Promoting Enmity Between Different Groups
Chapter Thirty-Nine
Syllabus topic 1, "Offences under Indian Penal Code"
Pages 185 to 189 of 802
In one line
These are the two provisions that come closest to a law against hate speech in India, and neither of them is one: section 196 punishes promoting enmity between groups, and section 197 punishes imputations against a group's loyalty to the Constitution.
In the wording a student can write in an exam: by section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 whoever, by words, signs, visible representations, electronic communication or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground, disharmony or feelings of enmity, hatred or ill-will between different groups is punished with imprisonment up to three years, or fine, or both.
Why these sections exist and what they leave out
They protect public tranquillity, not the dignity of the group. Both sit in Chapter XI, offences against the public tranquillity, and section 196(1)(b) makes the disturbance of public tranquillity an ingredient.
That is the source of the criticism. A law drafted around public order asks whether trouble is likely to follow. A law against hate speech asks whether the speech attacked the standing of a group as equal members of the community, and these sections do not ask that question directly.
The Sanhita added electronic communication and left the structure alone. Both sections now name "electronic communication" among the means, which the Penal Code's sections 153A and 153B did not, but the offences are otherwise the same as before.
The provisions themselves
Section 196(1)(a). Promoting or attempting to promote, by words spoken or written, signs, visible representations, electronic communication or otherwise, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities.
Section 196(1)(b). Committing any act prejudicial to the maintenance of harmony between such groups which disturbs or is likely to disturb the public tranquillity.
Section 196(1)(c). Organising any exercise, movement, drill or similar activity intending, or knowing it likely, that the participants will use or be trained to use criminal force or violence against such a group; or participating in such an activity with that intention or knowledge; where the activity for any reason causes or is likely to cause fear, alarm or a feeling of insecurity among the members of that group.
Punishment. Up to three years, or fine, or both. Section 196(2) raises it to five years and fine where the offence is committed in a place of worship, or in an assembly engaged in the performance of religious worship or religious ceremonies.
Section 197(1)(a). Making or publishing an imputation that a class of persons cannot, by reason of being members of a religious, racial, language or regional group, caste or community, bear true faith and allegiance to the Constitution of India or uphold the sovereignty and integrity of India.
Promoting Enmity Between Different Groups
Section 197(1)(b). Asserting, counselling, advising, propagating or publishing that a class of persons shall, by reason of such membership, be denied or deprived of their rights as citizens of India.
Section 197(1)(c). Making or publishing an assertion, counsel, plea or appeal concerning the obligation of a class of persons by reason of such membership, where it causes or is likely to cause disharmony or feelings of enmity, hatred or ill-will between them and other persons.
Section 197(1)(d). Making or publishing false or misleading information jeopardising the sovereignty, unity and integrity or security of India.
Punishment. Up to three years, or fine, or both, and up to five years and fine under sub-section (2) where committed in a place of worship or a religious assembly.
Section 197(1)(d) is new and it will be asked
The Penal Code's section 153B had three clauses. Section 197 has four, and the fourth has no ancestor.
It punishes false or misleading information. No group needs to be targeted, no enmity need be promoted and no public tranquillity need be disturbed. The ingredients are the falsity or misleading character of the information and its jeopardising the sovereignty, unity and integrity or security of India.
That makes it the Sanhita's nearest approach to an offence of disinformation, and its breadth is the obvious objection: who decides what is misleading, and how a court is to measure jeopardy to those interests, are questions the section does not answer.
The leading case, and what it settles
Facts. Amish Devgan v. Union of India, (2021) 1 SCC 1, decided on 7 December 2020. A television anchor faced multiple first information reports in different States under sections 153A, 295A and 505 of the Penal Code for remarks about a Sufi saint made during a broadcast.
Held. The Court refused to quash the proceedings but consolidated the first information reports, and in doing so wrote the most detailed Indian analysis of hate speech to date.
Four things it decided, and they should be stated in this order. Article 19(1)(a) must be balanced against the right to dignity under Article 21, which includes participatory equality. The offence turns on the content, the intent, the context and the harm. The speaker's position and reach are relevant, because the same words carry different force from a person with influence. And protected political or academic discourse, even if inaccurate or offensive, is distinguished from hate speech by the presence of incitement and a proximate link to violence or disorder.
Promoting Enmity Between Different Groups
What the law still does not have
Facts. Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477. The Supreme Court was asked to lay down guidelines against hate speech by elected representatives.
Held. The Court declined, holding that the remedy lay in enforcing the existing law, and referred the question of a fresh definition to the Law Commission of India.
The Law Commission answered in Report No. 267 of March 2017. It recommended inserting two new provisions, one on incitement to hatred and one on causing fear, alarm or provocation of violence in certain cases.
Neither recommendation was enacted, and the Sanhita did not take the opportunity. That omission is the sharpest available criticism of the recodification on this subject, and it is the answer to a question asking whether the new law improved the position on hate speech.
Distinctions that carry marks
| Section 196 | Section 197 | |
|---|---|---|
| The wrong | Promoting disharmony, enmity, hatred or ill-will between groups; acts prejudicial to harmony; organising or joining violent training | Imputing disloyalty to the Constitution; asserting that a class should be denied citizens' rights; assertions about a class's obligations causing enmity; false or misleading information jeopardising sovereignty, unity, integrity or security |
| Public tranquillity | An ingredient of clause (b) | Not an ingredient of clauses (a), (b) or (d) |
| Punishment | Three years, or fine, or both; five years in a place of worship | The same |
| Section 196 | Section 152 | |
|---|---|---|
| Protected interest | Harmony between groups and public tranquillity | The sovereignty, unity and integrity of India |
| Chapter | XI, public tranquillity | VII, offences against the State |
| Maximum | Three years, or five in a place of worship | Imprisonment for life, or seven years |
A worked example
A speaker at a public meeting in a town says that people of a named community are disloyal, that they cannot be trusted to obey the Constitution, and that shopkeepers should refuse to serve them. The speech is broadcast on a social media channel with a large following.
Which provisions? Section 197(1)(a) covers the imputation that the community cannot bear true faith and allegiance to the Constitution. Section 197(1)(b) covers the assertion that they should be denied their rights as citizens. Section 196(1)(a) covers the promotion of enmity, hatred or ill-will between communities on the ground of religion or community, and "electronic communication" is expressly among the means.
Does the broadcast make a difference? Yes, on the reasoning in Amish Devgan. The Court held that the speaker's position and reach are relevant, because the same words carry a different force from a person with influence, and content, intent, context and harm are all in issue.
Change the place. Suppose the same speech is made inside a temple during a ceremony. Section 196(2) and section 197(2) each raise the maximum from three years to five, with fine.
Promoting Enmity Between Different Groups
Change the content. Suppose the speaker says only that a Government policy has failed and that a named community has been unfairly favoured by it, without more. That is political discourse, and on Amish Devgan it is distinguished from hate speech by the absence of incitement and of a proximate link to violence or disorder. The fact that it is offensive or inaccurate does not make it an offence.
Change it again. Suppose the speaker circulates a fabricated document claiming that a foreign power has been given control of a border district. No group is targeted at all. Section 197(1)(d) applies, because false or misleading information jeopardising the sovereignty, unity and integrity or security of India needs nothing more.
What beginners get wrong
Calling these hate speech provisions. India has no offence of hate speech as such. These are public tranquillity offences that do part of the work.
Thinking public disorder is always an ingredient. It is an ingredient of section 196(1)(b) and of nothing else in either section.
Missing section 197(1)(d). It is the only genuinely new clause, and it operates without any group being targeted.
Thinking Amish Devgan quashed the proceedings. It did not. It consolidated the first information reports and refused to quash.
Limits and criticism
"Any other ground whatsoever" in section 196(1)(a) makes the list of grounds open. A section carrying three years should not turn on an unbounded category.
Section 197(1)(d) has no defined standard. "Misleading" and "jeopardising" are both undefined, and a person who publishes information later shown to be inaccurate is exposed to a criminal charge without any requirement of intent to mislead.
The offences are bailable and lightly punished, and they are also very widely invoked. The complaint made in Pravasi Bhalai was about under-enforcement against the powerful; the complaint made in Amish Devgan was about multiple first information reports in different States for one broadcast. Both problems survive the recodification.
The Law Commission's recommendations were not enacted. Report No. 267 of March 2017 proposed provisions on incitement to hatred and on causing fear, alarm or provocation of violence, and the Sanhita adopted neither.
Quick revision
Section 196(1). Three clauses: promoting disharmony, enmity, hatred or ill-will between groups on the listed grounds or any other ground; acts prejudicial to harmony which disturb or are likely to disturb public tranquillity; and organising or participating in training in criminal force or violence against a group causing fear, alarm or insecurity.
Section 197(1). Four clauses: imputations of inability to bear allegiance to the Constitution; assertions that a class be denied citizens' rights; assertions about a class's obligations causing enmity; and false or misleading information jeopardising sovereignty, unity and integrity or security of India, which is new.
Promoting Enmity Between Different Groups
Both. Three years, or fine, or both. Five years and fine in a place of worship or a religious assembly.
Amish Devgan, (2021) 1 SCC 1. Content, intent, context and harm; the speaker's position and reach matter; incitement and a proximate link to violence separate hate speech from protected discourse; Article 19(1)(a) balanced against dignity under Article 21.
Pravasi Bhalai, (2014) 11 SCC 477. The Court declined to frame guidelines and referred the definition to the Law Commission, whose Report No. 267 of March 2017 was not enacted.
Test yourself
1. Which clause of section 197 is new, and what does it punish? Clause (d) of sub-section (1), which punishes making or publishing false or misleading information jeopardising the sovereignty, unity and integrity or security of India. It requires no group to be targeted.
2. Is a disturbance of public tranquillity always required? No. It is an ingredient of section 196(1)(b) alone. Clauses (a) and (c) of section 196 and all four clauses of section 197 do not require it.
3. What four things did Amish Devgan v. Union of India say the offence turns on? The content, the intent, the context and the harm. The Court added that the speaker's position and reach are relevant, and that incitement with a proximate link to violence or disorder separates hate speech from protected political or academic discourse.
4. What happens if the offence is committed in a place of worship? Sub-section (2) of each section raises the maximum from three years to five years, with fine.
5. Does India have an offence of hate speech? No. In Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477, the Supreme Court declined to lay down guidelines and referred the question to the Law Commission, whose Report No. 267 of March 2017 recommended two new provisions. Neither was enacted, and the Sanhita did not enact them either.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.