You are on page 1of 13

Page |1









Dr.Monika Srivastava Uttkarsh Ranjan Rao

Assistant Professor, Roll no- 165
Dr. RMLNLU . Semester 2nd, Section B
Page |2

Table of contents


The concept of Hate Speech..4

The Constitutional Provision..5

Contemporary Issues of Hate Speech in India..7

Page |3


The Present dissertation analysed the term hate speech and its regulation in India but
before interring into the debate of hate speech we should know the importance of
free speech. Freedom of speech has both intrinsic and instrumental value. It is
fundamental to the operation of a democracy and an important instrument for the
functioning of the political process. Democracy requires that an individual in society
be able to hear, form, and freely express their opinions on a wide range of matters.
Freedom of expression is also important in the search of truth. Freedom of
expression, however, by permitting a variety of viewpoints, will better contribute in
the search for the truth. This does not mean that on would arrive at a correct answer
that can be verified. Freedom of speech allows a marketplace of ideas leading to a
more vibrant and progressive society, which leads to the next important justification.
Freedom of expression is intrinsically important in that it allows the growth of the
human personality. It is a freedom that allows human beings to express and define

Written constitutional and bills of rights invariably protect freedom of speech as one
of the fundamental liberties guaranteed against state suppression or regulation. Political
philosophers have argued for liberty of opinions and discussions, or for a free speech
principle under which speech is entitled to a greater degree of immunity from
regulation than other forms of conduct which cause similar harm or offence.1 Yet
philosophers and lawyers disagree about the justifications for a free speech principle
or indeed whether there are any good reasons for treating free speech as special. As
one leading philosopher has put it, freedom of expression is a liberal puzzle. It is
prized by liberals for reasons they may not understand.2 It is difficult to determine
what type of speech is restricted. Even when it is possible to infer a particular intent,
it should hardly be decisive for litigation arising some decades or centuries after the
constitution was framed. Political and social circumstances will have changed so

J.S. Mills classic essay, of the Liberty of Thoughts and Discussion, available at

R.M. Dworkin, Taking Rights Seriously, 132-7.
Page |4

radically that It would be absurd to be limited to the particular conceptions of a

freedom entertained by the members of a constitutional assembly.

Freedom of speech and expression constitutes one of the essential foundation of such
a society, one of the basic conditions for its progress and for the development of
every man. But however vast the scope of freedom of expression, some restrictions
to the exercise of this right may in some circumstances be necessary. Unlike the
right to freedom of thought, the right to freedom of expression is not an absolute
right. The exercise of this freedom carries with it certain duties responsibilities and is
subjected to certain restrictions as set out in the provision of a legal system. A
hatred speech must be restricted, because it is anti-social and any promotion of it can
destroy a society. Every society is based on some moral fabric if the moral fabric of
that society is destroyed then a society may collapse. So a free speech and some
reasonable restriction on it both are essential for a society.3

The Concept of Hate Speech

No universally accepted definition of the term hate speech exists, despite its
frequent usage. Though most states have adopted legislation banning expressions
amounting to hate speech, definitions differ slightly when determining what is being
banned. Only the Council of Europes Committee of Ministers Recommendation
97(20) on hate speech defined it as follows: the term hate speech shall be
understood as covering all forms of expression which spread, incite, promote or
justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on
intolerance, including: intolerance expressed by aggressive nationalism and
ethnocentrism, discrimination and hostility against minorities, migrants and people of
immigrant origin. In this sense, hate speech covers comments which are necessarily
directed against a person or a particular group of persons. The term is also found in
European case-law, although the Court has never given a precise definition of it. The
court simply refers in some of its judgments to all forms of expression which
Page |5

spread, incite, promote justify hatred based on intolerance. It is important to note

that this is an autonomous concept, in so far as the court does not consider itself
bound by the domestic courts classification. As a result, it sometime rebuts
classifications adopted by national courts or, on the contrary, classifies certain
statements as hate speech, even when domestic courts ruled out this classification.
The concept of hate speech encompasses a multiplicity of situations :

Firstly, incitement of racial hatred or in other words, hatred directed against

persons or groups of persons on the grounds of belonging to a race;
Secondly, incitement to hatred on religious grounds, to which may be equated
incitement to hatred on the basis of a distinction between believers and non-
believers; and
Lastly, incitement to other forms of hatred based on intolerance expressed by
aggressive nationalism and ethnocentrism

The concept of hate thus:

Hatred connotes an emotion of an intense and extreme nature that is clearly

associated with vilification and detestation. It is an emotion that, if exercised against
members of an identifiable group, implies that those individuals are to be despised,
scorned, denied respect and made subject to ill-treatment on the basis of group

The problem of hate speech is that its contents are not certain. The concept of hate
speech keeps changing. But again we have to consider that the concept of hate speech
is based on hatred emotion against a particular group or community. The ill will
behind the expression is the key to determine the concept of hate speech. So racial
hatred is the base to determine the concept of hate speech.

The Canadian Supreme Court in R.V. Keegstra (1990) 3 S.C.R. 697.
Page |6

The Constitutional Provision

Article 19(1)(a) guarantees the right of all citizens to freedom of speech and
Expression. This right, however, is not expressed in absolute terms (as in the
American Constitution) Rather, it is subject to article 19(2), which allows the State to
make laws imposing reasonable restrictions upon freedom of speech and expression
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence. It is under the
ground of public order that India has prohibited and penalized hate speech. The Supreme
Court have justified the restrictions on free speech imposed by article 19(2) on
utilitarian grounds: some restrictions on freedom may be necessary so that others may
also enjoy their liberties. As noted by Sastri J in A. K. Gopalan (1950):

Man, as a rational being, desires to do many things, but in civil society his desires
have to be controlled, regulated and reconciled with the exercise of similar desires by
other individuals Liberty has, therefore, to be limited in order to be effectively

As defined in Ram Manohar Lohia (1960), such public order is necessary for citizens
to peacefully pursue their normal avocations of life.6 As the Supreme Court put it in
Praveen Bhai Thogadia (Dr) (2004), the right to freedom of expression may at times
have to be subjected to reasonable subordination to social interests, needs and
necessities to preserve the very core of democratic life preservation of public order
and rule of law.7

In stark contrast to the United States,8 public order restrictions upon free speech in
India may include content based restrictions, penalising speech based upon the

A. K. Gopalan v. State of Madras AIR 1950 SC 27, 69.
Superintendent, Central Prison v. Ram Manohar Lohia AIR 1960 SC 633.
Baragur Ramachandrappa and ors v State of Karnataka (2007) 3 SCC 11.
Police Department of Chicago v Mosley, 408 US 92 (1972); Boos v Barry, 485 US 312
(1988); R. A. V. v City of St Paul, 505 US 377 (1992).
Page |7

opinions or ideologies expressed within in the interests of public order.9 Hate speech
may hence be lawfully prohibited or restricted

Contemporary Issues of Hate Speech in India

1. Ayodhya riots

In the valance of Ajodhya main role is play by Hindu associations like Vishva Hindu
Parishad, Bajrang Dal ,Shiv Shena and Bhartiya Janta Party main leaders of temple
movement of Ajodhya are Mahant Ram chand Das Paramhans from Digamber akhada
Ashok Shinghal, Praveen Togadiya, Acharya Giriraj Kishore,Uma bharati,Sadhavi
Ritambhara ,Mahant avaidh nath,Kalyan Singh,Atal bihari Vajpayee,Lal Krishan
Advani,Murli manohar joshi, Rajmata vijya raje sindhiya etc. these are the main
leaders of temple movement in Ajodhya Mahant nritya gopal das is the chief of the
committee which initiate this temple movement Lal krishan Advani is another
important leader who is the main leader of this movement because he started rath
yatra to bring the awareness about the movement.

Role of various leaders in Ayodhya movement:

Kalyan Singh

He was the chief minister of Uttar Pradesh at the time of babri masjid demolition
he is famous for his remarks made by him in the answer of mulayam singh yadavs
comment on babri issue. During his government Babri masjid was demolished by the
extremist after this he resigned from the post of chief minister and said that Ram ke
naam par ek nahi saikdo satta kurban when he was sent to jail for one day by the
court he said ram ke liye ek din kya poori jindagi bhi jail me gujarne ko tayar
hoon due to his furious speeches he was successful to become again the chief

Ramji Lal Modi v State of Uttar Pradesh AIR 1957 SC 620 (Ramji Lal Modi); Virendra v
State of Punjab AIR 1957 SC 896; V. Vengan and ors, In re (1951) 2 MLJ 241.
Page |8

minister of uttar Pradesh in the year of 1997 he is the person who get the maximum
advantage of the temple movement.

Dr. Murli Manohar joshi

He was the professor of physics in the Allahabad university later he came in the role
of speaker of hardcore Hindutva. He was the chief spokesperson from BJP during the
period of temple movement, on the date of 6th December he was in Ajodhya with
Advani and he was one of the major speaker after whose speech public became
aggressive and destroy the Babri masjid. Before this he travelled across India with his
Ekta Yatra and try to create a wave of communalism against Muslims and in the
favor of the temple movement.

Vinay Katiyar

He is the chief coordinator of Bajrang dal and leader of BJP at the time of Babri
demolition he is the main person who attract youth towards the temple movement .
He is famous for his unique speaking skills which attract the attention of not only
domestic media but also international media.

Ashok Singhal

He raise the issue of temples at Ajodhya, Kashi and Mathura in the year of 1982
and by this he bring the issue of Hindutva at the centre of the nations politics he
is main person in the Ram janambhumi movement. He is the person who convert the
simple movement of Ramchand paramhans in to the big Ajodhya movement he bring
all the religious leaders at one stage.


Varun Gandhi in his election speeches (march 2009) has been pouring vitriol against
minority community. He presented the usual prejudices and biases in a very hateful
manner. He pointed out that arms are being smuggled into ghettoes(i.e. Muslim
community locality). As far as the issue of communalism is concerned, it would be
Page |9

surprising to know that the number of people killed in communal violence in the last
50 years is lesser than the people killed in street crimes in the city of Detroit alone.
Two million people were killed during the Partition violence, which again is below
the five million people involved in separatist movements in various parts of the
country. These statistics reveal that communalism is not as grave and hopeless a
problem as is made out to be.10

During the communal riots that rocked the nation in 1992, following the demolition
of the Babri Masjid, a Hindu family gave refuge to an old Muslim man. The man
was provided refuge in the room of their young daughter-in-law. When the rioters
went scouting door-to-door to kill any Muslims they could get hold of, the host
family saved the old mans life by introducing him as their daughter-in-laws uncle.
While this entire drama was unfolding, the son of the house went missing. Many
days later when the riots subsided and the old man rejoined his family, a prayer was
held for the safe return of the son. It was only later that they came to know that the
son who had gone missing was a part of the mob that destroyed the Babri Masjid.
This story reveals two facts: 1) There can be internal contradictions between the
members of a single household on communal issues; and 2) Common people of both
communities have come to each others rescue during riots. All these prove that
communalism is a complex phenomenon and has many facets.


Raj Thackeray, whose Maharashtra Navanirman Sena has made impressive strides in a
short time after breaking away from the Shiv Sena, by making ill-advised remarks
about North Indians in Mumbai. He has a promising political future. He is talking about
MARATHI MANUS. According to him North Indians are snatching the job of
Marathi people and also destroying Marathi culture and tradition.11

The notion that any city or part of India belongs only to its natives is
unconstitutional, repugnant and injurious to the ideal of national unity and integration.

P a g e | 10

From time immemorial, our people have freely moved from one part of the country
to another, believing all of India to be their own. As far as Mumbai is concerned,
although it is the capital of Maharashtra, people from every corner of the country
have migrated to this city of dreams and opportunities since its inception. Mumbai is
what it is today because of the contribution of diverse communities inhabiting it. In
particular, the two sources of its national and international profile business and
Bollywood would be unthinkable without a grateful recognition of the role of non-
Marathi speaking communities. It would be a great misfortune if Mumbai degenerated
into a provincial capital.

Small regional leaders like Raj Thackeray doesnt have any ideology their politics is
totally based upon the hatred they have no issue so they risen up the issue of
regionalism which is not permitted in Indian law, instead of knowing this fact they
come again and again on the same issue of regionalism they tried to build their
politics on the negative basis which is not long-lasting and soon they have to face
consequences of this.


kaun si baat kab, kahan, kaise kahi jaati hai agar is baat ka salika hai to har
baat suni jaati hai.

-Wassem brelvi.12

The meaning of above sentence is, everyone will listen you if you have the proper
manner of talking, you have to think before speaking because youre word can cause
harm to others. So the power of word is limitless, no one can imagine how far it
can harm the humanity or human being. It goes too far and disrupts the security or
stability of the community by inciting members of the public to harmful action or

P a g e | 11

deceiving them on an important public matter. By the history we can see that word
can cause genocide or massacre, it can provoke people, it can humiliate people and it
can destroy peoples. A committee which is constituted on communal violence,
reported that the speech by a eminent person of society against a particular group of
members is main element of the riot. The report of committee shows the impact of
speech. An offensive speech has power to cause religious riots, communal riots or

Fair use of free speech is concept which depends on the context in which it is said.
They serve different ends at different times. Sometimes a speech is just a speech other
times it become hate speech. Context is clearly of the greatest important in assessing
whether particular statement are likely to incite hatred- as it may have bearing on
both intent and causation- and many of the hate speech cases refers to contextual
factors. The exercise of the right to freedom of expression carries with it special
duties and responsibilities. These special duties and responsibilities are of particular
relevance within a social system.

Deciding factor for harm principle

Consider a case of hate speech, incitement of violence or making of death threats. A

clear and intended causal effect must be drawn between the act of expression and the
harm done. This is the only legitimate way in which the Harm Principle can be
evoked to restrict certain forms of speech.

In order to violate the harm principle, there must be some kind of action with intent
to humiliate, insult, degrade or harass a particular group, religion, cast, race or
community. That is, one must express intent towards futhering harmful acts for the
harm principle to be violated.

Hence to prevent harm government should take positive measure to cap the hate
speech and while taking the action against hate speech government must consider the
general moral standard of society. A government may put restraints upon the free
speech principle, but only when;

1. The restrictions are determined by law;

P a g e | 12

2. The restrictions exist to secure the respect for the rights and freedoms of
others and;

3. The restriction is meant for the purpose of meeting the just requirements of
morality, public order and the general welfare in a democratic society.

A HATE SPEECH is an expression which is abusive, insulting, intimidating or

harassing and which incites violence, hatred or discrimination against a religion, caste,
race, community, nationality, colour or gender.

The identification criterion of hate speech is, if it;

a) Is intended to insult or stigmatize an individual or a small number of

individuals on basis of their sex, race, colour, handicap, religion, sexual
orientation, or national and ethnic origin; and

b) Is addressed directly to the individual or individuals whom it insults or

stigmatizes; and

c) Makes use of insulting or fighting words or non-verbal symbols.

But the problem of hate speech is that its contents are not certain. The concept of hate
speech is keep changing. Again we have to consider that the concept of hate speech is
based on hatred emotion against a particular group or community. The ill will behind
the expression is the key to determine the concept of hate speech. So racial hatred,
religious hatred, cast hatred and incitement of other forms of hatred is the base to
determine the concept of hate speech.
P a g e | 13


6. Communalism & Communal Riots In India A Historical Preview by Pravin
10. Books on :Constitution of India