sections correspond to sections 196, 197, 299, 30,2 and 353 of Bhartiya Nyaya Sanhita, 2023.

Section 8 of the Representation of the People’s Act, 1951 (hereinafter referred to as ‘RPA’) provides that if a person is convicted for a prohibited use of freedom of speech and expression, he is debarred from contesting elections.  Sections 123(3A) and 125 expressly bar to promote feelings of hatred or enmity among a class of citizens on the basis of race, religion, community, caste or language in connection to elections.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, prevents all kind of hate speeches targeting SC/ST in any place. The Protection of Civil Rights Act, 1955, also provides punishment for incitement and encouragement of untouchability.

Judicial Jurisprudence of India

State of Karnataka v. Praveen Bhai Thogadia  – The state imposed a restriction on Praveen Bhai Thogadia, to not associate in a gathering for two weeks in a certain district. Since, he recently made provoking statements which disrupted the communal harmony of the district, it was likely that his presence may fuel up the communal feelings of the public. The Apex court upheld the restrictions stating that it is justified, since public order was endangered, secularism came under threat, which the State is positively obliged to safeguard.

Pravasi Bhalai Sangathan v. Union of India  – PIL sought an action against members of political parties who made hateful speeches on region, religion, and caste; it was contended that the existing legal framework was insufficient for the prosecution of hate speech. Supreme Court simply stated that the existing law on the topic are sufficient and effective, instead the Apex Court acknowledged that there is lack of effective execution, hence did not issue guideline for the same. However, it analysed the impact of such hate speeches on the marginalised community targeted on the basis of their identity, it directly influences the attacks on the vulnerable section of the society. 

The Court gave elements of hate speech, it should include an expression that brings hatred towards a group of individuals by the majority, diminishing their social acceptance in the society, which disempowers them. Hate speech have impact on the society as a whole placing a barrier among affected persons and the majority, which abate their participation in the democracy resulting distress to the whole group and challenging the person’s self-esteem.

The Court noted that hate speech “lays the groundwork for later, broad attacks on vulnerable can range from discrimination, to ostracism, segregation, deportation, violence and, in most extreme cases, to genocide”. Also, observed that this issue needs the Law Commission of India consideration. The commission was already looking into the working of Election Commission, considering the politicians who engaged in hate speech in their election campaigns.

N.V. Sharma Vs Union of India – The Supreme Court reprimanded Nupur Sharma, former spokesperson of BJP, for her controversial remark about the Prophet Muhammad on a television debate, which infuriated the Muslims of India as well as Islamic Nations. The court ordered her to apologise to the whole nation as her statements threatened the security of the country.

Shaheen Abdulla Vs Union of India – The Supreme Court passed an interim order for police of Delhi, Uttar Pradesh and Uttarakhand, take Suo-moto action and register case even in absence of complaint for any action or speech attracting the offence of Sections 153A,153B, 295A and 505 of the IPC etc. Such action should be irrespective of religion to protect the secular character of the nation. Where not acted it will attract contempt of the Court and an action will be taken against that officer.

Amish Devgan Vs Union of India– Amish Devgan, journalist, was prosecuted under IPC, for his vile statement against a saint in Islam during his program. The Supreme Court denied to quash the charges against him, affirming the appropriateness of the existing provisions for hate speech. The Court observed that largely three elements constitute hate speech: intent, content and impact or harm caused by it. For fulfilment of element of ‘content’- “the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view”  For  ‘intent’- “intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message. This requires subjective intent on the part of the speaker to target the group or person associated with the class/group”.

Jafar Imam Naqvi v. Election Commission of India, – Petitioner sought de-recognition of political parties by Election Commission of India, which engage in illegal activities, included speeches that give rise to religious tensions. The court dismissed the petition, and stated that only legislature can make law also such issues can be a dispute within the ambit of the RPA,1951. 

Role of Media/Press

As per the latest data released in 2025, Indian ranks 151^st out of 180 countries in World Press Freedom Index,  a slight improvement to 2024 report where it ranked 159^th, but still in “very serious” category for press freedom considering the working conditions of journalists. Resultant effect of hate speech spreading through media can be seen, causing violence and public unrest, endangering the life of targeted persons. Leading news anchors abuse their position, and indulge into biased reporting while promoting a political party or ideology, lacking fair criticism and impartial public debate. They target a particular group of persons calling them out as ‘Naxalites’ or ‘Anti-Nationals’ creating a sceptical narrative to gain views same applies to social media platforms. 

International Jurisprudence

International law heartens the nations to enact legal provisions to penalize hate speech. The International Convention on the Elimination of all forms of Racial Discrimination (CERD) is an inclusive convention with 182 state parties. It deals with eradication and prohibition of hate speech. Also, International Covenant on civil and political rights (ICCPR) formed by United Nations also states “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

In United States, freedom of speech is considered as an essential of being a human. No matter how awful a speech is, no protection of law is given except where incitement of criminal activity occurs, only then state intervenes for the punishment of hate mongers.

In case of Europe, laws are rigid to handle hate speech. The European Commission on Human rights plays major role in restraining hate speech.

Attempts for effective regulation of Hate speech laws

In 2014, Bezbaruah Committee formed due to recurring racial attacks on people of north-eastern part of country, suggested to include in IPC; section 153C – penalise promotion or attempt to promote acts prejudicial to human dignity and Section 509A – penalise words or gestures made with intent to bring disgrace to member of particular race.

The Law commission headed by former Supreme Court judge, Justice B.S. Chauhan, prepared report no. 267 in 2017 on the topic ‘Hate Speech’ and covered all the issues addressed in Pravasi Bhalai, also defined hate speech in similar terms: “An incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.” A conclusion is that violence or its possibility is not an essential requirement for a hate speech.  The commission reviewed the Apex Court’s jurisprudence in its report and stated the insufficiency of existing provisions and proposed new provisions Section 153C and Section 505A  regarding hate speech through draft of Criminal law (Amendment) Bill (2017). None of these recommendations were implemented. 

Conclusion

Hate-mongers claim so-called superiority over vulnerable groups, racial or religious minorities, immigrants, homosexuals, etc. Such persons are targeted who are oppressed and lack access to address their grievances, they are weak people of the society who are neglected by the majority. They are powerless segments of our society who often fell prey to some larger beneficial interest given to these hate spreading people, subsequently they suffer from verbal and non-violent abuse, unaware of the institutional mechanism for seeking redressal. Considering the judicial precedents and the existing legislation, the present legal system is not sufficient to hold these hate mongers liable. Hate speech results into disturbing the mental equilibrium of the affected person along with that it makes the person’s existence difficult. 

The existing laws is unable to eliminate the damages caused due to hate speech; it does not mitigate the problem to its root causes. Since, there is no essentials to constitutes hate speech it makes it discretionary for the police to prosecute or let accused free. The court, due to lack of understanding it grants discretionary bails. It is high time for the political and executive structures of the government to display wisdom on the issue and put a halt on the continual incidents that occur due to hate speech.