A recent report (of which I was a co-author) looked at the way in which hate speech provisions in the Indian Penal Code, 1860 (the IPC) need to be reconfigured to fulfil their function and prevent their abuse. The report recommended replacing certain existing provisions in the IPC with narrowly constructed alternatives that do away with vague standards and instead hold liable only that speech which incites violence.
As I think more about how this will be an improvement on the status quo, I also believe that more must be done to further reduce the scope for abuse. One way of achieving this is by rethinking the way these hate speech provisions (in particular, sections 153-A, 295-A, and 505 of the IPC) are categorised under the Code of Criminal Procedure, 1973 (the CrPC).
These provisions are cognizable offences at present. What this means is that a police officer receiving a complaint about one of these offences can arrest anyone without an order or a warrant from a magistrate. The subjective satisfaction of a police officer that this entails is a recipe for disaster. This is particularly so for complaints regarding hate speech, where there is a need to evaluate the content of the speech itself and its proximity to violence before taking any action. It is too much to expect police officers to perform this function. Thus, in addition to reworking the provisions of the law, it would be prudent to classify them as non-cognizable offences under the CrPC to ensure an additional layer of scrutiny.