Hate speech encompasses any form of communication - spoken, written, or behavioural - that belittles, shames, or provokes violence or discrimination against individuals or groups based on characteristics such as race, religion, ethnicity, gender, sexual orientation, disability, or nationality. The main purpose of hate speech is typically to foster animosity, violence, or bias against the affected group.

For instance, promoting violence against a religious minority through provocative speeches or social media messages is an example of hate speech. Likewise, making derogatory remarks about a specific ethnic group, implying their inferiority or that they ought to be marginalized from society, also qualifies as hate speech.

Another scenario involves a politician utilizing a campaign address to stir fear and hostility toward a certain community, implying they are a danger to the nation and deserve severe repercussions. Such rhetoric can result in actual violence, social discord, and heightened divisions within society.

Hate speech poses significant risks because it not only targets particular individuals or groups but can also sway public sentiment and incite widespread violence, thus presenting a serious challenge to maintaining social cohesion and public safety.

Critics contend that the inconsistent enforcement of legal measures against hate speech by courts, constitutional bodies, and law enforcement agencies - particularly in cases involving political leaders - weakens the rule of law in India. Although there are explicit laws against hate speech, their application is often uneven, allowing prominent figures to evade responsibility.

This selective enforcement not only encourages individuals to perpetuate hate speech but also diminishes public confidence in the legal framework. The absence of prompt and unbiased repercussions for influential individuals fosters a culture of impunity, deepening societal divisions and jeopardizing democratic principles.

In India, the regulation of hate speech during election campaigns is primarily governed by various legal provisions:

Section 196 of the BNS:
Anyone who promotes or tries to incite hostility or hatred based on religion, race, language, or caste through words, signs, electronic communication, or any other method, or who engages in actions that disrupt public peace or incite violence against any group, could be subject to a prison sentence of up to three years, a fine, or both. If the crime takes place in a place of worship or during religious ceremonies, the penalty may increase to as much as five years in prison, as well as a fine.

Section 299 of the BNS:
Anyone who intentionally and maliciously seeks to offend the religious sentiments of any group of citizens in India - whether through spoken or written words, signs, visible representations, electronic means, or any other method - by insulting or attempting to insult the religion or religious beliefs of that group, will face imprisonment of either kind for a term that may extend up to three years, or may be fined, or face both penalties.

Section 353 of the BNS:
Under the Bhartiya Nyaya Sanhita, 2023, anyone who makes, publishes, or circulates false statements or alarming reports through any medium instigate public fear or unrest, or promote enmity between different communities may face up to three years of imprisonment, a fine, or both. If such actions occur in a place of worship or during religious ceremonies, the punishment may increase to up to five years of imprisonment, along with a fine.

Section 356 of the BNS:
Any individual who, through spoken words, signs, or written publications, creates or disseminates a statement with the intent to cause harm or with knowledge that it could harm another person's reputation is committing defamation. Those found guilty of this offense may face penalties of up to two years of simple imprisonment, a fine, or both. Furthermore, individuals who print or engrave defamatory content while being aware of its harmful nature may also receive the same maximum penalties. Similarly, selling or attempting to sell such printed or engraved defamatory materials, while understanding their nature, can result in up to two years of simple imprisonment, a fine, or both.

Section 123(3A) of the Representation of People Act, 1951 - Promote or instigate feeling of hostility or hatred among different classes:
According to Section 123(3A) of the Representation of the People Act, 1951, it is prohibited for a candidate, their agent, or any individual with the candidate's or their election agent's consent to promote or instigate feelings of hostility or hatred among different classes of Indian citizens based on religion, race, caste, community, or language, whether for advancing the candidate's electoral prospects or to adversely impact the election of any other candidate.

Section 125 of the Representation of People Act, 1951 - Encouraging Hostility Among Social Groups:
Any individual who, in relation to an election governed by this Act, fosters or attempts to foster, based on religion, race, caste, community, or language, sentiments of hostility or animosity between various groups of Indian citizens shall face a penalty of imprisonment for a term not exceeding three years, or a fine not surpassing ten thousand rupees, or both.

SC and ST (Prevention of Atrocities) Act, 1989:
As stated in section 3 (1) (vii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, any individual who is not a member of a Scheduled Caste or Scheduled Tribe and coerces or threatens a member of a Scheduled Caste or Scheduled Tribe to abstain from voting, to vote for a specific candidate, or to vote in a manner contrary to the law shall face a penalty of imprisonment for a minimum of six months, with the possibility of a sentence extending up to five years, along with a monetary fine.

Model Code of Conduct (MCC):
The MCC, established by the Election Commission of India (ECI) for elections, is not a penal law but requires political parties and candidates to avoid communal or hate speech. Breaches of this code can result in penalties such as reprimands, warnings, or potentially being barred from campaigning.

Supreme Court Judgments:
In the 2017 case of Abhiram Singh v. C.D. Commachen, the Supreme Court of India determined that an election could be invalidated if votes were solicited by referencing a candidate's religion, race, caste, community, or language, as outlined in in subsection 3 of Section 123 of the Representation of the People Act, 1951.

In the significant case of S.R. Bommai v. Union of India in 1994, the Supreme Court established that religion must not be intertwined with any secular functions of the State, highlighting the importance of preserving a clear distinction between religion and politics during elections.

The Supreme Court first affirmed the constitutional validity of Section 123(3) in 1955 in the case of Jamuna Prasad Mukhariya v. Lacchi Ram, where it emphasized that electoral appeals based on religion or caste are not allowed.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565