Report No. 267

Chapter - III

Examination of the Issue by the Commission

3.1 Hate speech has always been a live debate in India. The issue has been raised time and again before the legislature, court as well as the public. In Pravasi Bhalai Sangathan v. Union of India11, the Supreme Court dealt with a case where the petitioners prayed that the State should take peremptory action against makers of hate speech. The Court did not go beyond the purview of existing laws to penalise hate speech as that would amount to 'judicial overreach'. The Court observed that the implementation of existing laws would solve the problem of hate speech to a great extent. The matter was referred to the Law Commission to examine if it 'deems proper to define hate speech and make recommendations to the Parliament to strengthen the Election Commission to curb the menace of "hate speeches" irrespective of, whenever made.'

3.2 While recognising the adverse and discriminatory impact of hate speech on individuals, the Court in Pravasi Bhalai Sangathan12 also expressed the difficulty of 'confining the prohibition to a manageable standard'. The apprehension that laying down a definite standard might lead to curtailment of free speech has prevented the judiciary from defining hate speech in India and elsewhere.

3.3 The Court again went into the question of hate speech in Jafar Imam Naqvi v. Election Commission of India.13 The petitioners filed a writ petition challenging the vitriolic speeches made by the candidates in the election and prayed for issue of writ of mandamus to the Election Commission for taking appropriate steps against such speeches. However, the Court dismissed the petition on the ground that the petition under article 32 of the Constitution regarding speeches delivered during election campaign does not qualify as public interest litigation and that the Court cannot legislate on matters where the legislative intent is visible.