In a landmark American Judgment, Chaplinsky v. New Hampshire[1], the term “Hate Speech” has been described as: “Fighting words which by their very utterance inflict injury or tend to incite an immediate breach of peace. It has been observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit may be derived from them is clearly out-weighed by the social interest in order and morality.” In short, hate speech is any form of communication which may lead to injury or unrest to any individual or society or community at large. Media through internet, newspapers, television etc. play a crucial role in the concept of hate speech.

In India, hate speech does not fall under Article 19(2) of the Constitution of India and therefore does not create an explicit exception to the freedom of speech and expression under Article 19(1)(a). A varied range of Indian statutes provide for provisions that support in governing hate speech. The provisions provided in India are much wider as compared to the laws of USA or the UK where the laws related to hate speech are more clear and unambiguous. According to Section 5-B of the Cinematograph Act, 1952, a film can be disapproved for certification on numerous grounds, including on the ground that it is likely to provoke the conduct of an offence or that it is against the sovereignty and integrity of India or public order. Section 69 of the Information Technology Act, 2000 provides for the interception of information by the authorities in the interest of public order, or the sovereignty and integrity of India, or for the purpose of preventing the provocation to the commission of any cognizable offence. Section 66-A, Information Technology Act, 2000 and Section 79 of the Information Technology (Intermediaries Guidelines) Rules, 2011 punishes the sending of offensive messages which cause insult, injury, enmity, hatred or ill-will. Section 153-A of the Indian Penal Code, 1860 penalizes the promotion of class hatred. Section 295-A of the Indian Penal Code, 1860 provides for the punishment for insults to religion and to religious beliefs. Section 298, Indian Penal Code, 1860 punishes who utter words, makes sounds, or gestures with the voluntary intention to injure the religious sentiments of another. Section 505 of the Indian Penal Code, 1860 provides for punishment for incitement of any class or community against another class or community. Chapter XXII of the Indian Penal Code, 1860 completely deals with criminal intimidation, insult and annoyance which form a part of hate speech. Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 penalizes any intentional insult or intimidation with the intention to degrade a member of the scheduled caste or tribe in any public place. Rule 6 of the Cable Television Network Rules, 1994 provides for the programme code and disallows the carrying of any programme on the cable service which:

1. Rule 6(1) (c) – contains an attack on religion or communities or visuals or words contemptuous of religious groups or which promotes communal attitudes.
2. Rule 6(1) (e) – is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes.
3. Rule 6(1) (i) – criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country.
4. Rule 6(1) (m) – contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups.

Similar restrictions can also be found under Rule 7 of the Cable Television Network Rules, 1994 in relation to advertisements on the cable service.

Social Media like Facebook, Instagram, and Twitter etc. also play a major role in the formation of hate speech. Such platforms provide the users with a free space to express their opinion with the world at large. The problem arises when the platforms are misused in order to incite or provoke hatred amongst the society. People can anonymously post any content which may be injurious to the identity, reputation, class or caste of any individual or a group of people. Social media is regulated by Section 66-A of the Information Technology Act, 2000 which provides for punishment for sending offensive messages through communication service, etc. The constitutional validity of this section was also challenged in the Supreme Court in the case of Shreya Singhal v. Union of India[2], in which Section 66-A of the Information Technology Act, 2000 was struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). The Indian Government has notified the Intermediary Guidelines under the Information Technology Act, 2000 where the intermediaries will have to take down or disable content considered defamatory or against national integrity under Article 19 (2) of the Constitution within 24 hours on being informed by the appropriate government in addition to using automated mechanisms to recognize, disable and trace the origin of such content. It also imposes responsibilities on social media platforms to prohibit or remove any information that is harassing, disparaging, hateful, blasphemous or otherwise unlawful in any manner.

[1] Chaplinsky v. New Hampshire, 86 L Ed 1031: 315 US 568 (1942).

[2] Shreya Singhal v. Union of India, (2013) 12 SCC 73.