Applicable IHRL

Criminalisation of hate speech is governed by Articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR), which India has ratified. The Rabat Plan of Action, developed under the auspices of the Office of the United Nations High Commissioner for Human Rights, provides guidance on the interpretation of these provisions.

Under Article 20(2) ICCPR, criminalisation is confined to intentional public advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The Rabat Plan emphasises that criminal law must be reserved for the most severe forms of expression, and that legislatures bear responsibility for narrowly tailoring offences to clearly separate protected speech from punishable advocacy. In guiding legislative design, the Rabat Plan draws on the Camden Principles, which require narrow definitions of “hatred” and “hostility” and limit criminal liability to inciting advocacy posing an imminent risk of harm. Finally, the Rabat Plan further recommends that enforcement be guided by a six-factor assessment.

Even where Article 20(2) is engaged, restrictions on speech must independently satisfy Article 19(3) ICCPR, including the requirements of legality, legitimacy, and necessity, as clarified by the Human Rights Committee.

The Bill’s misalignment with IHRL

Although framed as a criminal response to hate speech, the Bill does not conform to the constraints IHRL imposes on criminalising expression:

Firstly, the Bill conflates ‘hate speech’ and ‘hate crimes’ by defining offences primarily by reference to communication of expression. However, IHRL distinguishes these terms. Hate speech concerns inciting advocacy of national, racial, or religious hatred under Article 20(2) of the ICCPR and remains subject to Article 19 safeguards. Hate crimes, by contrast, involve bias-motivated criminal acts and are regulated through equality and non-discrimination guarantees.

Secondly, the Bill extends criminal liability beyond the closed categories recognised under Article 20(2) – namely national, racial, or religious hatred – by encompassing additional characteristics like sexual orientation, gender, place of birth, residence, and language. While these characteristics may warrant protection through other legal or policy measures, their inclusion within a criminal prohibition on speech exceeds the limited scope contemplated under Article 20(2).

Thirdly, the Bill lowers the threshold of hatred under Article 20(2) by criminalising expression intended to promote “ill-will”, “disharmony”, or “enmity”, with hatred operating as only one among several alternative triggers. The Bill also omits any definition of “hatred” or “hostility,” despite the Camden Principles requiring these terms to be narrowly understood as “intense and irrational emotions of opprobrium.”

Finally, the Bill dilutes the incitement standard by treating it as interchangeable with promotion, propagation, abetment, and attempts to generate ill-will or disharmony. This departs from the Rabat Plan and Camden Principles, which confine criminalisation to inciting advocacy creating a clear or reasonably foreseeable risk of discrimination, hostility, or violence, and caution against collapsing incitement into mere promotion.

These issues demonstrate the Bill’s failure to meet Article 20(2) ICCPR threshold requirements, leaving limited scope for a meaningful proportionality analysis under Article 19(3), ICCPR. Even if Article 19(3) were engaged, the Bill would, at a minimum, fail the legality requirement since it confers unconstrained discretionary preventive powers on LEAs. It also, arguably, fails the necessity prong, which requires speech-restrictive measures to constitute the least intrusive means of achieving a legitimate aim (like maintaining public order). This is because existing federal frameworks already enable State-level LEAs to address overlapping categories of electronic expression through less restrictive means, including directions issued to intermediaries under Rule 3(1)(d), 2021 IT Rules. This framework, though not without its infirmities, largely operates within constitutionally recognised limits on speech, and incorporates at least some procedural safeguards like reasoned intimations and periodic reviews. Further, comparable prohibitions already exist at the federal level, rendering the Bill’s duplicative criminalisation difficult to justify as necessary.

Conclusion

The Bill’s implications extend beyond Karnataka, particularly due to its application to electronic expression, which cannot be meaningfully ringfenced within State boundaries. Assessing the Bill against IHRL standards is therefore germane, especially considering the Supreme Court’s recognition in Vishaka and PUCL that IHRL obligations may inform legislative interpretation where fundamental rights are implicated. Measured against IHRL standards, this analysis finds the Bill deficient, warranting reconsideration before it is operationalised.

The Avia law required online platform operators that connect several people and facilitate sharing of content to take down any “manifestly” illegal content within 24 hours of being notified by anyone. Further, content concerning child pornography and terrorism was required to be taken down within 1 hour of notification. Non-compliance with these obligations would have resulted in fines amounting to hundreds of thousands of Euros and up to 4% of the global annual revenue of the platform in extreme situations.

The Constitutional Council emphasised the importance of freedom of expression and communication in a democratic set up. Accordingly, while it found the aim behind the sought restrictions to be legitimate, it held the restrictions to be disproportionate and not necessary. The primary reason behind this conclusion was the short duration prescribed for taking down of content, without giving an opportunity to seek prior opinion of a judge. This was considered important as they were required to decide on issues involving legal technicalities. This became even more difficult due to the possibility of numerous complaints being received by the platforms, and hefty penalties prescribed in case of non-compliance.

This decision, thus, deals with the fundamental balance to be struck between freedom of expression and the accompanying restrictions. Particularly in the French context, as noted by the EDRi, the French law concerning terrorism, including provocation and apology of terrorism, has been widely criticised for being vague and overbroad. It does not provide clarity as to the content that has to be censored. In such a scenario, assessment of content on these parameters within one hour would have set an unreasonable burden on the online platform. This is more so, as also noted by the court, when assessment of any content in light of a complex legal matrix within even a 24 hour deadline is considered a disproportionately high obligation.

Furthermore, the above onerous obligations, in effect, would have delegated censorship measures to be enforced by intermediaries, as warned against by UN Special Rapporteur Frank La Rue. Given the short timelines and high penalties, this would have led to a chilling effect on the platforms as they would tend to err on the side of caution. Accordingly, most platforms would have resorted to prior restraint and adopted automatic takedown mechanisms where content would be removed without conducting an adequate check.

A facet that the Constitutional Council did not touch upon is the impact of such prescriptions for small players or not-for-profit organisations. The burden is particularly high on them as they do not usually have the means to incorporate a 24/7 monitoring mechanism, either automatic or manual, which was in effect mandatory as per the Avia law. This was aggravated due to the presumption under the law of intent on the part of the platform in case proportional or necessary examination of the content is not carried out. Accordingly, they might have been carved out of the market due to the possible negative ramifications.

A reduction in public content sharing platforms would have further impinged upon the freedom of the public to exchange ideas and information. Some of the legitimate content that would have possibly then been curbed includes political dissent seeking accountability of the government. Therefore, it would have diminished the utility of intermediary platforms by lifting the cover of safe harbour and threatening them with penalties.

Hence, as nations across the world dabble with regulation of content on online platforms, many a time tending towards overregulation, this decision appears to be a silver lining. Hopefully, it would create a ripple impacting similar legislative attempts of regulatory overreach in other jurisdictions such as Germany that have been met with severe criticism for such proposals.