Guest Post: Criminal Law and Linguistic Majoritarianism

(This is a guest post by Bhushan Raut)

India is home to over 22 constitutionally recognised languages and hundred other dialects. The ability to co-exist in differences is not just a cultural imperative rather a constitutional mandate. The last few months have witnessed a rise in linguistic discrimination especially in the states of Karnataka and Maharashtra. Recently a video surfaced where an SBI employee was harassed by a local Kannada speaker for not talking to him in Kannada. Similar incidents have surfaced in Maharashtra where a native Marathi speaker was seen forcing a non-Marathi speaker to talk in Marathi and questioning their legitimacy to inhabit the state without the knowledge of the native language. Multiple incidences on such lines have surfaced over social media. Such linguistic majoritarianism leaves a deep and unsettling scar on the foundational ideas of the Indian Constitution, particularly pluralism, equality, and unity in diversity.

This article examines the intersection of constitutional and criminal law in addressing linguistic discrimination and coercion in India. While the Constitution lays down foundational rights—such as the freedom of speech, expression, movement, and residence—it is the criminal law that enforces these guarantees when they are threatened or violated. In particular, this piece focuses on how the Bhartiya Nyaya Sanhita 2023 (BNS) penalizes acts of linguistic harassment, intimidation, and the promotion of enmity on the basis of language. Can a State or its people lawfully condition a citizen’s right to reside or work on linguistic conformity? What specific offences under the BNS apply when individuals attempt to enforce such conformity through threats or public hostility? And what remedies exist to protect linguistic freedom and preserve public harmony? These are the key questions this article explores.

Language and Identity in Indian Constitutional Framework

As per the Constitution of India, it does not have any National Language. Although under Article 343 read with the Official Languages Act, 1963 it does provide for Hindi and English as the official languages of the Union. For States, under Article 345 the state legislatures can adopt or use any one or more as official languages of the State for ‘official purposes of the State’ which means it be imposed upon individuals in private or social spheres. This distinction allows us to carve out two spheres for languages. First is the Official or Public-Facing Sphere which includes government offices, public sector undertakings (PSUs) like banks, and other institutions that provide public services. In these contexts, it is reasonable—if not essential—that public-facing employees be conversant in the state’s official language(s) to effectively serve local populations. The obligation here lies with the state to ensure accessibility and communication in the official language for the benefit of its citizens. The second sphere is the Private or Personal Sphere which includes individual daily life, private interactions, and non-governmental spaces where people interact socially or commercially. Here, knowledge of the state’s official language is not obligatory. The Constitution does not—and cannot—mandate linguistic conformity in personal spaces. To do so would violate fundamental rights as we will see in the next section.

Violation of Constitutional Rights

Coming to the rights of the individual citizens, Article 19(1)(a) provides freedom of speech and expression to every citizen. It is not confined to any particular language, be it the 22 languages in the Eighth Schedule to the Constitution or any official language. The freedom of speech and expression can be restricted by the State under article 19(2) on eight grounds which are security of the state, friendly relations with foreign states, defamation, incitement to an offence, public order, decency or morality, contempt of Court and sovereignty and integrity of India.

Moreover, there is a negative right i.e. the right not to be compelled to speak in a particular language. The US Supreme court in West Virgina Board of Education v. Barnette held that compelled speech is just as much a violation of free speech as prevented speech. Similarly, in Bijoe Immanuel v. State of Kerala the Supreme Court of India held that not being forced to sing the national anthem was protected under Article 19(1)(a). Therefore, let alone private individuals, even the State cannot impose conditions requiring the use of a specific language in personal or private spaces.

Apart from the freedom of speech and expression, Article 19(1)(d) and (e) guarantees every citizen a right to move freely, reside and settle in any part of India. The only restrictions the State can impose are identified under Article 19(5) which include the “interest of general public” or “protection of the interest of any scheduled tribe.” A citizen does not need a certificate of proficiency of the local language to move freely or reside in part of the country. Therefore any coercion to demand that persons must speak a regional language to freely reside in an area is a clear infringement of the fundamental rights guaranteed under Article 19(1)(d) and (e).

Article 29(1) explicitly guarantees the right of any section of citizens to conserve their distinct language, script, or culture. The use of ‘conserve’ implies not only the freedom to preserve and practice one’s linguistic identity but also a corresponding freedom from being compelled to abandon or suppress it. Therefore, any act—whether by the State or by private individuals—that seeks to forcibly impose a dominant regional language upon individuals who do not natively speak it constitutes a violation of the spirit and text of Article 29(1).

In addition to this it is the fundamental duty of every citizen under Article 51(e) “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities…”

Criminal Remedies against Linguistic Harassment

This brings us to the next question – what remedies does a citizen have against such linguistic harassment? There is arguably a positive obligation on the State to prevent private persons from violating fundamental rights through coercion. It may choose to deliver upon this obligation in a multitude of hitherto undecided ways. But while it does so, one avenue for state-based action already exists in the form of India’s criminal law. While the constitutional guarantees establish a right to linguistic freedom, the criminal law that secures their protection. And the harms that are visited by coercion necessarily lead us into the field of criminal law.

Under the BNS a series of provisions directly address the acts of linguistic harassment, coercion and criminal intimidation which are discussed below. Section 196 BNS, a person who promotes enmity between different groups on grounds of language and doing acts prejudicial to the maintenance of harmony is punished with an imprisonment of up to three years, or with fine or with both. The offence is cognizable, non-bailable and non-compoundable. Section 196 is analogous to Section 153-A of the Indian Penal Code 1860 (IPC), but it explicitly extends to acts committed through electronic communication, thereby including offensive social media posts, viral videos, or messages that attempt to stir linguistic discord. For an offence under Section 196 two essential ingredients must be established. First, is the presence of two groups or communities [See, Bilal Ahmed Kaloo v. State of AP]. Second, prosecution must show that the accused acted with a deliberate intention to promote enmity or disturb public peace and it was not a careless or incident remark [See, Trustees of Safdar Hashmi Memorial Trust v. Govt of NCT Delhi; Balwant Singh v. State of Punjab]. In addition to this, the Supreme Court held in Azizul Haq Kausar Naquvi and Anr. v. State that criminality is not attached to words used rather to the manner in which they are used. It further held that “If the words spoken or written are couched in temperate, dignified, and mild language, and do not have the tendency to: insult the feelings or the deepest religious convictions of any section of the people, penal consequences do not follow.” The standard for assessing impact is that of a reasonable, strong-minded, firm, and courageous person, not that of one with weak or overly sensitive disposition, nor someone who perceives hostility in every dissenting view. The “reasonable person” test was affirmed in Ramesh Chotalal Dalal v. UOI, wherein the Court approved observations in Bhagwati Charan Shukla v. Provincial Government, likened to the well-established English law standard of “the man on the Clapham omnibus.” In addition to Section 196, Section 353(2) of BNS—earlier 505(2) of IPC—makes it a crime to make, publish or circulate any statement including electronic means which is likely to create or promote feelings of enmity hatred or ill will between different linguistic groups.

In the recent past, incidents in Maharashtra and Karnataka vividly illustrated behaviour that fits within the scope of Sections 196 and 353 (2) of the BNS. For example, a video went viral where a Marathi customer threatened a non-Marathi shopkeeper to learn Marathi and warned that “If you don’t learn Marathi, I’ll close your shop in two weeks.” Then in another instance a Kannada speaking bus conductor was assaulted in Belagavi as he couldn’t speak to a passenger in Marathi. This linguistic chauvinism forced suspension of interstate bus services between Maharashtra and Karnataka. In another incident a video went viral of a heated argument between a man and an autorickshaw driver where the commuter was aggressively insisting that an autorickshaw driver converse in Hindi rather than Kannada.

There are two different groups: on one side are the native language speakers (Marathi speakers in Maharashtra, Kannada speakers in Karnataka) who assert a regional linguistic identity, and on the other are the migrant or non-native language speakers (such as Hindi-speaking or non-Kannada-speaking individuals). The incidents reflect an explicit ‘us versus them’ narrative based on language difference—a textbook case of inter-group division. Secondly, the behaviour of the aggressors leaves little doubt about their intent. A “reasonable man” can clearly identify the threatening nature of their words—such as demanding that non-natives “speak Marathi or leave” or warning that a shop “will be shut down if you don’t learn the local language”—goes far beyond casual or incidental remarks. The anger, coercion, and public humiliation evident in these threats strongly suggest a deliberate design to subordinate or expel those who do not conform linguistically, fostering hostility between the two groups. Thirdly, the manner in which these threats are delivered amplifies the gravity of the issue. These are not private disagreements or isolated exchanges; rather, they occur in public and commercial spaces and are made in an aggressive and demeaning manner, belittling a non-native speaker before onlookers and underscoring a deliberate attempt to disturb societal harmony. In most of the cases the aggressors themselves filmed confrontations and shared them on social media, amplifying the message of exclusion and hostility beyond the immediate scene. Importantly, liability under this provision extends not just to the original offenders but also to those who forward or circulate such content, as they too contribute to promoting enmity between linguistic groups and risking public disorder.

Conclusion

These incidents of linguistic coercion are not just random isolated events, they represent a deeper problem of intolerance where language is being used as a weapon to shame, threaten and exclude. There is a crucial difference between celebrating and promoting language—which is every community’s right—and bullying or intimidating others for not speaking it, which is not only socially damaging but criminal. To conclude, Language, like culture, is not meant to divide but to connect. We don’t need a single tongue to be united — we need mutual respect.

The Promise of Imran Pratapgadhi

Somnath Lahiri, the Communist Party representative in the Constituent Assembly of India, is not the name that comes first to mind when one thinks of the fundamental rights guaranteed by the Constitution which that august house was formulating. Yet, it is his canny observation in 1947 which many return to when assessing the life of the fundamental rights clauses in the Indian Republic: That the fundamental rights chapter appeared to have been drafted from the point of view of a police constable. Each right guaranteed by the Constitution came with a qualifier, which meant that while the supreme 'people' of India had many rights, their nascent Indian State decided whether or not the exercise of such rights was lawful or not in any given set of circumstances. Creating a system where the State could contest the legality of how people exercised their rights had the in-built potential for rendering them a dead letter. Parliament could outlaw certain brands of activity, the police could swoop in and forcefully stop persons from engaging in not only such activity but anything that was remotely prejudicial, and by the time the aggrieved persons secured a vindication from courts it would be rendered meaningless by the efflux of time.   

If Imran Pratapgadhi was not a member of the Rajya Sabha (Council of States), perhaps his struggle in exercising his fundamental right to freedom of speech would have played out across the template sketched above. But he is, and thus was able to successfully challenge a case registered by the police against him in December 2024 before the Supreme Court, which in March 2025 set aside the case and in doing so has delivered a judgment of great significance. The Court in Imran Pratapgadhi v. State of Gujarat & Anr. [2025 INSC 410] begins by bleakly noting that "even after 75 ears of the existence of our Constitution, the law enforcement machinery of the State is either ignorant about this [the fundamental right to freedom of speech and expression] or does not care for this fundamental right." An honest effort at implementing the approach outlined in this judgment could bring about some change in this undesirable status quo.

But I get ahead of myself. What had happened in Imran Pratapgadhi? The petitioner had shared a video of a mass wedding program on social media, and the background audio to this video included a poem recited by him. This poem allegedly incited people of different communities against one another and created enmity and hatred between the groups. An FIR (first information report) was registered for the alleged commission of offences under Sections 196, 197(1), 302, 299, 57, 3(5) of the Bharatiya Nyaya Sanhita 2023 [BNS], i.e., doing acts to cause enmity or hatred between groups; making imputations prejudicial to national integration by words or signs; insulting religious beliefs; wounding religious feelings, and so on. The Petitioner challenged this FIR before the High Court, which refused to entertain his plea stating that the investigation was at an initial stage. The Supreme Court, as we already know, had no such qualms in setting aside what it viewed as a patently illegal exercise of power: 

"The poem does not refer to any religion, caste or language. It does not refer to persons belonging to any religion. By no stretch of imagination, does it promote enmity between different groups. We fail to understand how the statements tehrein are detrimental to national unity and how the statements will affect national unity."

The Court could have stopped here — at page 16 of 54 — but it ploughed further to deal with procedural law issues surrounding the registration of criminal cases. The issue arose thus: If police is obligated to file a case upon receiving complaints with allegations of cognizable offences being committed, then how can it be argued that the registration of this case was improper? To determine whether the allegations are made out or not requires an investigation which can happen after registration of a case. Throwing out cases at the initial stage by analysing the merits of the allegations would place the cart before the horse. This is a rather overstated position, mind you, because the Supreme Court itself adopted an equivocal position on whether instant registration of a case is in fact mandatory upon receiving complaints disclosing cognizable offences. This judicial equivocation in the context of the old Criminal Procedure Code 1973 [CrPC] has been crafted upon the statute itself by Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS], which permits a preliminary inquiry into the allegations before registering cases of a comparably lesser gravity. 

Where Imran Pratapgadhi advances the law on this aspect is, first, in its realistic treatment of the process of registering a case. When we speak about police receiving complaints alleging commission of offences, we may imagine simple scenarios such as X hitting Y with a stick. However, allegations revolving around appreciation and interpretation of speech acts is qualitatively different from this relatively straightforward case of bodily harm. Here, as the Court explains, the officer "will have to read or hear the words ... the officer must consider the meaning of the spoken or written words." This, the Court clarifies, is not even a preliminary inquiry, but a process inherent to the very determination of whether a cognizable offence has been committed or not. This intervention appears simplistic but it is far from it. Rarely does the Court deal so candidly with the processes by which police exercise power. 

Thus, in Imran Pratapgadhi, the Court unwinds this most basic and simultaneously most awesome of powers wielded by police in our system — to transform a narrative complaint into a criminal case. Sheer candidness alone is not what makes Imran Pratapgadhi an important decision. After having unwound the fabric of police power, the Court proceeds to clarify the standards which the Constitution demands of the police in how it exercises its power. It holds that wherever fundamental rights under Article 19 are at stake and the alleged offences meet the contours of Section 173(3) BNSS the police must conduct a preliminary inquiry. In this inquiry, or even in an investigation, police must be mindful that the "effect of the spoken or written words will have to be considered based on standards of reasonable, strong-minded, firm and courageous individuals and not based on the standards of people with weak and oscillating minds. The effect of the spoken or written words cannot be judged on the basis of the standards of people who always have a sense of insecurity or of those who always perceive criticism as a threat to their power or position."

The third prong of its significance is that Imran Pratapgadhi also offers guidance on how constitutional courts must address such cases. It notes that it is the "bounden duty" of courts to ensure that the "ideals of the Constitution are not trampled upon. ... The courts must not be seen to regulate or stifle the freedom of speech and expression. As a matter of fact, the Courts must remain ever vigilant to thwart any attempt to undermine the Constitution and the constitutional values, including the freedom of speech and expression." In this vein, the Court clarifies that there is no barrier to quashing cases where no offence is made out, even at the earliest stages after registration of an FIR.

To conclude, then. 75 years on from the adoption of the Constitution, the Supreme Court of India appears aghast at how the police seemingly dealt with a citizen's exercise of his fundamental right to freedom of speech and expression. A more cynical observer might remind the Court of Somnath Lahiri's remarks and ask that if we gave to ourselves a police constable's Constitution, is it any surprise that the constables have run riot with it? That there is still some life left in the fundamental right to freedom of speech and expression for citizens of India is perhaps in spite of, and not because of, the text of the Constitution and its police constable's perspective of rights. Upturning the police constable's constitution will take much more than pious observations from the bench, especially at a time when national tempers are rising. It will take constant vigil from all corners, including from all courts, to ensure that the ideals which the Supreme Court hails as cherished by the Indian Republic are not emblems for securing convenient speech of desirable citizens, but the constants equally protecting the inconvenient speech of supposedly undesirable citizens as well.

Guest Post: Barb Wiring Free Speech — Criminal Law and Curbing Press Freedom

(I am delighted to present a guest post by Nipun Arora, an advocate practising in Delhi, and Shivkrit Rai, a law researcher at the Delhi High Court)

Recently, the Uttar Pradesh police registered a First Information Report [FIR] against journalists (of The Wire) reporting on apparent violations of the lockdown that has been ordered by the Central Government. Similarly, an FIR was registered against an elected representative from the Aam Aadmi Party (an MLA) for allegedly defaming the Chief Minister of Uttar Pradesh. 

By no means is one state the exception here—there have been several such cases from different states across India in the past as well, with baseless FIRs being registered as part of clear attempts to stifle press freedom and rile journalists who ask uncomfortable questions. Often these incidents are discussed as part of a larger narrative on freedom of press discourse. What is often ignored is the means involved towards this end of silencing journalists: Police questionably using criminal law. This use of police machinery to hamper and obstruct journalistic freedom is a concerning issue that needs to be addressed by both, judiciary and the executive.

Abuse or Misuse? "Cognizable" Offences as Tools for Harassment

These FIRs against journalists / media houses disclose several similarities. Most importantly, we find that a majority of the offences alleged in these cases are "Non-Cognizable". This refers to that category of offences where the police cannot investigate the case without an order from the court, and thus cannot arrest suspects. 

In a bid to overcome this hurdle, we see that the police simply add one or two offences to the FIR that are "Cognizable". This mere mentioning of a particular section now allows the police to investigate the case without any judicial oversight and now the police can assume powers of arrest and detention in pursuance of the investigation. 

And, worryingly, very oftenthe cognizable offences added to the FIR are hardly applicable to the case at hand. For instance, consider the FIR filed against the Editor of Vishwani, a Karnataka based newspaper in 2019 at the behest of a complaint by the Janta Dal (Secular). Here, allegations of Criminal Breach of Trust—a cognizable offence—were added to what was (at best) a Defamation case, which is a non-cognizable offence. 

A similar trend is on display in the Uttar Pradesh cases against the Aam Aadmi Party MLA and The Wire where a cognizable offence Section 505(2) of IPC (false statement with the attempt to create enmity, hatred or ill-will between different classes), was added to circumvent the need to go the magistrate. This practice of adding cognizable offences where only non-cognizable offences are made out gives the police a cover to ‘investigate’ the case and arrest the accused.

Heightened Problems in Times of Covid-19

The only resort for the accused that remains, then, is to approach the courts, which have often made observations in such cases lambasting the police conduct of registering bogus cases that are all too clearly attempts to stifle the constitutionally protected freedom of speech and expression. Recent examples being the cases of Prashant Kanojia and Priyanka Sharma. But by the time that happens, the aggrieved individual is generally already under arrest, and thus the damage has been done. A chilling message has been sent: Dare to question, then face the music.

At the present moment, however, even approaching the courts is not possible as they have restricted their functioning to cases of utmost urgency due to the Covid-19 outbreak. The guidelines for court hearings suggest that courts are only taking up cases involving matters of life and death, and these more ordinary excess of executive power are, unfortunately, not matters that will be guaranteed a hearing in court. As a result, we find ourselves in the midst of a situation where the police have a carte blanche of sorts, rendering the already vulnerable persons in an even more precarious position.

Designing a Response? An Argument for Constitutional Torts

The much-needed structural reforms in police activity that have been recommended for decades are yet to see the light of day. While a High Court can step in and set aside the FIR in a specific case, it is clear that this strategy has failed to get the message across to police at large, as despite the repeated quashing of bogus FIRs new ones keep registered every other day. We need a different take on this problem, where state agencies are actively working towards dissuading persons from exercising their fundamental rights without any justifiable reason. 

In 1983, in a case titled Rudul Sah v. State of Bihar [(1983) 4 SCC 141], the Supreme Court had held that in cases involving violation of fundamental rights, the court can grant compensation to the victim. In cases of custodial deaths, repeatedly, the state has been held liable to pay compensation for infringing right to life under Article 21. A case of frivolous FIRs which is aimed at infringing the fundamental rights, and registered at the behest of the state itself (as opposed to being registered upon a complaint by a private person), clearly points towards the mala fide of state authorities who use the police to clamp down on press freedom. 

The courts thus need to take note of the growing tendency of the state to register, suo moto, a baseless FIR, aimed at curbing the freedom of speech, and make an attempt to curb the practice. It would be appropriate for the courts to start awarding compensation to the victim against whom the baseless FIR is registered, and to make appropriate orders of recovery of such compensation from the officer on whose instructions the baseless FIR was registered. It would ensure that only those sections which are genuinely made out are included in the FIR. Recovery of the compensation from the concerned officer would of course act as a deterrent and prevent such frivolous cases.

The need of such an institutional response becomes important because it ensures that even in extreme circumstances like the present where the functioning of the courts is also limited, such FIRs are not registered because of the deterrence created. The fear of repercussions once the courts reopen would be sufficient to dissuade an overenthusiastic officer even when the courts are closed. Such a systemic response has been a long-time due, and needs to be considered by the courts now.