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Mentor’s Comment

The debate on hate speech and constitutional accountability has resurfaced after recent judicial proceedings concerning alleged communal remarks by a senior political leader. Courts have reiterated that while India possesses several legal provisions to curb hate speech, implementation remains weak and inconsistent. The discussion also raises deeper constitutional questions, whether hate speech should be treated merely as a criminal offenceor also as a constitutional tort. 

What is Hate Speech in Indian Law?

Hate speech in India does not have a single statutory definition. It generally refers to words, signs, electronic communication, or representations that incite hatred, discrimination, or violence against individuals or groups based on religion, race, caste, community, language, or place of birth. The regulation of hate speech operates through criminal law provisions under the Bharatiya Nyaya Sanhita, 2023 and constitutional restrictions that balance freedom of speech with public order and social harmony.

Key Legal Provisions

Bharatiya Nyaya Sanhita (BNS), 2023

1. Section 196: Penalises promotion of enmity or hatred between groups on grounds such as religion, race, caste, language, or community, especially when it threatens public tranquillity.
2. Section 298: Punishes deliberate and malicious acts intended to outrage religious feelings through words, signs, or representations.
3. Section 353(2): Criminalises statements, rumours, or reports that create or promote enmity, hatred, or ill-will between different classes of people.

Special Legislation

1. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: Prohibits public insults, intimidation, or hate speech targeting SC/ST communities, particularly when committed in public view.

Electoral Law

1. Representation of the People Act, 1951: Treats appeals to religion, caste, or community during elections as a corrupt electoral practice, enabling action by the Election Commission of India.

Constitutional Basis

1. Article 19(1)(a): Guarantees freedom of speech and expression.
2. Article 19(2): Allows reasonable restrictions on speech in the interests of public order, security of the state, morality, and decency.

Key Concepts and Legal Understanding

1. Law Commission Definition: The Law Commission of India Report No. 267 characterises hate speech as speech that incites violence, discrimination, or hostility against groups based on identity markers.
2. Online Hate Speech Regulation: Offensive online speech earlier addressed under Information Technology Act, 2000 Section 66A was struck down in Shreya Singhal v. Union of India for vagueness; however, online hate speech remains punishable under BNS provisions.
3. Threshold for Criminal Liability: Hate speech law targets speech that creates public disorder, discrimination, or violence, not merely speech that causes offence or hurt sentiments.
4. Recent Policy Developments: States such as Karnataka have proposed dedicated legislation like the Karnataka Hate Speech and Hate Crimes (Prevention) Bill to impose stricter penalties and clearer definitions.

What has been the recent role of the judiciary in addressing hate speech?

1. Preventive guidelines on mob lynching and hate crimes: In Tehseen Poonawalla v. Union of India, the Supreme Court of India directed states to appoint nodal officers in every district, establish special task forces, identify sensitive areas, and ensure fast-track trials and victim compensation in hate crime cases.
2. Regulation of inflammatory speech during elections: In Abhiram Singh v. C.D. Commachen, the Supreme Court of India held that candidates cannot seek votes on the basis of religion, caste, race, language, or community, reinforcing secular electoral practices under the Representation of the People Act, 1951.
3. Need for legislative action against hate speech: In Pravasi Bhalai Sangathan v. Union of India, the Court acknowledged the growing threat of hate speech but stated that courts cannot create new offences and urged Parliament to enact stronger legislation.
4. Distinction between advocacy and incitement: In Shreya Singhal v. Union of India, the Court clarified that only speech that incites violence or public disorder can be restricted, establishing the “advocacy vs incitement” test for regulating speech.
5. Guidelines on preventive policing (2023 directions): The Supreme Court of India directed states to register FIRs suo motu against hate speech without waiting for formal complaints and mandated immediate preventive action by police authorities.
6. Recent judicial scrutiny (2026): Petitions seeking criminal prosecution of Assam Chief Minister Himanta Biswa Sarma for alleged communal remarks led the Supreme Court of India to direct petitioners to approach the Gauhati High Court, which issued a notice on 26 February 2026, reflecting continued judicial monitoring of hate speech complaints.

Why is hate speech difficult to define and criminalise?

1. Prejudicial discourse: Hate speech often manifests as narratives that marginalise communities rather than direct calls to violence, making legal classification difficult.
2. Ambiguity in language: Political rhetoric frequently uses dog whistles or coded expressions, enabling speakers to deny explicit intent.
3. Context of social hierarchy: Harm arises not only from the speech but also from existing inequalities and power relations.
4. High threshold for criminal liability: Criminal law requires proof of clear incitement or threat, which many divisive speeches avoid.

Should hate speech be treated as a constitutional tort?

1. State accountability principle: A constitutional tort holds the state liable when failure to act leads to rights violations.
2. Failure of enforcement: Repeated inaction by authorities allows hate speech to continue unchecked.
3. Judicial remedy: Courts could award compensation to victims when the state fails to prevent or respond to hate speech.
4. Strengthening institutional responsibility: Such recognition would compel authorities to respond swiftly to hate speech incidents.

How does political rhetoric contribute to the spread of hate speech?

1. Electoral mobilisation: Communal narratives are often deployed to consolidate vote banks.
2. Leadership signalling: Statements from senior political leaders influence behaviour of lower-level actors.
3. Institutional inertia: Lack of decisive action by institutions encourages repetition of divisive rhetoric.
4. Public discourse polarisation: Hate speech deepens social divisions and marginalises vulnerable groups.

How effective has the Supreme Court’s intervention been?

1. Judicial directives: In Tehseen Poonawalla v. Union of India, the Court issued guidelines to prevent mob lynching and hate crimes.
2. Administrative measures: Courts directed states to appoint nodal officers to monitor hate crimes.
3. Further orders (2023): States were directed to register FIRs suo motu in hate speech cases.
4. Monitoring challenge: Courts face difficulty supervising compliance across all states.
5. Reluctance to intervene directly: In some cases, the Court has transferred matters to High Courts rather than exercising its powers under Article 142.

Do existing legal provisions adequately address hate speech?

1. Representation of the People Act, 1951: Enables the Election Commission of India to act against hate speech during elections.
   1. Section 123(3A) of the RPA, 1951: Defines the promotion of enmity or hatred between classes of citizens on grounds of religion, race, caste, community, or language as a “corrupt practice”.
2. Criminal law provisions: Sections of the IPC and now BNSS address promoting enmity between groups and inciting violence.
3. Implementation gaps: Evidence shows inconsistent enforcement of these provisions.
4. Political climate factor: Without political consensus, legal provisions alone struggle to curb hate speech.

Could a comprehensive hate speech law improve regulation?

1. Law Commission recommendation: Suggested dedicated criminal provisions for hate speech.
2. Karnataka Hate Speech and Hate Crimes (Prevention) Bill, 2025: Attempts to address hate speech through a legislative framework.
3. Conceptual limitation: Critics argue that the bill focuses on injury or offence rather than structural discrimination.
4. Broad definitions: Overly expansive definitions risk arbitrary application and misuse.
5. Implementation testing: Effectiveness can only be evaluated after operationalisation.

Conclusion

India possesses multiple legal provisions addressing hate speech, yet enforcement remains inconsistent. Judicial directives have attempted to strengthen accountability, but structural reforms, legislative clarity, and political commitment are essential. Effective regulation requires balancing free speech with constitutional values of equality, dignity, and social harmony.