RESEARCH PAPER

ON
HATE SPEECHES
WHERE SHOULD WE DRAW THE LINE
BY

PANKHURI DWIVEDI

ABSTRACT

This paper explores some of the issues hate speech poses for a society like ours. It analyzes the
teachings of social science on such matters as: In what way can hate speech prove harmful to the
victim? To the perpetrator? To society at large? The practice of labeling hate speech as such can be
particularly harmful in itself and serves to trump other fundamental rights, identification of hate
speech acts must be done cautiously. At what point does offensive speech become hate speech?
Ultimately, there must be a boundary between the tolerable and the intolerable in other words,
under what circumstances does condemnation, insult or scorn be rightfully categorized as a message
of persecution, inhumanity and degradation; and therefore unacceptable? It analyzes the basic
concept of hate speech and in what ways it can be regulated so as to maintain a balance between
right of free expression and individuals right to live peacefully without any discrimination in the
society. The paper also examines the views of various critics in favor of and against hate speech
regulations along with study of various case laws and judgments in area of hat speeches to
understand how the current hate speech laws work in the country

Introduction
Speech has a very important role to play in the communication of ideas, beliefs, doctrines, and
schemes of action. Firstly, Verbal and symbolic messages are instrumental in the transmitting the
social mores and beliefs. Secondly, those rules then influence people to act on the expressed views.
Freedom of speech is an essential part of any democracy. Liberty to express opinions and ideas
without hindrance or without any fear of punishment significantly leads to the development of that
society and eventually of the state. Also, as embodied in the Universal Declaration of Human
Rights, every person has a right of freedom of opinion and expression. However, this freedom
sometimes is misused to speak offensive or hateful words which seek to intimidate targeted groups
from taking part in the deliberative process.
Hate speech can be defined as the speech designed to promote hatred on the basis of race,
religion, ethnicity or national origin. The issue of hate speech poses vexing and complex problems
for contemporary constitutional rights to freedom of expression. 1 It involves speech intended to
degrade a person based on their sexual orientation, appearance, mental capacity, ideologies, social
class, gender identity, disability and any other distinction which might be seen by people as a
liability. It often consists of lies, logical fallacies, derogatory terminology, etc. Although there might
be some truth in the speech, it is perverted in such a manner that the conclusion it gets is altogether
different from what the facts are intended to show.
This paper aims to provide an overview of legal, historical and philosophical perspectives on hate
speech in India, the problems it poses for the society and the various legal and judicial approaches
that can be adopted to draw a line between protected and unprotected parts of hate speech. It
consists of four sections. The first, deals with the background of hate speech in India while the other
three sections deal with the following issues with regard to International law and Indian law
thereafter.

Steering a middle course: The prohibition on hate speech should be interpreted in such a way so as
to strike a balance between values like freedom of expression, equality, and dignity of human
beings. How such balance can be achieved? When there is a conflict between protection of
community interests and upholding the rights of the individuala balance must be found which
safeguards the civil rights of all without restricting the civil liberties of the speaker.

Understanding the Context: An analysis of whether, how, or how much, hate speech ought to be
prohibited requires to account for certain important variables, namely, who and what are involved
and where and under what circumstances such cases have occurred. It should involve interpreting
1 Michel Rosenfeld, Hate Speech in Constitutional Jurisprudence: A Comparative Analysis(2002-2003) 24 CARDOZO
LAW REVIEW 1523, 1523.

communal meanings active in such use, with special attention to meanings about personhood and
communication.

Hate speech and popular culture: How the hate speech cases have been dealt with in recent times? In
what forms can hate speech be used to offend the liberal sentiments of a group? A thorough
understanding of the viewpoints of the critics is essential which shall include the contemporary
debates by the progressive intellectuals, media practitioners about regulations on hate speech.

Hate speech is harmful because there is too much power in the words used to
influence ad affect the sentiments of others. Hate speech leads to division and
intolerance; it is dangerous for the targeted groups as it marginalizes them and makes
them vulnerable. Free speech is exercised largely by the privileged at the expense of
the unprivileged that do not have a level ground on which to respond. Unlike
incitement to violence, hate speeches are to a great extent subjective. The line
between hate speech and legitimate unpalatable viewpoints is difficult to draw with
certainty, clarity and consistency. There can be various approaches which can be adopted in

order to tackle the problem of regulating hate speech. These are mainly the libertarian approach and
the communitarian approach.
LIBERATARIAN VIEW
Libertarians hold the opinion that individuals have the right to free speech in a democracy and that
the power to limit it should be used only under most compelling reasons. Most libertarians consider
fighting words as an adequate compelling reason for the purpose of limiting free speech. The first
approach, permits hate speech keeping in mind the end goal to maximize opportunities for
individual expression and cultural regeneration. Critics in favor of hate speech put forward the
argument by advancing the autonomy concept for defending the agents freedom of expression. Ed
Baker argues that it is essential that each person has the freedom to be himself and to present
himself in order to restore respect for personhood, for agency and for autonomy. The role of
government according to Baker is to ensure such freedom for its people. He believes that the content
of expression is immaterial and that racist hate speech is as legitimate as respectful speech.
According to him, both the speeches present the speakers view of the world and express his values.

Since the government has the responsibility to take the autonomy of speaker and his selfdevelopment very seriously, all forms of speech should be protected. Legal restrictions on any kind
of hate speech should be prohibited because they violate the speakers formal autonomy.2Thus,
Baker believes that the interests of the audience, of the bystander and of the society at large not a
matter of utmost importance but individual autonomy is. As such the speaker should be provided
with all such possibilities which help him to cultivate his ideas and to promote his values, even if
those values are vile and come at the expense of the values of other members of society. Baker
remains indifferent to the vulnerable state of the minorities and rely on his assumption that
capacities to speak in society are equal, and people, as speakers, are often able to promote their

values and ideas. People, according to him, choose whether they are to be offended by hate speech.
Other critics also take a strong speech-protective position emphasizing the importance of vibrant
dialogue and active social responses in reducing the prejudiced attitude and their responses in a
much better manner than what legal prohibitions can do.
COMMUNITARIAN VIEW

Communitarians, on the other hand have a different approach. They believe that the most essential
object of society is communitys well-being and that an individuals right to free speech may be
limited if it is in the interests of community harmony. They believe that if the people are treated
fairly at least some free-speech restrictions are justified-that elimination or reduction of hate speech
can be seen as a sufficiently compelling goal by which government regulation can be justified. The
second, profoundly controversial approach represses hate speech by the way of sanctions that vary
from official and private reprimands to criminal prosecutions so as to promote equality and the nonsubordination of potential hate speech targets. This approach when applied aggressively urges that
hate speech should be punishable only when the target is member of a historically subordinated
group, not a dominant group member. Hate speech can prove to be destructive to society and to its
victims. Hatred when endured over years can limit peoples opportunities, lead to their social
isolation, lead them into poverty, result in loss of self-esteem and depression, and prove dangerous
to their health and safety. It is wrong to diminish the dignity and lives of some people just so others
can freely spout hate against them.

2 The Content and Context of Hate Speech: Rethinking Regulation and Responses

There are a few often proposed arguments in favor of regulation of hate speech and hate speech
legislation and the researchers view with regards to same.

The anti-absolutist argument says No rights are absolute. Rights must be limited by the
needs of society as a whole and the people who live in it. Although free speech is a value of
great significance, it is not the only one. Human dignity, equality, freedom to live without
harassment and intimidation, social harmony, mutual respect, and protection of ones good
name and honor are also central values which ought to be protected. Since such values
conflict, either inherently or in particular contexts, they must be balanced. Moreover, there
are many regulations of speech to which no one objects like penalizing commercial fraud,
graffiti, or courtroom perjury. Hate speech bans should be understood in the same light.3

The direct harm argument: Hate speech often leads to psychological harm since the
victims of such speech are affected mentally and emotionally. Children who are called
nigger, Paki, or queer suffer psychologically in the same manner as when they are
physically bullied. For adults, verbal abuse leaves the workplace, educational or other
environments difficult.

The indirect harm argument: From some phenomenological and socio-linguistic

perspectives, hate speech consisting of hateful words is illocutionary, i.e. not just denoting
mere hatred but an act of discrimination, and perlocutionary, leading to dissemination of
adverse psychological effects regardless of any clear impact. Anthony Cortese puts forward a
cultural transmission theory, whereby cultures pass hate on to each succeeding
generation, making intolerance normal or conventional. Hate speech is thus seen to create
intolerance through cumulative effects.

The balance of interests argument: Freedom of speech is of great importance, but

it ought to be balanced against other individuals or groups interests regarding
fundamental dignity,. respect, or non-discrimination. The democratic imperative of
individual freedom must be balanced against the democratic imperative of equality.

3 Discussed in Michael Rosenfeld, Hate Speech in Constitutional Jurisprudence: A Comparative Analysis (2003) 24
Cardozo L R 1523, 1525.

MISUSE OF HATE SPEECH LAWS AND ITS LIMITATIONS

In some countries hate speech laws have been introduced to outlaw extreme
expression.

The success of such laws has often been questionable and one of the
consequences has been to drive hate speech underground.

No one should be penalized for statements which are true.

No one should be penalized for the dissemination of hate speech unless it has
been shown that they did so with the intention of inciting discrimination,
hostility or violence

In Central Asia, hate speech laws have lead to repression all forms of Islamist
movements, including those that have publicly made a statement that they are
strictly committed to non-violence, such as Hizb-ut-Tahrir.

STRIKING A BALANCE

Here we answer the question whether a middle ground between the two approaches can be
established or not. The third approach which is an emerging one makes an attempt to accommodate
the "worthy passions" of the first two approaches. The philosophical, constitutional, and practical
factors illustrate the extreme difficulty of striking an appropriate balance between the strong claims
of civil discourse and the strong claims of untrammeled expression .A famous critic on regulation of
hate speech, Jeremy Waldron in his book; The Harm in Hate Speech argues that hate speech
regulation should aim to protect peoples dignity against assault. Essentially, to identify the rights
that regulation of hate speech aims to protect approaches this from two perspectives: first, in terms
of societys interest and, secondly, in terms of individual rights. From the perspective of society,
Waldron lays emphasis on inclusiveness as a public good, when to members of the society are
provided with an assurance and sense of security that they can live peacefully without having to face
hostility, violence, discrimination or exclusion. From the other perspective, of those who are the
beneficiary of such assurance, the fundamental human right that is guaranteed is the right to dignity.
Hate speech often results in undermining of such sense of assurance and denies the dignity of
individuals. His efforts seek to reconcile the treatment of human dignity as the conceptual basis for
human rights and as providing the content of some known rights. The section of Professor
Waldrons hate speech book, which is of particular importance for our research, is the chapter which

is specifically devoted to establishing the proposition that protection of dignity does NOT require
protection from being offended.4 Dignity, according to Waldron is not just son Kantian Aura but
relates to a persons social standing, the fundamentals of basic reputation. 5 Protection of peoples
feelings against offence is not apt as an objective of the law. Protecting people from offence or from
being offended is to protect them from a certain sort of effect on their feelings which is not the same
protecting their dignity and the assurance of their decent treatment in society. The freedom to offend
is an essential component of freedom of speech. There is no right not to be offended. Ones right to
free speech ends where significant harm to society begins. It is argued that under his view of the
social harms of hate speech, its not enough to regulate speech that is likely to cause imminent harm
in the form of a fight or a riot. Under his view, the content of hate speech is itself harmful, and bans
on hate speech should therefore be content-based.

HATE SPEECH REGULATION IN INDIA

Article 19(2) of the Indian Constitution permits the state to make laws imposing reasonable
restrictions on the right to free expression in the interests of the sovereignty and integrity of India,
the security of the state, friendly relations with foreign states, public order, or decency or morality.
Reasonable restrictions are also being imposed with respect to contempt of court, defamation or
incitement to an offence. The case law demonstrates a growing trend where Indian courts have dealt
with hate speech cases, showing a greater sensitivity to the cultural and historical context which
underlies the exercise of freedom of expression. The courts have particularly recognized the
significance of representations of Indias history of sectarian violence and attempts to suppress such
depictions of this history have been nullified. The Supreme Court, adopting a liberal approach to
freedom of expression, has permitted the screening of a television serial which depicted Hindu
-Muslim tension before the partition of India. 6The serial depicted how pre -partition tension and
hatred was created by extremist sections of both communities. The Court arrived at its decision
based on the idea that although the serial might be unpleasant on occasion, since it was based on
4 The Harm In Hate Speech
5 Jeremy Waldron The Harm in Hate Speech Harvard University Press, Cambridge, Massachusetts, 2012.
Waldron develops the analysis he presented in his 2009 Holmes Lectures Dignity and Defamation: The
Visibility of Hate (2010) 123 Harvard Law Review 1596.
6 Ramesh v Union of India (1988) 1 SCC 668.

historical truths, it can prove to be revealing and instructive. Those who overlooked history would
be condemned to repeat it.7 Therefore, the manner of the expression under consideration was the
main focus of the judgment.
In Anand Patwardh an v Union of India , 8the Bombay High Court held that refusing to telecast a
documentary film on the ground that it could give rise to communal tensions violated the
constitutional freedom of speech. The historical theme which was the basis for the film was the
massacre of Sikhs in 1984, which was triggered by the assassination of the Former Prime Minister,
Indira Gandhi, by her Sikh bodyguards. The Court again undertook the counterbalancing exercise
and saying that the documentary could create a lasting impression of the message of peace and co
-existence.
The Bombay High Court held in a leading case that the aim was to emphasize the fact that stability
in a society can only be brought by reflecting upon social reality, however grim it may be.9
Moreover, the Bombay High Court has held that the State cannot hold the contention that the
narration of history would promote violence, enmity or hatred and attempt to extinguish history on
this ground.

7 AIR 1997 Bom 25

8 The bodyguards assassinated the Prime Minster to avenge a military operation which was conducted at the
Golden Temple, Amritsar on her orders (Operation Blue Star).

9 F.A. Picture International v Central Board of Film Certification AIR 2005 Bom 145

Hate Speech and Context

It is important to question the role which context plays in determining whether damaging and
provocative speech amounts to hate speech. In the case of deeply divided societies,
longstanding historical and social currents have often led to entrenched inequality and
communal violence. Hate speech law is fundamentally enhanced by social, historical and
ideological contexts. Speech that aims to attack any marginalized group or incite violence
within the society must be rightfully analyzed taking into consideration the appropriate
context that is attached to it in order to properly ascertain the implications which it may carry.
Since hate speeches can intimidate the minorities so targeted the intention behind such
speech also need to be analyzed.
The following methods can be used to analyze the context of hate speech in question.
Discourse analysis: This method involves placing the text in its wider political and
social context in order to understand the currents of thought which can help to
rationalize and illustrate why it is to be perceived as hateful.
Content Analysis: This aims to analyze the text which is deemed to be offensive so
as to pick out the key semantic components and targets of speech act. It involves a
thorough analysis of words which are in question and if at all they were really meant
for the target groups.
Arguments in support of freedom of speech sometimes try to inculcate the idea that speech occurs
in no context whatsoever. Understanding the context in which the speech has been given leads easy
identification of offensive element if present at all. Those who defend freedom of expression make
the assumption that speech happens in a vacuum, free from situational context which is not true at
all. It needs to be understood that when a person speaks, he speaks his own ideas, and that should
not be controlled. He should be free to speak his mind without worrying about what others might
think about it. This is erroneous on two counts: first, He does not make speech from a place that is
context-free. Every life has its own context, and every speaker attaches that context to his speech.
Second, for speech to have meaning it is necessary that someone actually hears it. The person who
listens to such speech is also affected by the context of his life. With respect to hate speech in
India, the Indian courts have still not laid down any clear standard to ascertain the relevance of
context. However, context-specific observations have been made in some cases.

In Gopal Vinayak Godse v Unio n of India , 10the Bombay High Court struck down a decision to
confiscate all copies of a book, Gandhi-hatya Ani Mee (Gandhi - assassination And I), which
was authored by a person who was one of the conspirators in the assassination of Mahatma Gandhi.
The Court held that rather than scrutinizing specific lines or passages from a book, the overall
impact of a book on the reaction of a common reader should be considered as relevant. The Court
also upheld the significance of historical context, where the book was based on a theme which was
a matter of past history the assassination of Gandhi in 1948. It did not deal with any
contemporary issue and it was open to the author to interpret the justifications for Gandhis
assassination (which the author primarily based on Gandhis putative policy of appeasing Muslims,
which he claimed led to the partition of India). The Court considered the authors argument that, as
a convict who had served his sentence for the assassination, making people aware of the
justifications he had, for his actions would make it easier for him and his family to be rehabilitated
into society.
In Sujato Bhadra v State of West Bengal, the Calcutta High Court held that the context in which a
book is written constitutes a key consideration in determining whether s 295A of the Indian Penal
Code has been breached.11 The author, who was a Bangladeshi national, had expressed her anguish
towards the deplorable state of women in the political climate in the country, which in her opinion
was a result of the adoption of Islam as a state religion. The book also highlighted inconsistencies
present in the Islamic Holy Scriptures. An order to forfeit the book was passed by the Government
of West Bengal on the ground that it would lead to outrage of religious feelings and insult the
sentiments of Muslims in India. The Court was of the view that a reader should not be oblivious of
the larger context in which a book was written. The fact that the author strived to administer a
shock for the purpose of sensitizing the public to womens clamoring for equality and reviving
the tradition of secularism had an important role in the forming the Courts decision. The majority
of hate speech cases in India have concerned books and films. The most notable have already been
discussed above.

10 Gopal Vinayak Godse v Union of India AIR 1971 Bom 56.

11 2005) 3 CALLT 436 HC

HATE SPEECH AND POPULAR CULTURE

When the alleged hate speech is in the form of a song or some other form of artistic or
cultural expression then it can be relevant in at least two ways: first, some jurisdictions
in their hate speech laws tend to make an exception, and, second, these forms of
expression bring into consideration additional factors that are relevant in ascertaining
the meaning, intentions and likely effects of the speech.
An example of this approach can be pointed out in the case of Maqbool Fida Husain v
Raj K umar Pandy. In this case, it was alleged that a painting produced by a leading
Indian artist will most likely give rise to religious violence due to its depiction of a
religious figure. However, the criminal charge was based on obscenity laws as he had
depicted the religious figure naked rather than the prohibition on hate speech.
Self-expression is fundamental to democratic institutions but it nevertheless, has to be balanced
against the social interest in protecting a pluralistic culture by preventing the instigation of
demagogic threats. Placing no limits on speechnot even on expressions blatantly intended to
make life miserable for minoritiespreserves the rights of speakers at the expense of targeted
groups. Defamation statutes, zoning regulations, and obscenity laws are indicators which prove that
the freedom of speech is not guarded against where it undermines other individuals legitimate
interests.
In Babu Rao Patel v. State (Delhi Admn.), the Supreme Court had to undertake the task of distinguishing
speech which violated Section 153-A from political thesis and historical truths which was based on the
claim made by the author of the two articles which were alleged to contain hate speech. The Supreme
Court after carefully examining the two articles held that the first entitled, Tale of Two Communalisms
was an attempt to promote feelings of enmity, hatred and ill-will between the Hindu and the Muslim
communities. Similarly on an examination of the second article entitled, Lingering Disgrace of History
purported as a protest against naming of Delhi Roads after Moghul emperors, the Supreme Court held
that it was of the view that both the articles can be seen to promote feelings of enmity, hatred and ill-will
between the Hindus and Muslims on grounds of community.

CONCLUSION

Why does a person commit an act of hate speech? The bottom line is, that person has been
exposed to the kind of information that has forced them to believe something negative about
a group or groups of people and holding this belief, they feel compelled to express that view.
The underlying belief is gains its support from the systems of oppression in society that serve
the purpose of exploiting and demoralizing particular groups of people, and to privilege some
other groups. Oppression deals with relations of power among groups, and hate speech have a
twofold intent: to demoralize and degrade an individual or group of individuals based on their
membership in an identifiable social group, and to provide more power and privilege to the
speaker and his/her group.
However a complete ban of hate speech is also not beneficial since there can be a lot of
misuse of such laws. The practical test is necessary, indeed crucial, to make sure that
whatever regulations and restrictions are put in place (both negative and positive ones) satisfy
the social functions they are meant to play.In a perfect world, an individual wished to express
his prejudices against another group (or groups) of people or to society at large, such an
expression would not matter. The only damage that can arise from such an expression would
be the public humiliation, chastisement, and exclusion of the person or group expressing
those views by the rest of society. However, we do not have a perfect world. This world is
full of with interlocking systems of oppression that serve to harm groups of people based on
criteria such as gender, sexuality, disability status, economic status, race, ethnicity, and
religion. These systems of oppression can be easily fuelled by such expressions of intolerance
and non-acceptance characterized by hate speech. Society owes protection to these
disadvantaged groups in the form of legislation prohibiting hate speech taking into
consideration the content and context of such speech. One should not be subject to prior
censorship; sanctions if imposed by courts must strictly conform with the principle of
proportionality.