Author:RITU PARNA, National Law University, Meghalaya
To the Point
India’s Constitution guarantees freedom of speech under Article 19(1)(a), but this right is not absolute. Article 19(2) allows the government to impose reasonable restrictions in the interest of public order, decency, morality, contempt of court, defamation, and incitement of an offense. Hate speech — which targets individuals or groups based on race, religion, caste, gender, or sexual orientation — tests the limits of these restrictions. The law must strike the right balance: protecting open debate and artistic expression while ensuring public harmony. This article explores how courts and lawmakers define and regulate hate speech in India, drawing a careful line between free speech and harmful rhetoric.
Abstract
Freedom of speech is a cornerstone of democracy. In India, Article 19(1)(a) of the Constitution grants this right, but it comes with safeguards under Article 19(2) to protect society from speech that can cause harm. Hate speech, defined as abusive or inflammatory remarks targeted at groups, can threaten public order and individual dignity. Indian law addresses hate speech through provisions in the Indian Penal Code (IPC) and the Information Technology Act, and courts have refined the legal standards through years of judicial review. This page describes India’s hate speech laws’ constitutional foundation, legislative actions, court rulings, and practical applications. It calls for clearer laws, better enforcement, and greater public awareness to preserve the balance between freedom and harmony.
Use of Legal Jargon
In legal terms:
Fundamental right: A basic right guaranteed by the Constitution (like free speech under Article 19(1)(a)).
Reasonable restrictions: Limits on rights when justified by law, as in Article 19(2).
Public order: Preventing riots, communal violence, or lawlessness.
Promoting enmity: Speech creating hatred between communities (IPC Section 153A).
Religion outraging: Deliberately insulting religious beliefs (Section 295A).
Incitement: Urging people to commit violence or offenses (Section 505).
Vagueness and overbreadth: Legal doctrines used by courts to strike down laws with unclear or overly sweeping language.
Chilling effect: When speech is suppressed because laws are so vague people fear accidental violation.
Contextual analysis: Courts examine the setting and intent behind words, not just the words themselves.
Constitutional Basis: Freedom and Its Limits
Article 19(1)(a): Freedom of Speech
Article 19(1)(a) states: “All citizens shall have the right to freedom of speech and expression.” This broad right covers spoken and written words, art, performances, religion, political speech — essentially any form of expressing ideas.
Article 19(2): Reasonable Restrictions
Article 19(2) allows restrictions “in the interests of the sovereignty and integrity of India, the security of the State, public order, decency or morality, contempt of court, defamation or incitement to an offense.” The Supreme Court has held that any restriction must be:
Backed by a valid law (not arbitrary),
Pursue a legitimate State interest,
Be proportionate to that interest, and
Precisely defined (clear boundaries that don’t criminalize innocent speech).
The court uses the intelligible differentia test: the law must clearly distinguish speech that can be restricted from protected speech.
Landmark Cases
Romesh Thapar v. State of Madras (1950) struck down restrictions on a journal, emphasizing that “discussion is essential” and public order cannot override freedom of expression unless there is actual danger.
Ananda Marg case (1985) highlighted that vague terms like “public safety” aren’t enough; the law must show how speech threatens public order.
Statutory Measures: IPC and IT Act
India doesn’t have a specific “hate speech law,” but uses several provisions to address it indirectly:
IPC Section 153A
Punishes speech or writing that “promotes enmity between different groups” or “underlines feelings of hatred or ill-will.” Key points:
Applies to any group differentiated by religion, race, caste, community, or language.
Punishes both spoken and written forms, including online content.
Requires the speech to incite anger or alienate groups.
IPC Section 295A
Targets “deliberate and malicious acts intended to outrage religious feelings” of any class. It requires:
The intent to offend;
Words or acts directed at religious feelings;
A deliberate motive to hurt.
IPC Section 505
Covers “statements that create or promote fear or alarm” or encourage people to breach the law. It applies to both incitement to offense and publication of false statements.
IT Act Section 79 & Intermediary Guidelines (2021 Rules)
These rules make online platforms responsible for third-party content once notified. Although platforms have safe harbor under Section 79, they must act quickly to remove hate speech tied to violence or threats.
Court-Made Standards: Clear Tests, Not Bans
India’s courts have developed key standards to decide when speech crosses the line into hate speech deserving restriction:
1. Proximity / Imminent Lawlessness Test
A speech restriction is valid only when there’s a real, foreseeable risk of violence. Mere hate or offense is not enough.
Example: In the Romesh Thapar case, the court said there must be a link between speech and imminent public disorder.
2. Clear & Present Danger
Borrowed from U.S. law, this test requires the State to show that speech poses a real threat, not just theoretical harm.
3. Harm Principle
Originating from John Stuart Mill, this asserts speech should be curtailed only to prevent harm to others, applying in India especially to speech inciting violence.
4. Vagueness / Over-Breadth Doctrine
In Shreya Singhal v. Union of India (2015), Section 66A of the IT Act was struck down for being vague (terms like “grossly offensive” not defined) and too broad (could criminalize legitimate criticism), creating a chilling effect on expression.
Illustrative Cases: Clarity in Action
1. Shreya Singhal v Union of India (2015)
Seven women activists successfully challenged Section 66A. The Supreme Court held:
Terms like “offensive” and “menacing” were too vague.
The law covered speech that didn’t threaten public order.
This had a strong chilling effect on online speech.
Only speech causing imminent harm is restrictable.
Outcome: Section 66A struck down, and courts told lower tribunals not to allow frivolous criminal complaints.
2. Romesh Thapar (1950)
Madras State had stopped publication of the “Crossroads” journal. The Supreme Court ruled:
Public order cannot be a catch-all for any dissent.
Restrictions must be narrowly defined.
There must be proof of real danger, not just discomfort.
3. Calcutta High Court Bail Order (June 2025)
The court granted bail in a high-profile case against a social media figure accused of hate speech. The judge emphasized that:
Expression which only hurts sentiment, without true incitement to violence, is protected.
Courts must distinguish offense from real risk to social harmony.
4. Supreme Court Ruling on Hate Speech (5 May 2025)
The Court affirmed that:
Hate speech is not protected under fundamental rights.
States have duty to act when speech degrades communities.
However, the law must be applied carefully to avoid misuse.
5. Ramesh v Union of India
In this judgment, a man was accused of hate speech but the court highlighted that:
Courts need to assess context and intent.
Academic or critical speech remains protected if it doesn’t incite violence.
Challenges and Gaps: Where Clarity Is Needed
Even today, several issues remain unresolved:
1. Vague Statutes
Terms like “intent” or “outrage” aren’t clearly defined in IPC Sections, which can lead to misuse against dissenters and journalists.
2. Law Enforcement
Police often lack training and arrest people for “offensive” speech without assessing real public danger.
3. Online Content
Global platforms sometimes hesitate to remove hate speech, while local laws and rules can be inconsistent or unclear.
4. Political or Religious Exploitation
Both malicious individuals and groups may use hate speech laws as weapons against political opponents or minority voices.
5. Judicial Disparity
Different courts interpret “hate speech” differently, causing unpredictable results that hinder protected dialogue.
Possible Reforms
To fix these problems, India could look at the following options:
1. Statutory Definition
Legislature should clearly define hate speech, specifying criteria like:
Group identification (religion, caste, etc.)
Intent (deliberate incitement)
Consequences (threat of violence or discrimination)
This clarity would help law enforcement, judges, and citizens.
2. Intent Requirement
Evidence of intent is critical. Laws should emphasize the speaker’s purpose, not just the impact.
3. Procedural Safeguards
Prevent misuse by requiring:
Prior judicial approval before arrests
Limited pre-trial detention for speech offenses
Penalties for false complaints
4. Contextual Examination
Any case must examine context:
Was there a real risk of violence?
Was the speech part of academic or journalistic commentary?
How likely was the speech to cause harm?
5. Public Education
Awareness programs can teach the public about the difference between free speech and hate speech, emphasizing freedom of expression as essential but not absolute.
6. Technology and Platforms
Online platforms must:
Create better filters for hate content
Maintain transparency on removal decisions
Cooperate with law enforcement under clear legal frameworks
Conclusion
India’s legal approach to free speech and hate speech is built on a careful balance: protecting open debate while stopping speech that threatens groups and public order. Courts have done valuable work defining key tests, striking down vague laws, and maintaining space for dissent. However, old laws and new media pose fresh challenges.
To uphold democracy, India needs:
Well-defined laws against hate speech
Judicious enforcement that discourages real threats while preserving debate
Public awareness and judicial consistency
When the line is drawn clearly—in law, in application, and in understanding—speech can flourish without harming social cohesion.
FAQs
1. What counts as hate speech in India?
Speech targeting different groups (religion, caste, etc.) with intent to incite hatred or violence. Sections 153A, 295A, and 505 of IPC often apply.
2. Can I still criticize religion?
Yes. Forums like satire, academic critique, religious reform, or historical analysis are protected—provided there is no incitement or malicious intent.
3. Why was Section 66A struck down?
It criminalized vague terms like “annoying” or “offensive,” leading to overreaction by police. The Supreme Court struck it down for being vague, broad, and limiting speech with no justification.
4. Is hate speech handled differently online?
Yes. Courts apply the same legal principles, but online platforms have additional responsibilities under the IT Act to remove dangerous content when notified.
5. How is hate speech different from defamation?
Defamation targets individuals, claiming false statements hurt reputation. Hate speech harms communities and may threaten public order.
