In a speech last week at Columbia Law School on the topic ‘Hate Speech: Against Religious and Caste Minorities,’ Supreme Court judge, Justice Abhay S. Oka made important notes on how hate speeches in India are weaponised to bear political dividends. In the process, they target religious minorities or oppressed classes.The full speech, broadcast live by Bar and Bench, is being reproduced below. Good morning everybody. I compliment Columbia Law School for organising this debate on hate speech with special reference to hate speech against religious and caste minorities. Today, of course, I’ll be discussing this topic with you in the context of India.The speaker who introduced me described me as a jurist. I beg to disagree with him. I am here as a student of law only because I have been a judge of constitutional courts for 21 years and then I became a jurist. I was carefully hearing the introduction of the other two speakers. I will not say many things about Colin Gonsalves, but he is an activist—that much I can surely say. The other speaker is also a very distinguished speaker. All of them have written books and articles. What I have done is only writing judgments and nothing more than writing judgments. Whether they are really good or bad, it is for somebody else to decide. I can’t say that. So basically, today I am here as a student of law. I always say this: that even as a judge, I may not necessarily be right. Today also I may not be right; you may disagree with me on my views.I must tell you some background because I see some Indian students and some students from other nations. For them, I must give you some background. Our country India is a unique and distinct one. This country does not have a common language like the USA or many other countries which have a common language. Perhaps every state in India has a different language. There are different religions; Hindu is a religion of the majority. Now, Hindu religion is also very particular. Hindu religion is characterised by its complex system of caste. Apart from religions, there are ethnic groups. More importantly, there are classes of Indian society who have been oppressed for centuries – there are Scheduled Castes, Scheduled Tribes, nomadic tribes, and Other Backward Classes. This is where India differs from most of the larger nations in the world.Even with this level of diversity, India remains a democratic country right from 1947, in particular from 26th of January 1950 when we gave ourselves the Constitution. Most of you must have studied the Indian Constitution. It confers various freedoms on Indian citizens. Today is not a day to discuss that, but someday you must go into the history of why these freedoms were required. One reason was India was a British colony for centuries, and the freedom struggle started from 1857, which ultimately ended in 1947. In the freedom struggle, we saw how the British government targeted the freedom fighters, charged them with sedition, many were prosecuted for even shouting slogans, many were detained because they participated in satyagraha. Therefore, it was very necessary for the framers of the Constitution to provide these freedoms because without these freedoms, independence has no meaning—it is very ineffective.As you know, one of the most important fundamental rights which is conferred on the citizens under Article 19(1)(a) is the right to freedom of speech and expression. It is the most important fundamental right which is conferred by the Constitution. In the Indian Constitution, there are two categories of fundamental rights. The fundamental right under Article 19 is available to citizens, but the most important fundamental right, Article 21 – right to life – which is all-pervasive, is available to everyone whether he is a citizen or non-citizen. That’s very important for young students to understand because whenever we discuss hate speech, apart from 19(1)(a) of freedom of speech and expression, necessarily Article 21 comes into picture. The Supreme Court, by various judgments, expanded the scope of Article 21. As the speaker who introduced me talked about the right to live with dignity, this is something which is a basic right that should be available to any human being. That right to live with dignity is an integral part of Article 21. Please remember that even if a foreign citizen is on Indian territory, he has that right under Article 21.Therefore, I always say when I address young law students that our jurisprudence on the criminal side is very unique. A terrorist who participated in the 2008 bomb blast was a foreign national. We gave him a full trial. When his appeal was before the high court, a very senior advocate was appointed to defend him. Therefore, Article 21 is very important. Now, without freedom of speech and expression, no one can say that he can live with dignity. Article 19(1)(a) is linked with Article 21 because where is the right to live with dignity unless there is freedom of speech and expression?Now, when we talk about hate speech, we have to necessarily consider Clause 2 of Article 19, which indicates that freedom of speech and expression under Article 19(1)(a) is not absolute. Clause 2 provides that, by legislation, reasonable restrictions can be imposed on the exercise of right under Article 19(1)(a). It’s not a blanket power conferred on the legislature. If you read Clause 2, it says that reasonable restrictions can be imposed in the interest of sovereignty and integrity of India, for security of state, for public order, for decency, and morality. Only if a reasonable restriction is imposed by law framed by the legislature, then there can be curbs or restrictions on Article 19(1)(a). If the legislature comes out with a law which imposes unreasonable restriction on the fundamental right under Article 19(1)(a), that law can be struck down either by the high court or by the Supreme Court.If you consider various legislations by the state and central government, you will find legislations which are covered by Clause 2, which impose restriction on exercise of fundamental right of freedom of speech and expression. You will find that in none of these legislations has hate speech been defined. Though hate speech has not been defined, it is an area of concern for right-thinking people across the world. We completed 77 years of independence on 15th of August 2024 – 77 years of independence, 75 years of existence of our Constitution. It is very unfortunate that in India, we come across several cases of hate speeches. That is one side of it. We also come across in our country gross violations of Article 19(1)(a) – freedom of speech and expression – as well as right to life under Article 21.Though the legislature has not chosen to define hate speech, and there are good reasons for that, broadly we can say that it is a speech – it may be oral, it may be by words, it may be any form of communication, it may be by signs also, visible signs also. So hate speech is one which spreads hatred against a race, religion, caste, or group of individuals. It is a speech which targets particular groups, religions, races, castes. Hate speech, broadly speaking, can amount to a speech which can provoke people to indulge in violence, or the effect is to instigate one group to fight against another.The earlier speaker rightly said that in any society, in any democracy, if hate speeches are allowed, it certainly affects the right to live with dignity. Right to live with dignity becomes meaningless because when there is hate speech – whether hate speech against a particular community, say for example in India against a religious minority or a Scheduled Caste or Scheduled Tribe – it takes away the right of the person against whom that speech is addressed to live with dignity. So hate speech may be offending various laws which are covered by Clause 2 of Article 19. At the same time, hate speech also takes away the fundamental right under Article 21.There are judgments and judgments of the Supreme Court on different aspects of hate speech. There are judgments which deal with the concept of hate speech. One of the judgments of the Supreme Court has, in fact, enlisted provisions of various statutes which deal with hate speech. These are all penal statutes. The judgment enlists those hate speeches. There are judgments of the Supreme Court which lay down guidelines for guiding the executive to ensure that there is no hate speech and those who indulge in hate speech are brought to book – they are punished.Broadly speaking, maximum provisions about hate speech you will find in traditional penal legislation, which was the Indian Penal Code of 1860, which was in force for so many years till 1st of July 2023 when we have this new legislation, new penal law – a new general penal law, I term it like that, known as Bharatiya Nyay Sanhita 2023. Of course, provisions are more or less the same.Before I deal with the provisions of this penal legislation, there’s one more aspect in the Indian context. Unfortunately, in our country, the practice of untouchability prevailed for centuries, and persons belonging to certain castes were treated as untouchables. Therefore, you find Article 17 in the Constitution which declares untouchability is abolished, and it shall be an offence punishable in accordance with law. There are laws in force which are enacted to give effect to the fundamental right under Article 17. First is the Protection of Civil Rights Act, 1955. Under this legislation, anyone who incites or encourages any person or class of persons or the public generally to practice untouchability by spoken words is guilty of an offence. If any person belonging to Scheduled Caste or Scheduled Tribes is insulted by spoken words on the ground that he’s untouchable, it is an offence. So ultimately, when somebody speaks and calls a community or an individual or a class of individuals as untouchable, it is also a hate speech.Illustration: Pariplab ChakrabortyThen there’s Article 15 of the Constitution of India, which is basically targeted to meet the challenges in India. The challenges were faced by backward communities like the Scheduled Castes, Scheduled Tribes, nomadic tribes, other backward classes. Untouchability was not the only thing; they suffered from discrimination. To put it broadly, they were not treated on par with other citizens, and therefore there was need for Article 15, which is prohibition on discrimination based on religion, race, caste, sex, etc., place of birth.There was one more facet when the framers of the Constitution found that these backward communities, apart from facing social stigma and untouchability, were denied opportunity in employment. Therefore, we have Article 16, which confers a fundamental right on every citizen to equal opportunity in matters relating to employment, appointment in office, etc.Notwithstanding all these provisions in the Constitution, notwithstanding the 1955 Act I talked about, the atrocities on Scheduled Castes and Scheduled Tribes continued. Therefore, in 1989, we had one more enactment dealing with this issue – that is the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. So it is significant that we had the Constitution in 1950, and in 1989, after 39 years, a requirement was felt to have legislation to prevent atrocities on Scheduled Castes and Scheduled Tribes.Even this law makes certain speeches as hate speeches, and penal consequences follow. For example, under this law, if any attempt is made by anyone through spoken words or through written words to promote feelings of enmity, hatred, or ill will against the members of the Scheduled Castes or Scheduled Tribes, it is an offence for which the minimum punishment is six months – six months of imprisonment. That’s the minimum punishment. If by spoken words any disrespect is shown to any late person held in high esteem by the members of the Scheduled Castes or Scheduled Tribes, it is again an offence punishable with a minimum sentence of 6 months.Now this has a context. The framer of the Constitution, Dr. B.R. Ambedkar, had to face these hardships. He also belonged to a backward community. This provision, which says that if by spoken words any disrespect is shown to any late person held in high esteem by members of the Scheduled Tribes and Scheduled Castes, it is an offence. And the earlier speaker said that even today, there are instances of hate speeches against Dr. B.R. Ambedkar who has given us this Constitution. We, the students of law in India, we proudly say that this is the best Constitution in the world. Again, as I said, we may not be right there, but we feel that way – that it’s the best Constitution which is given to us by Dr. Babasaheb Ambedkar and his colleagues.In this particular statute, the 1989 Act which protects and prevents atrocities on Scheduled Castes and Scheduled Tribes, there are stringent rules for bail. In India, most of you must be aware that there’s a concept of pre-arrest bail. If any person apprehends that in connection with any cognizable offence, he’s likely to be arrested, he can go to the Sessions Court or High Court and apply for pre-arrest bail. So he’s protected in advance from arrest. Under this statute, there’s a prohibition on the grant of pre-arrest bail. Now, one of the main objects of this Act, apart from preventing atrocities on Scheduled Castes and Scheduled Tribes, is to prevent hate speech. Nobody can hate the backward classes in India.Now coming to the traditional laws, namely the Indian Penal Code, or this now it is replaced by Bharatiya Nyay Sanhita that came into force on 1st of July 2024. Now, one of the basic offences there – all of you must have heard about it – is Section 124A in the Indian Penal Code. Now Section 124A is an offence of sedition. During the British regime, this offence was very often applied to eminent freedom fighters, but there are cases of misuse of this provision even in independent India.Now, ultimately, what is sedition? Under Section 124A of IPC, when somebody by spoken or written words attempts to bring hatred or attempts to excite disaffection towards the government elected by law, it becomes the offence of sedition. Now this disaffection has been given inclusive meaning – it is all forms of disloyalty or all forms of feeling of enmity. So this is one very important provision dealing with hate speech. This is a hate speech, to put it broadly, against the government – against the government elected by law. How and when this provision has been misused is a separate subject to be discussed.Illustration: Pariplab ChakrabortyThen comes Section 153A in the Indian Penal Code, which is equivalent to Section 196 of the new penal code, which was enacted in 2024. It is about spoken words or written words or by gestures. The provision is that if by spoken words or written words, enmity between different groups on the ground of religion, race, place of birth, residence, language, etc., is promoted, and if any acts are prejudicial to the maintenance of harmony between different groups, it becomes an offence.Even spoken words intended to outrage religious feelings or if there is insult by spoken words to religious beliefs, it becomes an offence under Section 295A of the Indian Penal Code. Even if somebody speaks in such a manner with the intent to cause any member of the armed forces to mutiny, it is an offence.These are all penal provisions which seek to penalise anyone who indulges in different categories of hate speeches. There are different categories of hate speeches. One, as I said, is sedition. The other speeches are in relation to Scheduled Castes and Scheduled Tribes –oppressed classes in India. It is against religious minorities. There are instances in India where there are hate speeches against religious minorities, and attempt is made to provoke the members of the majority to attack the religious minority. So these are all provisions which take care of different categories of hate speeches.Please remember that all these hate speeches which fall in this category, they are made offences which are punishable with imprisonment and fine. There are other hate speeches. For example, under the Representation of the People Act, those who contest the elections for Lok Sabha, the houses of legislature in state and at the Centre, if they indulge in hate speeches, there are offences.As I said, 75 years of existence of the Constitution—we celebrated that event on 26th of January this year. But after 75 years also, there are many instances of hate speeches. Most of the hate speeches in India – I may be wrong there, but because I have only perspective of cases which come before the courts – at the grassroots level, what really happens, perhaps the activists like Dr. Gonsalves and others will be able to tell you more effectively. But in the court, we come across cases where mostly these hate speeches are against the religious minorities or castes which are in minority – there are oppressed classes like Scheduled Castes.Basically, keep aside the penal part of it, whether a speech becomes an offence, but basically these speeches disturb the social harmony. Perhaps the activists will be able to tell you in better fashion or those who are studying the pattern of hate speech in India very systematically will be able to tell you. There can be political reasons also for hate speeches. Maybe some political leaders, for gaining advantage in terms of electoral politics or gaining advantage to get votes, may be indulging in hate speeches. But that’s a matter of study, and it requires study because we always believe that we should have a very healthy democracy, and in a healthy democracy, political elements are not going to use it. It is a matter of great concern.So there are numerous statutes which provide for punishing individuals who indulge in different categories of hate speeches. As I said, the Supreme Court of India has issued several directions for prevention of hate speeches, for ensuring that once there are cases of hate speeches, the offences are registered, criminal law is set in motion, and criminal law is taken to its logical conclusion. But these are preventive measures which are supposed to be undertaken by the executive.But the real challenge is to educate masses against hate speeches. That’s the main challenge because unless we are able to educate masses against hate speeches, these efforts made by the courts by issuing directions will have their own limitations. The most important thing in our Preamble – you must have read our Preamble to the Constitution – the citizens of India have assured themselves various freedoms. Apart from freedoms, fraternity—fraternity is a very important ingredient of our Preamble to the Constitution. If you are able to maintain fraternity, if you are able to educate masses about the importance of fraternity, automatically the instances of hate speeches will go down. This education is very important. By educating masses, we can strengthen their minds because, ultimately, hate speeches have some effect on some people because they have weak minds or they are polarised in terms of thinking. Therefore, this public education is very important, and public education should give emphasis on achieving social and communal harmony and fraternity.Illustration: Pariplab Chakraborty.When I say this, you have to remember one more very legal aspect of these provisions. Somebody may say that so-and-so has delivered a hate speech. But please remember that only because one or two individuals or three or four or a group of individuals feel that it is a hate speech, it does not become a hate speech. There are judgments laying down in what cases it will be a hate speech. It’s not individual perception because if you go by individual perception that a particular utterance is a hate speech and we start labelling it as hate speech, we’ll be compromising on the fundamental right of freedom of speech and expression.In fact, sometime back I discussed the offence under Section 153A of Indian Penal Code. That is where by spoken words, somebody encourages enmity between different groups on the ground of religion, etc., somebody tries to promote that enmity. The Supreme Court and high courts have laid down tests because when the courts deal with these hate speeches, these are the penal provisions. Courts also have to keep it in mind that the laws must be interpreted in such a fashion and such manner that freedom of speech and expression is not taken away.I talked about the dignity of life which is guaranteed under Article 21. If there’s no freedom of speech and expression, there’s no promotion for arts, literature, and the judgment which the speaker referred to – we also referred to various other aspects of art, satire, stand-up comedy. If this is divorced in the sense that we start attacking this part of freedom of speech and expression, there won’t be any dignity which will survive in life. Right to live with dignity will disappear. Therefore, when courts have interpreted these provisions regarding hate speeches, the courts have tried to strike a balance. The courts have always ensured that freedom of speech and expression is protected.In fact, for offence under Section 153A, there’s a test laid down. Now the test is, ultimately, when all these offences are considered, the court has to consider what is the effect of those spoken words or written words or those expressions or visible signs. The court has laid down a test – that test is laid down by one of our greatest judges, Justice Vivian Bose, who became a judge of the Supreme Court while he was a judge of the Nagpur high court. He has laid down the test which is now uniformly applied during the last 50 years.Now the test is: what will be the effect of spoken words by considering standards of reasonable, strong-minded, firm, and courageous individuals? And the standard is not based on the standard of people who are weak or those who are having oscillating minds. We can’t go by the standard of those people who have a sense of insecurity or they always feel that somebody criticises them as a threat to their power. Therefore, those standards have been laid down.Every speech – ultimately the court has to consider what will be the effect of the speech on the mind of human beings, on the mind of citizens. Therefore, this test has been adopted. If we say that a particular speech is a hate speech because it affects somebody who has a very weak and oscillating mind, then perhaps the scope of hate speech will be very widened, and then we’ll be depriving ourselves of the freedom of speech and expression. So striking this balance is very, very important in a democratic setup.Dissent is also very crucial. When we talk about the right to express your own views, dissent is also very important, and that is, in fact, an ingredient or a necessity of any healthy democracy – to have dissent. There’s a right to protest also. If something is happening in the society which, according to an individual, is not correct, he has the right to protest also. Of course, when it comes to the right to protest, I request young students to read the last speech by Dr. Babasaheb Ambedkar in the Constituent Assembly on 25th of November 1949, where he said that, yes, even in independent India, after the Constitution comes into force, the right of protest will be there, the right of dissent will be there, but the protest has to be by constitutional means. The protest has to be within the four corners of law because that is the essence of democracy – that when you protest, you protest in accordance with law. But at the same time, what is important is the right to protest.Illustration: Pariplab ChakrabortyTherefore, when we talk about hate speeches, ultimately the courts have to balance it with other rights available. Right to dissent is also required; right to protest is also required. It is part of our dignified life because if, as a human being, I feel that a government policy is completely wrong, it is against the interest of the common man, I should have that right to protest. Otherwise, my life becomes meaningless. But it is necessary to remember that the protest and dissent have to be by constitutional methods.Therefore, talking about the students, I’m now coming back to the students. In the Indian context, there are universities in India where students are allowed to form associations or unions. In some universities, students are allowed to form committees. The idea is that students are able to express if they have some grievances about the manner in which the university or educational establishment is conducting itself. Such institutions give voice to the students to express. Therefore, as I said, there has to be education right from the school or college days to ensure that we build up a very healthy society – we build up a society which gives importance to social harmony and fraternity. Therefore, it is very important for our universities also to allow the students to express themselves, allow the students to protest if they are suffering from injustice, within the four corners of law.The provisions regarding hate speeches or provisions which make certain speeches or utterances or spoken or written words as offences – those provisions cannot be abused or misused to prevent people from expressing their views, expressing their dissent. Therefore, it’s a huge challenge before any legal system, especially in democratic countries.Our Constitution in India, talking in the Indian context, our Constitution preaches social harmony, equality, it preaches fraternity, and therefore, on one hand, the lawmaking institutions or the courts have to come down very heavily against speeches which are really hate speeches, which are made offences. But at the same time, balance has to be struck to ensure that the freedom of speech and expression remains unaffected, right to dissent, right to protest remains unaffected. That’s a huge challenge before our society. That’s a huge challenge before our legal system, and therefore this is one area – hate speech, the freedom of speech and expression – this is an area where there is always a scope to evolve the law, evolve new legal principles, evolve new concepts. We have to also take care of the changing society, the changing needs of the society.Therefore, I began by saying – I began by complimenting Columbia Law School for choosing this subject, and my idea of having a dialogue with you is not to teach you because I have said I’m also a student of law. I’m just expressing a few things which I know as a judge based on my experience. The idea is to ensure that the young legal minds and brilliant legal minds which are there in Columbia Law School, they start thinking about it, they start evolving, they start developing new concepts, and they start making research on this aspect.So again, I thank the organisers for giving me this great opportunity to interact with young students, and I hope that you’ll be really enriched by the other two speakers because they have more experience in the field. I again thank the organisers. Thank you so much.Justice Abhay S. Oka is a Supreme Court judge.Transcribed by Parvani Baroi, an editorial intern at The Wire.
