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Author: Vighnesh Kumar Sharma, I year of B.B.A.,LL.B. from National Law University Odisha (NLUO)

Being a democratic country, India provides certain fundamental right to its citizen, one such fundamental right is the right to freedom of speech and expression. It means that the people are able to express their thoughts and expressions freely, within reasonable restrictions as provided by the constitution, without any fear of oppression or danger. Curtailing this fundamental right would mean that the citizens are restricted from speaking up or against the government or even express their thoughts, which would be counted as a hit to the structure of the democracy and which can lead to the fall of any nation. But there are certain limitations on free speech which are those speeches that are harmful to someone or if it threatens someone, then in that case the freedom could be curtailed and the person can get punished Hate speech refers to those words whose intent is to create hate within communities. Hate speech does not only include words but it also encompasses words, signs, slogans, manifestations, actions. A sense of superiority is usually the main reasons for the cause of hate speech, i.e., when a person starts believing he is superior than others and starts to dominate. Stubborn behaviour towards a particular ideology or negative stereotypes can also be a reason for hate speech. Hate speech has been prohibited by several sections of the Indian penal code because it aims to prevent disharmony among people and different sections of the society.

To prevent Hate speech, different provisions have been added in Indian penal code which are Section 153A and 153B[i], which makes any act a punishable offense which incites hatred, promotes disharmony between different communities or groups. Over the years judiciary has played an important role in interpreting Hate speech through various cases. In Pravasi Bhalai sangathan vs Union of India[ii], the Supreme court did not penalize the action of hate speech, as no such provision existed in that era, instead it recommended the law commission to take up this matter, so that the judiciary does not commit overreach and allows the legislature to continue with its work. Praveen Togadia, who was famous for his speeches that cause hate speech and incitement was invited in Karnataka to deliver a speech, when the public authorities restricted his movement after the background check and held that he can’t be allowed to deliver the speech. This was challenged by him in the Karnataka High court and further an appeal was made to the Supreme court where the court held that the restriction was reasonable and necessary to maintain public order and peace in the state.

In 2014 the pravasi Bhalai sangathan, filed a case with regard to politicians making in inflammatory speeches, and to curb the violence caused by hate speeches, here the Supreme court held that the problem is not the lack of laws but the inefficiency of laws relating to hate speech, this judgement realised the psychological harm caused on someone by hate speech, therefore it held that the executive as well as the civil societies have to play their role in curbing these hate speech instances and applying the law effectively. In Amish Devgan vs Union of India[iii], Amish Devgan used derogatory remarks against a Muslim saint, which resulted in the hurt of religious sentiments of a community, promoted religious hatred and incited violence. The petitioner argued that, no case exists against him as he had no intention to outrage religious beliefs and whatever h said was unintentional and was an act of carelessness. The respondents argued that the petitioner was a habitual offender and had already committed the offence of inciting violence several times in the past, they also argued that the petitioner did that act intentionally where he repeated the derogatory terms several times on Live TV, the apology by the petitioner was not genuine and he apologised only after the FIR’s have been filled. The respondent also argued that the whole show was just planned to malign a particular community and it was all pre planned.

In Ramji Lal Modi vs the state of Uttar Pradesh[iv], the Supreme court held the petitioner guilty of maliciously outraging the feelings of Muslim community, when the petitioner published a magazine named Gaurakshak devoted to cow protection, The court held that article 19(2), qualified by the expression of ‘in the interest of’, is wider in the scope than the term ‘for the maintenance of’. 295(A) only penalizes those offences which are intentionally done to incite disharmony and violence against a particular group. The current laws are not efficient enough to deal with Hate speech, The Supreme court has time and again tried to set up standard and reasonable care for the prevention of hate speech in the society, The supreme court has asked the centre why it is acting like a mute witness and watching this from the side line without making any major reform, the Supreme court held the view that Hate speech poisons the basic fabric of democracy and it can’t be permitted to continue its menace. The court has time and again expressed concern over growing phenomenon of cases of hate speech in the country and expressed dissatisfaction with the Centre not taking any action on the recommendation of Law commissions reports. The recent Dharma Sansad issue, has again exploited the inadequacy of the law of hate speech, judges have shown concern over political parties using hate speeches for their capital. The supreme court is playing the role of an anchor and has harshly criticised the executive as well as the legislative wing. The judiciary has held the view that the laws need to be improved. Hate speech needs to be countered at all levels including social and political level. The menace of hate speech creates disharmony among the people which leads to a disbalance in the society. Laws need to be improved and revamped so that the offence of hate speech gets curbed, the executive and legislature have to do their roles effective in transforming and applying the law. The judiciary needs to hold both the wings accountable so that the needs are fulfilled.

[i]153A. Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony [ii]Pravasi Bhalai Sangathan v, Union of India & Ors., AIR 2014 SC 1591 [iii]Amish Devgan v. Union of IndiaWrit Petition (Criminal) No. 160 of 2020 [iv]Ramji Lal Modi vs The State Of U.P1957 AIR 620, 1957 SCR 860


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