The fine line between protection and power: Karnataka’s new Hate Speech Bill and the constitutional dilemma

Hate speech has risen dramatically in India over the past decade, spilling out of crowded rallies onto television debates and social media. It is no longer abstract rhetoric or harmless banter. In several cases, hate-filled slogans and speeches have preceded mob violence, public harassment and across-the-board communal tension.

IndiaSpend's hate-crime tracker reported that between 2010 and 2017, 86% of victims in cow-related lynching cases were Muslims. Most attacks were sparked after provocative messaging spread either online or through speeches. The Supreme Court has repeatedly warned of this danger, reminding in Pravasi Bhalai Sangathan v. Union of India that hate speech "strikes at the root of fraternity," one of the Constitution's core values.

It is against this background that Karnataka has brought in the Hate Speech and Hate Crimes Prevention Bill, 2025. It is arguably the most serious state-level initiative taken against hate speech to date. The proposed law will cover speeches, writings, digital and visual expressions that foster hatred, ill-will, or enmity between groups with specific orientations on grounds of religion, caste, gender, sexual orientation, language, disability and other indicators of vulnerability. Penalties are severe: from one to seven years for a first offence and up to ten years for repeat offences. All offences are cognisable and non-bailable.

The message is clear: hate speech is no free speech. In a time when political leaders, community leaders and social media personalities use incendiary language to whip up crowds with alarming regularity, the State can no longer afford to look the other way as vulnerable communities suffer actual harm. But intent is not enough. The Bill's sweeping words and expansive police powers give cause for apprehension about how this well-intentioned law will work in practice. A law intended to check violence must not stifle critique or democratic engagement.

While the urge to check the spread of hate is genuine, the Karnataka Bill itself suffers from constitutional infirmities. The definitions of ‘hate speech’ and ‘hate crimes’ are based on subjective and imprecise words and phrases such as ‘ill-will’, ‘disharmony’, and ‘injury to feelings’. Such ambiguous criteria are open to unequal application. This point was emphasised by the Supreme Court in Shreya Singhal v. Union of India, when striking down Section 66A of the IT Act since the use of the words “offensive” and ‘annoying’ gave too much leeway to police discretion and resulted in several arbitrary arrests. The Court added that criminal statutes have to be definite, predictable and fall within the parameters of public order.

Crucially, the Bill does not require that there be a clear linking of speech to violence. It does not demand that speech incite harm or create an imminent risk of disorder. This departs from established constitutional principles. Without such a requirement, ordinary forms of expression could be in its crosshairs: a protest speech, a classroom lecture about communal politics, a journalist's report about demographic shifts, or a statement by a student group against discrimination-all potentially labeled "disharmony" under a broad interpretation.

This Bill also accords wide-ranging preventive powers. The police can take action if they are of the opinion that any person “may” commit an offence. Under such pre-emptive policing, restrictions could be imposed on mass congregations, rallies, public meetings and campus events well in advance of any crime being committed. The use of pre-emptive powers through the sedition laws, UAPA, or colonial-era public order statutes has been repeatedly misused in India. Ironically, the victims often include activists, students, journalists and minority groups, not the hatemongers themselves.

This balance is further tilted in favour of the executive for declaring these offences cognisable and non-bailable. Arrests without warrants for speech offences are a grave step in any democracy, and with vague definitions, the danger of selective enforcement becomes very real. The fear of arrest can silence people in practice.

The digital provisions carry similar clout. Officials can compel platforms to remove “hate crime material” without judicial review. In India, opaque content takedowns have already created serious problems, as accounts and sites are blocked without clear justification or public record under the IT Rules. The Karnataka Bill attempts to tackle digital hate networks without including measures for necessity tests, proportionality checks, or transparent review mechanisms to avoid falling prey to censorship. Democracies like Germany and Canada house some of the world's strongest hate-speech laws, embedding such safeguards in order to prevent censorship. Without these, the line separating the erasing of hate and the silencing of dissent becomes precariously thin.

India needs a strong hate speech law. The rise in polarisation, public hatred and targeted violence makes this very clear. But the solution must not undermine the very freedoms that allow a democracy to function. A strong law must be strong in the right places: in clarity, safeguards and accountability.

For such a law to work, it needs clear definitions that focus on speech genuinely linked to violence or discrimination. Words based on personal feelings or broad emotional responses should not determine criminal liability. Judicial oversight is essential for arrests, preventive actions and online takedowns so that enforcement remains fair and constitutional. It is equally important to protect speech that is central to democratic life: political critique, academic debate, artistic expression and journalism. Most countries with strong hate speech laws explicitly protect these forms of speech so that truth is not silenced along with hate.

Transparency must also be central to the law. Reporting mechanisms, review bodies and public records of enforcement help prevent misuse. The absence of such safeguards mirrors the problems seen in India’s surveillance rules, data regulations and broadcasting norms, where government discretion has grown faster than accountability.

Penalties should also be proportionate. Leaders, influencers and organised groups that spread hate on a large scale should naturally face stronger consequences. But ordinary citizens, especially first-time offenders, should not be pushed into harsh criminal procedures for minor or unintentional violations.

These steps do not weaken the Bill; they protect it. They ensure that the law focuses on those who spread hate, not those who speak truth or criticism.

The rise in violent incidents, polarising rhetoric and online extremism shows that ignoring hate is no longer an option. The Bill recognises this reality and takes an ambitious step towards addressing it.

But intent is only the beginning. A law meant to protect vulnerable communities must also protect democratic freedoms. If definitions are vague and powers are unlimited, the same law can be turned against activists, students, journalists or political opponents. India cannot afford such a risk, especially at a time when public trust in institutions is fragile.

Karnataka has opened an essential conversation. The next step is to refine the law so that it draws a clear line between harmful hate and legitimate dissent. The goal must be a law that shields citizens from hatred without silencing their voices. That is the balance the Constitution asks for and the balance a democracy must protect.

Akhil Yadav is a law student at Gujarat National Law University, Gandhinagar.