In India there is no specific legislation dealing with “hate speech” as such. The closest is Section 153A of the Indian Penal Code which prohibits speech or writings which promote enmity, hatred, ill-will or disharmony inter alia between different religious groups or communities. A related provision is Section 153B which proscribes imputations that any class of persons cannot be loyal citizens because they are members of a religious group or community. Speech and writings which “with deliberate and malicious intention” insult the religion or the religious beliefs of any class of citizens are prohibited by Section 295A. Punishment for contravention of these provisions is imprisonment for three years or a fine or both.

The rationale underlying these provisions is that in our country religious passions can be easily ignited by inflammatory speeches. These sections impose restrictions on the freedom of expression guaranteed under Article 19(1)(a) of the Constitution, a freedom subject to reasonable restrictions under the head of public order as specified in Article 19(2). Our Supreme Court has upheld their constitutionality.

Legal principles which emerge from judicial decisions construing these sections are:

— The speech or writing must be construed as a whole and not by stressing isolated passages torn from the context.

— If the speech or writing has the inevitable consequence of promoting communal disharmony between religious communities it is not a defence that the speaker or the writer did not intend to do so.

— The fact that no communal disturbances have taken place as a result of the speech or writings is immaterial.

... contd.