Introduction
“Those who won our independence believed that the final end of the state was to make men free to develop their faculties… They believed liberty to be the secret of happiness and courage to be the secret of liberty.”
This extract from Whitney v. California articulately demonstrates the importance of liberty in the pursuit of political truth, and remains applicable to the Indian political landscape. Recently, Karnataka passed a hate-speech Bill, with the stated purpose of “curbing and preventing the dissemination, publication, or promotion of hate speech and crimes that cause disharmony or hatred in society against a person, group of persons, or organisation.” This Bill, which is yet to receive the Governor’s assent, contains several provisions that cast serious doubt on its constitutional validity.
While the Bill has been criticised for its vague provisions, excessively empowering the police authorities, and sweeping censorship powers (See here, here, and here), this article goes a step further, to suggest specific changes that can be made to the provisions to make them align with constitutional values while retaining their effectiveness in curbing hate speech. In the next part, the piece will demonstrate the definitional overbreadth of the provisions. This is followed by an analysis of the preventive powers given to police officials in the Bill. The next part examines the vicarious liability provision of the Bill. This is followed by an analysis of the censorship provisions of the Bill. The last Part concludes with suggestions.
Definitional Overbreadth and the Article 19(2) Proximity Test
Firstly, the Bill defines “hate speech” under section 2 as any expression that is made, published, or circulated with the intention to cause injury, or to arouse feelings of enmity, hatred, or ill-will against a person (living or dead), a class or group of persons, or a community, on the basis of a “prejudicial interest.” “Prejudicial interest” is defined to include bias on grounds such as religion, race, and gender, among others.
The first problem arises at this definitional stage. The right to freedom of speech under Article 19(1)(a) of the Constitution may be restricted only under the specific grounds enumerated in Article 19(2), or when there is a proximate relation to these grounds. The Bill’s failure to define subjective terms such as “disharmony,” “ill-will,” and “injury to feelings” creates an acute risk of State overreach. While the State may attempt to justify these restrictions under the heads of “public order” or “incitement to an offence,” expressions like “ill-will” and “disharmony” lack any clear link to an offence or an identifiable threat to public order. This ambiguity not only dilutes the constitutional standard of proximity but also opens the door to arbitrary and selective enforcement. Standard of proximity refers to the constitutional requirement that there must be a close, direct, and immediate causal link between the speech in question and the harm sought to be prevented which typically includes public disorder, violence, or discrimination. Speech cannot be restricted merely because it is unpopular, offensive, or capable of creating a speculative or remote risk of disturbance. The harm must be realistic, imminent, and attributable to the expression itself, not to conjecture or subjective apprehension.
To be constitutionally sound, the definition must be confined to expressions that intentionally and directly incite violence, discrimination, or hostility with a clear and proximate tendency to result in public disorder, rather than extending to vague and subjective notions such as “ill-will,” “disharmony,” or “injury to feelings.” These indeterminate terms should be defined to apply only where the expression advocates tangible harm against a protected group. Further, the BNS must incorporate a heightened mens rea threshold, confining criminal liability to speech undertaken with deliberate intent to provoke such harm, thereby excluding expression that merely offends, critiques, or dissents. Absent such narrowing, the procedural powers triggered under the BNSS, particularly arrest and investigation, risk operating on an unconstitutionally broad substantive foundation, resulting in impermissible chilling of protected speech.
Preventive Powers, Police Discretion, and Personal Liberty
The second troubling feature of the Bill is the authorisation of preventive action against individuals who have not yet committed the offence of hate speech. The Bill incorporates the framework of Chapter IX BNSS, which deals with orders for security for good behaviour. However, it goes a step further by extending these preventive powers not only to Magistrates but also to senior police officers. This empowers the police to initiate coercive action against individuals without any prior judicial scrutiny and in the absence of any completed offence. In doing so, the Bill collapses the significant distinction between “preventive action” and “preventive detention.” Such an expansion of executive power directly implicates Articles 21 and 22, which require strict procedural safeguards and judicial oversight whenever personal liberty is curtailed.
The constitutional concerns arising from the Bill’s preventive framework can be addressed only through a substantial recalibration of the powers conferred under it. While preventive measures for maintaining public order are not per se unconstitutional, the extension of coercive preventive powers to police officers, without prior judicial scrutiny, upsets the constitutional balance between liberty and security.
To cure this defect, the Bill must confine the initiation of preventive action strictly to judicial authorities, with the role of the police limited to placing material before a Magistrate. Further, preventive action should be triggered only upon demonstrating a real, imminent, and proximate risk of the commission of a hate speech offence.
Vicarious Criminal Liability and the Erosion of Mens Rea
The heart of the political controversy surrounding the Bill lies in Section 5, which creates a presumption of guilt against any person who was “in charge of and responsible to the organisation” when a member of that organisation commits the offence of hate speech. This provision can have a profound chilling effect on civil society, media bodies, and opposition political parties. By imposing vicarious criminal liability without requirement of mens rea, such a framework risks punishing leadership not for their own conduct, but for their association with a loosely defined collective. The clause runs contrary to the Supreme Court’s ruling in Sunil Bharti Mittal v. CBI, which held that individuals cannot be subjected to criminal prosecution merely by virtue of their position in an organisation, in the absence of specific allegations of active involvement or mens rea.
The constitutional vulnerability of Section 5 can be remedied only by a fundamental restructuring of its vicarious liability framework. The provision must clearly define the term “organisation” in restrictive and objective terms, limiting its scope to formally constituted entities with identifiable decision-making hierarchies, thereby excluding amorphous collectives or informal associations. Further, criminal liability of persons “in charge of and responsible to the organisation” must be conditioned upon specific allegations and proof of active consent, knowledge, or deliberate neglect that directly facilitated the commission of hate speech.
Content Blocking, Executive Discretion, and Article 14
Lastly, Section 6 of the Bill empowers a designated officer appointed by the State Government to block content that is found to contain hate speech. Although Section 7 declares that the Bill’s provisions shall apply mutatis mutandis with the IT Act and the BNS, Section 6 in effect bypasses this framework by creating a parallel and substantially lower-standard censorship regime. This stands in sharp contrast to Section 69A of the Information Technology Act, 2000, which permits blocking only after reasons are recorded in writing, pursuant to a structured inter-ministerial process, and subject to review and procedural safeguards, none of which are replicated in the Bill. The result is a censorship power that is even less restrained than one of the most controversial provisions of the IT Act. The absence of these safeguards not only heightens the risk of arbitrary content blocking but also violates Article 14 of the Constitution by authorising unequal and unguided executive discretion.
The constitutional infirmities of Section 6 can be cured by aligning its content-blocking mechanism with the substantive and procedural safeguards governing online censorship under existing law. Any power to block content on grounds of hate speech must be exercised strictly within a framework comparable to Section 69A of the IT Act, including a requirement of reasoned written orders, a clearly defined decision-making process, and an opportunity for post-decisional review. The designation of a single executive officer with unilateral blocking authority must be replaced with a structured, multi-layered mechanism that limits discretion and ensures accountability.
Conclusion
The Karnataka Hate Speech Bill is a short enactment comprising just ten sections, yet more than half of its provisions raise serious constitutional concerns. Whether the Bill will ultimately survive judicial scrutiny remains to be seen, assuming it even receives gubernatorial assent in the first place. What is already clear, however, is that the legislation poses a deeper and more enduring risk: the gradual erosion of freedom of speech in a democracy increasingly inclined to treat dissent as a threat rather than as a constitutional value, which can only be cured through a careful revision of the act. While the importance of curbing hate speech is undeniable in light of the rise in hate crimes in the country, such context should not become a justification to curtail disproportionately the freedom of speech and expression, becoming yet another arrow in the armoury of the state, that can be abused for political ends.
Author Bio: Sanjith Gurikar is a final-year BA LL.B. (Hons.) student at PES University and an LL.M. (Public Law) admit at the National Law School of India University (NLSIU), Bengaluru.
[Ed Note: This piece was edited by Hamza Khan and published by Vedang Chouhan from the Student Editorial Team.]