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Hate Speech And The Constitution

‘Public Order’ and the Indian Constitution

                                                                                                  *Sarvjeet Singh and Parul Sharma

The right to freedom of speech and expression is one of the most fundamental human rights. Over the years, scholars have offered various theories for protecting and guaranteeing this right, including its necessity for attainment of truth, for individual fulfilment and for participating in public discourse1

It has been recognised that free speech best serves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger2 . This right has been considered a cornerstone of democracy in India3 , and protects a wide range of speech including ideas that offend, shock or disturb4 , unpopular opinions5 , public criticism6 and advocacy .

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However, even the most liberal democracies, with strong traditions of preserving speech, agree with the need for restricting speech in certain contexts. Unregulated speech can have potential dangers8 . Therefore the right is not absolute. One of the categories of speech that is curbed across a majority of states is hate speech9 .

Hate speech is a serious concern in India10 . In the Indian context, the state’s concern in hate speech having a real danger of breaking out into large scale violence may have some justification. In 2015, 751 recorded incidents of communal violence killed 97 people and injured 2,26411 . This concern has increased recently with online fora, particularly social media being used as a means for the dissemination of hate speech. Recent incidents, including the North East exodus, the Muzaffarnagar riots, and the Pune lynching have been attributed to online hate speech12 . In the past two years, 12 states have had Internet shutdowns 39 times13. In most of these instances, the justification provided was to prevent caste and communal clashes or incitement to violence14 .

Freedom of Expression and the Legal Framework for Hate Speech in India

Article 19(1)(a) of the Constitution of India guarantees the right to freedom of speech and expression. Any restriction on this right is permissible only if the speech falls under one of the eight grounds listed in Article 19(2) of the Constitution. An additional requirement for curbing speech is that any such restriction must be reasonable15 . The Indian legal framework that constitutes hate speech restrictions is spread across multiple legislations and self regulatory mechanisms16 . However, the majority of the law is covered by the Indian Penal Code (IPC). The relationship between hate speech laws and the right to freedom of expression under Article 19(1)(a) of the Constitution is complex. The law governing hate speech in India has been criticized for being simultaneously inadequate and restrictive, limiting the freedom of expression17 .

This perplexing contradiction is brought out by two different cases before the Supreme Court. While in Pravasi Bhalai Sangathan18 , the petitioner found the existing legal framework inadequate and wanted stricter regulation of hate speech, Subramanian Swamy19 argued that half a dozen sections of the Indian Penal Code20 should be declared unconstitutional for violating Article 19(1)(a).

Interpretation of the ‘Public Order’ Restriction Under Article 19(2)

The right to freedom of speech and expression as enshrined in Article 19(1) can only be restricted under one of the restrictions provided by Article 19(2). Out of the eight different grounds listed on Article 19(2) of the Constitution, the majority of hate speech laws are saved by the ‘public order’ exception.

However, there is no clear mapping of the scope of the public order restriction provided under Article 19(2). ‘Public order’ was not one of the restrictions provided under Article 19(2), when the Constitution was enacted. It was added by the first amendment to the Constitution21 subsequent to the decisions by the Supreme Court in Romesh Thappar22 and Brij Bhushan23. In both these cases the Supreme Court struck down laws which restricted speech. In its observation in both these cases, the Court stated that ‘public order’ or safety does not meet the threshold for lawfully restricting speech under the Constitution and was not one of the grounds for restricting speech in Article 19(2)24 .

Subsequent to the passage of the first amendment, the Supreme Court in Ramji Lal Modi25 held that Section 295A26 of the IPC was constitutional because it fell within the ‘public order’ exception27 . The Court held that the restriction on the grounds of ‘public order’ was to be read widely and while a law may not directly deal with ‘public order’, it can be read to be “in the interests of public order”28 . It stated that ‘public order’ restriction protected any activity that had a tendency to cause public disorder irrespective of whether there was any actual breach of public order29 . This reasoning was also used by the Court in the case of Virendra30. Thus, the jurisprudence that emanated from the Court subsequent to the passage of the first amendment was that even if an act had a mere tendency to cause public disorder and a law was enacted to prevent such an act, it will be constitutional.

The Apex Court provided a different interpretation of the ‘public order’ exception in Ram Manohar Lohia31 . The Court held that speech could not be restricted in cases where there was no ‘proximate and reasonable nexus between the speech and ‘public order’. There has been a series of cases32 subsequent to Lohia, where the Court applied the proximity test to determine the constitutionality of an act. In O.K. Ghosh,33 the Court held that “indirect or far-fetched or unreal connection between the restriction and public order would not fall within the purview of the expression ‘in the interests of public order’”.

The next phase in the Court’s jurisprudence on ‘public order’ started with the case of Rangarajan v. Jagjivan Ram34 . In this case, the Court held that the ‘Court’s commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to public interest. It should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”’35 .

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Two recent judgments by the Supreme Court have tried to examine the ‘tendency’ and the ‘proximity’ tests. In Arup Bhayan36, while applying the “imminent violence test”37, the Court held that a mere act cannot be punished unless one resorted to violence or incited people to violence38. In Shreya Singhal39 , the Court stated that in deciding any violation of ‘public order’, it must decide whether an act disturbed the entire community or merely affected an individual. The Court made a distinction between discussion, advocacy, and incitement40 and held that the first two, i.e. discussion and advocacy were at the ‘heart of Article 19(1)(a)’ and only when the speech takes the form of incitement will Article 19(2) kick in41 . The Court also affirmed proximity test of Lohia and equated42 the ‘spark in a powder keg’ test with the ‘clear and present danger’43 test propounded by the US Supreme Court.

To summarize the discussion in this part, the Indian Supreme Court has two different threads of cases relating to ‘public order’. The first one uses the tendency test, according to which the mere tendency to cause public disorder is enough to restrict speech. The second is the proximity test (evolved further in Rangarajan) in which speech can only be restricted if such speech leads to a public disorder. If we examine the standards laid down by the Court in Shreya Singhal, the ‘spark in a powder keg’ standard will meet the incitement threshold44 and the standard of ‘calculated tendency’ will only meet the threshold of advocacy.

‘Public Order’ as a Tool to Uphold Hate Speech Offences

The consequence of the ‘public order’ exception in protecting hate speech laws is apparent from the fact that section 153A of the IPC was found unconstitutional in a case decided before the ground was added with the 1951 amendment45 . Various provisions criminalizing hate speech including Sections 153A, 295A and 505 of the IPC and Section 95 of the CrPC have been challenged for unreasonably restricting legitimate speech. However, their constitutionality has been upheld by the Courts46. These laws criminalizing hate speech have been justified on the grounds of the ‘public order’ exception under Article 19(2).

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However, as observed in the previous part, the interpretation of ‘public order’ has undergone tremendous transformation since independence. It is essential that the constitutionality of hate speech provision is examined against these evolving standards. Consequently, this part examines the understanding of ‘public order’ used to justify the hate speech offences by the different courts. It also evaluates whether the interpretation of ‘public order’ used by the courts resonates with the more liberal interpretations adopted in Rangarajan47 and Shreya Singhal48 .

The constitutionality of section 153A of the IPC was first challenged in 1950 before the Punjab High Court in Tara Singh Gopi Chand49. This case came up before the Court before the first amendment incorporated the ‘public order’ exception under Article 19(2). In the absence of the ‘public order’ exception, the Court found section 153A to be an unwarranted restriction on the freedom of speech, examining it on the anvil of ‘security of state’. Consequently, the Court declared it to be unconstitutional.

Subsequently, in 1953 the constitutionality of Section 153A was again challenged before the Patna High Court in Debi Soren50 . Differing from the judgment by the Punjab High Court, the Court observed that the exceptions under Article 19(2) had been expanded to include ‘public order’ and upheld section 153A of the IPC51. While this case precedes the ‘tendency test’ and ‘proximity test’, it examined the scope of the expression “in the interests of public order” under Article 19(2) and accorded it a wider connotation leaning towards the ‘tendency test’. The Court found that even in the absence of incitement to violence, certain actions may seriously affect public order. Consequently, it held that the term ‘public order’ should not be confined to ‘incitement to violence or tendency to violence’52 .

This interpretation of ‘public order’ adopted by the Court in this case is at odds with the interpretation laid down by the Supreme Court in recent cases including Shreya Singhal53 that only speech that is ‘inciting’ could be prohibited. In 1962, post Ramji Lal Modi54 and Lohia55, the Allahabad High Court again examined the constitutionality of Section 153A of IPC in Sheikh Wajih Uddin56 . The High Court upheld Section 153A according a wide connotation to the term ‘in the interest of public order’. Relying on Ramjilal Modi57, the court found that even if a law was not designed to directly maintain public order it was protected under Article 19(2) by virtue of use of phraseology in the ‘interest of public order’ which accords a much wider ambit of protection. Examining Section 153A, the Court found that if people were permitted to promote enmity or hatred, there may be riots or commission of offences58. Accordingly, the Court found that ‘it must be held that the provision is in the interest of public order’, reiterating that it was necessary for Section 153A to be directed at maintaining public order59. The Allahabad High Court firmly adopts the broader interpretation of ‘public order’ laid down in Ramjilal Modi. It does not incorporate the ‘proximity test’ as laid down in Lohia and does not require any ‘nexus’ or ‘proximity’ between the restriction and ‘public order’.

The Parliamentary Standing Committee on Home Affairs has recommended addition of a provision in the Information Technology Act to cover all cases of online hate speech.60 A perusal of the suggested provision reveals that it is substantially similar to the provisions under sections 153A and 153B of the Indian Penal Code.61 However, these sections have been held constitutional using the speech restrictive interpretation of ‘public order’. Similarly, recently the Supreme Court dismissed a petition that sought to declare Section 295A of the IPC as unconstitutional holding that this issue has been decided in Ramji Lal Modi in 1957.62 The Court stated that in Ramji Lal Modi the Court held that the law prohibiting activities which have a ‘tendency’ to cause public disorder falls squarely under a law imposing reasonable restriction “in the interests of public order”, even if those activities do not lead to a breach of ‘public order’. This broad understanding of ‘public order’ has been narrowed through subsequent decisions63 which require a strong nexus between the restriction and ‘public order’. The ‘tendency test’ as laid down in Ramji Lal Modi has undergone tremendous transformation, making it imperative that the constitutionality of the hate speech provisions including Sections 153A and 295A be adjudged on the higher threshold. Thus the understanding of ‘public order’ used to justify these hate speech provisions is distinct from the speech protective interpretation adopted in the more recent cases like Rangarajan and Shreya Singhal.


The jurisprudence on ‘public order’ under Article 19(2) has evolved over the past six decades. It has moved from a very broad understanding of the term ‘public order’ to a narrower understanding that requires a strong nexus between the restriction placed and public order. Recent cases have set a higher threshold for justification of restrictions on speech made in the ‘interest of public order’. However, the cases that had upheld hate speech provisions like Section 153A and Section 295A had done so based on the broad understanding of ‘public order’ using the tendency test propounded in Ramji Lal. As of today, there is no clarity on the test which should be used and different courts and benches use different tests, without even clarifying why a particular test was used. In the wake of growing instances of online hate speech and various hate speech incidents being attributed to social media, it is important that the court clarifies this. The question of the constitutional validity of hate speech provisions in Subramanium Swamy is an opportunity for the Apex Court to determine a consistent standard of ‘public order’, which is speech protective.

*Sarvjeet Singh is a lawyer and policy analyst based in Delhi. He works on issues of information law and policy and can be contacted at Parul Sharma is a 2016 graduate of NLU, Delhi and is currently practicing law in Delhi.

Volume: Vol. XXXV No. 4
October-December, 2016