Is the Supreme Court doing enough to tackle hate speech?

UPSC Syllabus: Gs Paper 2- Constitution of India —historical underpinnings, evolution, features, amendments, significant

provisions and basic structure.

Introduction

Debate has intensified over whether the Supreme Court is doing enough to address hate speech. The issue resurfaced after petitions against Assam Chief Minister Himanta Biswa Sarma were redirected by the Court to the Gauhati High Court. Earlier, the Court also indicated that pending hate speech cases may be closed. These developments have raised questions about judicial responsibility, enforcement failures, and the broader legal framework needed to tackle hate speech effectively.

What is Hate Speech?

1. Law Commission’s description of hate speech: The Law Commission of India (267th Report) describes hate speech as words, signs, or expressions that incite hatred against groups based on religion, race, ethnicity, gender, or other identities.
2. Indirect and subtle nature of hate speech: Hate speech often does not openly call for violence. It may appear as prejudicial discourse that gradually marginalises communities.
3. Role of ambiguity and perception: Hate speech sometimes appears as “dog whistles”, where statements are deliberately ambiguous. Speakers can deny harmful intent while still sending divisive signals.
4. Link with social power structures: The harm of hate speech depends not only on words but also on social hierarchies. It often targets communities that are already socially or politically vulnerable.
5. Impact on democracy: Hate speech deepens democratic deficits by reinforcing exclusion and discrimination against weaker groups.

Existing Legal Framework on Hate Speech in India

1. Constitutional basis of regulating hate speech
   1. Freedom of speech and its limits: The Constitution guarantees freedom of speech under Article 19(1)(a), but this freedom is not absolute.
   2. Reasonable restrictions under Article 19(2): The State can impose restrictions on speech to protect public order, morality, and other constitutional values. Hate speech is treated as a limitation on free speech because it can promote hatred, violence, and social disharmony.
2. Penal Provisions Addressing Hate Speech
   1. Indian Penal Code provisions: Hate speech is mainly addressed through Section 153A and Section 505 of the Indian Penal Code.
   2. Section 153A – Promotion of enmity between groups: This provision punishes acts that promote enmity between groups on grounds such as religion, race, language, residence, or place of birth.
   3. Punishment under Section 153A: The offence carries imprisonment up to three years, which may extend to five years if committed in a place of worship or religious assembly.
   4. Section 505 – Statements causing public mischief: This section criminalises statements, rumours, or reports that create fear, encourage offences against the state, or incite communities against each other.
   5. Punishment under Section 505: The offence carries imprisonment up to three years, which may extend to five years when committed in religious gatherings or places of worship.

3. Election Law Provisions
   3. Role of election law in regulating hate speech: The Representation of the People Act, 1950 empowers the Election Commission of India to act against candidates who use hate speech during election campaigns.

Supreme Court’s Interventions

1. Preventive framework against hate crimes

Tehseen Poonawalla v. Union of India (2018):

• Guidelines to curb mob lynching and hate crimes: The Supreme Court issued detailed directions to prevent mob lynching and related hate crimes and required States to appoint nodal officers to monitor such incidents.
• Administrative responsibility for enforcement: These nodal officers were tasked with preventing hate crimes and ensuring prompt registration of offences by police authorities.

2. Judicial concern over rising hate speech (2022)

• Recognition of a climate of hate: The Court observed that a “climate of hate prevails in the country” and criticised the increasing misuse of religion in public discourse.
• Direction for suo motu FIR registration (October 21, 2022): Police authorities were directed to register FIRs on their own in hate speech cases without waiting for formal complaints.

Limitations of the Supreme Court’s Approach

1. Weak implementation of judicial directions

• Failure of enforcement by authorities: Despite Supreme Court directives, hate speech incidents continue and authorities often fail to register FIRs or invoke appropriate legal provisions.
• Reluctance to act against influential individuals: Law enforcement agencies sometimes hesitate to proceed against persons who hold power or influence.

2. Limited judicial monitoring of compliance

• Closure of long-pending petitions: The Court indicated that hate speech cases pending since 2021 may be closed, while allowing petitioners to seek remedies in High Courts.
• Example reflecting judicial restraint: In the case concerning alleged communal remarks by Assam Chief Minister Himanta Biswa Sarma, the Court directed petitioners to approach the Gauhati High Court.

3. Reluctance to use stronger constitutional powers

• Limited use of Article 142: Critics argue that the Court has not consistently used its powers under Article 142 to enforce compliance or ensure stronger action.
• Absence of contempt proceedings: Some observers believe the Court could initiate contempt proceedings against officials who fail to implement its directives.

Recent Developments and Proposed Reforms

1. Recent Developments
   1. Demand to recognise hate speech as a constitutional tort:
      • Activists have urged the Court to treat hate speech as a constitutional tort, meaning the State can be held liable for violations of constitutional rights.
      • Meaning of constitutional tort: It allows courts to hold the State responsible for the actions or inaction of its officials when constitutional guarantees are violated.
   2. Argument for greater accountability: If authorities fail to prevent hate speech, the State could be required to compensate victims and acknowledge its failure.

2. Proposals for Stronger Criminal Provisions

1. 1. Law Commission recommendations: The 267th Report (2017) proposed adding two new penal provisions to address hate speech more clearly.
   2. Proposed Section 153C: This section would punish threatening words or signs intended to cause fear or incite violence against groups based on religion, caste, gender identity, sexual orientation, language, or disability.
   3. Proposed Section 505A: This section would criminalise threatening or derogatory expressions intended to provoke unlawful violence.
   4. Recommended punishments: The proposals suggest imprisonment of up to two years for Section 153C and one year for Section 505A, along with fines.
   5. Committee recommendations for reform: The M.P. Bezbaruah Committee and T.K. Viswanathan Committee also supported stronger provisions against hate speech.

3. Legislative Initiative at the State Level

1. 1. Karnataka Hate Speech and Hate Crimes Bill, 2025: This proposed legislation seeks to create a dedicated legal framework to address hate speech and related crimes.
   2. Concerns about the proposed bill: Critics argue the bill focuses mainly on injury or disharmony and does not sufficiently address structural discrimination caused by hate speech.
   3. Conceptual gaps in the bill: Some definitions are considered broad and may lead to arbitrary application. These issues may require amendments after implementation.

What Should Be Done

1. Effective enforcement of existing laws: Legal provisions already exist, but authorities often fail to apply them consistently.
2. Accountability of state authorities: Police and investigating agencies must act promptly and register cases without delay.
3. Stronger judicial monitoring: Courts may need to supervise compliance with their directions to ensure implementation.
4. Addressing institutional inaction: Bodies such as the Election Commission must exercise their powers when hate speech occurs during elections.
5. Regulation of media amplification: Hate speech often spreads quickly through media platforms. Mechanisms are required to prevent media systems from amplifying or commercialising such speech.
6. Need for broader social consensus: Legal measures alone cannot solve the problem. Society must resist stereotypes, propaganda, and divisive narratives that target vulnerable communities.

Conclusion

Hate speech challenges constitutional equality, social harmony, and democratic values. The Supreme Court has issued important directions, but weak enforcement and institutional inaction limit their impact. Addressing the problem requires stronger implementation of laws, judicial oversight, accountability of authorities, and wider social resistance to divisive rhetoric that marginalises vulnerable communities.

Question for practice:

Examine the nature of hate speech in India and evaluate the effectiveness of the Supreme Court’s interventions in addressing it.

Source: The Hindu