Hate Speech Is A Constitutional Issue, Not Just A Criminal Law Problem: Shahrukh Alam

Speaking on ‘Thinking Through Hate Speech: Between Freedom and Violence’ at Manthan Samvaad 2026 in Hyderabad, Alam said the relationship between speech, political power and discrimination must be considered while distinguishing hate speech from dissent.

She said free speech and hate speech served different purposes. While free speech encouraged democratic participation and challenged authority, hate speech could be used to mobilise support by excluding and marginalising communities.

Alam questioned the tendency to equate speech directed against those in power with speech that reinforced existing power structures. Citing an example, she contrasted a sitting Chief Minister asking Muslims to leave, with students shouting at Rapid Action Force (RAF) vehicles to leave during a protest.

She said the two instances could not be assessed in the same manner without considering the identity of the speaker, the target of the speech and the power held by those involved.

Referring to legal scholar Jeremy Waldron’s interpretation of hate speech, Alam said the issue extended beyond hurt sentiments. Hate speech could serve as a means of political mobilisation, with the intended audience often being those encouraged to support the exclusion of a particular community rather than the community being targeted.

She said hate speech often operated through narratives repeated over time rather than isolated statements. Portraying Muslims as invaders, predators or people whose loyalty to India was questionable could gradually normalise discrimination, including through indirect messaging, she said.

Alam identified three forms of harm arising from hate speech: exclusion from democratic participation, direct violence resulting from incitement, and structural violence through economic boycotts, denial of housing and social exclusion.

She said the impact of such discrimination varied according to caste, class and gender, with poorer and marginalised sections facing greater consequences than privileged members of the same community.

This also posed challenges for courts in determining whether speech targeting an entire religious community resulted in discrimination against all its members or disproportionately affected its most vulnerable sections, she said.

Alam argued that the capacity of speech to cause material discrimination should be considered while defining hate speech. Offensive statements by marginalised groups could not automatically be equated with speech supported by those holding positions of authority, she said.

The advocate also referred to the case of Umar Khalid while raising concerns over the treatment of dissenting political expression.