India’s hate speech poison can’t be legislated away

Hateful speech mainly targeting India’s Muslim and Christian minorities have become, since 2014, a routine and increasingly normalised element of India’s public life.

Hate speeches commonly resound on political platforms. These have become the principal currency of election campaigning. They reverberate in what pose to be religious discourses. They resonate in television studios, on social media, in newspapers and cinema.

India led by Narendra Modi has been marked also by the conspicuous and consistent reluctance of the police and courts at every level to prevent, investigate or punish even dangerous hate speech that directly incites violence. Hateful speeches cumulatively have created a vast, alternative common sense that depicts the Muslim as disloyal, violent and lustful and the Christian as people who have been bribed by charitable social services to abandon their birth religion.

Many citizens who are appalled by the consistent failure of the criminal justice system to act against hate speech call for a dedicated hate speech law, believing that if such a statute is legislated, the spread of the poison of hate speech will be halted. Based on such beliefs, the legislatures in two Congress-led states, Karnataka and Telangana, have voted to pass the country’s first hate speech laws. The Karnataka law is awaiting presidential assent at the time I write this, and the Telangana law has been referred to a legislative committee.

I will argue, first, that it is not the absence of law that explains the failures of the executive and courts to punish hate speech. It is the absence of will, sometimes spurred by ideology. And second, that the hate speech laws canvassed by the two Congress governments are probably well-meaning, yet inherent in them are dangers of the misuse of the laws to suppress dissent and persecute minorities.

What explains the impunity that hate speech enjoys in India today?

It is true that before the Karnataka law and Telangana bill, India did not have a dedicated hate speech law. But this does not mean that India’s statute books did not criminalise hate speech. The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 lists speech acts that are calculated to humiliate and demean Dalits and Adivasis as punishable atrocities under this law.

The section in the Indian Penal Code most related to hate speech is Section 153A (Section 196 of the BNS or the Bharatiya Nyaya Sanhita) which penalises “promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”. Section of the 153B IPC (Section 197 BNS) penalises “imputations, assertions prejudicial to national-integration”.

Besides these, Section 295A IPC (Section 299 BNS) penalises “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs”. Section 298 IPC (Section 302 of BNS) penalises “uttering, words, etc., with deliberate intent to wound the religious feelings of any person”. Section 505(1) and (2) IPC (Section 195 of BNS) penalise publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes.

Then clearly it is not the absence of hate speech law that explains the persistent failures of the criminal justice to prevent, punish and deter hate speech. The problem clearly lies elsewhere. Is it in the reluctance (or partisanship) to apply hate speech law that the problem lies?

I have, along with my colleagues in the Karwan e Mohabbat, filed close to a hundred complaints against hate speeches by senior public functionaries like chief ministers and union ministers, elected members of parliament, religious leaders and media anchors. We have specially focussed on hate speeches during election cycles since 2024.

Our experience with what we see as constitutionally necessary efforts for strategic litigation has been consistent. The local police station in almost every case refuses to file our complaints. Our appeals to higher levels in the police also hit a blank wall. Trial courts are rarely more responsive. And recourse to the higher courts results sometimes in platitudes condemning hate speech but rarely any decisive action.

A rare exception was in October 2022, when a bench of Justices KM Joseph and Hrishikesh Roy decried what they described as a “climate of hate (that) prevails in the country”. They directed the police chiefs of Delhi, Uttar Pradesh and Uttarakhand to not await formal complaints but instead to take suo motu action against hate speech cases. The judges warned that failure to comply would be viewed as contempt. This direction was later extended to all states and union territories in April 2023.

However, in a pattern that has become worryingly commonplace, the police around the country have with few exceptions refused to comply with this order. Far from suo moto action, they have declined even to file our complaints for dangerous hate speech. Responding to one of my complaints to the police against the Assam chief minister who declared that it was his job to trouble Bengali-origin Assamese Muslims, he threatened instead to file a 100 FIRs against me.

I was one among many petitioners who filed applications drawing attention to the rampant disobedience of the police and the executive of the orders of the Supreme Court to file complaints against hate speech of their own accord. The highest court refused to entertain these applications and returned them to the high courts or the local police.

On November 25, 2025, Justices Vikram Nath and Sandeep Mehta declared that the apex court was “not inclined to monitor every incident of hate speech,” and that police stations and High Courts were competent to deal with such cases. They did not attend to the fact that we petitioners were compelled to approach the highest court precisely because police stations, trial courts and high courts did not ensure that hate speech complaints were registered, investigated and chargesheeted. Simply sending our applications back to these very agencies was creating a loop of structural inaction.

Likewise, the Election Commission of India consistently turns a deaf ear to hate speeches by senior public functionaries of the BJP, including the prime minister, home minister and chief minister, even though these are clear violations of the model code of conduct.

We encountered a similar pattern of platitudinous condemnation by the highest court of hate speech but no relief in its order of 28 April 2026. A Bench of Justices Vikram Nath and Sandeep Mehta observed in a 125-page judgment that “Hate speech, at its core, stems from a perception of difference that breeds exclusion, where the ‘other’ is viewed as alien, inferior, or undeserving of equal regard.”

It warned that as long as the binary of “us” and “them” persisted, the promise of fraternity would remain unrealised, and true constitutional belonging would prove elusive. “Hate speech is not merely a deviation from acceptable discourse; it is fundamentally antithetical to the constitutional value of fraternity and strikes at the moral fabric of our Republic. It also runs counter to the deeper civilisational ethos of India…. The philosophical underpinning of this ethos finds expression in the ancient maxim of ‘vasudhaiva kutumbakam’, the idea that the entire world is one family.”

All of this would be unexceptionable if it was accompanied by action to ensure that hate speech is investigated and punished. However, in the studied absence of this, these words sound banal. The court cannot be faulted for refusing to “prescribe detailed statutory schemes or to frame provisions akin to legislation” because this “would amount to judicial law-making and would impermissibly trench upon the functions assigned to the legislature.”

The court acknowledged deficiencies in the application of the existing law relating to hate speech, but suggests that this is a problem in “specific cases”. It fails to address what is visible in plain sight to citizens who belong to groups that are targeted by hate speech, that neither the police nor courts are effectively protecting their rights and deterring hate speech. The judges merely enjoin upon the law enforcement authorities to ensure a faithful and even-handed implementation of the existing laws, deliberately unmindful of their failure to do so not merely in “specific cases” but as a settled mode of abdication of their constitutional duties.

I would argue that courts should not stop even at demanding that the law on hate speech should be stringently applied. Even this is not enough. First, it must punish police officials who fail to register and investigate complaints of hate crimes. And second, it must acknowledge that hate speech is no ordinary crime. It thrusts vulnerable minorities into a zone of abiding dread, and lays the ground for justifying hate violence. The court needs to demand also from the executive that it heals the social fissures created by hate speech, reassures the targeted minorities of their security and equal citizenship, and takes steps to actively advance fraternity in society.

During the nationwide protests against the Citizenship Amendment Act, 2019 that for the first time explicitly denied undocumented Muslims the same rights to access citizenship as people of other faiths, senior BJP leader and union minister Anurag Thakur shouted the slogan “Desh ke gaddaron ko…” (Traitors to the nation), and the crowd responded Goli maroon saalon ko (Shoot the ***)!

Senior leader of the CPI(M) Brinda Karat unsuccessfully pursued for over six years through trial courts, the Delhi High Court and the Supreme Court her plea that a police complaint for hate speech be filed under Section 153(a) of the IPC. The Supreme Court in April 2026 said after carefully pursuing the record, it concluded that Anurag Thakur had committed no crime, because no community was mentioned and there was no explicit incitement to violence.

This is an extraordinary judgment by any standards. If “shooting the traitors” is not an incitement to violence, then what is? But even more than this, the crowd that Thakur addressed and any impartial observer would have no doubt that the speech targeted Indian Muslims. This is because of the discourse of the RSS and BJP going back decades that alleges that Indian Muslims are treacherous to the nation.

Do the Karnataka law and Telangana bill remedy gaps and problems in existing hate speech provisions in the BNS?

Let us see first how the laws delineate hate speech. The Karnataka law defines hate speech to include “any expression which is made, published, or circulated, in words either spoken or written or by signs or by visible representations or through electronic communication or otherwise, in public view, with an intention to cause injury, disharmony or feelings of enmity or hatred or ill-will against person alive or dead, class or group of persons or community, to meet any prejudicial interest.” It defines prejudicial interest to mean bias on the grounds of religion, race, caste or community; sex, gender, sexual orientation, place of birth, residence, language, disability, or tribe.

This appears to be at first sight a compelling definition; but it is not all-encompassing. Telangana’s definition is similar. What any definition of hate speech needs to underline more explicitly is that hate speech is not episodic. Its hateful character cannot be assessed by looking at its content in isolation. Hate speech is typically cumulative, and what might seem less obviously hateful when seen alone can be revealed as hateful when seen against an on-going discourse of hate.

Advocate Shahrukh Alam in a discussion with me pointed to the merit of the under-used Section 153(B) (now Section 197 of the BNS). This criminalises any imputation that a class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, do not bear true faith and allegiance to the Constitution of India and the sovereignty and integrity of India; or recommends that they be denied or deprived of their rights as citizens of India.

This formulation much more clearly defines the everyday lived reality of discrimination and persecution by hate speech, especially of Indian Muslims today. Open incitements to violence tragically are also not uncommon. But the kind of hate speech that millions of Muslims encounter in their everyday life – in workplaces, local communities, television discussions, cinema and social media – is that which casts doubts or denies their loyalty and equal belonging to the Indian nation.

However, the central flaw of both the Karnataka and Telangana hate speech law drafts is the great power that these statutes vest in the hands of the state. It is state authorities who will decide what constitutes hate speech and what does not, and the courts will assess this. The Karnataka law also contains provisions for vicarious liability of the organisation to which the alleged perpetrator of hate speech belongs. It further vests the executive with massive powers of surveillance and pre-censorship, to even ban events and gatherings in which there is the possibility of hate speech or to order social media companies to pull down hateful posts.

If we presume that the state authorities will always act in “good faith” in exercising these powers, then we can possibly justify empowering the state in these ways. There indeed are occasions when such prohibitions on gatherings have prevented hate speech and hate mobilisations.

One example was when a movement started by Hindutva formations called for ethnic cleansing of Muslim residents from Uttarakhand for 2023. This had the tacit support of the state government led by chief minister Dhami. It began in the town of Purola in Uttarkashi district with claims of “love jihad” in the form of a bid of a Muslim man to elope with a Hindu minor. It mattered little that a court later found the entire story to be a falsehood.

Shops and homes of Muslim residents were marked with black crosses, eerily reminiscent of Nazi Germany. Many Muslim families fled the city, some permanently. Many “mahapanchayats” were announced across the state to extend this project of ethnic cleansing.

The state government initially did nothing to prohibit these gatherings. However, after a group of retired civil servants who are committed to defending constitutional practice called the Constitutional Conduct Group wrote to the chief secretary and police head of the state to disallow further mahapanchayats, the state authorities prohibited these gatherings. Local Muslims experienced the return of even a tenuous sense of security as the result of this ban on panchayat meetings that were likely to be rife with hate speech.

However, such “good faith” action by state governments has been rare especially since 2014. We have already noted that even after the Supreme Court in the autumn of 2022 directed the police to suo moto register police complaints against hate speeches, they have mostly disobeyed these orders and even – in the direct experience of this author – refused to register such complaints. This is not surprising.

The reason is that hate speech is not an ordinary crime between people of relative equal power. Hate speech thrives – as it does in India under Modi and the US under Donald Trump – in conditions of immense asymmetry of power. Even in ordinary times, the state cannot always be trusted to stand firmly and unambiguously with the targets of hate speech against those who wield their power also through the exercise of hate speech. But much less when the state itself is deeply invested ideologically in the project of hate targeting vulnerable and powerless minorities – like Muslims and Christians, Dalits and Adivasis in Modi’s India and immigrants in Trump’s America.

Despite the American First Constitution Amendment that mandates the state to defend free speech even if it is hateful (intervening only when there is direct incitement to violence), today the world stands witness to the persecution of students and faculty in American universities who defend the rights of the Palestinian people against Zionist hate and what many regard to be genocidal violence targeting Palestinian civilians, children, health and aid workers and journalists. This is not new. Look back at the McCarthyism of the late 1940s and 1950s in the US, when people of socialist convictions were severely persecuted.

Therefore, if a hate speech law empowers an already powerful state to judge the legality of citizen’s communications – whether on public platforms, in print, television and social media and in various art forms – this gravely endangers dissenting speech which is critical of the state or majoritarian citizen formations.

If powers of the kind legislated in Karnataka and Telangana are exercised by authoritarian and corrupt governments which might be ideologically committed to projects of exclusion and hate targeting vulnerable minority communities, there is a high possibility of the laws being weaponised to repress, censor and persecute dissenters and minorities.

Where do we move from here? I find myself perched as though at the cleft of a vast rock. I refuse to subscribe to the free speech fundamentalism of the American First Constitutional Amendment which defends even hate speech as a fundamental human right. Hate speech can extract too high a toll in the morale and sense of security and equal belonging of members of minority groups to be permitted. Holocaust survivors remind us that it was not in the gas chambers that the Holocaust began. It started with hate speeches against Jews, but also against the Roma and Sinti, against disabled people and against homosexual men.

On the other hand I am unwilling to trust the state – which demonstrably in many countries in the world are powered by majoritarian, anti-minority and sometimes fascistic ideologies – to regulate and punish hate speech.

This dilemma is hard to resolve. But this much to me is clear. Let us not draft and support laws to ostensibly combat hate speech that further empower ideologically driven government to further oppress minorities and dissenters. And at the same time let us build a much stronger citizen movement to condemn and reject hate speech, whether in the orations of those who hold the country’s highest offices, those who wear the robes of religious saints, or those who entice us into cinemas with films that rouse in the viewers their basest sentiments of violent loathing.

The battle against hateful speech that fosters fear, loathing and violence against vulnerable people cannot be left to a potentially partisan state. A world in which hate is no longer considered legitimate or normal can be accomplished only when citizens of goodwill join hands to combat the politics of hate.

I am grateful for the extensive research support of my colleague Omair Khan and the advice of advocate Shahrukh Alam and legal scholar Nizamuddin Siddiqui. I alone am responsible for the views expressed in this essay.

Harsh Mander is a peace and justice worker and writer. He leads Karwan e Mohabbat, a people’s campaign for solidarity and justice for the survivors of lynching and hate violence. He is visiting faculty in the South Asia Institute of Heidelberg University. His latest book, Under Grey Smoggy Skies: Living Homeless on the Streets of Delhi Cities, is in the bookstores.

Source: Scroll
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