Higher standards than those applicable in the United States have been specified in international instruments such as the Convention on the Prevention and Punishment of the Crime of Genocide, known as the CoG for short, the International Convention on the Elimination of Racial Discrimination ( ICERD) and the International Covenant on Civil and Political Rights (ICCPR).
The CoG, for example, makes “direct and public incitement” to commit genocide, itself defined with just measure of rigor, a punishable crime. CoG was applied in a real situation after the horrific mass violence against the Tutsi tribal group by the Hutus of Rwanda in 1994, when between 500,000 and 1,000,000 were killed within three months. It was a campaign of violence aided by virulent messages of racial hatred broadcast on Radio Rwanda.
This distinction between “hate speech” as actual incitement and as part of the substantive conditions under which the crime of genocide occurs creates further ambiguities. It suggests a possibility, according to the judgment of the ICTR, of “hate speech that does not incite violence”. Again, diligent respect for these distinctions may well ensure that interventions come too late to stop an outbreak of violence.
Other international instruments, such as the ICCPR, opened for signature in 1964 and ratified by India in 1979, enjoin member states to prohibit by law “any advocacy of national, racial or religious hatred which constitutes incitement discrimination, hostility or violence”. The ICERD, opened for signature in 1967 and ratified by India in 1969, contains an article that specifically prohibits speech advocating discrimination based on identity.
“Hate speech” as a term is rarely, if ever, used in the Indian legal system, although there is a seeming glut of laws dealing with similar offences. In addition to general human rights guarantees, specific identity-based protections are available for indigenous communities and those traditionally disadvantaged by the caste system: Dalits and Adivasis in common terminology. Although all forms of discrimination are prohibited under fundamental rights, the Constitution adds an additional layer of protection with the formal abolition of untouchability under Article 17.