Hate Speech

According to Black's Law Dictionary, 9th Edn., Hate speech is defined as “Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.”

In common language, “hate speech” refers to offensive discourse targeting a group or an individual based on inherent characteristics (such as race, religion or gender) and that may threaten social peace.

The UN Strategy and Plan of Action on Hate Speech defines hate speech as…“any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”

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Official Definition of ‘Hate Speech’

Hate Speech as defined in ‘legislation(s)’

Section 196, BNS criminalises acts done to promote enmity between different groups, on the grounds of religion, race, place of birth, residence, language etc. This section provides three clauses to explain ways in which this offence can be committed. The same is explained below:

Clause (a) of Section 196(1):

• It specifies ways in which enmity can be promoted which are as follows:
  • by spoken or written words, or
  • by signs or visible representation, or
  • through electronic communication, or
• For the purposes of this clause, the grounds on which enmity can be promoted are religion, race, language, residence, or caste, among others.

Clause (b) of Section 196(1):

• This clause criminalizes acts that are detrimental to societal harmony, and which lead to or are likely to lead to public disturbance.
• It focuses on actions that are likely to breach peace or cause disruptions within society.

Clause (c) of Section 196(1):

• This clause prohibits conduct such as organizing or participating in exercises, drills, or movements intended for or likely to involve participants being trained in violence or criminal force against specific groups.
• It also takes into account if such actions can cause fear, alarm, or insecurity among members of the targeted groups. These targeted groups are identified on the grounds which are specified in the above clauses.

Punishment under this sub-section is imprisonment of up to 3 years, a fine, or both.

One pertinent difference to note is that under Section 153A, IPC clause (a) did not include electronic communication as a means for promoting enmity. Whereas section 196(1), BNS includes this making the section more comprehensive, given the rise in hate speech practised online or through other electronic mediums.

Section 196(2):

• This sub-section addresses aggravated scenarios by prohibiting acts in sub-section (1) that occur in places of worship or during religious ceremonies.
• Punishment under this sub-section is imprisonment of up to 5 years, and a fine.

Additionally, Section 298, BNS prohibits acts done with the intention to insult the religious

sentiments of any class of people.

• Destruction, damage, or defilement: This refers to any act of causing harm to religious property, including the physical destruction or defilement (such as desecration) of a place of worship or religious symbols and objects.
• Intention to insult: The offence occurs when the act is carried out with the specific purpose or intention to insult the religion of a particular group of people. For example, destroying a religious idol or holy book to provoke anger or disrespect against that religion.
• Knowledge that it is likely to insult: If the person performing the act knows that their actions are likely to be perceived as an insult to the religion of others, even if that was not their primary intention, they can still be held liable.
• Punishment: The punishment for this offence includes imprisonment for up to two years, or a fine, or both, depending on the severity of the act and the discretion of the court.

The section aims to prevent acts that could incite religious tension or violence by protecting places of worship and religious symbols from desecration. It criminalises acts that could lead to communal discord.

This section has undergone minor changes as compared to Section 295A, IPC. these differences can be briefly explained in the following way:

• Section 295A, IPC focuses on deliberate and malicious acts that insult the religious beliefs of a class of people, with a higher punishment (up to three years imprisonment).
• Section 298, BNS deals with wounding the religious feelings of an individual or a group, with a lighter punishment (up to one year imprisonment).

This showcases the multiplicity of provisions under the penal code itself which cover acts such as hate speech.

'Hate Speech' as defined in official government report(s)

Law Commission Reports

The 267th Report of Law Commission of India characterises “hate speech” as expressions likely to harm individuals or groups based on identity factors like religion, caste, or language. Hate speech incites discrimination, hostility, or violence and undermines equality in society. It often marginalizes vulnerable groups, creating a discriminatory environment.

The report emphasizes criteria for identifying hate speech, including:

• Extremity: Speech must reflect extreme emotion or offense.
• Incitement: It should incite violence, discrimination, or hostility.
• Impact: Assessing the potential harm to public order or individuals.
• Context: Judging based on intent, setting, and audience impact.

National Crime Records Bureau (NCRB) Report

After looking at the statistics from this report, the following observations are as follows:

• The NCRB’s 2022 report highlights a concerning rise in hate speech cases in India, reflecting deeper social and cultural challenges. The increase in reported incidents points to growing polarization within the society, often driven by communal, religious, or regional divides. This trend could be attributed to actual increases in hate speech activities, improved public awareness, or more robust reporting mechanisms. States with diverse populations or histories of social tension seem to experience higher incidences, which underscores the complex interplay of local factors in fueling such offenses.
• The regional disparities in the prevalence of hate speech also indicate the unique challenges faced by different parts of the country. Areas with smaller populations but higher rates of offenses suggest specific regional issues, such as ethnic or cultural conflicts, that may exacerbate tensions. This variation highlights the need for tailored solutions that address the root causes of hate speech in these regions.
• Over the years, fluctuations in hate speech trends reveal how societal and political contexts influence the frequency of such offenses. While an increase in cases raises alarm, it may also reflect greater public awareness and a willingness to report such incidents, signaling a positive shift in societal attitudes toward addressing hate speech. However, the rise in incidents poses significant risks to communal harmony and societal peace if left unchecked.
• This calls for urgent and comprehensive action by governments, law enforcement agencies, and civil society. Strengthening legal frameworks, promoting educational campaigns to discourage divisive rhetoric, and fostering inter-community dialogue are critical steps to mitigate the impact of hate speech. Social media platforms also play a pivotal role in this context, as they often act as amplifiers for divisive content. Ultimately, addressing hate speech is essential to preserving the fabric of a diverse and inclusive society, ensuring peaceful coexistence and mutual respect among all communities in India.

Centre for Justice and Speech Report

Definition and Impacts of Hate Speech

• Definition: Hate speech includes verbal or written communication that incites discrimination, hostility, or violence against groups based on identity factors such as religion, caste, or gender.
• Consequences: Hate speech marginalizes groups, undermines social cohesion, and fosters societal divisions. Its impacts range from emotional trauma to extreme violence and even genocide. It also hinders democratic participation by silencing marginalized voices.

Legal Framework

• Constitutional Protections: Balances the right to free speech (Article 19(1)(a)) with reasonable restrictions to prevent harm under Articles 14, 15, and 21.
• Supreme Court Interpretations: Judicial rulings emphasize that speech infringing on equality, dignity, or life needs strict legal action. Specific judgments have addressed the nature and societal harm caused by hate speech.
• IPC Provisions: Sections 153A, 295A, and 505 penalize incitement of hatred or violence.

Judicial Observations

• Supreme Court judgments (e.g., Pravasi Bhalai Sangathan, Amish Devgan, Tehseen Poonawalla) highlight hate speech's systemic dangers, mandate proactive measures, and recognize its link to societal destabilization.
• Specific orders require police to take suo-moto action, file FIRs without waiting for complaints, and prevent inflammatory events.

Enforcement Guidelines

• Police and district authorities must monitor hate speech actively and ensure swift, fair investigations.
• Measures include videotaping public rallies, preemptive actions (e.g., preventive arrests), and community engagement to maintain peace.

Preventive Measures

• Emphasizes the role of education, public awareness, and community participation to counteract hate speech.
• Advocates regular training for law enforcement on legal responsibilities and sensitivity to hate-related issues.

Policy Recommendations

• Law Commission's Report No. 267 suggests adding new IPC provisions (e.g., Section 153C, 505A) to comprehensively address hate speech.
• Strong emphasis on victim compensation and deterrent punishments for negligence by authorities.

Practical Insights

• Real-world examples of interventions, judicial directions, and administrative actions (e.g., Maharashtra Police's guidelines) provide actionable frameworks.

The Hate Speech and Hate Crimes (Prevention) Bill, 2022:

• This bill was introduced in the Indian Parliament to address hate speech and hate crimes. It seeks to provide a legal framework for the government to prevent and punish hate crimes, including speech and actions that incite hate or violence against a group based on attributes such as race, religion, ethnicity, or caste.
• The bill proposes that anyone who engages in hate speech or promotes hatred and violence against communities can be punished with imprisonment and/or a fine.
• There are provisions that would make certain forms of hate speech (such as public speeches, social media posts, or publications) criminal offenses with penalties.
• While it addresses the growing concerns of hate speech, there has been no final law passed as of now, but it is a step toward recognizing the seriousness of the issue in the legislative process.

Viswanathan Committee 2019:

• It proposed inserting Sections 153 C (b) and Section 505 A in the IPC for incitement to commit an offence on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe.
• It proposed punishment of up to two years along with Rs. 5,000 fine.

Bezbaruah Committee 2014:

• It proposed amendment to Section 153 C IPC (promoting or attempting to promote acts prejudicial to human dignity), punishable by five years and fine or both and Section 509 A IPC (word, gesture or act intended to insult member of a particular race), punishable by three years or fine or both.

Press Information Bureau (PIB), Press Note

The PIB is the government’s primary source for issuing official releases and statements. In the context of hate speech, the PIB releases contain the government's position on issues, such as:

• Reports on ongoing government actions or directives aimed at controlling hate speech, especially on social media and in public speeches.
• Reactions from the government regarding the rise of hate speech incidents, particularly during sensitive times like elections or communal incidents.
• Specific instructions for law enforcement agencies to monitor hate speech-related offenses and take action against offenders.
• Clarifications on the government’s stance in response to reports from the media or civil society organizations about the prevalence of hate speech in India.

'Hate Speech' as defined in case law(s)

State of Karnataka v. Praveen Bhai Thogadia

In the case of State of Karnataka v. Praveen Bhai Thogadia, the Supreme Court of India, over time, has shaped its jurisprudence in a way that allows the State to prevent hate speech without explicitly criminalising it. In 2004, the Court upheld the State’s decision to impose a restriction on Praveen Bhai Thogadia, a political leader linked to a right-wing Hindu religious group. He was barred from participating in any gatherings within a particular district for a period of two weeks. The State’s rationale for this action was the “communally sensitive” nature of the district. Thogadia had recently delivered an “inflammatory speech” that incited communal tensions, and there was a strong likelihood that his presence would disrupt communal harmony. The Court affirmed that the restriction was justified, as it was aimed at maintaining public order, which in turn safeguarded secularism—an obligation that the State must actively protect.

Pravasi Bhalai Sangathan v. Union of India

In Pravasi Bhalai Sangathan v. Union of India, a public interest litigation was filed seeking action against politicians who made hateful speeches or derogatory remarks based on religion, caste, region, and ethnicity. The petition argued that existing laws were insufficient to address the issue of hate speech. However, the Supreme Court concluded that there were already “sufficient and effective” legal provisions to prosecute hate speech. The Court identified the real issue as not the lack of laws, but the ineffective implementation of those laws, and thus declined to issue additional guidelines.

While expressing caution about the difficulty of defining hate speech and limiting it to a manageable standard, the Court provided a working definition of hate speech, informed by both domestic and international law. The definition described hate speech as an attempt to marginalise individuals based on their membership in a group. It involves using expression that exposes the group to hatred, undermining their legitimacy in the eyes of the majority, and diminishing their social standing and acceptance. Hate speech, therefore, causes harm not only to individuals but can have broader societal impacts, obstructing the ability of a protected group to engage fully in public discourse and democracy.

The Court also recognised that hate speech could lead to severe societal consequences, ranging from discrimination and ostracism to segregation, deportation, violence, and even genocide. This highlights the significant potential of hate speech to escalate into extreme forms of persecution. In the Indian context, hate speech has already contributed to acts of discrimination and violence, even calling for ethnic cleansing.

While examining existing legal provisions, the Court referred to the offence of sedition under Section 124A of the Indian Penal Code, which criminalises acts that bring or attempt to bring the government into hatred or contempt. The Court noted that while sedition law covers acts against the State, it does not equate to hate speech as defined judicially. The Court’s reference to sedition law unintentionally allowed the police to misuse it in cases involving alleged hate speech.

The Supreme Court also urged the Law Commission of India, which was already reviewing the powers of the Election Commission in relation to hate speech by political parties during election campaigns, to propose a clear definition of hate speech and make recommendations to Parliament.

Legal provision(s) relating to 'Hate Speech'

Constitutional Provisions

• Article 19(2) of the Constitution allows for reasonable restrictions on the freedom of speech and expression in the interests of Sovereignty and integrity of India, Security of the State, Friendly relations with foreign State, Public order, Decency or morality, Contempt of court, defamation, or incitement to an offense​.

Representation of the People Act, 1951

• Section 8: Disqualifies individuals convicted of offenses involving hate speech from contesting elections.
• Section 123(3A): Identifies promoting enmity on grounds of religion, race, caste, community, or language during election campaigns as a corrupt practice.
• Section 125: Prohibits hate speech aimed at promoting enmity to affect elections​​.

Religious Institutions (Prevention of Misuse) Act, 1988

• Section 3(g): Prohibits the use of religious premises for promoting enmity or hatred between different groups on religious, racial, linguistic, or regional grounds​.

Types of Terms

Slight Differences and Nuances in the Concept

Hate speech is a multifaceted term with nuanced differences when compared to related legal and societal concepts:

Hate Speech vs. Offensive Speech: Offensive speech may provoke discomfort or criticism but lacks the element of incitement to hatred or violence necessary for hate speech. For example, criticism of religious practices, unless intended to incite enmity, does not constitute hate speech, as discussed in Shreya Singhal v. Union of India.

Hate Speech vs. Group Defamation: While defamation targets individual reputation, group defamation targets communities, potentially escalating to hate speech. For instance, targeting an entire religion with false claims of violence can transition from defamation to hate speech, as seen in Pravasi Bhalai Sangathan v. Union of India.

Hate Speech vs. Political Rhetoric: Political rhetoric, particularly during elections, often treads the line between permissible expression and hate speech. The Supreme Court addressed this in Abhiram Singh v. C.D. Commachen (2017).

Ashwini Kumar Upadhyay v. Union of India (2021): In this PIL, Ashwini Kumar Upadhyay sought stronger laws to combat hate speech. The Supreme Court acknowledged the lack of a specific legal framework for addressing hate speech and referred the matter to the Law Commission of India for further recommendations.

Variations/Multiple Meanings in Usage (Research vs. Civil Society)

Research Usage:

Hate speech is defined in research as communication that incites hatred, often analyzed through its sociopolitical impacts and psychological effects.

Scholars emphasize its historical role in inciting violence, such as during communal riots or genocide. For instance, studies of the 2002 Gujarat riots analyze how hate speech was used as a tool for polarization.

Civil Society Usage:

Hate speech in civil discourse often encompasses a broader range of expressions, including offensive or politically incorrect statements, irrespective of their legal threshold.

Terms like “hate speech” and “cyber harassment” are used interchangeably, especially on digital platforms.

Example: Public outcry over social media posts frequently conflates hate speech with general trolling, complicating regulation.

Functional Variations Across Regions, States, and High Courts

Regional Variations:

Uttar Pradesh: Hate speech is often tied to communal and religious issues, particularly during political campaigns.

Example: Speeches during state elections targeting minority communities invoked Section 153A IPC (now Section 273 BNS).

Maharashtra: Caste-based hate speech dominates, especially during Dalit and Maratha protests.

Example: Hate speech during the Bhima Koregaon commemorations amplified via digital platforms was addressed under multiple IPC sections.

Tamil Nadu: Hate speech is often linked to language-based identity movements and caste issues.

Example: Remarks during inter-caste marriage debates invoked Sections 295A and 153A IPC.

Section 505 IPC → Section 316 BNS: Statements conducive to public mischief.

High Court-Specific Interpretations:

“Communal Tension Speech”: Frequently used in Uttar Pradesh judgments to describe hate speech linked to religious identity.

“Caste Discrimination Speech”: Used in Maharashtra for hate speech targeting Dalit and Adivasi communities.

“Digital Hate Speech”: Gaining prominence in Delhi High Court judgments, reflecting the rise of online platforms as a medium for hate speech.

Table comparing different terms

Comparison of judicial terms

Appearance in Official Databases

The Crime in India report, published annually by the National Crime Records Bureau (NCRB), is a comprehensive compilation of crime statistics across India. For this publication, the information in 22 standardized formats is being collected from all the 35 States/UTs as well as from 35 mega cities. It provides detailed and categorized data on crimes reported under the Indian Penal Code (IPC) and Special and Local Laws (SLL), offering insights into trends, patterns, and regional variations in criminal activities. The report serves as a critical tool for policymakers, law enforcement agencies, researchers, and the general public to understand the state of crime in the country and develop informed strategies for prevention, control, and justice delivery.  The same is available on the official website of the National Crime Records Bureau.

Snapshot of the official NCRB website

Hate Crime Data

Within the database, research on hate speech has been conducted under two primary categories: crimes in States and Union Territories, and metropolitan cities. It delves into the multifaceted aspects of hate speech, including offenses such as rioting, the promotion of enmity between groups, and crimes committed by juveniles falling under this domain.

How is Data Collated?

The Crime in India report by the National Crime Records Bureau (NCRB) is compiled using data submitted by state and union territory police departments, central law enforcement agencies, and specialized bodies like the CBI and NCB. Data is gathered at the police station level, consolidated at district and state levels, and then submitted to the NCRB through standardized formats covering offenses under the Indian Penal Code (IPC) and Special and Local Laws (SLL).

To enhance accuracy and efficiency, NCRB employs digital platforms like the Crime and Criminal Tracking Network and Systems (CCTNS), which connects police stations nationwide for real-time data reporting. The NCRB rigorously validates and cross-verifies the data to ensure reliability and eliminate inconsistencies. Once verified, the data is categorized into various crime types, such as crimes against women and children, cybercrimes, and hate speech.

The final report includes detailed analysis, trends, and visual representations, making it a comprehensive resource for understanding crime patterns across India. Published annually, it serves as a crucial tool for policymakers, law enforcement, and researchers, and is made publicly available on the NCRB's official website.

Secondary Sources

The India Hate Lab is an initiative to understand and analyze patterns of hate speech and related activities in India. Through data-driven research, it focuses on tracking incidents, identifying trends, and exploring the socio-political dynamics of hate speech across different regions. It also focuses on specific groups, parties, etc to collate its data. Its findings are accessible on its official website .

India hate lab report

Top 10 organisers of hate events

1. Hate speech review in the context of online social networks: The research explores the pervasive issues of hate speech and cyberterrorism, particularly in the digital age, where online social networks amplify their reach and impact. Hate speech is defined as any communication that attacks or disrespects individuals or groups based on identity markers like race, religion, gender, or disability. It thrives on the boundary between free speech and harmful rhetoric, testing the limits of democratic freedoms. Cyberterrorism, on the other hand, leverages internet tools to cause physical or psychological harm, often intersecting with hate speech as both are fueled by divisive ideologies and often triggered by specific events. The study emphasizes that hate speech and cyberterrorism are intricately linked. Hate speech often surges online following terror attacks, targeting specific groups and exacerbating societal divisions. Social networks like Twitter and Facebook serve as both platforms for hate dissemination and tools for terror organizations to recruit, plan, and execute attacks. This dual-use nature makes regulation complex and essential. The research reviews hate speech in various contexts—gender-based, religious, racist, and against individuals with disabilities—highlighting its multidimensional impact. Gendered hate speech disproportionately affects women, sometimes driving them toward extremist groups due to societal pressures. Religious hate speech, especially Islamophobia, is amplified post-terror events, perpetuating stereotypes. Racist hate speech, often rooted in physical appearance, marginalizes minorities. Hate against disabled individuals exacerbates their vulnerabilities, with inadequate reporting mechanisms compounding the problem. Cyber terrorism, as a specialized form of terrorism, uses digital platforms to spread propaganda, recruit members, and plan attacks. The global nature of this threat demands coordinated international legal frameworks and technological solutions. Current responses include machine learning tools for detecting hate speech, public awareness campaigns, and stricter regulations for online platforms.The study concludes that combating these intertwined challenges requires collaboration between governments, ISPs, and social media platforms. Policies must balance freedom of expression with the need to protect vulnerable communities, while fostering public resilience against hate and terror. Education, awareness, and robust enforcement mechanisms are key to addressing this evolving threat landscape.
2. Economies of Offense: Hatred, Speech, and Violence in India: [B] This article explores the socio-political dynamics surrounding free speech, censorship, and violence in India. It argues that the regulation of speech in India, particularly regarding “hurt religious sentiments,” is deeply rooted in colonial-era policies that prioritized maintaining law and order by appeasing dominant groups. This pattern continues in post-colonial India, where laws like Section 295A of the Indian Penal Code are used selectively, favoring groups with the capacity to incite violence or wield political influence. The research highlights a “specific economy of offense” in India, where the state often prioritizes the sentiments of majority or dominant-caste Hindu groups over the rights and safety of marginalized communities like Dalits and Muslims. This is illustrated through high-profile cases such as the withdrawal of Wendy Doniger’s book and the persecution of Tamil author Perumal Murugan. In both instances, claims of offense by dominant groups led to censorship, often backed by implicit or explicit threats of violence. Viswanath contrasts this with the application of the Prevention of Atrocities Act (PoA), designed to protect Scheduled Castes and Tribes from hate speech and violence. Despite its potential, the PoA is rarely enforced effectively, even in extreme cases of violence or public humiliation. This discrepancy underscores the systemic bias in favor of dominant groups, who use claims of offense as a tool to reinforce social hierarchies. The article critiques the framing of free speech and censorship debates in India, which often ignore the power dynamics underpinning these issues. It calls for a deeper understanding of how laws and governance structures perpetuate inequalities, urging policymakers to address the root causes of violence and discrimination rather than merely suppressing dissent. This nuanced analysis sheds light on the intersection of caste, religion, and politics in shaping the discourse on free speech and hate speech in India, highlighting the need for a more equitable legal and social framework
3. Hate Speech in the Background of the Security Dilemma:[C] It examines the intricate relationship between hate speech restrictions, freedom of expression, and the evolving concept of "security" in democratic states. The paper navigates the tension between safeguarding individual liberties and addressing societal threats posed by hate speech, particularly in the face of emergencies like terrorism or social instability. Stradella identifies two overarching frameworks in addressing hate speech: the “militant democracy” model, as seen in Germany, and the “protective democracy” approach, exemplified by Italy. Both systems emphasize limiting hate speech, but with varying degrees of intervention. Germany, through constitutional provisions like Article 18 of its Basic Law, bans expressions deemed a threat to the liberal-democratic order, including Holocaust denial, which is criminalized as part of its historical responsibility. Italy, by contrast, restricts speech that explicitly threatens democratic values but has narrower ideological prohibitions, largely targeting fascist revivalism. The U.S. model stands in stark contrast, prioritizing free speech under the First Amendment even for hate speech, except in cases of “fighting words,” incitement to imminent lawless action, or “true threats,” as outlined in landmark cases like Brandenburg v. Ohio and Virginia v. Black. The American legal framework resists content-based restrictions, viewing the marketplace of ideas as essential to democratic discourse, despite criticisms that such tolerance enables harmful ideologies. Stradella critiques the misuse of hate speech laws, warning that overreach can lead to the suppression of dissent and minority voices under the guise of preserving order. She highlights the "security dilemma" post-9/11, where emergency measures often prioritize state preservation over individual rights, as seen in Italy’s anti-terror laws. Ultimately, the paper underscores the need for a balanced approach, advocating for targeted measures that address the harms of hate speech without eroding democratic values or disproportionately silencing vulnerable groups. It calls for nuanced policies that respect freedom while safeguarding society from the destabilizing effects of hate.

International Experiences

1. International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights (ICCPR), adopted by the United Nations, represents a collective commitment to safeguarding human rights. Among its provisions, Article 20(2) specifically addresses hate speech, mandating that any advocacy of hatred based on race, religion, or nationality that incites discrimination, hostility, or violence must be prohibited by law. While the ICCPR establishes this obligation, it allows individual states the discretion to determine the specific mechanisms for implementation.

Simultaneously, the ICCPR recognizes the fundamental importance of freedom of expression. Article 19 enshrines the right to freely express opinions, subject to certain limitations. These restrictions are permissible where speech threatens public order, infringes on the rights of others, or otherwise crosses into harmful territory. To provide guidance on balancing these rights, the United Nations introduced the Rabat Plan of Action, which proposes a six-part test to evaluate whether hate speech justifies legal intervention. This framework considers factors such as the intent of the speaker, the content and context of the speech, and its potential to incite harm. It serves as a structured approach to distinguish between speech that is merely offensive and that which constitutes a credible threat to societal harmony.

2. European Convention on Human Rights (ECHR)

In Europe, the ECHR acts like a shield to protect individual freedoms, but it also recognizes the need to prevent harm. Article 10 enshrines the right to freedom of expression, yet it allows for restrictions when necessary—for example, to stop hate speech that could lead to violence or discrimination.

What makes Europe unique is its case-by-case approach. Courts often weigh the benefits of free speech against the potential harm to others. For instance, a controversial political statement might be protected, but inciting violence or hatred against a group would not. It’s a delicate balancing act, and decisions often hinge on the broader context: Who is the speaker? What’s the setting? And what’s the likely impact? This nuanced approach reflects Europe’s painful history with hate-fueled atrocities, making it a region deeply committed to combating hate speech while preserving open debate​.

3. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

In Hate Speech against Dalits on Social Media: Would a Penny Sparrow Be Prosecuted in India for Online Hate Speech, Sajlan compares Indian law, specifically the Scheduled Castes/Scheduled Tribes (SC/ST) Prevention of Atrocities Act, and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). He observes that Indian law may not fully comply with international standards for several reasons:

• Prosecution Standards: The article highlights that the current interpretation of the Atrocities Act limits the prosecution of hate speech to cases that incite violence or hatred. This is in contrast to ICERD, which allows for the prosecution of racially discriminative statements even when there is no incitement to violence or hatred
• Right to Dignity: He argues that the focus of the Atrocities Act should be on protecting the dignity of Dalits rather than solely on threats to public order. This broader interpretation would align more closely with ICERD, which prosecutes ideas based on racial superiority without requiring proof of a threat to public order
• Global Free Speech Standards: The article also discusses whether prosecuting hate speech without incitement to violence or hatred would violate global free speech standards. It suggests that racist speech, including caste-based hate speech, should be afforded a lower level of protection compared to other forms of free speech, which is consistent with ICERD

In summary, Sajlan argues for a need to interpret the Atrocities Act in a manner that aligns with ICERD, thereby ensuring that hate speech against Dalits is adequately addressed under Indian law, even in the absence of incitement to violence or hatred.

4. United Kingdom

The UK takes a firm stance against hate speech. Laws like the Public Order Act 1986 and the Racial and Religious Hatred Act 2006 criminalize speech that incites hatred based on race, religion, or sexual orientation. These laws aim to prevent harm while acknowledging that intent and context matter. For example, a comedian making an edgy joke might not face the same scrutiny as someone delivering a hate-filled speech at a rally.

In recent years, the UK has also tackled hate speech online. Social media platforms like Twitter and Facebook are required to remove harmful content or face hefty fines. This proactive approach reflects the modern reality that hate can spread like wildfire in the digital age. Yet, critics warn that such measures must be carefully enforced to avoid silencing legitimate dissent or uncomfortable truths​.

5. United States of America

In the U.S., the First Amendment is almost sacred—it protects free speech fiercely, even when that speech is hateful. The philosophy is simple: free expression, no matter how offensive, is a cornerstone of democracy. The Supreme Court has upheld this principle in landmark cases. For instance, in Brandenburg v. Ohio, the Court ruled that speech can only be restricted if it incites "imminent lawless action." This means someone can say something offensive—even hateful—without punishment, as long as it doesn’t directly incite violence or crime.

That said, there are limits. "Fighting words" (speech that provokes immediate violence) and true threats are not protected. A key case, Chaplinsky v. New Hampshire, defined these exceptions. But overall, the U.S. errs on the side of protecting speech, believing that bad ideas should be countered with better ideas—not censorship. This approach has its critics, especially in today’s world, where hateful rhetoric online can lead to real-world harm. Yet, for many Americans, the idea of limiting speech feels like a slippery slope toward authoritarian control​.

6. Asia-Pacific

In the Asia-Pacific region, the landscape is diverse—both in culture and in how hate speech is addressed.

• India: Hate speech laws, such as Sections 153A and 295A of the Indian Penal Code, aim to prevent enmity between groups and protect religious sentiments. However, enforcement can be inconsistent. In some cases, these laws are used to silence dissent rather than curb genuine hate speech. For instance, a comedian making a controversial remark about religion might face charges, while inflammatory rhetoric from political leaders goes unchecked​.
• Australia: Known for its multicultural society, Australia has laws like the Racial Discrimination Act 1975 that prohibit public acts likely to offend, insult, or humiliate based on race. States like Victoria have additional anti-vilification laws. Still, debates persist about whether these laws go too far in stifling free speech​.
• Myanmar and Bangladesh: In some countries, laws intended to combat hate speech have been weaponized. In Myanmar, for example, hate speech against the Rohingya minority has been rampant, even state-supported, while dissenting voices are silenced under vague speech laws​.

Challenges

In the landmark case of Pravasi Bhalai Sangathan v. Union of India, the Supreme Court grappled with the issue of whether the Election Commission of India (ECI) could de-recognize political parties whose candidates deliver hate speeches. The Court refrained from framing guidelines on hate speech, emphasizing the need for legislative clarity.

The Law Commission, in its 267th Report, highlighted the inherent difficulty in defining hate speech. It cautioned that any attempt to create a rigid definition could lead to ambiguity and potential misuse, infringing on the constitutional right to freedom of speech and expression. The concern was that vague provisions might enable excessive restrictions or censorship.

There is an ongoing challenge in balancing the right to free speech under Article 19(1)(a) of the Constitution with the need to curb hate speech that violates fundamental rights under Articles 14, 15, and 21.

The India Hate Lab’s findings on the disproportionate targeting of certain minority groups highlight a deeply concerning pattern. This calls for robust legal safeguards and systemic checks to ensure that hate speech laws are applied equitably and do not become instruments of selective enforcement against specific communities.

In ‘Hate Speech’ Dilemma, Sorabjee explains how hate speech in India is addressed through its criminal law, which punishes speech or writings that promote enmity or hatred between different groups or insult religious beliefs. However, the enforcement of these laws can be selective, leading to the banning of publications that were not intended to be covered by such laws.

He argues that mere injury to feelings is not a legitimate ground for suppressing expression or criminalizing it. He emphasizes that in debates, especially regarding social or religious reform, the feelings of those wanting to maintain the status quo may be hurt. There is also a concern that hate speech laws could be misused by oppressive regimes against the majority ndicating the complexity of addressing hate speech within the framework of Indian law.

He opines that hate speech can be prohibited in limited cases, such as when it is likely to lead to imminent unlawful action or involves systematic vilification of groups based on race, religion, or beliefs. However, expression that does not incite imminent violence should not be suppressed due to threats from those who find it offensive.

In his work, Hate Speech and Free Speech, Noorani notes how the key problem remains in the enforcement of these laws. Hate speech in India is addressed through laws that aim to prevent the incitement of communal passions. The central issue highlighted is not the abuse of these laws, but rather a persistent refusal to enforce them effectively. Despite having legal provisions, such as Section 153A of the Penal Code, which makes it an offense to promote enmity between groups on various grounds, the enforcement remains inadequate due to a lack of political will and administrative resolve.

He mentions how communal riots in India often arise from minor incidents, and that the law empowers the state to deal with hate speech. However, the reality is that the law has remained largely unenforced, allowing hate speech to proliferate. Noorani emphasizes the need for reform and the importance of addressing hate speech to improve public life in India.

Overall, while there are legal frameworks in place to combat hate speech, the enforcement and political commitment to these laws are critically lacking, leading to communal tensions and violence.

Moreover, an upcoming issue faced while regulating hate speech is that of managing hate speech online. In THE UNGOVERNABILITY OF DIGITAL HATE CULTURE, Ganesh notes how Online hate speech is addressed in the context of digital hate culture, which is described as a network of users who engage in discussions that often promote radical right ideologies. The document emphasizes that digital hate culture employs dangerous discursive and cultural practices to radicalize the public sphere and garner support for extreme views.

Efforts to combat online hate speech have included actions taken by platforms like Reddit, which shut down subreddits dedicated to hate speech. Studies indicated that while users migrated to other subreddits, the overall hate speech did not increase due to the reduced connectivity among hate speech advocates.

The document also highlights the need for a comprehensive approach to managing online hate speech, suggesting that simply censoring content or banning users is insufficient. It calls for a focus on the cultures and virtual spaces that foster these communities, as well as a legislative conversation that considers the limits of free speech in the context of rising extremism and hate.

In summary, online hate speech is a significant issue tied to digital hate culture, requiring strategic disruption and a deeper understanding of the networks involved.

Way Forward:

Strengthening the ECI's Role: Expanding the ECI’s powers to regulate and act against hate speech during elections is crucial. Legislative amendments should empower the ECI to enforce stricter penalties and ensure compliance. Incitement of mob through hate speech at election times leads to polarization of communities,

Judicial and Policy Clarity: The Supreme Court's directive to the Law Commission underscores the need for robust recommendations to guide Parliament. Clear and precise legal definitions can help bridge the gap between freedom of expression and protection against hate speech. BNS provisions lack a nuanced understanding of the actual problems that plague Indian polity.

The law must prioritize impartiality and fairness, addressing hate speech in all its forms while protecting vulnerable groups from undue persecution. Such measures are essential to foster trust in the legal framework and promote social harmony.