The Role of Criminal Law in Regulating Hate Speech in India: Key Cases and Comparative Perspectives

This article has been written by Faiza M, currently in fourth year pursuing a BBA LLB (Hons.) at Crescent University, Chennai.

 Abstract:

This article examines the complex relationship between criminal law and hate speech in India, focusing on the constitutional balance between freedom of speech and the need to maintain public order It explores the legal framework designed to deal with hate speech, particularly the basic provisions under the Indian Penal Code ( IPC). Let’s hear it, and acts that encourage communal violence are criminalized In a diverse and multicultural society like India, these laws play an important role in curbing hate speech, but they also face criticism at of potential and excessive abuse.

The article scrutinizes Important judicial cases that shaped India’s legal approach to hate speech, such as Shreya Singhal v Union of India and Manjar Syed Khan v State of Maharashtra, and highlights how courts have balanced speech of freedom and the prevention of violence and sectarian conflict. In addition, the article provides comparative insights from other jurisdictions, including the United States and Europe, where hate speech laws are written and enforced differently.

In conclusion, the article considers the legal challenges associated with the enforcement of hate speech policies and proposes reforms to ensure fair and effective implementation of these laws, without infringement of the fundamental right to freedom of thought or abuse for political purposes.

Key words: Hate Speech, Criminal Law, Freedom Of Speech, India, Judicial Interpretation

Introduction:

Hate speech has emerged as a significant challenge in modern democracies, raising serious questions about the limits of freedom of speech, social cohesion and the role of the state in regulating offensive content Hate language has a particularly profound impact in India, a diverse and multicultural society. The country’s legal framework seeks to guarantee constitutional freedom of speech and the need to prevent violence, preserve public order and protect marginalized groups This balance is very apparent within the provisions of criminal law under the Indian Penal Code (IPC).

At the core of this legal framework is the tension between Article 19(1)(a) of the Constitution of India, which guarantees the right to freedom of speech and expression, and Article 19(2), which allows reasonable limits for these rights between . This article explores this intersection of criminal law and hate speech, examining the key provisions under the IPC, critical judicial interpretations, and comparative approaches from other fields that also explore the challenges of hate in the implementation of language laws and encourages reforms that can be made to ensure that these laws strike a better balance between freedom speech and public order.

Constitutional Framework For Hate Speech In India:

Despite its strong commitment to free speech, India’s legal system imposes a number of acceptable limitations on communication in order to protect the public order and avoid harming individuals or groups. This section examines the constitutional compromise that exists between the right to free speech and the prohibition of hate speech, as well as the underlying reasoning behind these restrictions.

Article 19(1)(a) guarantees free speech and expression. The Constitution of India, under Article 19(1)(a), gives the right to freedom of speech and expression to every citizen. This freedom, which permits people to freely express their thoughts and encourages discussion, disagreement, and debate, serves as the cornerstone of a democratic society. The freedom of speech was acknowledged by the authors of the Indian Constitution as being necessary for the development of a pluralistic society.

Freedom of speech is not unrestricted, though. The socio-political realities of India were taken into consideration by the drafters of the Constitution, especially in light of the sectarian tensions that had led to the Partition of India. As a result, they imposed restrictions to stop speech that would jeopardize the fragile fabric of the country.

Reasonable Restrictions on Free Speech, Article 19(2) The state may place “reasonable restrictions” on the use of free speech in the sake of maintaining public order, morality, decency, the state’s sovereignty, security, and preventing encouragement to criminal activity, according to Article 19(2) of the Indian Constitution. Legislation that makes hate speech illegal is based on this clause. It illustrates the necessity of striking a balance between individual liberties and group security, realizing that free expression can incite violence, worsen tensions within groups, or endanger populations that are already at risk.

Regarding hate speech, Article 19(2)’s definitions of “public order” and “incitement to an offense” are especially pertinent. Speech that threatens to incite violence or disturb the peace in the community may be restricted by the state. The Indian judiciary has reaffirmed that although speech is protected, it must not exceed the line into incitement, hate speech, or defamation through its interpretations of Article 19(2).

The Indian Constitution’s authors were well aware of the conflicts that can arise between the right to free expression and the possibility that it will be misused to encourage violence or hatred. Several members of the Constituent Assembly stressed the importance of preventing hate speech and communal strife from arising from free expression during the debates. Dr. B.R. Ambedkar, for example, emphasized the significance of striking a balance between liberty and social order, particularly in a nation as diverse as India. This approach gave hate speech-related criminal statutes constitutional validity. Prominent members such as K.M. Munshi and Alladi Krishnaswami Ayyar expressed support for acceptable limitations, arguing for a balance that protects free speech without endangering communal unity. The constitutional framework for restricting hate speech was shaped by these debates, which also set the groundwork for Articles 19(1)(a) and 19(2). In order to ensure that free speech was maintained as a fundamental right but might be restricted in circumstances where public order or security was at risk, the framers established a system of justifiable restrictions.

India’s Laws Addressing Hate Speech:

Indian Penal Code, 1860 And Bharatiya Nyaya Sanhita (BNS), 2023:

1. Indian Penal Code, 1860:

 Section 153A: This section penalizes the incitement of hostility among groups based on factors like as religion, race, place of birth, domicile, language, etc. One of the most popular measures to stop hate speech in public spaces is this one. For instance, Section 153A applies to provocative comments that call for acts of religious violence.

Origins of Section 153A of the IPC Section 153A of the IPC, which criminalizes the propagation of hatred between different groups on the basis of religion, race, place of birth, domicile, or language, was enacted in 1898 during British colonial authority. The major goal of this law was to protect public order in a very pluralistic society, particularly in light of rising sectarian tensions between Hindus and Muslims. After noticing an increase in communal violence and provocative remarks, the British authorities recognized the necessity for a legal measure to curb the propagation of hatred while also maintaining colonial rule over a heterogeneous community. Colonial authorities routinely used Section 153A to quash nationalist movements that highlighted religious or ethnic distinctions. This provision enabled the British to restrict comments and publications that could inspire communal enmity, so preventing organized resistance to colonial rule.The rule remained significant after Independence, as religious violence occurred in India, particularly during Partition in 1947. Section 153A has been changed several times to broaden its application and cover additional types of hate speech, such as those based on language, place of birth, and domicile.

Section 153B: This clause prohibits speech or written material that questions India’s national integration, such as claims that any group of people cannot be loyal to the country because of their religion or race.

Section 295A: Frequently used in cases of religious hate speech, Section 295A criminalizes deliberate and malicious acts designed to incite religious sentiments by disparaging religion or religious beliefs.

Section 295A, another significant hate speech legislation, was enacted in 1927. The immediate motive for this rule was the publication of “Rangila Rasool,” a tract that reportedly insulted Prophet Muhammad, resulting in significant demonstrations and violence. In reaction to the outcry, the colonial government passed Section 295A, which criminalized “deliberate and malicious acts intended to outrage religious feelings” by insulting the faith or religious beliefs of any class of citizens. Section 295A was intended to restrict religious hate speech that could cause communal disorder. This statute, like Section 153A, has been in existence since Independence and is still invoked in cases of religious intolerance and blasphemy.

Section 505: This section deals with statements that cause public mischief, including false statements that incite violence or alarm among the public.

2. Bharatiya Nyaya Sanhita (BNS) provisions:

The Indian Penal Code (IPC), which dates back to colonial times, is being replaced by the recently announced Bharatiya Nyaya Sanhita (BNS), 2023, which updates the legal framework for handling hate speech. The BNS includes provisions that make speech that incites hatred, hostility, or communal strife illegal, making sure that the law keeps up with the changing requirements of Indian society. The following section looks at the most important parts of hate speech:

Section 354 (which replaces Section 153A of the IPC): Promoting animosity among various groups This clause makes it illegal to promote animosity between various groups based on religion, race, language, and other factors. It keeps the fundamental goal of its predecessor (Section 153A of the IPC), but modernizes its language to reflect evolving societal realities in India. The legislation punishes comments or actions that aim to foment animosity amongst groups or disrupt public order. Expanded Scope: Section 354 considers new forms of communication, such as online hate speech, which has increasingly become a tool for inciting communal hostility. Punishments: Violations of this section can result in imprisonment for up to five years, demonstrating the state’s seriousness toward hate speech in a pluralistic society.

Section 355 (replacing Section 153B of the IPC): Statements harmful to national integration This clause penalizes declarations or utterances that call into doubt India’s national integrity, particularly speech that challenges citizens’ loyalty based on their religion, language, or race. The goal is to limit speech that threatens the country’s unity and integrity.

This clause guarantees that speech that jeopardizes national unity will have legal repercussions. It has become more significant in light of the emergence of controversial national identity myths.

Section 356 (replacing Section 295A of the IPC): Section 356 criminalizes deliberate and malicious conduct intended to offend the religious sensitivities of any community. It is similar to Section 295A of the IPC but broadens its jurisdiction to include digital platforms, which are increasingly utilized for religious hate speech.

Religious Hate Speech: The revised law highlights the need of protecting religious sensibilities in a diversified country like India, ensuring that speech that may inspire religious violence is dealt with expeditiously.

 Section 500 (replacing Section 505 of the IPC): This section criminalizes statements and publications that promote violence or provoke panic, resulting in public disorder. Section 500 remains critical in combating provocative comments that incite violence, especially in politically charged or community settings. Applicability: In recent years, social media platforms have become breeding grounds for inflammatory information, and Section 500 is intended to combat the rapid spread of hate speech in the digital era.

Case Laws:

Pravasi Bhalai Sangathan v. Union of India (2014):[1]

The court in this decision emphasized the challenge of identifying hate speech and urged Parliament to pass more precise legislation to deal with this problem. Additionally, it maintained that prohibitions against hate speech shouldn’t be applied to suppress lawful opposition or criticism.

Ramji Lal Modi v. State of U.P. (1957):[2]

The decision affirmed the constitutional consistency of IPC Section 295A and emphasized the need to restrict communication that intentionally insults religious beliefs to ensure public order.

Manzar Sayeed Khan v. State of Maharashtra (2007)[3]

In this case, the Supreme Court dealt with the application of Section 153A. Manjar Syed Khan, editor of a magazine, published an article that allegedly fueled religious hatred. He was charged under Section 153A for publishing material which was capable of inciting public disturbance.

The Supreme Court in its judgment held that for Section 153A to apply, there must be clear evidence that the speech or writing in question was intended to create animosity or hostility towards the Court dismissed charges against the editor, even mere discussion or even harsh criticism of religious practices did not do so such as promoting hatred or violence emphasizing that it was not intended to incite or hate.

This case emphasized the need for a clear intention to promote hatred before section 153A could be invoked. The need to prevent civil unrest and the judges’ efforts to balance freedom of speech were also highlighted.

Priya Prakash Varrier Case (2018)[4]

Young actress Priya Prakash Varrier became the subject of controversy when a song from her film “Oru Adar Love” talked about Muslim religious sentiments. A complaint under Section 295A was lodged against him and the makers of the film, alleging that the lyrics of the song had insulted the Prophet Muhammad. However, the Supreme Court held that the song was part of a movie plot and there was no intention or malice to outrage religious sentiments The Court reiterated that merely hurting sentiments is not enough to invoke Section 295A; Religious beliefs need to be open-minded and deliberate. This case calls for the judiciary to scrutinize hate speech laws to ensure that they are not abused to suppress artistic and cultural expression.

Baburao Patel v. State of Maharashtra (1982)[5]

Section 153A and Section 295A were invoked in this case. Baburao Patel, editor of a magazine, allegedly published articles critical of religious groups and fomented hatred between them. Both pieces accused him of trying to incite group hatred through his writings.

The Bombay High Court held that Patel’s writings were not merely satirical but were aimed at stirring up communal passions and hatred between religious groups The court emphasized the importance of the intent behind the book in its faulty in finding the bottom of these systems.

Other Relevant Statutes:

1. Unlawful Activities (Prevention) Act, 1967 (UAPA):

The Unlawful Activities (Prevention) Act (UAPA) has provisions addressing hate speech that incites violence against the state or encourages communal hostility, even though its primary purpose upon enactment was counterterrorism. When publications or speech are thought to pose a risk to public order or national security, the UAPA may be used.

Section 2(1)(g) defines “unlawful activities” as any actions that pose a threat to India’s unity, integrity, security, or sovereignty. This definition includes the use of hate speech to incite communal violence.

Section 10: Permits the prosecution of people who engage in activities that encourage or aggravate illegal activity, such as hate speech intended to sow division.

The UAPA has been used in a variety of cases when people or organizations have been accused of propagating hate speech that incites violence or is viewed as threatening to the state. Its wide definitions and harsh penalties reflect the government’s priority for protecting public order and national security.

Case Laws:

Arup Bhuyan v. State of Assam (2011):[6]

The Supreme Court considered the validity of various clauses of the UAPA in this case. The accused was charged under the Act with allegedly supporting an illegal group and using hate speech. The Court ruled that mere membership in an unlawful organization does not automatically result in punishment under the UAPA unless there is proof of active engagement in its illegal operations. This case demonstrated the need of providing clear proof of intent to provoke violence or communal hostility.

Kanhaiya Kumar v. State (2016):[7]

When a student leader named Kanhaiya Kumar reportedly made anti-national statements during a rally, charges were brought against him under the UAPA. The court stressed that carefully evaluating speech to determine whether it incites violence or threatens national integrity is necessary. The court’s cautious approach in striking a balance between the right to free expression and the necessity of combating hate speech is demonstrated by this case.

Khalid v. State of Delhi (2020):[8]

 In this case, many individuals were arrested under the UAPA for allegedly inciting racial rioting in Delhi. The Delhi High Court emphasized that charges under the UAPA must be supported by solid evidence demonstrating that the accused actively participated in or incited violence through their comments or acts. The Court reaffirmed that, while the UAPA is an important tool for preventing terrorism and hate speech, it should not be misused to curb dissent.

PUDR v. Union of India (2020):[9]

The People’s Union for Democratic Rights challenged the use of the UAPA to individuals accused of hate speech and inciting violence during rallies against the Citizenship Amendment Act (CAA). The Delhi High Court declared that the UAPA can only be invoked where there is a clear and present threat to national security or public order. The case underlined the judiciary’s role in avoiding abuse of the UAPA against dissenters.

2. Representation of the People Act, 1951:

Section 123(3) of the Representation of the People Act forbids candidates from inciting hatred based on religion, caste, or community during campaigning. This clause has gained popularity as political parties use divisive rhetoric to appeal to people.

Case Laws:

• K. Jaiswal v. State of Madhya Pradesh (1999):[10]

In this case, a candidate was accused of employing communal rhetoric during his election campaign, purportedly in violation of Section 123(3). Judgment: The Supreme Court upheld the candidate’s disqualification, holding that any remark or behavior that fosters enmity among communities weakens democracy. The Court highlighted that candidates must promote communal peace while campaigning.

• S. P. Rao v. State of Andhra Pradesh (2000):[11]

In this case, a candidate made threatening remarks at a campaign rally that appeared to incite animosity among the community. The Supreme Court ruled against the candidate, confirming that speeches inciting religious hatred violated Section 123(3). The court emphasized that such obscenities undermined the spirit of the electoral process and public peace.

• K. Pandhe v. Election Commission of India (2001):[12]

This case involves a candidate who made disparaging remarks about a particular party during the campaign. The Supreme Court held that the statements made by the candidates were a clear violation of Section 123(3) as they incited hatred and were aimed at dividing the electorate in a communal manner. The Court emphasized that political speech must be respectful and inclusive.

• R. Bommai v. Union of India (1994):[13]

Although primarily concerned with the issue of presidential rule, this landmark decision dealt with how political parties use public politics and divisive issues. The Supreme Court warned against the use of religion for political gain, saying that such practices could violate the constitutional mandate of secular government. This decision laid the foundation for stricter scrutiny of campaign speeches under section 123(3).

• Jai Bhagwan v. Election Commission of India (2002):[14]

In this case, one of the candidates was accused of making provocative statements during the campaign. The Election Commission disqualified the candidate for violating Section 123(3) which requires candidates to adhere to ethical campaign norms that promote unity rather than division.

3. Information Technology Act, 2000 :

Though Section 66A which criminalized offensive speech on the internet was struck down by the Supreme Court in Shreya Singhal v . Union of India (2015) though, the IT Act, 2000 still has provisions for hate speech on digital platforms Sections 69A and 79A provide for the removal of content that incites violence or communal conflict on the Internet .

Section 69A: This section authorizes the government to issue directives to prevent information from being made available on the Internet if it is necessary in the interests of sovereignty, integrity, safety, security, or public order. It is often used to remove content that promotes hate speech or sectarian violence.

 Section 79A: This section deals with the liability of intermediaries and requires intermediaries (such as social media platforms) to remove infringing content, including hate speech.

Case Laws:

• Shreya Singhal v. Union of India (2015):[15]

This landmark decision struck down section 66A of the IT Act, 2000 as unconstitutional, arguing that it imposed unreasonable restrictions on freedom of speech. The case stems from the arrest of individuals for allegedly posting offensive content on social media. The Supreme Court ruled that the provision was vague and overbroad, resulting in unwanted legislation. However, the court upheld the government’s power to regulate hate speech and incitement to violence under other provisions of the ICT Act, notably sections 69A and 79.

• K.S. Puttaswamy v. Union of India (2017):[16]

Although primarily this case deals with a matter of privacy, this decision also highlights the importance of free speech and digital rights, including the right to express oneself online. The Supreme Court recognized that the Internet is an important forum for free speech. While it supported constitutional rights, it indirectly endorsed the need for laws to curb hate speech (such as sections 69A and 79 of Information Technology Act, 2000).

• Biharsharif Case (2020):[17]

In one instance, sectarian violence in Bihar was sparked by a social media post. The authorities arrested those who were promoting hate and blocked the content under Section 69A of IT Act, 2000. The High Court upheld the police action, noting that the use of Section 69A of IT Act,2000 was justified to promote public order and prevent communal division, confirming the government’s ability to regulate harmful internet content.

• Disha Ravi v. State of Delhi (2021):[18]

Environmental activist Disha Ravi was arrested for sharing a toolkit related to the protest against the agriculture bill which allegedly included hate speech against the government. The case highlighted the complexity of Internet grammar. While not directly addressing hate speech, it outlined the implications of digital content under the IT Act, 2000 and the analysis of such content.

• Arunima v. State of West Bengal (2022):[19]

This case involved the dissemination of hate speech via social media that led to communal riots in West Bengal. The court emphasized the application of Section 69A of IT Act for immediate action to block content promoting hatred and violence, reinforcing the need for timely intervention to protect public order.

Examining Hate Speech Laws: A Comparison with Other Jurisdictions:

Hate speech is a global issue, and countries around the world have taken various measures to regulate it. Comparative comparisons with hate speech laws in other countries can provide valuable insights into how the Indian legal system can be reformed to strike a better balance between freedom of speech and public order.

1. United States:

Hate speech is mainly protected in the United States by the First Amendment, which guarantees free expression. Hate speech is protected by the United States Supreme Court unless it actually incites violence or constitutes a “true threat,” according to precedent. The famous case of Brandenburg v. Ohio (1969) created the “imminent lawless action” test, which limits the state’s capacity to prohibit speech unless it is likely to inspire immediate violence. While this strategy provides substantial protection for free expression, it has been criticized for allowing hate speech to spread, particularly on internet platforms. The United States model prioritizes individual liberty over public order, in stark contrast to India’s more restricted approach to hate speech.

2. Europe:

In contrast, many European countries, like Germany and France, have more stringent hate speech regulations. In Germany, for example, the Volksverhetzung (Incitement to Hatred) law criminalizes incitement to hatred against specific groups of the population and outlaws Holocaust denial. These rules reflect Europe’s historical experience with hate speech resulting in bloodshed and genocide, particularly during WWII. European hate speech laws stress public order and preventing harm to vulnerable groups, even if it means prohibiting particular types of communication. This approach provides a valuable counterweight to the US paradigm and is more closely aligned with India’s emphasis on public order when prohibiting hate speech.

Challenges with IPC’s Legal Framework for Hate Speech:

One of the main criticisms of hate speech provisions such as Sections 153A and 295A of the Indian Penal Code is their overlapping and vague nature, which can lead to arbitrary application by law enforcement agencies. Critics argue that Section 153A of  IPC fails to clearly define what constitutes “incitement to hatred” and that it can result in torture. The Supreme Court ruling in Shreya Singhal v. In Union of India (2015), which struck down Section 66A of the IT Act as too vague highlighted the need for clear statutory interpretation to safeguard freedom of speech Moreover, this provision is often criticized if they choose to use it , as they disproportionately target marginalized communities and dissenting voices They do, While influential people tend to avoid prosecution e.g., politicians like Amit Shah escaped legal repercussions of hate speech, while activists and journalists faced severe repercussions for their exposure Besides, Section 295A of IPC has been misused to suppress dissent, a often applied to individuals critical of religious practices , who were arrested for offending Hindu gods despite evidence of intent to offend This form of abuse has a chilling effect on free speech, deterring individuals to engage in legitimate discourse for fear of legal repercussions . The Supreme Court acknowledged that vague legislation can be chilling underscores concerns about sections 153A and 295A, of IPC particularly in relation to artistic, cultural and political expression, where individuals may have resorted to self-censorship to avoid possible legal consequences.

The Controversy Surrounding Amit Shah’s Speech (2014)[20]

During the 2014 general elections, the then political leader Amit Shah was accused of making hate speeches in Uttar Pradesh. He has been charged under Section 153A of IPC with making inflammatory remarks targeting religious groups and encouraging voters to vote communally. The Election Commission of India temporarily banned Amit Shah’s campaign activities and registered an FIR under Section 153A of IPC against him. But the charges were later dropped and there was no formal hearing. This case demonstrated how hate speech laws can be used politically and raised questions about the selective use of these policies against political leaders. While this case did not reach a formal court hearing, it is notable for its implications regarding the application of hate speech laws to political figures and the concerns of selective enforcement by authorities. The Election Commission of India temporarily suspended Shah’s campaign activities due to the allegations, reflecting the intersection of hate speech laws and electoral politics.

Conclusion:

Hate speech provisions under the IPC, particularly Sections 153A of and 295A of, were introduced to prevent communal riots and religious intolerance in a country as diverse as India but of broad scope with vague language including there has caused concern about abuse. While these laws are necessary to maintain public order and prevent violence, they must be applied with caution to avoid violations of free speech.

Judicial interpretation has provided some clarity in the application of these provisions, with courts emphasizing the need for deliberate and thorough examination before imposing criminal liability but the choice of law is the application of this law use to prevent opposition remain major challenges. Going forward, legislative reform is needed to clarify hate speech provisions and ensure fair and consistent enforcement in accordance with constitutional principles of free speech.

[1] Pravasi Bhalai Sangathan v. Union of India, (2014) 7 SCC 1.

[2] Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.

[3] Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1.

[4] Priya Prakash Varrier v. State of Kerala, (2019) 3 SCC 298.

[5] Baburao Patel v. State of Maharashtra, 1982 Cri LJ 1381.

[6] Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.

[7] Kanhaiya Kumar v. State, (2016) 1 SCC 1.

[8] Khalid v. State of Delhi, 2020 SCC Online Del 1518.

[9] PUDR v. Union of India, (2020) SCC Online Del 2048.

[10] K. K. Jaiswal v. State of Madhya Pradesh, (1999) 3 SCC 178.

[11] K. S. P. Rao v. State of Andhra Pradesh, (2000) 1 SCC 349.

[12] M. K. Pandhe v. Election Commission of India, (2001) 2 SCC 102.

[13] S. R. Bommai v. Union of India, (1994) 3 SCC 1.

[14] Jai Bhagwan v. Election Commission of India, (2002) 5 SCC 103.

[15] Shreya Singhal v. Union of India, (2015) 5 SCC 1.

[16] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[17] Biharsharif Case, 2020 SCC Online Pat 271.

[18] Disha Ravi v. State of Delhi, 2021 SCC Online Del 212.

[19] Arunima v. State of West Bengal, 2022 SCC Online Cal 114.

[20] Amit Shah v. State of Uttar Pradesh, FIR No. 161 of 2014.