Hate Speech And Incitement To Violence - Defining The Legal Boundaries

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:13:16.515186+00:00

Updated: 2026-08-26T17:11:20.754+00:00

HATE SPEECH AND INCITEMENT TO VIOLENCE:

DEFINING THE LEGAL BOUNDARIES

Prachi Sohi, BBA LLB, Law College Dehradun, Uttaranchal University Dr. Bhawna Arora, Associate Professor, Law College Dehradun, Uttaranchal University

ABSTRACT

Hate speech, defined as language that belittles, incites discrimination, or promotes violence against individuals or groups based on characteristics such as religion, caste, ethnicity or gender represents a considerable danger to social unity. In India, the consequences of hate speech have frequently escalated into mob violence, as illustrated by historical incidents such as the

1984 anti-sikh riots, the 1992 riots following the demolition of the Babri

Masjid, and more recent occurrences fueled by both online and offline hate speech. This article investigates the complex nature of hate speech, examining its definitions, legal interpretations and its capacity to provoke violence in a diverse and hierarchical society like India. The analysis critically reviews the legal framework, including relevant provisions of the Indian Penal Code, such as Sections 153A, 295A and 505 which are designed to mitigate hate speech. It also considers laws like the Representation of the People Act, 1951 and the Unlawful Activities (Prevention) Act, which offer additional protections against these expressions. Particular emphasis is placed on the judiciary’s role in interpreting these laws, striving to balance the constitutional right to free speech with the necessity of preserving public order and communal harmony.

Significant rulings, such as Shreya Singhal v. Union of India, which invalidated Sec 66A of the Information Technology Act and Tehseen Poonawalla v. Union of India, which underscored the need for measures against mob violence, are examined for their influence on the regulation of hate speech. Moreover, the article underscores the limitations of conventional legal framework in addressing this contemporary issue. It advocates for a comprehensive strategy that includes legislative reform, judicial oversight and active participation from civil society to effectively combat hate speech and protect against its potential to incite violence. By contextualizing these challenges within India’s historical and socio- political framework, the discussion aims to provide a nuanced understanding of the issue.

Keywords: Incite, hate, discrimination, violence, community, public order, harmony, balance, free speech, Article 19.

1.

INTRODUCTION

Rights serve as the foundation of personal autonomy, acting as safeguards against the overreach of governmental authority. In democratic nations, these rights are established to shield individuals from excessive interference by the state. Article 19(1)(a) of the Constitution of India(hereinafter Constitution) guarantees the freedom of speech and expression to all citizens so as to freely Express themselves, their views and ideas and shall include freedom to seek, receive and import information and ideas of all kinds either orally or in writing or in print or through any other media. It is a fundamental liberty that empowers individuals to express their views, challenge the status quo and participate in thoughtful discussions.

However, a significant challenge facing the principle of autonomy and free speech is to ensure that such freedoms are not wielded to the disadvantage of any individual or marginalised groups within society1. In a nation like India, characterised by its rich diversity of caste, creed, religions and languages, this challenge becomes even more pronounced. Article 19(2) of the Constitution ensures that this freedom of speech is subject to specific limitations, including the sovereignty and integrity of India, State security, maintaining friendly relations with other countries, public order, decency, morality and issues related to contempt of court, defamation and incitement to an offence2. The primary justifications for limiting Hate Speech can be identified as Incitement to Offence, Maintenance of Public Order, Decency and Morality. Hate speech is not explicitly defined in Indian Law.

Nevertheless, various legal frameworks contain provisions that restrict certain types of speech as exceptions to the broader principle of freedom of speech. Hence, the meaning can be derived from various definitions provided by our judiciary, the commissions it has established and the United Nations. Hate speech generally pertains to language aimed at inciting animosity against a specific group, which could be defined by community, religion, race, caste, etc. Such speech may lack substantive meaning, yet it has a high potential to provoke violence. The context of speech is crucial in determining whether it constitutes hate speech or not. Most of the time, ‘religion’ and ‘community’ become the basis of provocative statements which lead to large scale of violence,

1 Law commission of India, 267th report on ‘The Hate speech’

https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081654-1.pdf (Accessed 11 October 2024)

2 The Constitution of India, Article-19

destruction and mass killings. It has become one of the most significant challenges to our democratic framework and the principles of the rule of law. Cambridge Dictionary defines Hate speech as, “Public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex or sexual orientation3. ” The UN Strategy and Plan of Action on Hate Speech4 defines hate speech as, “Any kind of communication in speech, writing or behaviour, that attacks or uses pejorative( prejudiced, contemptuous or demeaning) or discriminatory (biased, bigoted or intolerant) 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. ” “Addressing hate speech does not mean limiting or prohibiting freedom of speech.

It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law. 5” - United Nations Secretary-General António Guterres in June 2019. Similarly, the 267th Report of Law commission provided a working definition as- “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like. Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence6.

” Recognizing the perilous connection between hate speech and violence, the 'European Commission against Racism and Intolerance' has consistently maintained that criminal prohibitions are essential when hate speech incites violence against individuals or groups in a public context. However, it is imperative that criminal sanctions are employed only as a last resort. Throughout this process, a careful balance must be maintained between combating hate speech and protecting freedom of expression. Furthermore, any limitations imposed on hate 3 Cambridge Dictionary, ‘Hate speech’ https://dictionary. cambridge. org/dictionary/english/hate-speech (accessed

10 October 2024.)

4 United Nations, “Understanding hate speech” https://www.un.org/en/hate-speech/understanding-hatespeech/what-is-hate-speech (accessed 11 october 2024) 5 UN Security General, The United Nations Strategy and Plan of Action on Hate Speech (United Nations, 2019).

6 Supra no.1

speech should not be exploited to silence minority voices or to stifle criticism of governmental policies, political dissent, or religious convictions7. Hate speech represents a harmful form of expression that can significantly impact an individual’s social and mental health. It specifically targets individuals or groups based on inherent characteristics, fostering hostility, violence and discrimination. When left unaddressed, hate speech can lead to devastating consequences, as history has shown us time and again. 2. From free speech to hate speech and incitement to violence In the case of Balwant Singh v. State of Punjab8, the Supreme Court emphasized the significance of the speaker's intent and the impact of their words in assessing whether a statement constitutes hate speech.

The ruling indicates that expressions deemed hateful or that incite animosity between groups may still be safeguarded under free speech provisions, provided they do not provoke violent reactions. Consequently, courts have focused on evaluating the legitimacy of speech based on its consequences. Most cases of hate speech are examined through the lens of the 'public order' criterion; the potential of the expression to disturb public order is a key factor in determining its protection. This principle has been upheld since the First Amendment incorporated 'public order' into the Constitution. The Supreme Court, in Supdt. Central Prison v. Dr. Ram Manohar Lohia9, asserted that the content of the speech is less significant than its 'potentiality' and its 'impact on public tranquility. ' In response to the Supreme court’s order in “Pravasi Bhalai Sangathan v.

Union of India10”, Law commission developed the 267th report in march 2017, addressing the topic of hate speech. The Law commission suggested that to classify a statement as hate speech, we can rely on the approach adopted by the U. S. in a very landmark case. It was provided that it must meet the criteria established by the clear and present danger test outlined in Schenck v. United States11. This test was later revised in Brandenburg v. Ohio12 to focus on the imminent lawless action standard test which reiterated that, speech that advocates for illegal activities can only be limited when it presents an imminent danger of unlawful behaviour, provided that the speaker 7Council of Europe, ‘The hate speech and violence’ https://www. coe. int/en/web/european-commission-againstracism-and-intolerance/hate-speech-and-violence (accessed 12 October 2024)

8 (1995) 3 SCC 214

9 AIR 1960 SC 633

10 AIR 2014 SC 1591

11 3249 U.S. 47 (1919)

12 4 395 U.S. 44 (1969)

intends to provoke such actions and there is a reasonable expectation that this speech will lead to outcomes. The court noted that the freedom of speech and press do not permit a state to forbid advocacy of force or of law violation unless such advocacy is aimed at inciting or producing imminent lawless action and is likely to result in such action13. These terms are relevant in situations involving public unrest or violence, rather than merely inciting feelings of animosity. These two tests have been equated by the supreme court in the case of Shreya singhal v. Union of India14. The Court initially addressed three essential concepts crucial for comprehending the freedom of expression: discussion, advocacy, and incitement. It stated that the core of this right lies in the mere discussion or advocacy of any cause, regardless of its unpopularity.

The law may only restrict this freedom when such discussion or advocacy escalates to the level of incitement. The Court emphasized that there should be a close connection between the expressed words and public disturbance. The Supreme Court did not provide detailed guidance on how to apply the ‘clear and present danger’ and ‘imminent lawless action standards’ to assess whether specific speech could incite hatred towards a particular group without leading to physical violence can also be termed as hate speech. The court simply upheld a prior interpretation that to impose criminal penalties, it is essential to demonstrate a direct connection between ‘clear and present danger’ and the potential for public disorder or violence.

Violence justified by religious beliefs frequently emerges in the form of deliberate assaults on individuals or groups, extremist actions, acts of terrorism, communal violence, discriminatory policies, and various forms of systemic violence. Events characterized by hate speech, harmful stereotypes, and the promotion of religious or national animosity have led to the deaths of innocent individuals, assaults on places of worship, and incitements for retaliation. Reliance can be put on the Amish devgan case15, where the court identified three key components of hate speech: Content, Intent and the resulting harm or Impact. It emphasized that the content must be linked to the speaker’s intent to inflict or incite harm.

The Court reiterated that the impact of the words should be evaluated based on the standards of reasonable, strong minded and courageous individuals, rather than those of timid mindset or those who perceive

13 Supra no.1

14 AIR 2015 SC 1523

15 [2020] 14 S.C.R. 198

threats in every opposing viewpoint16. The Court clarified that the speech must aim solely to foster hatred, violence or resentment towards a specific class or group, without conveying any legitimate message. The Court's lack of explicit commentary in the case of Amish Devgan17 may suggest that only incitement to violence or the potential for violence is relevant for legal prosecution. This interpretation appears to diverge from the somewhat unclear principles of hate speech jurisprudence articulated in the case. To clarify the definition of hate speech and eliminate any ambiguity, it would be advisable to implement specific legal provisions that categorise hate speech as an offence, as recommended by the Law Commission in its Report, irrespective of the harm or consequences it may entail. 3.

Historical incidents of communal violence due to hate speech in India Hate speech has been an alarming issue since the colonial period in India as several incidents of hate speech against a particular community have been recorded. In India, the initial introduction of formal legal frameworks governing interactions among various communities, groups, races, castes, and religions was implemented by the British colonial authorities through the Indian Penal Code, starting in the 1830s. At that time it was considered as sedition as the cases of national struggle and mob violence was combated with sedition Law. In the late nineteenth century, a distinction emerged in legal terminology between sedition and hate speech wherein Sedition refers to speech that is directed against the state, while hate speech pertains to expressions that target specific communities.

● In the 1920s, a significant and contentious incident unfolded in the undivided Punjab surrounding a pamphlet titled Rangeela Rasool, which presented a crude satire of the prophet. This led to widespread protests and the filing of a case under the then prevailing hate speech legislation i. e. , under Sec 153(A) of the Indian Penal Code. It was decided by the court that the pamphlet did not constitute hate speech as defined by law, which focused on attacks against communities rather than religious figures. This ruling sparked protests and mobilisation among various groups as the Indian Muslim community called for legislation to safeguard against insults to religious sentiments, recognizing that section 153(A) did not provide adequate protection in

16 Ramesh v. Union of India, (1988) 1 SCC 668

17 Supra no. 14

this regard. In response to the unrest, the colonial government was compelled to introduce Section 295(A) of the Indian Penal Code which specifically criminalizes insults directed at religious figures i. e. , outraging religious feelings of any class by insulting religion or religious beliefs18. ● Anti-Sikh Riots(1984) In the aftermath of Prime minister Indira Gandhi’s assassination, a surge of anti-sikh sentiment, including hate speech slogans and speeches, spread widely in North India, especially Delhi. In the immediate aftermath, inflammatory slogans like “Khoon ka badla khoon se” (Blood for blood) were openly chanted, fueling anger and justifying attacks on the Sikh community. Organized mobs, reportedly instigated by specific political leaders, assaulted sikh residences and their place of worship, resulting in horrific murders, arson and robbery.

The inability of governmental actions to step in allowed the violence to escalate, resulting in the loss of thousands of lives and forced displacement of numerous sikh families. These riots continue to represent a tragic incident in India’s history, highlighting the profound consequence of communal violence and hate speech19. ● Babri masjid demolition riots(1992) The demolition of Babri masjid in December 1992, marked a significant turning point in Indian history, triggering extensive communal unrest throughout the nation. The political mobilisation efforts by certain nationalist groups particularly the Vishva Hindu Parishad and The Rashtriya Swayamsevak Sangh, intensified the situation. Campaigns like “Ram Rath Yatra”, led by influential leaders, featured provocative speeches and slogans that heightened tensions between Hindus and Muslims.

Due to these provocative speeches, agitated assembly of activists convened in Ayodhya and the structure was ultimately dismantled. This violence resulted in the loss of thousands of lives and a deepening of the rift between the two communities. Provocative statements and speeches, particularly those addressing Hindu-Muslim disparities, incited riots and led to considerable communal violence throughout India20. 18Wikipedia, ‘Hate speech laws in India’ https://en. wikipedia. org/wiki/Hate_speech_laws_in_India (accessed 18 october 2024)

19 https://www.bbc.com/news/articles/cdd00dq6154o (last visited on 21 october 2024 at 7:53pm)

20Drishti IAS,’Recurring communal Violence’ https://www.drishtiias.com/daily-updates/daily-newseditorials/recurring-communal-violence (accessed 26 October 2024)

● West bengal assembly elections(2021) The 2021 West Bengal Assembly Elections were characterised by a highly polarised and communal atmosphere, with an increase in Hate speech and religious rhetoric. Political parties capitalised on Identity politics to mobilise voters' support, resulting in heightened Hindu-Muslim tensions. Some leaders used provocative language, portraying the election as a conflict between Hindu and Muslim interests, which deepened existing divisions. This discourse fostered a climate of tension and triggered instances of post-election violence, especially in areas where communal boundaries were clearly defined. The Election Commission of India responded by issuing warnings to political leaders who engaged in hate speech which ignited this violence21.

● Bangalore violence(2020) The violence erupted in Bangalore in 2020 represented a critical event instigated by a contentious facebook post that provoked the muslim community. On August 11, a relative of a local congress politician shared an offensive content regarding Prophet Muhammad on the platform, igniting widespread outrage among local muslims. This led to protests outside the politician’s residence which rapidly escalated into violent confrontations. Angered by the derogatory post, demonstrators engaged in clashes with police, hurled stones and set vehicles ablaze. The situation deteriorated rapidly with violence spreading to various areas of the city. The violence was fueled by inflammatory messages circulating on social media, which intensified anger and distrust between different community groups.

This incident underscored the impact of hate speech and the role of social media in inciting violence and mobilising crowd. The event highlighted the perils associated with online platforms, where misinformation and provocative material can lead to real- world consequences. The critical concern today is the escalation of hate speech incidents, which have manifested in severe and violent forms, including mob lynching, riots, and various hate crimes. These acts are often fueled by the internet, which facilitates the dissemination of rumors, misinformation, and provocative content that stirs emotions and heightens conflicts. The phenomenon of online hate speech has become a complex and formidable challenge for legal systems worldwide. 21The New Indian Express, ‘Bangladesh Communal Violence resonates in West Bengal’s political Discourse’ https://www. newindianexpress.

com/nation/2021/Oct/22/bangladesh-communal-violence-resonates-in-westbengals-political-discourse-2374414. html (accessed 30 October 2024)

All these historic events which occured in India showcast how religion and community can be a ground of provocation and can lead to mob violence and large scale destruction of property. The International covenant on civil and political rights states that, hate speech as any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence. This international perspective highlights the potential societal impact of hate speech beyond individual offence, emphasising the prevention of discrimination and violence22. 4. Statistical data regarding hate speech cases A comprehensive analysis of hate speech incidents recorded under IPC Section 153A for the years

2020, 2021, and 2022 is provided, based on Government data, from the National Crime Records Bureau, India. In 2020 ● Total cases: 1,804 ● States with the highest cases: • Tamil Nadu: 303 • Uttar Pradesh: 243 • Telangana: 151 • Assam: 147 • Andhra pradesh: 142 Several states had significant numbers of cases, with Tamil Nadu leading by a large margin. Social and political factors contributed to heightened communal tensions in these states. Hate speech was identified as a critical concern during political campaigns and social media 22https://www.ohchr.org/sites/default/files/Documents/Issues/Expression/ICCPR/Santiago/TobyMendel.pdf (last visited on 7 november 2024 at 5:37pm)

interactions, amplifying divisive rhetoric. In 2021 ● Total cases: 1,160 (a 35.64% decline from 2020) ● States with the highest cases: • Uttar Pradesh: 108 • Andhra Pradesh: 108 • Rajasthan: 83 • Maharashtra: 75 • Assam: 75 A noticeable decrease in cases in most states compared to 2020. Assam reported a sharp drop

from 147 cases in 2020 to 75 in 2021. The overall decline might indicate changes in policing, political dynamics, or public discourse. In 2022 ● Total cases: 1,523 (a 31.25% increase from 2021 but a 15.57% decrease from 2020) ● States with the highest cases: • Uttar Pradesh: 217 • Rajasthan: 191 • Maharashtra: 178 • Tamil Nadu: 146 • Telangana: 119

Andhra Pradesh: 109 • Madhya Pradesh: 108 Significant increases in hate speech cases in several states, particularly Uttar Pradesh (doubling from 108 in 2021 to 217 in 2022). ‘A global survey on the impact of online disinformation and hate speech23’, conducted by UNESCO and IPSOS in 16 countries over 8000 individuals. Among the 16 countries surveyed, hate speech was most frequently reported in India (85 percent), followed closely by Bangladesh (84 percent) and South Africa (79 percent). In the United States, 18 percent of participants indicated they often encountered hate speech online, while 37 percent reported seeing it fairly often, resulting in a total of 55 percent. Approximately 60 percent of respondents across the 16 nations believed that Facebook was the platform where such content was most prevalent, with 58 percent citing it, while 30 percent pointed to TikTok.

At the time of the survey, 18 percent of participants mentioned X/Twitter. Respondents were allowed to choose up to two options for this question. According to the participants, the primary targets of online hate speech include LGBT+ individuals (33%), ethnic or racial minorities (28%), women (18%), and religious minorities (17%). Furthermore, nine out of ten respondents felt that social media platforms should actively work to combat disinformation and "fake news" during election periods. Additionally, 75 percent believed that international organizations, such as the United Nations, should play a significant role in implementing protective measures. From all these data as provided above, it can be clearly seen that hate speech is an alarming issue which needs to be addressed by the government and regulators and effective measures should be taken for combating such speech. 5.

Legislative framework regarding hate speech The laws for regulation of hate speech in India are designed to maintain harmony among its diverse ethnic and religious groups. India’s legal framework lacks a specific law addressing hate 23Ipsos, UNESCO-Ipsos Online Disinformation and Hate Speech (Ipsos, November 2023) https://www. ipsos. com/sites/default/files/ct/news/documents/2023-11/unesco-ipsos-online-disinformation-hatespeech. pdf (accessed 10 November 2024)

speech and there is no formal definition for it. When it comes to prosecuting someone for this offence, multiple provisions across different statutes can be applied. These laws empower individuals to pursue legal action against anyone who disrespects them based on factors such as religion, race, birthplace, residence, language, caste, or any other reason. Certain provisions of the Bharatiya Nyaya Sanhita, 2023(hereinafter BNS), the Bharatiya Nagrik Suraksha Sanhita, 2023(hereinafter BNSS), the Representation of the people Act, 1951, the Protection of Civil Rights Act, 1955 and the Religious Institutions (Prevention of Misuse) Act 1988, etc provide for the prohibition of select forms of speech as an exception to freedom of speech.

❖ Under BNS ● Section- 152 provides that, whoever intentionally or knowingly uses words, signs, visual representations, electronic communication, financial means, or any other method to incite or attempt to incite secession, armed rebellion, or subversive activities, or who promotes separatist sentiments or threatens the sovereignty, unity, and integrity of India, or engages in such actions, shall be held liable for punishment. ● Section- 196 provides that, Promoting enmity and disharmony between different groups on ground of religion, race, place of birth, residence, language, etc. , by words, either spoken or written, or by signs or by visible representations or through electronic communication and doing acts prejudicial to maintenance of harmony, shall be punished under this section of BNS.

● Section- 299 penalises Deliberate and malicious acts by words, either spoken or written, or by signs or by visible representations or through electronic means or otherwise, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. ● Section- 302 penalises Uttering words, etc. , with deliberate intent to wound religious feelings of any person. ❖ Under BNSS ● Section- 98 empowers state government to forfeit publications that are punishable under sections 152 or section 196 or section 197 or section 294 or section 295 or section 299 of the Bharatiya Nyaya Sanhita, 2023

● Section- 163 empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf to issue order in urgent cases of nuisance or apprehended danger. These offences are cognizable and Thus, have serious repercussions on liberties of citizens and empower a police officer to arrest without orders from a magistrate and without a warrant. ❖ Under the representation of the people Act ● Section- 8 renders an individual ineligible to contest for election if he has been convicted of engaging in activities that constitute an improper exercise of freedom of speech and expression. ● Sections 123(3A) and 125 forbid the promotion of enmity based on religion, race, caste, community, or language in relation to elections, categorizing such actions as corrupt electoral practices and thereby prohibiting them.

❖ Under the Protection of Civil Rights Act ● Section 7 imposes penalty for inciting or promoting untouchability through spoken or written words, gestures, visual representations, or any other means. ❖ Under the Religious Institutions (Prevention of Misuse) Act ● Section 3(g) forbids any religious institution or its administrator from permitting the use of any property owned or controlled by the institution for the purpose of promoting or attempting to promote disharmony, enmity, hatred, or ill-will among various religious, racial, linguistic, or regional groups, as well as castes or communities. While the statutes referenced above may not directly tackle the issue of hate speech, the Supreme Court has interpreted the Constitution in a manner that confines these provisions to the reasonable limitations outlined in Article 19(2) of the Constitution.

Consequently, to uphold peace and public order in our nation, the definition of hate speech has been broadened. 6. Case laws governing hate speech The Supreme Court has repeatedly offered diverse perspectives on what constitutes hate speech

and the measures that can be taken to limit it. The varying approaches of the Apex court are evident in the rulings it has delivered. In the matter of "Pravasi Bhalai Sangathan v. Union of India24," the Supreme Court considered a scenario in which the petitioners urged the State to implement firm measures against those accountable for hate speech. The Court refrained from extending beyond the current legal framework to impose penalties for hate speech, as doing so would constitute 'judicial overreach. ' The Court observed that effectively enforcing existing laws could significantly mitigate the issue of hate speech and declined to issue any guidelines. Concerns that establishing a clear definition could restrict free speech has restricted the judiciary from articulating a definition of hate speech in India. Also, in the case of “Ramji lal Modi v. State of U. P.

25”, the Supreme Court affirmed constitutional validity of Section 295A of the IPC. The Court clarified that this section does not criminalise every act to insult the religious beliefs of a particular group. Instead, it specifically targets those acts or attempts that are carried out with the intent to deliberately and maliciously provoke outrage among the religious sentiments of that group. Furthermore , the Court noted that the phrase “in the interest of public order” as stated in Article 19(2) encompasses a broader scope than merely maintaining public order. Consequently, even if an action does not lead to an actual disruption of public order, its restriction on this ground is considered reasonable. This judgment indicates that the restriction of hate speech does not necessarily require the occurrence of violence, as it can be justified based on the interest of public order.

Reference can be put on the case of “State of Karnataka and Anr. versus Dr. Praveen Bhai Thogadiya26”, The Supreme court’s jurisprudence over the years has allowed the state to curb hate speech without explicitly criminalising it. In 2004, the Court upheld a restriction placed by the State on Praveen bhai Thogadia, a political figure linked to a right-wing Hindu organization, prohibiting him from attending any gatherings in a specific district for approximately two weeks. The state justified the action by citing the district’s communally sensitive environment. He had recently delivered a speech deemed “inflammatory”, which was likely to provoke communal tensions and disrupt harmony in the area. The court concluded that the restriction was justified

24 Supra no. 10

25 1957 AIR 620

26 (2004) 4 SCC 684

due to the potential threat to public order, which in turn posed a risk to the secularism that the state is obliged to uphold. Some recent orders and directives issued by the Supreme court of India in recent years, concerning the regulation of hate speech, are outlined below: In the case of Tehseen S. Poonawalla v Union of India27, In light of the increasing instances of vigilantism, mob lynching, communal violence, and hate crimes, the Court asserted that it is the duty of the State to guarantee that no individual or group resorts to taking the law into their own hands. The court has mandated various "preventive," "remedial," and "punitive" measures for both the Central and state governments to address and mitigate incidents of violence, while also overseeing their adherence to these directives.

Preventive Measures: State Governments are required to appoint a senior police officer, not below the rank of Superintendent of Police, as the Nodal Officer in each district to avert occurrences of mob violence and lynching. State Governments must promptly identify regions where incidents of lynching and mob violence have been reported. It is the responsibility of every police officer to disperse a mob by exercising authority under Section 129 of the CrPC. It is obligatory for police to file an FIR under Section 153A of the IPC or other applicable legal provisions against individuals who spread misinformation. Remedial Measures The local police station must immediately register an FIR. The Nodal Officer will personally oversee the investigation of such offenses, ensuring that it is conducted thoroughly.

State Governments are to establish a compensation scheme for victims of lynching and mob violence, in accordance with Section 357A of the CrPC. Cases of lynching and mob violence will be specifically adjudicated by designated courts or Fast Track Courts assigned for this purpose in each district.

27 (2018) 9 SCC 501

Deterrent Punishment The trial court is expected to impose the maximum penalty as stipulated under the IPC. Courts may, upon request from a witness or the public prosecutor, implement measures deemed necessary for the protection and anonymity of the witness's identity and address. The victim or the deceased's next of kin shall be provided with timely notifications regarding court proceedings. The victim or the next of kin of the deceased is entitled to receive free legal assistance if they so desire. Punitive measures It is imperative that departmental actions are to be taken against police or district officials who neglect to address the actions of offenders. Such negligence will be regarded as a form of intentional misconduct and deliberate negligence. These actions should be pursued to their full extent, ideally within a six-month timeframe.

Supreme court issued certain orders in the year of 2023 regarding tackling of hate speech:- ● In the case of Tushar Gandhi versus Rakesh Asthana and Anr. 28, The Supreme Court issued a directive to all states, requiring them to report on the measures implemented to adhere to the Court’s guidelines regarding hate speech given in the above mentioned case. Additionally, the Court instructed that cases of hate speech be registered under the appropriate sections of the Indian Penal Code without waiting for a complaint to be filed. It emphasized the necessity of timely filing of First information reports in instances where there were incitements to mob violence. It is explicitly stated that any reluctance to comply with this directive will be regarded as contempt of court, and suitable measures will be implemented against the officers who fail to adhere.

● Similarly, in Shaheen Abdullah versus Union of India and ors29, Supreme Court while dealing with the matter, ordered that it will be the duty of the state government to ensure that there is no hate speech delivered in the rallies. If permission is granted for conducting rallies in sensitive areas and the occasion of mob violence arises, the State police can invoke section

28 CONMT. PET. (C) No. 41/2022 in W.P. (C) No. 732/2017

29 Writ petition(s) (Civil) No. 940/2022

15130 of CRPC which allows them to make preventive arrest. The court also approved the

request for video documentation of the rally and provided a corresponding directive to the local police inspector. ● On August 25, 2023, in the matter of Ashwini Kumar Upadhyay versus the Union of India and ors. 31, The bench comprising Justices Khanna and Bhatti emphasized the necessity for 'practical and effective' measures to address the issue of hate speech, ensuring that previous rulings by the Court are adhered to in both their letter and spirit. In this context, the bench adopted a proactive stance and requested feedback from the state government regarding their adherence to the Tehseen Poonawalla guidelines, which mandate the appointment of nodal officers at the district level.

The directives and orders issued by the Supreme Court were not novel concepts, instead, they reaffirmed the pre-existing statutory duty of the state and police to file First Information Reports (FIR) and conduct investigations. Despite the significance of these orders from the highest court, they have largely gone unheeded by police authorities in real-world scenarios due to lack of any landmark judgement delivered by the Apex Court on this matter till now. 7. ‘Hate speech’ from the perspective of International criminal law Numerous international instruments address the issue of hate speech and may provide valuable guidance to enhance the deficiencies present in Indian domestic law. The Universal Declaration of Human Rights (UDHR), established in 1948, serves as the foundational human rights treaty, affirming the right to freedom of opinion and expression for all individuals32.

Nonetheless, Article 29 of the document imposes certain qualifications on this right, indicating that limitations may be imposed by law to ensure that others can also enjoy their rights and freedoms33. Furthermore, restrictions on speech are permissible only under specific conditions related to “morality, public order and the general welfare in a democratic society”. In 30(1) A police officer knowing of a design to commit cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

(2) no person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this code or any other law for the time being in force.

31 Writ Petition (C) No. 699 of 2016

32 Universal Declaration of Human Rights, Art.19

33 Universal Declaration of Human Rights, Art.29(2).

addition to the UDHR, India is also a party to the International Covenant on Civil and Political Rights (ICCPR), which similarly upholds these principles of human rights. Article 20(2) of the ICCPR34 mandates the prohibition of severe forms of hate speech through either criminal or civil legislation. This provision stipulates that any promotion of national, racial or religious hatred that incites discrimination, hostility or violence must be outlawed. To aid in the enforcement of this article, the Rabat Plan of Action was established in 2012 by the United Nations High Commissioner for Human Rights (OHCHR)35. The key conclusions and recommendations of the Rabat Plan can be summarized as follows: ● The prohibition should concentrate solely on acts that promote hate-based discrimination resulting in hostility, discrimination, or violence.

● In evaluating cases of hate speech that involve incitement to violence and discrimination, the Rabat Plan outlines six factors that must be taken into account to determine whether the content qualifies as hate speech. The first aspect to consider is the context surrounding the statement, which includes the political , social and economic conditions present at the time. Historical tensions between different groups, instances of discrimination against specific communities, and the level of freedom afforded to media and press are all critical elements that inform the interpretation of speech. Next, the identity of the speaker plays a significant role. This is particularly relevant if the individual is a political leader, public official or a prominent figure within a religious or community setting, as such individuals typically possess a greater capacity to influence their audience.

Additionally, the speaker’s intent must be unmistakable, indicating a clear awareness that their words could incite violence or hostility among listeners. The delivery of the speech is another crucial factor to consider. Furthermore, the frequency and severity of the language used are also important aspects to

34 International covenant on civil and political rights

35 United Nations Office of the High Commissioner, Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (2012).

evaluate. Finally, taking all these factors into account, it is highly likely that hate speech could lead to the emergence of hate and violence. The Rabat plan emphasizes that for the effective implementation of Article 20(2) of the ICCPR, it is essential for states to actively promote the right to equality for groups that face discrimination or violence due to their recognized characteristics. States are required to safeguard this right by designating these characteristics as “protected characteristics36”. The human rights committee has clarified that the prohibition of hate speech through criminal or civil law does not equate to the criminalisation of expression. Instead, it indicates that “appropriate sanctions” should be imposed on hate speech. While civil penalties may be appropriate, criminal sanctions, which are more severe, should be considered only as a last resort.

Hate speech that is linked to bias-motivated or discriminatory expressions can be restricted under the broader framework of Article 19(3) of the ICCPR. Additionally, there may be instances of speech that, while not classified as hate speech, still fosters intolerance. In such cases, the State is obligated to respond with criticism. This is particularly relevant for speech that employs inflammatory or offensive language that does not necessarily incite violence. Examples include the denial of historical events, insults directed at national symbols, or remarks that are derogatory towards specific groups. Potential strategies to address these issues may include government policy initiatives and counter-speech from public officials.

In 2019, the United Nations introduced a “Strategy and Plan of Action on Hate speech” aimed at addressing the increasing prevalence of hate speech targeting “minorities, migrants, refugees, women, and other marginalised groups37”. This initiative reaffirmed the established stance of prohibiting incitement to hatred that could lead to violence and hostility, rather than banning all forms of hate speech. Crucially, it emphasizes the need for a collaborative approach to tackle the root causes of hate speech and to lessen its effects on communities. This collective action involves not only governments but also society at large, private organisations and individuals in the fight against hate speech.

36 ibid

37 United Nations, Genocide Prevention ―Strategy and Plan of Action on Hate Speech, 2019

While a universally accepted definition of hate speech that addresses all emerging concerns has yet to be established, this has not hindered collective efforts to combat hate speech. In fact, by outlining the general characteristics of hate speech, we can adopt a more effective strategy for identifying it, allowing for a flexible response to its various manifestations based on their severity. Additionally, this classification can significantly aid in justifying punitive measures according to the level of harm associated with different acts of hate speech. Finally, it can help mitigate the risk of overcriminalization, recognising that criminal law cannot serve as a solution for every instance of hateful expression. 8. Conclusion Hate speech and the incitement to violence are significant issues in contemporary societies, especially in diverse and multicultural countries like India.

This study highlights the complex nature of hate speech, which includes derogatory remarks, the targeting of particular communities and the potential to incite violence. Although hate speech does not always lead to violent outcomes, the context, intent and audience are crucial factors that influence its effects. Historical events in India, such as provocative speeches during communal riots and during political campaigns, demonstrate how hate speech can deepen societal division and incite violence. Statistical Data indicates a troubling increase in hate speech incidents, particularly with the rise of social media platforms that enhance its dissemination and impact. This situation underscores the pressing need for effective regulatory frameworks and greater public awareness.

India’s legal system, which includes provisions in the IPC and other statutes as mentioned in the study, aims to mitigate hate speech while respecting the constitutional right to free speech under Article 21 of the constitution of India. However, the enforcement of these laws is often inconsistent, raising concerns about both misuse and inadequate enforcement. The Indian judiciary has been instrumental in navigating these issues by issuing certain guidelines and orders to maintain communal harmony and protect marginalised groups while also upholding democratic freedoms. Combating hate speech necessitates a comprehensive strategy that involves stricter enforcement of current laws, public education initiatives and the promotion of an inclusive mindset that values diversity.

Collaboration among the judiciary, policymakers, civil society and the public is essential to ensure that free speech is not exploited as a means of discrimination and incitement

to violence. By doing so, India can uphold its constitutional ideals and ensure a harmonious and equitable society.