Recently, the Supreme Court of India observed that hate speech originates from an “us versus them” mindset and poses a serious threat to the constitutional value of Fraternity.
Key Observations of the Supreme Court
Hate Speech is Against the Constitutional Value of Fraternity
The Supreme Court observed that hate speech is not merely inappropriate or offensive speech; it strikes at the very foundation of the Indian Republic. It undermines the constitutional ideal of Fraternity, which is enshrined in the Preamble of the Constitution. Fraternity promotes a sense of brotherhood, dignity, and unity among citizens, whereas hate speech creates division, hostility, and social discord.
Contrary to India's Civilisational Ethos
The Court stated that the “us versus them” mentality underlying hate speech is inconsistent with India's long-standing civilisational philosophy of “Vasudhaiva Kutumbakam”, meaning “the world is one family.”
India has historically been a land of cultural, religious, linguistic, and ethnic diversity. According to the Court, reducing citizenship and identity to a basis for exclusion contradicts this inclusive tradition and weakens social harmony.
Importance of Fundamental Duties
Referring to Article 51A(e) of the Constitution, the Court reminded citizens that it is their Fundamental Duty to promote harmony and the spirit of common brotherhood among all people of India.
This duty requires citizens to rise above differences based on religion, language, region, caste, or community and contribute to social cohesion and national integration.
Judiciary Cannot Create New Criminal Offences
The Court firmly stated that the power to create new criminal offences belongs exclusively to the Legislature. If the judiciary were to frame a new statutory scheme on hate speech, it would violate the constitutional principle of Separation of Powers.
Under this doctrine, the Legislature makes laws, the Executive implements them, and the Judiciary interprets them. Therefore, the Court refused to direct the enactment of new hate-speech legislation.
No Legislative Vacuum Exists
The Bench observed that India already possesses adequate legal provisions to deal with hate speech. According to the Court, the recurring incidents of communal violence and social unrest are not caused by a lack of laws but by the poor enforcement of existing laws.
Procedural Safeguards for Victims of Hate Speech
Alternative Complaint Mechanism
The Court pointed out that if a police station refuses to register a complaint relating to a cognizable offence, the complainant can use the remedy provided under Section 173(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Under this provision, the complaint may be submitted in writing to the Superintendent of Police (SP), who can then take appropriate action.
No Prior Sanction Required
The Supreme Court clarified that a Magistrate does not require prior government sanction to take cognisance of a complaint involving hate speech. This interpretation ensures easier access to justice for affected individuals.
Mandatory Registration of FIR
Reaffirming its judgment in the Tehseen Poonawalla v. Union of India case, the Court stated that police authorities must immediately register an FIR whenever a complaint discloses a cognizable offence relating to hate speech.
The Court stressed that prompt registration is essential for ensuring fair and impartial investigations.
What is Hate Speech?
India does not have a single comprehensive statutory definition of hate speech. However, the Law Commission of India in its 267th Report (2017) described hate speech as speech that incites hatred against a group of persons based on characteristics such as religion, race, ethnicity, gender, sexual orientation, or similar identities.
In broader terms, hate speech includes any expression, statement, gesture, writing, or conduct that promotes hostility, discrimination, intimidation, or violence against an individual or group because of their identity.
Legal Framework Against Hate Speech
Constitutional Framework
The Constitution guarantees Freedom of Speech and Expression under Article 19(1)(a). However, this right is not absolute.
Under Article 19(2), the State may impose reasonable restrictions in the interests of public order, sovereignty and integrity of India, decency, morality, and to prevent incitement to offences.
Bharatiya Nyaya Sanhita (BNS), 2023
The Bharatiya Nyaya Sanhita contains provisions that penalise the promotion of enmity between different groups on grounds such as religion, race, language, caste, or community.
It also punishes deliberate and malicious acts intended to outrage religious feelings by insulting religious beliefs.
Representation of the People Act, 1951
The Representation of the People Act provides for the disqualification of candidates convicted of offences relating to communal hatred and disharmony, thereby safeguarding the integrity of the electoral process.
SC/ST (Prevention of Atrocities) Act, 1989
The SC/ST (Prevention of Atrocities) Act criminalises intentional insults, intimidation, and derogatory speech aimed at humiliating members of Scheduled Castes and Scheduled Tribes in public view.
Protection of Civil Rights Act, 1955
The Protection of Civil Rights Act penalises practices and expressions that promote untouchability, thereby protecting equality and human dignity.
Digital and Media Regulations
In the digital sphere, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules require social media intermediaries to remove unlawful content, including hate speech, when directed by a court or competent authority.
Similarly, the Cable Television Networks (Regulation) Act prohibits television broadcasts that attack religions or communities, promote communal hatred, or contain content offensive to religious groups.
Judicial Pronouncements, Drivers, and Measures to Curb Hate Speech
Important Judicial Pronouncements on Hate Speech
Shaheen Abdulla v. Union of India (2022)
In this landmark case, the Supreme Court of India expressed serious concern over the increasing incidence of hate speech in the country. The Court directed police authorities to take suo motu action against hate speech offences without waiting for a formal complaint from any individual. The judgment emphasized that law enforcement agencies have a constitutional duty to act promptly whenever hate speech comes to their notice.
Tehseen S. Poonawalla v. Union of India (2018)
In this case, the Supreme Court dealt with the issue of mob lynching and hate-driven violence. The Court issued detailed preventive, remedial, and punitive guidelines to curb incidents of mob violence fueled by hate speech and communal hatred.
The Court directed states to appoint District Nodal Officers responsible for preventing hate crimes and ensuring swift action against offenders.
Shreya Singhal v. Union of India (2015)
This case is one of the most significant judgments relating to freedom of speech in India. The Supreme Court struck down Section 66A of the Information Technology Act, 2000, holding that the provision was vague and violated the fundamental right to freedom of speech and expression under Article 19(1)(a).
The Court emphasized that restrictions on free speech must be precise, reasonable, and constitutionally valid.
Pravasi Bhalai Sangathan v. Union of India (2014)
In this judgment, the Supreme Court acknowledged the growing challenge posed by hate speech and urged the Law Commission of India to examine the issue in detail.
The Court also suggested exploring mechanisms that could empower the Election Commission of India to regulate hate speech during elections and maintain the purity of the democratic process.
Suo Motu FIR Directives
In recent years, the Supreme Court has repeatedly directed all States and Union Territories to register First Information Reports (FIRs) on their own initiative whenever instances of hate speech come to light.
The Court has warned that failure to act promptly may amount to contempt of court, thereby reinforcing accountability among law enforcement agencies.
Difference Between Hate Speech and Hate Crime
Although the terms are often used together, hate speech and hate crime are not identical.
Hate speech primarily involves expressions, statements, writings, gestures, or communication that promote hatred, discrimination, hostility, or violence against a particular group based on religion, caste, race, ethnicity, gender, or other identities.
In contrast, a hate crime involves an actual criminal act such as assault, murder, arson, vandalism, or physical violence motivated by prejudice against a person's identity.
Drivers of Hate Speech
Psychological and Sociological Factors
Hate speech often originates from prejudice, stereotypes, fear, insecurity, and lack of empathy towards other communities. The development of an “us versus them” mentality creates social divisions and encourages hostility toward individuals perceived as outsiders.
Such attitudes are frequently reinforced through social interactions, historical grievances, and cultural biases.
Political Factors
Political polarization, identity-based mobilization, and vote-bank politics often contribute to the spread of divisive rhetoric. During elections, inflammatory statements may be used to consolidate support among particular groups, increasing social tensions and communal hostility.
Technological Factors
The rapid growth of digital platforms has significantly amplified the reach of hate speech. Social media algorithms frequently prioritize sensational and emotionally charged content because it generates greater engagement.
As a result, divisive and provocative content often spreads faster than balanced or factual information.
Algorithmic Amplification
Social media platforms use algorithms designed to maximize user engagement. These algorithms often promote controversial or polarizing content, increasing the visibility and spread of hate speech.
Echo Chamber Effect
Digital platforms frequently expose users to information that aligns with their existing beliefs. This phenomenon, known as the Echo Chamber Effect, reinforces biases and reduces exposure to diverse viewpoints, making individuals more susceptible to extremist narratives.
Legal and Regulatory Challenges
The absence of a single comprehensive legal definition of hate speech creates ambiguity in enforcement. In some cases, the lack of clarity allows hate speech to be defended as freedom of expression, while inconsistent implementation of laws weakens deterrence.
Socio-Economic Factors
Economic hardship, unemployment, social instability, and competition for resources can contribute to resentment and frustration. Marginalized groups often become scapegoats during periods of social stress, leading to increased incidents of hate speech.
Data Gaps and Underreporting
Tracking hate speech remains difficult because of inadequate data collection and underreporting. The National Crime Records Bureau (NCRB) stopped publishing separate data on lynchings and hate crimes after 2017 due to concerns regarding data reliability.
However, the Crime in India 2022 Report recorded a significant increase in cases related to promoting enmity between groups, indicating the growing prevalence of hate-related offences.
Measures Needed to Effectively Curb Hate Speech
Legislative Clarity
There is a need to implement the recommendations of the 267th Law Commission Report and the Viswanathan Committee (2015). These bodies recommended introducing clearly defined and narrowly tailored legal provisions to address hate speech while protecting legitimate free expression.
Strengthening Institutional Accountability
The directives issued in Tehseen Poonawalla v. Union of India must be implemented effectively. This includes appointing Nodal Police Officers in every district and ensuring prompt registration of FIRs without waiting for formal complaints.
Effective enforcement is essential for deterrence and public confidence in the legal system.
Adoption of Global Best Practices
India can draw lessons from Germany's Network Enforcement Act (NetzDG), which imposes strict obligations on social media companies to remove unlawful hate content within specified timelines.
The country can also adopt elements of the United Nations Rabat Plan of Action, which recommends assessing hate speech through six criteria: speaker, intent, content, context, reach, and likelihood of harm.
Such an approach would help distinguish legitimate free speech from unlawful hate speech in a consistent manner.
Independent Regulatory Mechanism
An independent statutory body insulated from political influence could monitor hate speech, especially during election periods. Such a body would help ensure neutrality, transparency, and timely intervention.
Algorithmic Accountability
Addressing online hate speech requires greater responsibility from digital platforms. Moving beyond broad safe-harbour protections, platforms should be required to conduct independent audits of their recommendation algorithms and deploy advanced Natural Language Processing (NLP) systems capable of identifying hate speech in India's diverse languages.
Such measures would help reduce the amplification of harmful content while preserving legitimate expression.
Conclusion
Hate speech poses a serious challenge to the constitutional values of equality, dignity, fraternity, and social harmony. The Supreme Court has repeatedly emphasized that the problem is not the absence of laws but the inadequate implementation of existing legal provisions. Combating hate speech requires a balanced approach that protects Freedom of Speech under Article 19(1)(a) while ensuring that restrictions under Article 19(2) are applied fairly and effectively.