Hate speech not equivalent to false claims or wrong assertion: Section 196 & 197 of BNS

Tadepalli Aditya Kamal, Author

Tadepalli Aditya Kamal is a 4th-year BBA LLB student at KLE Law College, Bengaluru. Read More

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S U P R E M E  C O U R T  O F  I N D I A
RECORD OF PROCEEDINGS
Writ Petition (Criminal) No. 437/2024

HINDU SENA SAMITI & ANR. Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)

{W.P.(Crl.) No. 437/2024}

Date : 14-11-2024 

Bench: Hon’ble CJI Sanjiv Khanna and Justice J. Sanjay Kumar

Abstract

The Supreme Court of India, in Writ Petition (Criminal) No. 437/2024, titled Hindu Sena Samiti & Anr. vs. Union of India & Ors., declined to entertain the petition filed under Article 32 of the Constitution. The petition alleged instances of hate speech spanning an extended period. The Court clarified that hate speech, as defined by law and jurisprudence, is distinct from incorrect or false claims. It advised the petitioners to present specific allegations fulfilling legal criteria before the appropriate forum. Consequently, the writ petition was dismissed.

Keywords: Supreme Court of India, Public Interest Litigation (PIL), Article 32, hate speech, Hindu Sena Samiti, incendiary speeches, state security, national unity, social harmony, Chief Justice Sanjiv Khanna

Introduction

On November 25, 2024, the Supreme Court of India dismissed a Public Interest Litigation (PIL) filed under Article 32 of the Constitution[1], which sought urgent intervention to curb the rise of incendiary speeches in the country. The petition, filed by the Hindu Sena Samiti, claimed that provocative speeches by political figures and influential leaders were endangering state security, promoting divisive ideologies, and threatening national unity. These speeches were alleged to call for secessionist actions and armed insurrection, potentially undermining the sovereignty and social harmony of India. The petition also called for guidelines to regulate and prevent such speeches. \

However, the Bench, comprising Chief Justice Sanjiv Khanna and Justice Sanjay Kumar, declined to entertain the petition, citing the distinction between hate speech and “wrong assertions or false claims.” The Court further suggested that any grievances related to this matter be addressed through proper legal channels, without making any comments on the substance of the claims.

Facts of the Case

The PIL in the case Hindu Sena Samiti v. Union of India was filed by the Hindu Sena Samiti through its President Surjeet Singh Yadav under Article 32 of the Constitution of India. The petition raised concerns over “provocative public speeches” allegedly endangering state security, national sovereignty, and social harmony. The petitioners argued that such speeches were promoting divisive ideologies and calling for actions that threatened the unity and integrity of India.

The petition specifically referred to the following incidents:

1. Congress MLA Sajjan Singh Verma’s Statement in Indore (8^th August 2024): The petition highlighted a statement made by Sajjan Singh Verma, a Congress MLA, in Indore on 8^th August 2024, where he allegedly referred to potential public uprisings in India similar to those in Sri Lanka and Bangladesh, which the petitioners argued could incite unrest.
2. Bharatiya Kisan Union (BKU) Spokesperson Rakesh Tikait’s Statement in Meerut (21^st August 2024): The petition also cited a statement by Rakesh Tikait, a spokesperson for the Bharatiya Kisan Union (BKU), in Meerut on 21st August 2024, regarding farmers’ protests. Tikait warned that the protests could escalate, potentially leading to widespread unrest.

The Hindu Sena Samiti contended that these speeches posed a serious threat to national security, sovereignty, and social order, and sought the Supreme Court’s intervention to issue guidelines to regulate and prevent such speeches.

Issues Raised by the Parties

1. Provocative Public Speeches: Whether statements made by political leaders, such as Congress MLA Sajjan Singh Verma and BKU spokesperson Rakesh Tikait, endanger state security, national sovereignty, and social harmony, thereby necessitating legal intervention.
2. Need for Regulatory Guidelines: Whether the Supreme Court should issue guidelines to regulate and prevent provocative speeches that could incite unrest, promote divisive ideologies, and threaten national unity.
3. Action Against Speakers and Organizations: Whether legal action should be taken against individuals and organizations that make statements or take actions threatening national security and public order.
4. Training and Awareness Programs: Whether there should be mandatory training programs for politicians and political organizations to raise awareness about the legal restrictions on public speech and prevent inflammatory rhetoric.
5. Independent Investigation: Whether there should be an independent investigation into incidents involving provocative public speeches and whether such speeches should be proactively addressed by the authorities.
6. Distinguishing Legitimate Political Discourse from Harmful Speech: Whether a clear framework should be established to distinguish between legitimate political discourse and speech that threatens national security, societal harmony, or public peace.
7. Precedent from Previous Supreme Court Cases: Whether the principles established in previous cases such as Shaheen Abdullah v. Union of India[2] and Ashwini Kumar Upadhyay v. Union of India[3], which mandated action against hate speech, should be applied to address the current issue of provocative public speeches.

 Relief sought by the Petitioners

1. Guidelines Formation:
   • The petitioners sought the Supreme Court’s intervention to direct the relevant authorities to formulate and implement rules, regulations, or guidelines aimed at regulating and preventing the delivery of provocative speeches. These speeches, according to the petitioners, could jeopardize state sovereignty and security. They emphasized the importance of creating a legal framework that would specifically address and curb speeches that might incite unrest, disrupt public order, or threaten national unity. The petitioners requested the Court to ensure that these guidelines were designed to prevent harmful rhetoric while still safeguarding the right to free speech in accordance with constitutional norms.

2. Penal Action:
   • The petitioners requested the Court to direct the relevant authorities to take appropriate penal action against individuals and organizations responsible for engaging in activities or making speeches that undermine India’s unity, integrity, and security. The petitioners highlighted that such provocative actions by political leaders and groups posed a serious threat to national stability and security. Therefore, they sought legal action under the applicable penal statutes, urging the Court to ensure that those responsible for making inflammatory statements or promoting divisive ideologies were held accountable in accordance with the law.
3. Investigation Request:
   • The petitioners sought an independent, credible, and impartial investigation into incidents involving provocative public speeches. They requested that this investigation be conducted in a time-bound manner under the monitoring of the Court to ensure its transparency and fairness. The petitioners emphasized the need for an unbiased inquiry into the specific statements that were alleged to have incited public unrest or posed a threat to national security. The Court was asked to ensure that such investigations were carried out promptly and thoroughly to prevent any delay or bias that could undermine the seriousness of the issue.
4. Contempt Proceedings:
   • In addition to seeking legal action against the speakers, the petitioners requested that the Court initiate contempt proceedings against the relevant respondents under the Contempt of Courts Act, 1971. This request was made on the grounds that the respondents, by making provocative speeches or failing to act against them, may have acted in a manner that undermined the authority of the Court or threatened public order. The petitioners sought the Court’s intervention to ensure that those responsible for such speeches were held in contempt if they were found to be in violation of legal or judicial mandates.
5. Training Program:
   • The petitioners also requested that the Court direct the implementation of mandatory training programs for politicians and members of political organizations. These programs were proposed to help individuals involved in public and political life better understand the legal restrictions on public speech, particularly in relation to inflammatory or provocative rhetoric. By promoting awareness of these restrictions, the petitioners aimed to prevent further instances of speeches that could escalate into social unrest or harm national security. The goal was to ensure that political leaders and activists were well-informed about the legal boundaries and responsibilities associated with their public statements.

6. Explanation Requirement:
   • The petitioners sought a direction from the Court requiring individuals who made statements relating to secession—particularly those drawing parallels with the situations in Sri Lanka and Bangladesh—to provide an explanation and justification for their remarks. Specifically, they requested that the Court compel these individuals to clarify their statements, which were perceived as potentially inciting violence or unrest, and to offer justifications for their remarks in light of their potential implications on the unity and integrity of the country. This was viewed as a necessary step to ensure accountability for speech that could be construed as threatening to national security.
7. Specific Restriction:
   • The petition also requested that Rakesh Tikait, a prominent leader of the Bharatiya Kisan Union (BKU), be directed to file an affidavit undertaking that he would refrain from addressing or participating in any future farmers’ protests. This was based on the concern that his statements, particularly in relation to the escalation of protests, could potentially lead to civil unrest and disturb public order. The petitioners sought a clear commitment from Tikait to avoid making further statements or participating in activities that might contribute to any future disturbances, thereby ensuring that his actions would not inflame tensions or threaten public peace.
8. General Authority:
   • The petitioners requested that the Court pass any additional orders it deemed fit and appropriate based on the circumstances of the case. This included any further directions that could effectively address the concerns raised in the PIL regarding the growing threat posed by provocative public speeches and their potential to disrupt national security and social harmony. The petitioners left the discretion to the Court to decide on the most suitable measures to protect the unity, integrity, and security of the country in light of the issues presented in the case.
9. Preventive Measures:
   • Finally, the petitioners called for the establishment of proactive measures and mechanisms to prevent the delivery of provocative speeches that could potentially incite violence or disturb public order. They emphasized the need for preemptive action to ensure that inflammatory rhetoric was stopped before it could lead to broader societal unrest. This included suggestions for effective monitoring systems and early intervention by authorities to identify and address any potential threats posed by provocative speech, ensuring the protection of national security and social cohesion.

Observations by the Court

The Supreme Court’s Ruling in Hindu Sena Samiti v. Union of India made several important clarifications regarding the issue of provocative speeches and the legal boundaries of hate speech. One of the Court’s primary distinctions was to differentiate between hate speech and wrong assertions or false claims. The Court emphasized that hate speech has a specific legal definition and cannot be equated with merely incorrect or unsubstantiated statements. This distinction is critical because it helps to draw a clear boundary between speech that directly incites hatred, violence, or harm to societal harmony, and speech that may be factually incorrect but does not necessarily incite any violence or disruption. By clarifying this distinction, the Court set a more precise legal framework for understanding and addressing hate speech.

Additionally, the Court highlighted that it was already examining hate speech issues in a pending case — the Shaheen Abdullah case[4]. This ongoing case was already focused on addressing similar concerns, which led the Court to conclude that there was no immediate need for new guidelines or fresh judicial intervention in the present PIL. The Court noted that the issues raised in the petition regarding provocative speeches were already being actively dealt with in the existing legal context. As a result, the petitioners’ request for broad and sweeping directions for regulating speech was deemed unnecessary at this stage, as it was redundant to the current legal proceedings.

The Court also pointed out the appropriate legal channels through which petitioners could raise specific grievances. The Bench observed that if the petitioners had particular concerns or issues regarding any speech that posed a threat to national security or public order, they should address those through the relevant legal processes, rather than invoking Article 32 of the Constitution, which is typically reserved for the enforcement of fundamental rights in cases of immediate violation. The Court suggested that the petitioners should utilize the existing judicial framework and raise specific complaints in lower courts rather than seeking a broad remedy through a PIL.

On the issue of contempt notices, the Chief Justice, Justice Khanna, clarified that the Court had not issued contempt notices in most of the cases it was currently handling, except in one or two pending applications. This was in response to concerns raised by the petitioners about the enforcement of any action or accountability in the cases of provocative speeches. The clarification helped to address concerns about whether the Court was actively monitoring or acting on contempt related to inflammatory speeches, ensuring that enforcement mechanisms were in place only when necessary.

Furthermore, the Court expressed dissatisfaction with the scope of the petition. The petition, according to the Bench, “went all over the place” without a clear focus on the specific legal understanding of hate speech. This lack of focus led the Court to conclude that the petition did not provide a well-defined argument or clear evidence of an immediate legal issue that warranted the Court’s intervention. The Court’s criticism was based on the petition’s failure to narrow its scope to address specific, actionable concerns under existing legal frameworks.

The Court also referenced its previous directives regarding Suo moto actions against hate speech crimes. In earlier rulings, the Court had directed state governments to take proactive action in dealing with hate speech, regardless of the speaker’s religion or background. These directives, the Court noted, were still in effect, which meant that there was no need for new directions or interventions. The Court’s past orders had already established a legal obligation for authorities to address hate speech promptly and without prejudice.

Finally, the Court underscored that the existing legal framework—including sections 153A[5], 153B[6], 295A[7], and 506[8] of the Indian Penal Code (IPC) — was sufficient to deal with issues of hate speech and provocative public statements. These provisions already criminalized acts that incited hatred, promoted enmity between different groups, or caused public disturbances, suggesting that no additional guidelines were necessary. The Court indicated that the legal system had adequate tools in place to address and prosecute hate speech offenses effectively.

The timeline consideration was also a significant point of the Court’s ruling. The petition referenced statements and incidents spanning a long period of time, suggesting that the issues raised were historical in nature rather than urgent. The Court emphasized that such matters should be dealt with through regular legal processes and not through the extraordinary jurisdiction of a PIL. This highlighted the Court’s preference for addressing long-standing issues through established legal mechanisms rather than using PILs for broader, ongoing issues that could be managed through the usual judicial system.

The Supreme Court’s judgment in this case emphasized the adequacy of existing legal frameworks, ongoing case precedents, and proper legal channels for addressing concerns related to hate speech and provocative speeches. The Court’s approach sought to clarify the boundaries of legal intervention while reaffirming the importance of focused legal action based on specific grievances rather than generalized PIL petitions.

Provisions outlined for Hate Speech in Indian Laws

 BNS (Bharatiya Nyaya Sanhita, 2023):

• • Section 196: Any act that disturbs public tranquillity or harms harmony between different groups (religious, racial, linguistic, regional groups, castes, communities), including organizing/participating in activities that train people to use violence against such groups, is punishable.
    • It is punishable with up to 3 years imprisonment and/or fine to promote disharmony or enmity through any means (spoken, written, electronic, signs) based on religion, race, place of birth, residence, language, caste, community, or any other grounds.
    • If these offenses are committed in places of worship or during religious ceremonies, the punishment is enhanced to up to 5 years imprisonment plus fine.
  • Section 197: It is punishable with up to 3 years imprisonment and/or fine to make or publish any imputation that members of any religious, racial, linguistic, regional group, caste, or community cannot bear true faith to India’s Constitution or uphold India’s sovereignty.
    • Making statements or publishing content that suggests denying citizenship rights to any group based on their religious, racial, linguistic, regional, caste, or community identity, or publishing content that causes disharmony/enmity between such groups is prohibited.
    • If these offenses (including making false/misleading information that jeopardizes India’s sovereignty, unity, integrity, or security) are committed in places of worship or during religious ceremonies, the punishment is enhanced to 5 years imprisonment plus fine.

Under Representation of People’s Act:

• Section 8 of the Representation of People’s Act, 1951 (RPA): Prevents a person convicted of the illegal use of the freedom of speech from contesting an election.
• Sections 123(3A) and 125 of the RPA: Bars the promotion of animosity on the grounds of race, religion, community, caste, or language in reference to elections and includes it under corrupt electoral practices.

Conclusion

The Court’s decision clarified that not every controversial or incorrect statement qualifies as hate speech, which is a specific legal offense with particular legal criteria. While dismissing the Public Interest Litigation (PIL) in this case, the Court emphasized that the issue of hate speech is already being examined in other ongoing cases. Therefore, it concluded that there was no need for new judicial intervention or the creation of fresh guidelines at this stage. The Court’s ruling underscored the importance of addressing specific grievances through appropriate legal channels, rather than relying on broad and sweeping measures such as PILs, which are typically reserved for more urgent violations of fundamental rights.

By distinguishing between controversial political statements and legally defined hate speech, the judgment helped to establish a clearer boundary in legal terms. The Court’s approach serves to refine our understanding of what constitutes hate speech and ensures that statements which are simply controversial or factually incorrect are not automatically classified as incitements to hatred or violence. The ruling thus reinforced the notion that political discourse, even if provocative, does not necessarily cross the threshold into hate speech unless it meets specific legal criteria.

This decision has broader implications for the interpretation and enforcement of laws governing public speech. It suggests that, when it comes to contentious or inflammatory statements, the legal focus should be on identifying actual instances of hate speech, which incites harm or disrupts social harmony, rather than addressing statements that are merely false or controversial in nature. As a result, the Court has effectively clarified that a more nuanced approach is required in dealing with speech-related cases, where each instance should be examined based on its potential to cause harm or promote enmity, rather than being broadly categorized as hate speech.

Overall, the judgment contributes to the ongoing dialogue about the limits of free speech, ensuring that legal actions focus on actual threats to social peace and national security, while allowing space for robust political debate and expression.

[1] Article 32 of the Indian Constitution states that  “(1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

[2] Shaheen Abdullah v. Union of India [Writ Petition (Civil) No. 940/2022]

[3] Ashwini Kumar Upadhyay v. Union of India [Writ Petition (Civil) No. 43/2022]

[4] Supra Note 3

[5] Section 153A of the Indian Penal Code, 1860 states that “Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

[6] Section 153B of the Indian Penal Code, 1860 states that “Imputations, assertions prejudicial to national integration.

[7] Section 295A of the Indian Penal Code, 1860 states that “Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

[8] Section 506 of the Indian Penal Code, 1860 states about the “Punishment for criminal intimidation.

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