Author: Khushi Pursnani, Subodh Law College, Jaipur
To the Point
Hate speech in politics has emerged as a pressing challenge for India’s constitutional democracy. While Article 19(1)(a) protects free speech as a fundamental right, unchecked political rhetoric that vilifies communities, promotes communal disharmony, or incites violence directly undermines Article 21 (right to life), Article 14 (equality), and the constitutional ethos of fraternity. Political campaigns often deploy provocative language as a vote-gathering tool, ignoring the long-term consequences on democratic stability.
The Election Commission of India (ECI) routinely confronts hate speeches during elections, yet its powers are limited to imposing temporary bans or issuing warnings under the Model Code of Conduct (MCC). Criminal law provisions—such as Sections 153A, 153B, 295A, 505 IPC—exist, but prosecutions are rare and protracted. This disjunction between constitutional ideals and ground realities raises fundamental questions: Where should the line be drawn between legitimate political criticism and hate speech? How can courts balance the need to preserve free debate with the obligation to maintain public order?
The tension is not theoretical. Empirical studies confirm that inflammatory political speech has fueled riots, heightened polarization, and eroded trust in institutions. Hence, the debate is not about whether free speech is valuable—it undeniably is—but whether political hate speech is compatible with India’s democratic and secular framework.
Abstract
This article provides an exhaustive legal examination of hate speech in politics, framed against the tension between Article 19(1)(a) and Article 19(2). While free speech is the bedrock of democracy, hate speech erodes the constitutional guarantee of equality, fraternity, and secularism.
The analysis begins with India’s constitutional and statutory framework, highlighting how doctrines like reasonable restrictions, proportionality, and clear and present danger guide judicial reasoning. It further evaluates criminal provisions under the IPC, electoral safeguards under the RPA, 1951, and the Model Code of Conduct. Case law analysis shows the judiciary’s evolving stance—from protecting dissent (Shreya Singhal) to curbing inflammatory rhetoric (Amish Devgan).
The article situates India’s approach within global jurisprudence, noting parallels with European restrictions but divergences from the U.S. First Amendment absolutism. Through empirical data and international commitments (ICCPR obligations), it demonstrates that political hate speech undermines democratic stability and threatens social peace.
The conclusion asserts that political hate speech must be addressed not just through criminal sanctions but also by strengthening electoral institutions and fostering constitutional morality.
Use of Legal Jargon
The constitutional jurisprudence surrounding hate speech is anchored in the doctrine of reasonable restrictions. While Article 19(1)(a) guarantees free speech, Article 19(2) permits restrictions on grounds such as public order, decency, morality, defamation, incitement to offence, and security of the State.
Courts employ various interpretative tools, such as:
Proportionality Test: Any restriction must be narrowly tailored and proportionate to the threat posed.
Clear and Present Danger Test: Borrowed from U.S. jurisprudence, used to assess whether speech imminently threatens law and order.
Chilling Effect Doctrine: Cautions against overly broad restrictions that deter legitimate expression.
Constitutional Morality: Ensures speech aligns with India’s constitutional values of fraternity, equality, and secularism.
Statutorily, hate speech intersects with:
IPC Sections 124A, 153A, 153B, 295A, 505 – Criminalizing enmity, sedition, and communal hatred.
Representation of People Act, 1951, Section 123(3) – Deems appeals to religion, caste, or language during elections as “corrupt practices.”
Model Code of Conduct – Binds political actors during election campaigns.
Information Technology Act, 2000, Section 69A – Allows blocking of online hate content.
Thus, the regulation of political hate speech is a fusion of constitutional doctrine, criminal statutes, and electoral law.
The Proof
The prevalence of hate speech in Indian politics is empirically documented:
Association for Democratic Reforms (ADR, 2023) revealed that nearly 30% of criminal cases pending against elected representatives involve hate speech or inflammatory remarks.
Election Commission Records show repeated violations of the MCC, with high-profile politicians across party lines receiving campaign bans.
Law Commission of India (267th Report, 2017) recommended inserting new IPC provisions specifically targeting hate speech, recognizing gaps in existing statutes.
On the ground, hate speech has tangible consequences. Instances of communal riots in states like Gujarat (2002), Muzaffarnagar (2013), and Delhi (2020) demonstrate the catalytic role of provocative political statements. Once inflammatory words are spoken by leaders, they often trigger a chain reaction, leading to violence, displacement, and long-lasting social divisions.
International law strengthens the proof base:
Article 19 ICCPR protects freedom of expression but allows restrictions for public order.
Article 20(2) ICCPR obligates states to prohibit advocacy of hatred that constitutes incitement to discrimination or violence.
India, being a signatory, is duty-bound to ensure political rhetoric does not transgress these obligations.
Therefore, the proof overwhelmingly suggests that unchecked political hate speech endangers both domestic constitutional values and India’s international commitments.
Case Laws
Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477 – Recognized hate speech as a political menace but refrained from judicial activism, urging Parliament to legislate.
Shreya Singhal v. Union of India (2015) 5 SCC 1 – Struck down Section 66A IT Act; clarified that only incitement justifies restricting speech, not vague annoyance or inconvenience.
Amish Devgan v. Union of India (2021) 1 SCC 1 – Emphasized that hate speech must be evaluated based on its potential to disturb public order, not merely the speaker’s intent.
Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574 – Held that free speech cannot be suppressed unless the expression creates a situation akin to a “spark in a powder keg.”
Ram Manohar Lohia v. State of Bihar (1966 AIR 740) – Differentiated between “law and order,” “public order,” and “security of the State,” clarifying thresholds for restricting speech.
Arun Jaitley v. State of U.P. (2016 SCC OnLine All 2753) – Distinguished legitimate criticism of government policies from hate speech.
International Influence:
Brandenburg v. Ohio (U.S., 1969): Established the “imminent lawless action” test for restricting speech.
Handyside v. UK (ECHR, 1976): Affirmed that free expression protects even offensive ideas, subject to democratic safeguards.
These cases reflect the judiciary’s effort to strike a delicate balance: protecting robust political debate while preventing divisive rhetoric from endangering public order.
Conclusion
Hate speech in politics is not a peripheral concern but a central constitutional challenge. Left unchecked, it corrodes democracy, legitimizes intolerance, and undermines secularism. The constitutional scheme under Articles 19(1)(a) and 19(2) provides the framework for balancing rights and restrictions, but enforcement gaps persist.
Courts have evolved a nuanced jurisprudence, emphasizing proportionality and incitement thresholds. Yet, political will remains weak, with prosecutions delayed and punishments rare. Unless laws are consistently enforced, hate speech will continue to thrive as a political strategy.
Thus, the solution lies in a holistic approach: strengthening statutory definitions of hate speech, empowering the Election Commission with sharper punitive tools, ensuring judicial consistency, and fostering constitutional morality among political actors. Ultimately, democracy is not only about protecting free speech but also about ensuring that speech strengthens—rather than sabotages—the ideals of liberty, equality, and fraternity.
FAQS
Q1. What is hate speech in the political context?
Hate speech refers to political expression that incites hostility, discrimination, or violence against groups based on religion, caste, ethnicity, language, or gender.
Q2. Is hate speech protected under Article 19(1)(a)?
No. While Article 19(1)(a) guarantees free speech, Article 19(2) permits restrictions to protect public order, morality, and security of the State.
Q3. Which laws govern hate speech in India?
Key provisions include IPC Sections 153A, 295A, 505, the Representation of People Act, 1951, and the Model Code of Conduct.
Q4. How does the judiciary treat hate speech?
Courts balance free speech with public order. For instance, Shreya Singhal protected dissent, while Amish Devgan tightened scrutiny of inflammatory remarks.
Q5. Why is hate speech dangerous in politics?
It fosters communal polarization, incites violence, erodes constitutional morality, and undermines democracy by replacing debate with division.
Q6. How does India’s approach differ from other countries?
India’s model is closer to Europe’s restrictive approach, prioritizing public order, unlike the U.S., which strongly protects free speech under the First Amendment.
