When hate speech becomes routine: Constitutional questions raised by India Hate Lab’s 2025 data

Hate speech in India is no longer an occasional aberration triggered by moments of political heat or social anxiety. It is increasingly a routine feature of public life - delivered from stages, during processions and at organised gatherings, often in the presence of the State itself.

India Hate Lab’s 2025 report gives empirical form to what has long been intuitively understood. It documents 1,318 verified in-person hate speech events in a single year, an average of nearly 4 events every day. These are not private utterances or anonymous online posts. They are public performances, addressed to identifiable audiences, in spaces where the machinery of the State is visibly present.

For a legal audience, the significance of this data lies not in its moral charge, but in what it reveals about the constitutional functioning of the State. India is not short of laws regulating public incitement or group-targeted hostility. The constitutional unease arises from a more difficult question: what does it mean for a constitutional democracy when such speech becomes routine and the State’s most consistent response is silence?

Public hate speech is often discussed as a matter of social cohesion or political ethics. Constitutionally, however, it is something more. When speech targets identifiable communities, calls for exclusion, boycott, or violence, and is delivered repeatedly in public settings, it reshapes the conditions under which equal citizenship is experienced. Harm, in such cases, does not begin with physical violence. It begins earlier - with the normalisation of fear, the narrowing of public space and the signalling of who belongs and who does not.

This understanding is not alien to constitutional law. The Supreme Court has repeatedly acknowledged that certain forms of speech can undermine public order and dignity in ways that justify regulation. Its free speech jurisprudence, particularly after Shreya Singhal v. Union of India, emphasises the doctrinal line between protected expression and incitement, permitting restriction where speech has a proximate tendency to cause harm. The difficulty lies in whether the State treats incitement as constitutionally consequential in practice.

A striking feature of the India Hate Lab data is that many of the recorded events occur in environments where State presence is not absent. Police personnel are often deployed for crowd control, traffic regulation or general law and order duties. This matters because it reframes the issue. The question is not about ignorance, but whether non-intervention has crystallised into a governing response.

In constitutional terms, silence is not always neutral. Where the State has knowledge, capacity and legal authority to act, sustained inaction begins to acquire normative meaning. It shapes expectations - both of those who speak and of those who are targeted. Over time, such silence risks transforming hate speech from an offence into a tolerated political resource.

The Bharatiya Nyaya Sanhita, 2023, which has replaced the Indian Penal Code, criminalises conduct that promotes enmity between groups, prejudices harmony or incites violence. Many of these offences continue to be cognizable, designed to enable prompt police action precisely because the harm they address is collective and anticipatory. The Bharatiya Nagarik Suraksha Sanhita, 2023, which replaces the Code of Criminal Procedure, similarly proceeds on the assumption that information disclosing a cognizable offence will ordinarily trigger registration and investigation.

The constitutional problem revealed by the IHL data is not that these provisions are inadequate on paper. It is that their activation appears uneven. If even a fraction of the documented events disclose cognizable offences - and their public, organised nature suggests that many do - the volume alone raises a serious enforcement question: at what point does discretion cease to be judgment and begin to resemble abdication?

In Lalita Kumari v. Government of Uttar Pradesh, the Supreme Court held that registration of a first information report (FIR) is mandatory where information discloses a cognizable offence, subject only to limited preliminary inquiry in specified categories of cases. While hate speech enforcement involves contextual assessment, routine non-registration across repeated public events raises a constitutional concern beyond case-by-case scrutiny. Patterns matter in constitutional evaluation.

Police discretion is an unavoidable feature of criminal law. But discretion is constitutionally tolerable only when it is bounded, even-handed and reviewable. Where similar fact situations consistently attract different responses - swift action in some cases, prolonged inaction in others - the issue ceases to be individual error. It becomes structural.

This is where Article 14 quietly but firmly enters the picture. Equal protection of the laws does not demand identical outcomes, but it does require that like cases be treated alike. Selective enforcement, particularly along predictable social or political lines, undermines that promise. The harm is not only to those targeted by the speech, but to the constitutional idea that the law operates without preference.

In recent years, the Supreme Court has sought to clarify the State’s obligations in dealing with hate speech. In an interim order in Shaheen Abdulla v. Union of India, the Supreme Court directed police authorities to take suo motu action in respect of hate speech offences, without waiting for private complaints. The direction, later clarified to apply across States, recognises an important constitutional truth: collective harms cannot be left to individual complainants, especially where fear or social pressure may deter reporting.

These directions articulate what the Court understands to be the ordinary constitutional expectation of policing in such cases. The relevance of the IHL data lies precisely here. It allows us to test whether administrative practice reflects those judicial assumptions. If public, verifiable incidents continue to accumulate without visible legal response, the gap is not doctrinal; it is institutional.

Article 21 has long been interpreted to encompass not only protection against arbitrary deprivation of life and liberty, but also a positive obligation on the State to create conditions in which life can be lived with dignity. Preventive duties form a part of this constitutional understanding. In cases dealing with mob violence and communal harm, most notably Tehseen S Poonawalla v. Union of India, the Supreme Court has emphasised that State responsibility under Article 21 does not begin after violence erupts, but includes anticipatory and preventive action where risks are foreseeable.

Hate speech, especially when repeated and public, creates such foreseeability. It signals escalation, emboldens actors and narrows the space for peaceful co-existence. When the State repeatedly fails to intervene at this stage, criminal law is reduced from a preventive instrument to a post-facto ritual. Constitutionally, that is a serious loss.

The India Hate Lab’s 2025 report does not pronounce guilt, nor does it substitute for investigation or trial. Its value lies elsewhere. It forces constitutional scrutiny to move beyond isolated incidents and examine patterns of response. Those patterns raise questions that cannot be answered by pointing to the statute book alone.

When hate speech becomes routine and silence becomes the State’s default response, constitutional guarantees begin to hollow out - not through formal repeal, but through quiet non-use. The IHL data brings this process into view. It confronts us with an uncomfortable possibility: that the erosion of constitutional values does not always arrive through dramatic rupture. Sometimes, it arrives through repetition, tolerance and normalisation of inaction.

For a constitutional democracy, the challenge is not to invent new principles, but to ensure that existing ones remain alive in practice. The data now before us makes that challenge harder to ignore.

Sahil Hussain Choudhury is a lawyer and constitutional law researcher based in New Delhi.