Author: Devyani Vig, New Law College (BVDU), Pune
To the Point
In this anthropocene period, the internet is expanding rapidly. And as the digital world expands, the internet companies’ monopoly remains complete. In this digital world hate speech increases in a new way that is electronically or through social media networks. In India, the constitution of India provides its citizen with a very important right of freedom to speech. Still, this freedom of speech can occasionally be used as a weaponry by people to support malign and provoking speech. The main issue lies with the application of old laws to the hate speech that spreads electronically in this digital world. The rule of law and the court have been weakened by an inconsistent perpetration of the law, which has fuelled hate of religion and extremism. The current policy brief examines the Supreme Court of India’s rulings on sedition and hate speech and explains how inconsistent knowledge of these laws has allowed law enforcement officers to act freely when it comes to the execution of alleged hate speech, which has stifled the right to free expression.
Abstract
There are many issues pertaining to hate speech and freedom of speech as the digital age develops. This article examines this issue keeping the recent case of Sharmishta Panoli as a center point. In addition to emphasizing these, this article delves further into the descriptions of hate speech and freedom of expression and their current status in the legal system. In India the conflict between freedom of speech and hate speech remains a genuinely important legal issue. Recently, a 22-year-old law student and content creator from Pune named Sharmishta Panoli was arrested by the Kolkata Police. The arrest happened after she posted a video online that was accused of containing hate speech against a particular religion. This article also looks at India’s lack of a codified hate speech law, which results in uneven enforcement and claims of political abuse. India’s unique challenge to balance multilateral stability and application of old laws to new digital age.
Use of Legal Jargon
Article 19(1)(a) – Guarantees the right to freedom of speech and expression under the Indian Constitution. Article 19 provides certain freedom like freedom of speech, movement, assembly, etc. Freedom of speech is a right of citizen of India to be able to express his views or opinion through any medium. Article 19(1)(a) provides the right to freedom of speech which is very important as through this people will be able to share or exchange their ideas and views through various mediums like digitally, media, newspaper, etc. But with some rights comes certain reasonable restrictions. This section also has some reasonable restrictions provided in article 19(2) of the constitution of India.
Article 19(2) – this article imposes some restriction on freedom of speech given in article 19. Restrictions can be imposed on freedom of speech in the interest of sovereignty, defamation, integrity, decency, public order or morality.
Section 153A IPC–This section prohibits the speech which can create hate towards a particular religion, race, residence, place of birth, language, caste, community or any other ground. Or any activity which promotes any kind of hatred towards any religion, race, residence, place of birth, language, caste, community or any other ground. This section provides punishment to such much promoting hate towards any community or group.
Section 295A IPC –punishes those who does something with intent to damage the religious feelings of other person. This section provides punishment to the person who by malicious intent insults or attempts to insult the religion or religious feeling of the class of people who are the citizen of India. This act punishes the person who by way of speaking, writing, through visual representation or signs insults or attempts to insult the religion or religious feelings of the citizen of India.
Bharatiya Nyaya Sanhita (BNS) 2023 – The new criminal code replacing the Indian Penal Code, which retains provisions related to hate speech especially in the section 196.
Section 196 (BNS) – This section deems such actions criminal which promote hatred towards a particular community through the medium of speaking, writing, signs and also includes through electronic form, i.e. digitally through social media. Any person who by any comment or symbol ignite hatred towards a class of people which insults their religious feeling or religion is punished for up to five years of imprisonment under this section.
Section 299 (BNS) – this section provides punishment for the person who with deliberate and malicious acts does something to outrage the religion or religious feelings of a class of people who are the citizen of India.
Section 352 (BNS) – when a person insult someone through words or gestures which he knows is likely to provoke the other person to disturb the public peace or public order.
Section 353(1)(c) (BNS) – Statements Conducing to Public Mischief. This section covers the punishment for the person who intentionally spreads rumours or false information about a class or community or group of person who are citizen of india with the intend or is likely to incite other people against that group.
Hate speech – hate speech is not codified in the legal system of India.
The Proof
Sharmishta Panoli, a 22-year-old law student and social media creator from Pune, was recently taken into custody by the Kolkata Police. The reason for her arrest was that she uploaded a video on instagram, allegedly saying communal statements on the Bollywood actors and youtuber who were silent on Operation sindoor. The alleged video has now been deleted from her instagram handle. This was allegedly her reply to a Pakistani person asking why India opened fire at Pakistan without any reason. This video also allegedly contained abusive words which according to her she was her way of expressing her views on the Bollywood actor’s and youtubers especially Ranveer Allahbadia as hypocrites for their lenient approach following the Pahalgam attack. This video was deleted following the apology by her but still this video faced a huge backlash which led to her arrest by Kolkata police.
FIR was lodged against her under section 196(1)(a), section 299, section 352 and section 353(1)(c) (statements that incite public mischief) of BNS.
Case Laws
Amish Devgan v. Union of India:
During a television debate, journalist and news anchor Amish Devgan used a disrespectful word while mentioning Sufi saint Khwaja Moinuddin Chishti. The video quickly spread online, leading to several police complaints (FIRs) in different states. People accused him of hurting religious feelings and creating communal tension. Devgan later clarified that he had made an honest mistake, claiming he meant to refer to a different historical figure and not the saint. He apologized publicly and went to the Supreme Court asking for the FIRs to be cancelled and for protection from being arrested. The Supreme Court said that it would not cancel the police complaints (FIRs) against Amish Devgan. The judges felt that what he said on TV, and how people reacted to it, needed to be properly checked through investigation. They said that while freedom of speech is important, it doesn’t give anyone the right to say things that spread hate or hurt public peace. The Court also said that people like TV anchors, who are followed by many, should be more careful with their words. All the complaints against him were moved to Ajmer, Rajasthan, where the first one was filed. The Court also gave him temporary protection from being arrested during the investigation. This decision shows that freedom of speech must be used responsibly and should not harm others or create tension between communities.
Alok Kumar vs Harsh Mander & Anr:
In 2019, there was a fight over parking near a temple in Delhi, which led to some damage and slogans being raised that caused tension between communities. Arrest of some persons took place. Later, a public meeting was held in the same area, and during this event, a speaker made a speech that was said to be provocative. Activist Harsh Mander filed a complaint asking the police to register a case against Alok Kumar, a leader of the group that organized the meeting, saying that Kumar was responsible for the speech that could disturb peace. The lower court asked the police to register the case, but Alok Kumar said he was not involved and challenged this order in the High Court. According to the court there was not enough proof that he organized the meeting or made the speech.
The court decided the FIR against him should not continue without clear evidence.
It emphasized that a person cannot be blamed without proper facts.
T. Usha Bhai vs. State of Telangana:
The case started when a person made certain comments in public—either on TV, social media, or at a gathering—that were seen as hurtful towards a particular religious or community group. After the video or message spread, many people got upset and filed police complaints, saying the comments were hateful and could cause tension between communities. The person who made the statement later said it was either a mistake or taken out of context, and claimed it was their right to free speech. The court looked at the facts and said that even though freedom of speech is a basic right, it doesn’t allow anyone to make statements that hurt other communities or create public tension. The judges made it clear that if the words spoken have the potential to spread hate or disturb peace, the law must take its course. So, the court refused to cancel the complaints and said a full investigation should be done.
Conclusion
The case of Sharmistha Panoli shows how tricky it can be to find the right balance between freedom of speech and hate speech. Our constitution does gives us right to speak or express ourselves freely but it does not mean we can say anything without any limits as there are certain sections provided by the legal system of India which criminalizes this and provides punishment for such acts. This case also points out how hard it is to apply old laws to today’s online world, where things spread fast and wide. It’s clear that we need a thoughtful and careful approach that protects both freedom of speech and peace in society.
FAQS
How is hate speech addressed under Indian law?
In India, hate speech doesn’t have one exact definition under a single law, but it is covered under different legal sections. It usually means any speech or expression that spreads hate, causes violence, or targets a group because of their religion, caste, language, or region. Laws such as Section 153A and Section 295A of the Indian Penal Code—now included in the Bharatiya Nyaya Sanhita—are often used to take action in such cases.
Are there any recent developments in hate speech laws?
Recent discussions focus on balancing the regulation of hate speech with the protection of free expression, especially in the digital age.
What led to Sharmishta Panoli’s arrest?
She was taken into custody after sharing a video on Instagram that was seen as offensive to religious beliefs, and she was accused of creating tension between communities.
What are the broader implications of this case?
The case brings up key concerns about how hate speech laws are applied in today’s online world and highlights the need to update legal rules to match modern ways of communication.
What if I said something offensive by mistake?
The intention behind the speech is important, but even careless or thoughtless words that cause public unrest can be looked into. Courts usually consider the situation and context before making a judgment.
Sources
https://theleaflet.in/equality/why-is-free-speech-different-from-hate-speech
https://www.asc.upenn.edu/research/centers/milton-wolf-seminar-media-and-diplomacy/blog/world-paradox-hate-speech-vs-speech-freedom
https://www.drishtiias.com/daily-updates/daily-news-analysis/hate-speech-5
https://economictimes.indiatimes.com/news/new-updates/pune-law-student-sharmishta-panoli-arrested-by-kolkata-police-for-making-communal-remarks-this-insta-video-statement-led-to-her-arrest/articleshow/121560169.cms
https://www.pacificcouncil.org/newsroom/do-indians-have-freedom-speech
https://www.coe.int/en/web/combating-hate-speech/what-is-hate-speech-and-why-is-it-a-problem-
https://indiankanoon.org/doc/1218090/
https://www.lawctopus.com/clatalogue/clat-pg/reasonable-restrictions-article-19-indian-constitution/#:~:text=Security%20of%20State%20under%20Article%2019(2),-The%20first%20ground&text=It%20pertains%20to%20the%20country’s,rebellion%2C%20or%20provoke%20external%20aggression.
https://www.myjudix.com/post/section-153-bsa-bharatiya-sakshya-adhiniyam-2023
https://devgan.in/ipc/section/295/
https://blog.ipleaders.in/
https://www.hindustantimes.com/india-news/what-did-sharmishta-panoli-say-in-the-controversial-video-that-led-to-her-arrest-101748702819284.html
https://indiankanoon.org/docfragment/179868451/?formInput=hate%20speech
