Is the Supreme Court doing enough to tackle hate speech?

What is hate speech, and what makes its criminalisation so difficult in practice?

Shahrukh Alam: Hate speech does not always take the form of explicit incitement to violence. More often, it operates as a prejudicial discourse that marginalises particular communities. This in turn, makes the task of defining hate speech for the purposes of criminalisation inherently difficult. Not every divisive expression can attract penal consequences. The threshold for criminal sanction must be higher. Further, the analysis of hate speech cannot be divorced from questions of power — its harm lies not merely in the content of the speech but in the unequal social hierarchies within which it operates. Hate speech entrenches a democratic deficit because it is typically directed at groups that are already socially or politically vulnerable, thereby reinforcing existing patterns of exclusion.

Explained |What is ‘hate speech,’ and how is it treated in Indian law?

Haris Beeran: The difficulty in criminalising hate speech lies partly in the role that perception plays. Hate speech does not always manifest as direct incitement to violence. It often operates through dog whistles — statements deliberately framed with a degree of ambiguity that allow speakers to claim plausible deniability. The impact of such speech is shaped not merely by what is said but also by how it is perceived. This ambiguity makes it difficult to delineate clear thresholds for criminal liability.

Should hate speech be treated as a constitutional tort?

Shahrukh Alam: Yes. Even in instances where there are open calls for violence through speeches, the response from the state and its functionaries is often conspicuously absent. When the state repeatedly fails to respond to such speech, constitutional tort provides a basis to hold it accountable. The principle underlying this approach is that where the state’s inaction results in harm, it must assume responsibility — by acknowledging that failure or by compensating those who have been wronged.

Also read | Treat hate speech as constitutional tort, activists urge Supreme Court

Haris Beeran: The growing prevalence of hate speech is closely linked to the conduct of the ruling dispensation. Electoral strategies increasingly rely on the deployment of communal rhetoric to capture public attention and secure electoral dividends. When such rhetoric emanates from the highest levels of political leadership, lower-level functionaries inevitably seek to emulate what they perceive to be the expectations of their leadership. The problem is further compounded by the absence of a credible institutional response. State authorities, such as the police, and even bodies like the Election Commission of India (EC), often fail to intervene effectively. As a result, hate speech ought to be recognised as a constitutional tort. Such an approach would enable courts to fix accountability and award compensation. 

How effective has the Supreme Court’s intervention been?

Haris Beeran: In 2018, in Tehseen Poonawalla vs Union of India, the Supreme Court laid down detailed directions to curb mob lynching and prevent other hate crimes, including the appointment of nodal officers in the States. This was followed in 2023 by a further direction requiring States to suo motu register FIRs in cases of hate speech. Despite these directives, what we continue to witness are flagrant violations. While it may be difficult for the Court to monitor compliance in every instance, it ought to initiate contempt proceedings against State officials who fail to act. The Court is also vested with powers under Article 142 to pass orders necessary to do “complete justice” and to protect vulnerable communities. Yet, the Court has at times been reluctant to exercise these powers. For instance, it declined to take action against Assam Chief Minister Himanta Biswa Sarma over his communal remarks and instead relegated the petitioners to the High Court. The Court bears a constitutional responsibility to intervene.

Also read | Not inclined to monitor every incident of hate speech: Supreme Court

Shahrukh Alam: The SC’s prior directives on hate speech are being observed more in their breach than in their observance. It was precisely for this reason that petitioners urged the Court not to close the hate speech proceedings and instead treat them as a continuing mandamus. Such an approach would have ensured that the matter remained under the Court’s supervision, allowing it to monitor compliance and intervene whenever breaches occurred. However, the Court closed the proceedings. More importantly, it is evident that law enforcement authorities are frequently failing to act even in cases involving the most virulent forms of hate speech. This reflects a clear abdication of constitutional duty. It is also crucial for the Court to recognise that the problem of hate speech cannot be framed as a dispute between equals. In reality, hate speech is fundamentally about power — about dominant groups using speech as a means to exclude and silence those who are more vulnerable.

Should India introduce specific criminal provisions on hate speech, as recommended by the Law Commission?

Haris Beeran: Dedicated provisions may be welcome, but the real challenge lies in their effective enforcement. India already possesses a range of legal provisions capable of addressing hate speech. For instance, the Representation of the People Act, 1950, contains provisions that empower the EC to act against candidates who resort to hate speech during election campaigns. Yet, in practice, there is little evidence of these powers being exercised with any consistency. Unless the political climate changes, the politics of hate will continue to persist. 

Also read | CJI says ‘general’ directions in 2018 hate crime judgment may be ‘unmanageable’, favours case-to-case action

Shahrukh Alam: Even if penal provisions on hate speech were introduced, their application would remain vulnerable to arbitrariness. The law in its current form is often insufficiently attentive to the social and political contexts within which such speech operates. While some forms of speech may merely offend or hurt sentiments, other forms of incendiary rhetoric can deepen democratic deficits by further marginalising communities that are already vulnerable. At the same time, it would be misguided to look to the law alone for solutions. What is required is the building of a broader social consensus that resists falling prey to stereotypes, tropes, and propaganda directed at targeted communities. 

Could the Karnataka Hate Speech and Hate Crimes (Prevention) Bill, 2025, serve as a precedent for a central law on hate speech?

Shahrukh Alam: Although well-intentioned, my reservation about the Bill is that it fails to adequately recognise the discriminatory dimension of hate speech. Its emphasis remains on injury, offence, or disharmony — concepts that are typically framed as law-and-order concerns, rather than on the structural realities of discrimination and marginalisation that hate speech often produces. A further concern is that several of the Bill’s definitions are overly broad, creating the risk of arbitrary application. 

Editorial | Karnataka’s hate crimes bill is a threat to free speech

Haris Beeran: The Bill must first be enacted and then tested through implementation. Its effectiveness can only be assessed once it begins to operate in practice. There are certain conceptual gaps in the current formulation, particularly in the definition of hate speech, which does not adequately address issues such as discrimination. These limitations have to be addressed through subsequent amendments. 

Listen to the conversation