On February 26, 2026, the Gauhati High Court issued notice to Assam Chief Minister Himanta Biswa Sarma after hearing a batch of petitions seeking criminal prosecution against him for alleged communal and divisive speeches. The petitioners had initially approached the Supreme Court (SC) with their complaints but a three-judge Bench headed by Chief Justice of India, Surya Kant, remarked that whenever elections approach, the Court tends to become a political battleground, and consequently directed the petitioners to approach the Gauhati High Court. Earlier in January, another Supreme Court Bench indicated that hate speech matters pending before the Court since 2021 would be closed. The Bench, however, clarified that the parties remained free to pursue other legal remedies, including approaching the High Courts (HCs). Is the Supreme Court doing enough to tackle hate speech? Shahrukh Alam and Haris Beeran debate the question in a discussion moderated by Aaratrika Bhaumik.
Edited excerpts:
What is hate speech, and what makes its criminalisation so difficult in practice?
Shahrukh Alam: Hate speech does not always take the form of explicit incitement to violence. More often, it operates as a prejudicial discourse that marginalises particular communities. This in turn, makes the task of defining hate speech for the purposes of criminalisation inherently difficult. Not every divisive expression can attract penal consequences. The threshold for criminal sanction must be higher. Further, the analysis of hate speech cannot be divorced from questions of power — its harm lies not merely in the content of the speech but in the unequal social hierarchies within which it operates. Hate speech entrenches a democratic deficit because it is typically directed at groups that are already socially or politically vulnerable, thereby reinforcing existing patterns of exclusion.
Haris Beeran: The difficulty in criminalising hate speech lies partly in the role that perception plays. Hate speech does not always manifest as direct incitement to violence. It often operates through dog whistles — statements deliberately framed with a degree of ambiguity that allow speakers to claim plausible deniability. The impact of such speech is shaped not merely by what is said but also by how it is perceived. This ambiguity makes it difficult to delineate clear thresholds for criminal liability.
Should hate speech be treated as a constitutional tort?
Shahrukh Alam: Yes. Even in instances where there are open calls for violence through speeches, the response from the state and its functionaries is often conspicuously absent. When the state repeatedly fails to respond to such speech, constitutional tort provides a basis to hold it accountable. The principle underlying this approach is that where the state’s inaction results in harm, it must assume responsibility — by acknowledging that failure or by compensating those who have been wronged.
This story was originally published in thehindu.com. Read the full story here.