1. Facts of the Case
A user on a popular blogging or social networking platform posts content that is deeply offensive to a specific religion, ethnic group, community, or political party. These posts are not only derogatory but also potentially inciteful, aiming to provoke anger, hatred, or violence.
As the post circulates through social media, tensions begin to rise between members of different groups. The situation escalates to the point where law enforcement authorities are alerted due to fear of communal unrest and possible clashes. The blog post becomes the center of attention, and the question arises—is such online speech a punishable offence under Indian law, specifically the Information Technology Act, 2000?
2. Issues in the Case
1. Does the posting of offensive religious or communal content amount to a cyber offence under Indian law?
Can messages shared on online platforms, which are offensive to religious, communal, or political sentiments, be legally restricted or punished?
2. Is the intent to incite hatred relevant under the Information Technology Act, 2000?
Should the focus be on what was said, or why it was said? Does malicious intent or its effect matter?
3. Which authority has jurisdiction to take action against such digital offenses?
Who is responsible for identifying, removing, and prosecuting the creators of such content—the platform, the state, or the cybercrime division?
4. Are there any constitutional rights or exceptions, such as freedom of speech, that protect such messages?
How does the right to freedom of speech under Article 19(1)(a) balance with public order and religious harmony?
3. Legal Principles Covered Under the Information Technology Act, 2000 and Related Laws
India recognizes that freedom of expression is not absolute and must be exercised within the boundaries of the law, especially in a diverse, multi-religious society. The IT Act, 2000 addresses cyber offenses related to offensive and dangerous online content.
Section 66A of the IT Act, 2000 (Struck Down in 2015)
Originally, Section 66A penalized sending offensive or menacing messages through communication services. However, it was struck down by the Supreme Court in Shreya Singhal v. Union of India (2015) for being vague and unconstitutional.
Despite this, other provisions remain valid and relevant.
Section 67 – Publishing Obscene Material in Electronic Form
Though primarily aimed at sexually explicit content, this section is sometimes referenced in content that degrades or defames communities, especially when it carries obscene or vulgar language.
Section 69A – Power to Block Public Access to Information
Under this section, the central government can direct any agency or intermediary to block access to content that threatens:
- Sovereignty and integrity of India
- Public order
- Security of the state
- Friendly relations with foreign states
This provision has been used to ban blogs, social media pages, and even websites spreading hate or inciting communal tensions.
Indian Penal Code (IPC) Provisions Applicable
Even though the IT Act handles digital content, many offenses are simultaneously governed by the IPC, especially when hate or violence is involved.
Section 153A – Promoting Enmity Between Groups
Punishes anyone who promotes enmity between different groups on grounds of religion, race, place of birth, etc.
Section 295A – Deliberate and Malicious Acts to Outrage Religious Feelings
Targets deliberate attempts to insult or provoke religious sentiments.
Section 505 – Statements Conducing to Public Mischief
Covers any speech or writing that may incite violence, fear, or disturb public peace.
These provisions apply regardless of whether the statements are made offline or online.
Intermediary Liability – Section 79 of the IT Act
Social networking platforms (like the blog or BIO site mentioned) are intermediaries under the IT Act. They are not held liable for third-party content if:
- They did not initiate the transmission
- They exercised due diligence
- They acted upon government orders to remove offending content
However, failure to take down flagged content may attract legal consequences.
4. Possible Judgement
If the Offender Is Identified and Proven Guilty
The individual may be:
- Charged under Sections 153A and 295A of the IPC
- Prosecuted for inciting enmity and disrupting public order
- Directed to issue a public apology or retraction
- Imprisoned up to 3 to 5 years, along with monetary fines
The court may also direct:
- Immediate removal of the content
- Social media platforms to permanently suspend the user
- Monitoring and auditing of such platforms to avoid future occurrences
If No Malicious Intent Is Proven
If it is shown that the content was shared carelessly or without the intent to provoke, the court may:
- Dismiss criminal charges
- Issue a warning or fine
- Recommend counseling or sensitivity training
Judicial Remarks on Freedom of Speech vs Hate Speech
Indian courts have consistently held that free speech ends where hate begins. Posts targeting specific religious or political groups are not protected under Article 19(1)(a) if they harm public harmony.
