Shashank Dewan, Practicing Lawyer in Delhi
ABSTRACT
In India, there is a significant rise of hate speeches coupled with incessant attacks on freedom of speech guaranteed under the constitution. Attributed to the various ‘broad and ambiguous’ laws, the inability to prevent, punish perpetrators and protect citizens for exercising their free speech has necessitated the need to re-consider the criminalization of hate speeches to tackle the growing menace. This article identifies the basis of criminalization, including the potential harm of hate speeches such as social, psychological, and physical harm of speeches and the role of the socio-cultural set-up of a country in criminalization. It also identifies the justification for imposing custodial sanctions, which are deterrence, retribution, and incapacitation theories. This article further deals with the various challenges associated with the criminalization of hate speeches, namely: accurately conceptualizing the terminology, cross-over with the freedom of speech and expression, difficulty in proving intention and motive and the presence of alternative civil remedies against some specific offences significantly undermines the validity of the use of criminal law. This Article proposes to adopt a specific comprehensive hate speech offensive in a favorable environment for free speech.
