Will Karnataka’s Hate Speech Bill survive India’s enforcement gap?

Karnataka’s Hate Speech and Hate Crimes (Prevention) Bill has the right intent. If free speech is the lifeblood of a democracy, hate speech poisons that lifeblood, pitting community against community, shattering the bonds of fraternity and targeting the dignity of an individual. Hate speech, as generally defined, aims to demean and dehumanise an individual and a community, creating the basis for violence against them. Examples can be found in Nazi rhetoric against Jews, Hutu radio broadcasts against Tutsis, and, closer home, in the dehumanisation of Bengali speakers in erstwhile East Pakistan by the West Pakistani government and media. These were large-scale, state-sponsored, systematic campaigns of hate targeting specific marginalised communities. The age of mass media and now social media has only made it easier for hate speech to spread wider and faster.

Provisions in regular criminal law hope to prevent the spread of hate speech to an extent by punishing perpetrators on an individual basis. What the Karnataka Bill aims to do is fill in the gaps in the Bharatiya Nyaya Sanhita (BNS) when it comes to tackling hate speech and hate crimes. The BNS, though passed in 2023, still sticks to colonial-era definitions of hate speech, which were more concerned with maintaining peace between communities rather than protecting constitutional values of fraternity or dignity. The inadequacies in this framework have been gone into by the Law Commission of India in its 267th report, but its suggestions remain unimplemented.

Has the Karnataka Bill addressed these deficiencies?

With the sharper definition and a clearer list of protected categories, the Karnataka Bill has, to some extent, addressed some gaps in the BNS. However, it does not address the core of the problem – poor implementation of the law. In a law-abiding country, the investigation and prosecution of crimes are done only on the basis of the law and the individual judgment of the investigator and prosecutor. However, in India, the investigator and prosecutor seldom act with such independence in high-profile cases and take their cues from the political executive. Deciding whom to prosecute and whom to let off has become an exercise in discretion rather than the law.

This matters because the model of preventing hate speech is deterrence through criminal sanctions – a measure which only works if the criminal justice system works predictably and efficiently. Without serious reforms in the criminal justice system (of which prosecutorial independence is one element), merely passing new laws is no deterrence. When the decision to investigate or prosecute is based on partisan political concerns, the words of the law become meaningless. More so, when there is little chance of a remedy against bad-faith prosecutions.

Even if the intent of the law was only to clarify the definition of what constitutes hate speech and how it should be prosecuted, Karnataka’s Bill could have just proposed an amendment to the BNS, which has existing provisions to tackle hate speech. However, for reasons best known to it, the state government has chosen to make this a separate offence with a different language, a different procedure for prosecution and a different punishment. This makes the Bill stand in conflict with the Union legislation and raises doubts about its constitutional validity.

That said, there are no simple answers on how to fight hate speech in India. It requires better drafted laws which define the offence narrowly and specifically, and more robust enforcement mechanisms implemented by independent and efficient institutions. These are not changes which can take place overnight. It also requires greater political imagination to fight hate speech, one that goes beyond criminal law and punishment as the only possible tools to fight hate speech.

When existing provisions of law relating to hate speech remain poorly or maliciously implemented, more laws, whether at the national or state level, will fail to address the problem. Removing the poison from the lifeblood of democracy requires stronger treatment than just punitive laws.

(The writer is an advocate and co-founder of the Vidhi Centre for Legal Policy. The views expressed here are personal.)