Law, Liberty, and Limits - Regulating Digital Hate Speech in India

Introduction

India, with over 800 million people having internet access, stands at the crossroads of the digital revolution. The country boasts one of the largest online populations globally. In this digital age, because of social media forums and messaging platforms, the spread of ideas has become faster and more far-reaching. This democratizes the voice of the citizens, but it also comes with certain limitations, which have resulted in the spread of hate speech, misinformation, and digitally mediated harassment at lightning speed. The question hence emerges, does these instances get constitutional protection under the right to free speech? Should free speech include the right to express and disseminate fake, false, or misleading information? Therefore, the Indian judiciary finds itself increasingly being called upon to interpret Article 19(1)(a).

What Is Digital Hate Speech and Why Is It a Concern?

Digital hate speech, which encompasses verbal abuse, offensive images, or any other form of hateful allegation put forth through a myriad of social media channels, messaging services, or websites, is consumed by a combination of national and international audiences. Such digital content can immediately cause harm or fuel communal violence, as seen in real-world incidents sparked by online provocations. The complex social fabric of India calls for a strong authority to protect vulnerable communities while upholding democratic freedoms.

The Legal Landscape: BNS, It Act, And A Patchwork Of Regulation, Selectively Enforced

Bharatiya Nyaya Sahita (BNS) Provisions

Section 196 of the Bharatiya Nyaya Sanhita (BNS) punishes promoting enmity between groups on grounds of religion, race, caste, or language with imprisonment extending to 3 years or 5 years within places of worship. Section 197 punishes statements that tend to injure national integration, and Section 299 penalizes any deliberate and malicious act intended to outrage the religious feelings of any class by insults or indignities to religious beliefs. These updated laws override old provisions of the IPC to regulate both digital and traditional hate speech in India.

The IT Act and Intermediary Guidelines

In addition to the various BNS provisions dealing with hate speech, the government is also empowered under Section 69A of the IT Act to block access to any information online on grounds including public order and information technology. Furthermore, the guidelines for intermediaries who merely provide a platform for the sharing of information are also protected from liability arising from hate speech under Section 79 of the IT Act. The IT Rules, 2021, give the government power to demand content taken down.

A Patchwork of laws, selectively enforced

The reality about the enforcement of these laws in India is really disturbing because these laws work differently for different people, and laws are applied selectively to serve political ends. If an influential person in power spreads hate speech, they often go unpunished, with enforcement either delayed or absent. In contrast, when criticism is directed towards the government or anything that does not favour the government, the state responds with remarkable speed, slapping journalists, students, and activists with FIRs. The Supreme Court’s decision in Shreya Singhal v. Union of India (2015) struck down Section 66A of the IT Act and was meant to protect free expression and prevent vague laws. Yet the government misuses the scrapped provision, while new measures like the IT Rules, 2021, have reintroduced government control.

Real World Consequences of Selective Enforcement

There are many real-world consequences happening in India, which clearly show selective enforcement. For example, during the Delhi riots of 2020, inflammatory social media posts were circulated without any government action, while journalists reporting on the violence were slapped with FIRs. Also, there are many cases of WhatsApp-fueled lynching in which authorities were very slow to take action. Meanwhile, in the case of critics of government policies—whether a student, activist, or comedian—the state acts with remarkable urgency. These examples reveal that regulation is less about curbing hate speech and more about silencing dissent.

Way Forward and Conclusion

If India wants to curb digital hate speech to ensure the survival of its democracy, then the way forward lies in enforcing laws uniformly. The orders concerning content takedown should be informed by independent judicial oversight, which would prevent the issue of arbitrary censorship that is politically motivated. The government and social media platforms must issue regular reports explaining why content has been removed from the internet. At the same time, it is essential to protect legitimate criticism, satire, and dissent, for without them, the promise of free speech under Article 19(1)(a) becomes hollow. In short, India striking a delicate balance is a must, curbing real hate speech while refusing to weaponize regulations to silence the voices of dissent and legitimate criticism. 

This article is authored by Janvi Gaurav, who was among the Top 40 performers in the Civil Procedural Law Quiz Competition organized by Lets Learn Law. The views and opinions expressed in this piece are solely those of the author.