The Government of Karnataka has recently passed a bill titled “The Karnataka Hate Speech and hate Crimes (Prevention) Bill 2025 (LA Bill No 79 of2025) . It is currently pending Governor’s assent.
The first thing we note in this bill is that it covers both “Speech” and “Crime” and includes “Electronic Form”.
Regulating the speech is subject to restrictions in the constitution. A law to directly curtail speech is ultra vires the Constitution Article 19.
Legislation on “Electronic Documents” is under Information Technology Act 2000 (ITA 2000) and the powers of the State Government to legislate for the use of Electronic document is restricted to Section 90 of the ITA 2000. It does not extend to creating new Cyber Crimes under the power of the State.
Section 6 of the Act provides power to block the hate crime materials and if it is in electronic form, directly conflicts with Section 69 and 69A of the Information Technology Act 2000 (ITA 2000) and rules made there under which places such powers with several restrictions.
For ease of understanding, we quote Section 90 of ITA 2000 here
Section 90: Power of State Government to make rules
(1) The State Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely –
(a) the electronic form in which filing, issue, grant receipt or payment shall be effected under sub-section (1) of section 6;
(b) for matters specified in sub-section (2) of section 6;
(3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.
It is clear that the powers of the State Government to legislate on the use of Electronic Documents for Governance is restricted and does not extend to defining new Cyber Crimes and prescribing punishments.
This is considered void ab-initio.
Hence including “Electronic” form of communication under the Bill renders the Bill illegal and liable to be struck down.
The world of Electronic Documents constitutes what is generally described as the “Cyber Space” which is recognized as an independent area of activity. Countries such as USA recognize “Cyber” as a separate command for their defence forces exactly for the reason that it represents an extension of the geographical boundaries of the sovereign country similar to the sea and air space.
Hence law of cyber space does not fall under the concurrent list and is the sole domain of the Central Government to legislate. This legislation and all legislations so far in multiple States are therefore unconstitutional and needs to be stuck down.
A suitable petition constitutional bench in the Supreme Court needs to be considered to decide about the status of “Cyber Space” and the rights of a sovereign entity to draw Cyber boundaries and legislate for crimes there in.
Currently ITA 2000 already has established such boundaries and conditions when the extra territorial jurisdictions can be extended to foreign territories. Such powers under Section 75 cannot be left to be exercised by State Government and hence the Karnataka Hate Act cannot include “Electronic Documents” as instruments by which offences under the Act may be committed.
Hence there is a need to omit “Electronic Documents” from the provisions of the Karnataka Hate Bill under Section 2(i) and 2(iv).
Hence the part of the Bill that curtails speech particularly in the electronic form is considered unconstitutional and ultravires the Indian Constitution as well as ITA 2000.
Additionally, the punishment envisaged under the act even for the first time offender is “Imprisonment of not less than one year which may extend to seven years” and for subsequent offences can extend upto 10 years. The offence is “Cognizable”, “Non Bailable” and “triable by the Judicial magistrate First Class”.
Hence the offence is graded as “Heinous” and can be grossly abused by the Police. It can therefore have a “Chilling Effect” as the Supreme Court defines under the “Shreya Singhal Case”.
There is therefore an urgent need for the Bill to be withdrawn by the Assembly, failing which to be rejected by the Governor, failing which to be struck down by the appropriate Courts.
This issue being a serious Constitutional matter, has to be taken up by some public spirited law firm and fought in Karnataka High Court and the Supreme Court.
I hope such people take note.
Comments are welcome.
Refer:
https://www.youtube.com/watch?v=3YmexzlaPko
Naavi
