Curbing hate: More law, less impact

MANU KULKARNI AND FARIN SHAFFI

The Karnataka Legislative Assembly has passed the Karnataka Hate Speech and Hate Crimes (Prevention and Control) Bill, 2025. The Bill defines ‘hate speech’ as any verbal, print or electronic communication that is made with the intent to cause injury, disharmony, hatred or ill-will, causing prejudice to religion, race, sexual orientation, caste, community, language, etc., but excludes publications for public good, and makes hate speech punishable by imprisonment and fine.

Interestingly, the definition of hate speech under this Bill significantly resembles Section 196 of the Bharatiya Nyaya Sanhita, 2023. The Supreme Court has extensively discussed hate speech in Pravasi Bhalai Sangathan v. Union of India and concluded that there exists an established statutory framework (including Section 153A of the IPC, the earlier avatar of Section 196) to deal with hate speech and that the need is not new laws, but the effective enforcement of existing laws.

Additionally, the BNS criminalises hate speech with greater specificity than the new bill. For instance, hate speech implying that the members of any religious, caste or linguistic group do not bear true faith to the Constitution of India is a specific crime under Section 197. Similarly, hate speech implying that a class of persons should be denied or deprived of their rights as citizens of the country is a separate crime under Section 196. Since the BNS covers a broader spectrum of hate speech, the state’s move comes across as unnecessary. The Bill may also need the President’s assent because of this overlap in provisions.

The Bill’s exclusions of publications in the interest of science, literature, art or learning, heritage, or religious purposes are inapt because science, literature, or religion should not promote hate speech. Section 153A of the IPC was introduced in 1898 (and amended in 1969), and for more than 125 years, no need was felt to carve out exceptions. Perhaps inadvertently, the Bill not only waters down the BNS, but its exclusions will likely fuel litigation rather than enabling prosecution.

Unwieldy preventive measures

The Bill empowers the Executive Magistrate or police officers above the rank of Deputy Superintendent of Police to take preventive action if they have reason to believe that a person is likely to commit a hate crime. In this age, marked by information technology and the surge of social media, there is hardly ever a time lag between speech and its broadcast, and therefore, it is unclear how the envisioned preventive measures will ever be put to use.

The Supreme Court expects speech to be tested from the perspective of reasonable, strong-minded, firm, and courageous individuals, and not those of weak and vacillating minds, nor those who scent danger in every hostile point of view. The officers who are entrusted with implementing the law will hardly have this perspective – instead, their understanding is likely to be coloured by the perspective of the party which is in power. Preventive powers are, therefore, more likely to be used to target legitimate speech rather than counter hate speech, and may consequently not pass constitutional muster.

A fundamental problem with the Bill is the fluidity of internet users. It is axiomatic that Karnataka’s laws cannot extend beyond its borders. At a practical level, how will this law be enforced for content that may have been first posted outside the state but forwarded or reposted within the state? Such jurisdictional questions are likely to befuddle the implementation of this law.

Also, the Parliament has enacted the Information Technology Act in 2000, and the Union government has made extensive rules under the Act for the removal of information. The question of whether a state has the competence to make such a law needs to be answered with intent. Section 6 of the Bill is likely to fail on this score.

This section empowers an undefined ‘Designated Officer’ to direct any person or intermediary to block or remove materials of hate crime without testing the legality of the speech in court. Effectively, the government seeks to anoint itself as a judge in its own cause. Sooner or later, such tools will be employed by successive governments to excise unpleasant truths and retain only those that are laudatory.

Ultimately, while hate speech is real and certainly needs to be tackled, the implementation of existing laws may hold the key rather than adding a new law to the milieu, which will make the enforcement of both laws complex and cumbersome.

(The writers are advocates practising at the Karnataka High Court)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.