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This thesis consists of an argument analysis of three columns published in the Indian newspaper The Indian Express in the aftermath of the gangrape and murder of a young woman in Delhi in December 2012, and the following debate about glorification of rape in Indian popular culture. One of the columnists is arguing in favour of including gender as a category in the Indian law on hate speech, thereby banning an artist called Honey Singh and his lyrics about rape. The two other columnists are arguing against new restrictions on free speech in India. The analysis of the columns shows that there are several relevant arguments for and against including gender in the Indian hate speech legislation. The argumentation against a new law is similar to argumentation found in Western liberal theory, and the argumentation in favour of a new law is similar to argumentation found in Western radical feminist and critical race theory. However, both strands of philosophy are contested by postcolonial theorists, arguing that no Western theory is applicable in a non-Western context, such as India. Indian postcolonial feminists argue in favour of a third approach to sexist speech in India; a counter-speech approach. Counter-speech theorists agree with liberals about the importance of freedom of speech, and with feminists about the harm in hate speech. According to counter-speech theory, hate speech shall thus not be outlawed, but the state shall try to counter the harmful effects of hate speech, for example by strengthening groups targeted by hate speech so that they can speak back to hatemongers. The conclusion of this thesis is that a counter-speech approach is the most sustainable regarding freedom of speech and gender in India. Such an approach does not only appeal to Indian postcolonial theorists, it is also a middle way in-between a liberal and a radical feminist approach. In the conclusion, the relevance of hate speech legislation as a whole is also questioned. Laws such as in India, that protect only racial and religious groups from being targeted by hate speech while categories such as gender, sexual orientation and disability are not included, can be deemed discriminatory. An abolishment of hate speech prohibitions and an adoption of a counter-speech approach to all forms of hate speech is discussed.

This thesis unites law and social science so as to give a comprehensive account of the phenomenon of racial hate speech in South Africa as an obstacle to transformation. Hate speech is presented as a form of violent language and an affront to the constitutional rights of freedom of speech, equality and dignity. To establish the nature of hate speech, the fluid quality of language is explored so as to show how language can be manipulated, on the one hand, as a means to harm, and employed, on the other hand, as a tool to heal and reconcile. This double gesture is illustrated through the South African linguistic experience of past hate and segregation and the current transformation agenda. It is through this prism that hate speech regulation is discussed as an uneasy fit in a country where freedom of expression is constitutionally protected and where language plays an important role in bringing about reconciliation, and yet words are still being employed to divide and dehumanise. This reality necessitates a clearly articulated stance on the regulation of language. The thesis accordingly interrogates the current legal standards in relation to hate speech with reference to international law that binds South Africa and the constitutional standard set for the regulation of language and the prohibition of hate speech. Thereafter, the current and proposed legislative prohibitions on hate speech, the residual common law provisions governing expression and the regulation of language in the media are outlined and analysed. These legal frameworks are explored in terms of their content and their application in various fora so as to ascertain what the South African approach to hate speech prohibition is, whether it is consistent and, ultimately if it is indeed suitable to the South African experience and the realities of language. This thesis concludes that contemporary hate speech measures lack a coherent understanding of what hate speech entails and a general inconsistency in approach as well as application is found in the treatment of hate speech complaints in South Africa. This is explained through the fallibility of language as a medium to regulate expression and solutions are offered to not only taper current and proposed hate speech provisions but to also consider alternative forms of resolving hate speech complaints