Published On: March 13th 2026
Authored By: Mansi Yadav
Maharshi Dayanand University
Introduction
Hate speech laws are at the crossroads of the Indian constitution, the necessity for maintaining order, and the realities of the new age of digital communications.
The problem for the world’s largest democracy and multi-religious and multi-linguistic society is that it seeks to balance and harmonize the rights and freedoms of speech and expression while still preventing the incitement of hatred, discrimination, and violence through words of hatred that circulate freely and instantly across the new digital platforms for social communications, such as social networks and messaging services.
Recently available research evidence reveals the importance of this regulatory discussion. The India Hate Lab (IHL), a Washington, D.C.-based project, documented a 13% rise in hate speech against minorities in 2025 with 1,318 documented cases [1]compared to 1,165 cases of hate speech documented in 2024 and 668 cases documented in 2023, which saw a rise due to political gatherings and tensions witnessed in Kashmir.
This paper critically analyzes the constitutional and statutory frameworks and precedents of hate speech regulation in India, important judicial pronouncements, the impact of web-based media, recent controversies, and potential frameworks that could balance freedom of speech and maintenance of public order.
Constitutional Framework: Free Speech and Its Limitations
Freedom of Speech & Expression
The Indian Constitution provides freedom of speech and expression under Article 19(1)(a). This is one of the most important rights in a democracy that allows people to express their views and critique public policies.
Nevertheless, under article 19(2), “reasonable restrictions” may be imposed by the State on this right for reasons of sovereignty and integrity of India, decency, morality, and prevention of incitement of an offence. The judiciary of the Indian Constitution has particularly highlighted that restrictions imposed on this right must be specific, necessary, and proportionate.
Public Order Considered Under the Restrictive Grounds
“Public order” is an expression of public peace and security. The Supreme Court has held (Ram Manohar Lohia v. State of Bihar, 1966) [2]that free speech cannot “degenerate into anarchy” or abet violence. Therefore, where words are in direct and imminent threat of public order, these words are appropriate subjects under reasonable restriction. It has been reiterated that there are limited circumstances under which these restrictions are permissible.
Legal and Statutory Framework
- Criminal Law Provisions (IPC / Bharatiya Nyaya Sanhita)
Currently, in India, there exists no independent legal definition for ‘hate speech’ under the law. The police have to make do with scattered criminal provisions concerning similar acts, which affect public order or religious sentiment.
Under the remodeled Bharatiya Nyaya Sanhita (BNS), 2023, a large number of provisions have been derived from sections of the erstwhile Indian Penal Code (IPC):
- Section 196 BNS[3] (Ex-Section 153A IPC): It criminalizes inciting enmity between different groups on certain sections like caste, religion, language, etc., which are prejudicial to harmony.
- Sections 351 and 354 BNS [4](ex-IPCs 268 and 505): Penalize statements conducing to public mischief or disorder.
Nevertheless, despite these provisions constituting the backbone of laws surrounding hate speech regulation, it has been pointed out that these provisions are often unclear with wide potential for abuse, particularly where matters of intent often become ambiguous.
- Information Technology Act and Intermediary Guidelines
In the cyber domain, the main regulating tools are the Information Technology Act, 2000 (IT Act) and its notification, the Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 (IT Rules).
Section 69A (IT Act)[5]: Enables the government to block any online content that is in contemplation of public order, sovereignty, or security.
Intermediary Rules 2021[6]: Mandatory duty cast upon social media services regarding removal of illegal content, including hate speech, based on government or judicial requests. Apart from that, intermediaries are bound by due diligence obligations, tracking back users, along with grievance redressal.
The enlarged ambit of the regulatory environment was contested by platforms such as X (formerly Twitter) based on a constitutional argument of censorship, although a decision by the Karnataka High Court asserted that platforms operating in India must necessarily balance freedom with accountability with regard to content removal by the government.
Key Judicial Developments
- Shreya Singhal v. Union of India (2015)
One of the most significant cases on online speech before the Supreme Court of India is “Shreya Singhal v. Union of India”[7], in which the Supreme Court declared the validity of Section 66A of the Information Technology Act to be unconstitutional inasmuch as it failed the test of Article 19(1)(a), being too broad and too ambiguous in its definition of “grossly offensive”. “Such phrases,” Justice J. Chelameswar noted, “cannot suffice… unless they connect with the likelihood of disorder.”
Historically, this holding is considered a paradigm in coming up with a definition of reasonable restrictions on online communications.
- Hate Speech vs. Free Expression Jurisprudence
The Supreme Court has reiterated (e.g., 2025 observations on communal hatred) [8]that hate speech inciting enmity is unprotected under Article 19(1)(a), as it cannot override others’ dignity.
The Telangana High Court (2025) [9]quashed cases for social media criticism of police, barring those inciting violence or disorder. This ruling reinforced that political expression remains protected by the constitution despite its being critical and/or offensive.
Modern Disputes and the Digital World
- Increase in Digital Hate Speech Incidents
India Hate Lab data confirm the 13% rise to 1,318 events in 2025. Such instances have extended across politics and social strains, reflecting their pragmatic influence on hate speech used online and offline. Research in academia has confirmed the challenges of structural spread of harmful content in digital media, such as the fact that harmful messages in WhatsApp spread further than messages not considered to be harmful, on the basis of structural properties of closed communication systems.
- Content Removal Mechanisms and Sahyog Portal
The government has launched a new portal called Sahyog in 2024[10], making it easier for law enforcement officials to remove any illegal online content without following Section 69A. Although necessary for speedy action against hate speech or any other illegal content in social media platforms, X Corp finds this move to be without judicial oversight in regard to any potential censorship.
- Karnataka’s Hate Speech and Hate Crimes Bill, 2025—
India’s first standalone state law—passed amid BJP objections; awaits assent. The draft legislation covers all hate speech and carries stringent penalties for hate speech as well as duties for internet intermediaries.
Nevertheless, some critics point out that the bill’s definitions (for instance, “disharmony” or “ill-will”) are subjective and might have a chilling effect on free speech. Also, there are calls for a repeal of the proposed legislation from some politicians, with some BJP leaders asking the governor not to give his assent to the bill because it might have a negative impact on democratic dissent.
Challenges and Critiques of the Current Approach
- Fragmented Legal Framework
This absence of an appropriate hate speech law in the Indian legal system has meant that the Indian courts resort to remnant criminal legislation, and such legislation sometimes becomes unclear and sweepingly broad in nature. The scarcity of convictions, an indicator of the enforcement of the legislation, in cases such as Section 196 BNS indicates the challenges of converting broad language into requisite convictions in fast-paced online environments.
- Discretion Risks of Law Enforcement
Broad legal clauses might have potential for abuse, threatening arbitrary or discriminatory restrictions against persons with dissenting voices. The repeal of Section 66A has highlighted concerns about the potential for abuse of vaguely worded regulations on speech. A legal provision without clear guidelines might result in police over-reliance on their own interpretations of ‘harmful’ or ‘offensive’ speech.
- Platform Accountability & Due Process Concerns
Though frameworks such as the IT Rules of 2021 and the Sahyog website have been devised to enhance accountability, rights activists have argued that the need for due process protections for freedom of expression, such as transparency, judicial review, and appeal processes, is crucial to thwart arbitrary removals of legitimate online content. In Kunal Kamra v. Union of India (Bombay HC, 2024) [11], IT Rules amendments were struck down for lacking safeguards, creating a chilling effect.
Guidelines in Ensuring a Harmonious Legal Framework
In order for the balance between the guaranteeing of freedom of speech and the maintenance of public order to be effectively established within the digital era, a successful body of regulations must adhere to the following principles:
- Legality and Clarity: Limits on speech must have a basis found in specific, narrowly drawn provisions of law. “Offensive” or “harmful” speech must be distinguished by specific standards that distinguish protected speech versus dangerous conduct.
- Necessity and Proportionality: Restrictions should be required to address particular threat of disorder and reasonably related to harm. Offensiveness, discomfort to society, or other non-harm causes should not qualify as grounds to impose punitive measures without indicia of threatened or potential violence.
- Due Process and Oversight: Having proper procedural safeguards such as transparent takedown notices, appeal systems, and review processes in place can go a long way in countering arbitrary censorship.
- Understanding of Context and Technology: The key to effective regulation begins with understanding the nature of digital platforms, including virality, algorithmic amplification, and private messaging. Legal rules must evolve in tandem with technological change while protecting underlying human rights.
Conclusion: Towards a Balanced Regulatory Regime
India’s fight to control hate speech on a rapidly digitalizing society is part of a global debate to flourish free speech against an obligation for social harmony.
India’s framework robustly protects speech under Article 19(1)(a) while permitting public order curbs. Judicial precedents clarify unprotected incitement. Critiques note fragmentation; digital reforms demand clarity and process. A nuanced regime—precise definitions, platform duties—preserves equilibrium between free speech and public order in the new age of technology.
References
[1] India Hate Lab, ‘Hate Speech Events in India 2025’ (India Hate Lab, 14 January 2026) <https://indiahatelab.com> accessed 16 January 2026.
[2] Ram Manohar Lohia v State of Bihar AIR 1966 SC 740.
[3] Bharatiya Nyaya Sanhita 2023 s 196.
[4] Bharatiya Nyaya Sanhita 2023 ss 351, 354.
[5] Information Technology Act 2000 s 69A.
[6] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
[7] Shreya Singhal v Union of India (2015) 5 SCC 1.
[8] Supreme Court of India, observations on communal hatred (2025).
[9] Telangana High Court, judgment quashing FIRs for social media criticism (2025), reported in New Indian Express (11 September 2025).
[10] Ministry of Home Affairs, ‘Sahyog Portal for Content Removal’ (2024) <https://sahyog.mha.gov.in> accessed 16 January 2026.
[11] Kunal Kamra v Union of India Bombay High Court (2024).
