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Free speech and freedom of expression have been topics of discussion for many years. From human rights to fundamental rights, the discussion continues. In India, Article 19(1) of the Constitution guarantees the right to free speech. In terms of libel, sedition, and hate speech, however, the State



Free speech and freedom of expression have been topics of discussion for many years. From human rights to fundamental rights, the discussion continues. In India, Article 19(1) of the Constitution[1] guarantees the right to free speech. In terms of libel, sedition, and hate speech, however, the State has gradually posed some obstacles to free speech. Any speech or reference expressing a specific level of hatred toward a person, group of people, etc. is considered hate speech. The expression, which generally refers to any comment that a specific segment of the community disapproves of, was created out of social context. There is no specific definition of “hate speech” in any of the Indian legislation.

A review of Section 295 of I.P.C[2] decisions involving hate speech cases shows that while an injury to a house of worship or sacred object is required, the presence of an insulting intention or knowledge of the potential of an insult is a crucial component of the offense. This harm need not, however, always be bodily. The judiciary has given the word “defilement” in the wording of Section 295 a very broad interpretation. A class of people’s sacred artifacts is also protected under Section 295, in addition to places of worship. Section 295 addresses religious texts and images differently from the discussion on contamination from a speech perspective. Cases like Bharat Bhushan94 and Zac Poonen, 95 show this to be the case.

According to Black’s Law Dictionary[3], Hate Speech is “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.”

Pravasi Bhalai Sangathan v. Union of India[4]  is a well-known case. Since hate speech is not covered by any of India’s pre-existing laws, the Supreme Court did not penalize it. Instead, the Supreme Court asked the Law Commission to handle this case in order to avoid judicial activism. This is the main reason the Legislature was given control of the situation. After referencing the aforementioned and examining the laws in place in India that govern hate speech, the Court determined that the statutory provisions, particularly the criminal statute,

were sufficient solutions to stop the threat of hate speech. A person who feels mistreated must therefore use the remedy offered by a specific statute. Not the lack of laws but rather their ineffective application the main issue. Therefore, in order to enforce the current legal system, both the government and civil society must play their respective roles.

Amish Devgan v. Union of India and Others[5] is a recent instance where the petitioner, while moderating a debate, had described “Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as aakrantak Chishti aya… aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle”.

In order to ascertain how hate speech should be understood, this case concentrated on a number of important legal requirements. The Indian Penal Code’s Section 153A[6] which deals with inciting hostility among communities and engaging in behaviour that undermines harmony was construed. As part of its decision regarding the FIRs brought against Amish Devgan, the Apex Court also considered the FIRs’ legality. Although the petitioner’s request to have the FIRs dismissed was refused, the Apex Court granted him temporary protection in exchange for his apology that he didn’t want to incite hatred and his assistance with the inquiry. If we concentrate on the aforementioned quotes from the listed decisions, we can see that hate speech is essentially directed at a certain group or person, and it makes no difference whether the speaker intended to hurt the person’s feelings or not. We cannot apply the rules of the Indian Penal Code to this situation since the foundation of criminal law is mens rea, which translates to malice aforethought.


Authorities were forewarned by the court that “due action shall be taken against the erring officers” if they “hesitate to act in line with this directive.” The Supreme Court bench, composed of Justices K M Joseph and Hrishikesh Roy[7], urged the police chiefs of Delhi, Uttar Pradesh, and Uttarakhand to take “immediate” suo motu actions against any hateful speech by filing criminal reports without first waiting for official complaints. The bench was considering a petition that brought up comments made at a Virat Hindu Sabha held in the Capital on October 10 by the VHP’s Delhi chapter and other Hindu organizations, as well as other petitions of a similar nature that asked for action in response to remarks made against Muslims at some Dharam Sansad events.  Authorities were forewarned by the court that “due action shall be taken against the erring officers” if they “hesitate to act in line with this directive.” One of the petitions submitted by attorney Ashwini Upadhyay asked the Centre to be instructed to review international laws and take strict and effective measures to stifle hate speech and rumor-mill in the nation. The bench also suggested creating additional rules because there is no law on hate speech.

The Union Home Secretary was requested by the Supreme Court, to gather data from state governments regarding the fulfilment of earlier directives it had issued regarding preventative and remedial steps to stop situations like mob violence and hate speech. Although there isn’t a clear legal framework in place in India to address hate speech, a number of articles of the Indian Penal Code, which include a broad definition of hate speech, are used. Most of these laws are intended to deal with offenses against religion.


A deliberate and malicious act that is intended to offend any class by insulting its religion or its beliefs is defined as such in Section 295A of the IPC, and it is also punishable by that section.

Section 66A of the Information Technology Act[8] which adds penalties for sending inflammatory communications through communication services is added when such speech is communicated online.

We are then left with the Indian Constitution. If anything can be done is to put hate speech on the list of Article 19 objections (1). The principle of utilitarianism, which was popularised by Jeremy Bentham and relates to maximizing happiness for the greatest number of people, is also emphasized in our Indian Constitution. Freedom of speech and expression, which involves criticism, is essential for achieving maximum happiness. Such criticism may be favorable or unfavorable. When criticism hurts a certain group’s feelings, it is deemed to be hate speech. But if we only consider how our actions affect our feelings, we will undoubtedly come under heavy fire for using our right to free speech.

Other laws or Acts provide protection from hate speech – Protection of the Civil Rights Act, 1955, The power to prohibit the importation of publications, the Indecent Representation of Women (Prohibition) Act, 1986, The Religious Institutions (Prevention of Misuse) Act, 1988, The National Security Act, 1980, The HIV/AIDS[9] Act, 2017,  Hate Speech in Election Laws,  Media Laws Governing Hate Speech,  The Cinematograph Act, 1952,  Cable Television Networks (Regulation) Act, 1995, Power to ‘censure’, Online Hate Speech, The unconstitutional Section 66A of IT Act, 2000,  Blocking and Takedown of Online Content, Blocking access to content under Section 69A, Broadcast Media, Radio Broadcasting,  Advertising in the Media,  Social Media platforms.


Numerous contemporary issues, including migratory crises, political upheavals, and technological advancements all contribute to the escalating societal polarisation and the unrestrained use of aggressive speech.  it is acceptable to state that the impact of discriminatory language extends beyond the targeted group; it has an impact on everyone, whether directly or indirectly. As a result of Covid 19 limits, the use of digital technologies has increased at an unprecedented rate, and a rising number of different types of cyber violence are hitting young people.


The right to freely express people’s opinions about issues of governance and the political classes has been restricted since the first institutionalized forms of communication, such as religion. For a long time, discussions on unrestricted freedom of expression, regardless of topics, were centered on this background of repression. However, as media and communication technologies developed over time, “freedom of expression” began to reveal a more repulsive side, with the intention of stigmatizing and upsetting specific social groups, their members, or persons. Social media have risen to prominence as the most popular forum for public discourse because of their accessibility, affordability, and anonymity. The gap between theory and practice needs to be bridged, nations should take proactive steps to promote inclusive, tolerant dialogue and behaviour. In order to do this, they require the assistance of a strong civil society that is ready and able to combat all forms of social intolerance and hatred by making the hateful minority an excessive and vile minority and by advancing the ideals of a liberal, fair and courteous society.

Author(s) Name: Kittu Sharma (Maharaja Ganga Singh University, Bikaner, Rajasthan)


[1] The Constitution of India 1950, Article 19(1)

[2] The Indian Penal Code, 1860, s 295

[3] Black’s Law Dictionary 983 (9th ed. 2009)

[4] Pravasi Bhalai Sangathan Vs. Union of India AIR 2014 SC 1591: https//

[5] Amish Devgan v. Union of India and Others, (2003) 6 SCC 175 AIR 1960 SC 633 (2001) 6 SCC 181 AIR 1957 SC 896. 160 of 2020

[6] The Indian Penal Code, 1860, s 153A

[7] Shaheen Abdullah versus Union of India W.P.(C) No. 940/2022 (SC) 872

[8] The Information Technology Act, 2000, s.  66A

[9]  Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017