Is calling an Indian Muslim a “Pakistani” against the law?
In February, the Supreme Court ruled that calling someone “Pakistani” in private may be in poor taste but does not amount to the offence of hurting religious sentiments.
However, on March 7, a Delhi court held that Bharatiya Janata Party leader Kapil Mishra’s statements referring to people protesting against the Citizenship (Amendment) Act as “Pakistanis” “appear[ed] to be a brazen attempt to promote enmity on the grounds of religion”.
Promoting enmity on grounds of religion is an offence under Section 196 of the Bharatiya Nyaya Sanhita, which in 2024 replaced Section 153A of the Indian Penal Code.
That very same day, BJP MLA Gopal Sharma repeatedly referred to Congress chief whip Rafeek Khan as a “Pakistani” in the Rajasthan Assembly, leading to an uproar in the House.
Legal experts Scroll spoke to explained that context is key to determine whether using “Pakistani” as a slur is against the law. When the word is used in public to invoke violence, then it is covered under the laws on hate speech. However, it would be unreasonable to expect criminal law to govern the use of the slur in private speech.
Some also cited the need for a broader anti-discrimination law to outlaw the slur.
Go-to slur
Indian politicians have long used the word “Pakistan” to attack Indian Muslims.
One of the earliest cases of such a matter being brought before court is from 1994, when a public interest litigation was filed in the Bombay High Court against Shiv Sena chief Bal Thackeray for his writings in the party newspaper Saamana during the Bombay riots in 1992-’93. Thackeray had called Muslims “traitors” who created “mini-Pakistans”, threatening that they would meet the same fate as “the domes of the Babri Masjid”.
The petition demanded that Thackeray be booked under the hate speech provisions of the Indian Penal Code: Sections 153A (promoting enmity between different groups on grounds of religion) and 153B (assertions prejudicial to national integration).
The High Court dismissed the petition on two grounds: “Stray sentences could not be interpreted in isolation” and “it did not make sense to rake up the issue afresh” considering that “both the communities had begun to live in harmony”.
In contrast, in its order on March 7, the Delhi court order against Mishra articulated the problem with the “Pakistani” slur: it held that “unfortunately in common parlance [reference to Pakistan] is often used to denote the members of a particular religion”.
In fact, the imputation of the slur goes beyond just religious connotations. “It is a way of saying that Muslims don’t belong in India,” said Prateek Chadha, a Delhi-based Advocate on Record at the Supreme Court. “The implication, therefore, is not only that you’re a traitor who does not have the interest of India in heart, but that you can never be Indian.”
This may be sufficient to qualify as an offence under Indian criminal law, according to Sumit Baudh, professor and executive director of the Centre on Public Law and Jurisprudence at the OP Jindal Global University.
“Given the geopolitical background of hostilities between Indian and Pakistani national identities and deeply entrenched sentiments of ill will and suspicion against each other, calling Indian Muslims ‘Pakistani’ could be considered an imputation that they do not ‘bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India’,” he said.
Making such an imputation is an offence under Section 197 of the Bharatiya Nyaya Sanhita – which replaced Section 153B of the Indian Penal Code. Section 197 covers “imputations and assertions prejudicial to national integration”.
The popular spread of the notion that being in favour Pakistan means being against India is indicated by the increase in the number of Indians being booked in the last few years for allegedly shouting pro-Pakistan slogans.
However, while being booked might mean legal harassment and even stretches in prison, it would be unlikely that the police will be able to secure convictions for these charges. A 2024 Supreme Court judgment held that extending good wishes to Pakistan, or to any other country, for that matter, is not a criminal offence.
Context is key
Legal experts said that the context would determine whether the use of “Pakistani” as a slur against an Indian Muslim would qualify as a criminal offence.
Naveed Mehmood Ahmad, senior resident fellow and the Crime and Punishment Team lead at the Vidhi Centre for Legal Policy, a legal think tank, said that “in the context of leading or inciting communal violence, the use of ‘Pakistani’ as a slur may be covered under hate speech provisions”.
Without these qualifiers, however, it is more difficult to qualify the slur as a criminal offence. In private speech, for example, there are no grounds for criminality since regulation of speech under Article 19(2) of the Constitution only extends to public speech, explained Chadha. “The state has no business regulating what you say in private,” he said.
Delhi-based criminal lawyer and legal writer Abhinav Sekhri agreed that it was the context in which the slur is used which would determine whether it is being used in a hateful manner or not. “The bare text of the law won’t provide for that context,” he said. “Is it being used in a derogatory way? Is the impact such that the criminal law should be getting involved in it? Such analysis will have to be done by courts to determine whether something is an offence.”
However, the possibility of misusing the criminal justice system means that one should be wary of relying on criminal law to address the misuse of the slur, argued Arvind Verma, professor in the Department of Criminology and Criminal Justice at Indiana University, Bloomington in the United States and former Indian Police Services officer.
“Abusive language should only be addressed as a civil offence,” he said. “Such defamation is better handled by a civil suit; else it gives unnecessary powers to police that are likely to be misused.”
Ahmad agreed. “Our hate speech laws are so vague and widely misused for innocuous statements that I would refrain from going in the direction that if someone calls someone ‘Pakistani’ then they should be jailed for two years,” he said.
New law needed?
Delhi-based lawyer Shah Rukh Alam said that the use of the “Pakistani” slur, such as by Kapil Mishra against Muslim protestors, was more than a problem of offensive speech.
“Hate speech causes structural discrimination,” she said. “And that is exactly what calling somebody a ‘Pakistani’ does: it raises doubts about Muslims' loyalty – a mistrust that rests deep in the North Indian psyche – and suggests that Muslim political mobilisation is in itself a conspiracy.”
Mishra's reference to anti-Citizenship (Amendment) Act protest sites as "mini-Pakistans" qualified as hate speech since it implies that Muslim loyalties were not with India and their political mobilisation was dangerous, she said. This sentiment was used to allegedly incite violence against the protestors.
However, simply criminalising this speech might not be the best solution. “Because such prejudice about national loyalty and belonging builds up slowly, over time, you can't throw somebody in jail for simply calling somebody else a ‘Pakistani’,” she said. But, she said, “there has to be a very strong cultural, political and social reaction to this”.
“This is not a law and order problem alone but that of an individual or group being targeted or discriminated against,” Alam said. “It must not be treated as a criminal law problem, but as a constitutional problem.”
Baudh similarly argued that the problem was urgent and pressing and current laws were not enough: India requires an anti-discrimination legislation to deal with this problem, he said.
He underlined that the Bharatiya Nyaya Sanhita which replaced the Indian Penal Code in July 2024 is a generic criminal legislation that does not recognise inequality as a factor of hate speech. He suggested that India needs a strong anti-discrimination law that holds people accountable for both criminal and civil violations.
Such a law, Baudh said, should not just focus on intentional hate but also on the impact of discrimination, especially on religious minorities.
He also highlighted a gap in legal protection. While Article 15(1) of the Constitution bans discrimination based on race and religion and Article 15(2) extends this protection to discrimination from private individuals and businesses, “religious and racial minorities are not protected from discrimination per se” due to “a glaring omission in the anti-discrimination law in India”. He argued that India needs a single, comprehensive anti-discrimination legislation rather than separate laws for caste, religion and gender discrimination.
