Author: Sreya Shah, Woxsen University.
To the point
In a pluralistic democracy such as India, defining the grey area between freedom of speech and hate speech appears unattainable. Freedom of speech and expression in India is promised by Article 19(1) of the Indian Constitution, but this right is withheld under several limitations. Given the contemporary disputes in the country regarding spoken words, particularly involving politics, religion, and art, hate speech has emerged as a significant violation of the right to freedom of speech and expression. The question is whether a mere form of art or a simple statement constitutes hate speech. This question reveals the ambiguity in the definitions of hate speech, defamation, and other limitations on free speech. This article specifically discusses issues arising due to the undefined thin line between freedom of speech and hate speech, posing a question, a dilemma on what hate speech is and what is not.
Abstract
In a diverse democracy like India, the right to freedom of speech is both a cornerstone of constitutional values and a source of constant debate. The Indian Constitution protects the right to free speech under Article 19(1)(a), but also permits the state to impose reasonable limits under Article 19(2) in the interest of public order, morality, national security, and other concerns. Over the years, India has witnessed the urgency to define the laws governing hate speech and establish a firm distinction between freedom of speech and hate speech. This article examines the cases and conflicts that have occurred due to expressions in India. Through a socio-legal lens, it examines how vague legal definitions, selective enforcement, and rising sensitivities—particularly around religion, politics, and art—create a space where free speech can be both misused and unfairly suppressed. Therefore, this article suggests that until the line between free speech and hate speech is clearly defined, India will continue to wrestle with both overreach and underreaction, at the cost of its democratic discourse.
Legal Jargon
The right to freedom of speech is governed by Article 19(1)(a) of the Indian Constitution, and Article 19(2) talks about the limitations of freedom of speech, which allows the state to impose restrictions in the interests of sovereignty and integrity of India, security of state, public order, decency, morality, and defamation. Although there aren’t any precise provisions governing hate speech, section 196 of Bharatiya Nyaya Sanhita (BNS) says that encouraging enmity or conflict between groups based on race, religion, language, or community is forbidden, and it also states that acts that disrupt public peace or teach violence against certain groups must be punished.
Further, there are a few sections of the Indian Penal Code that address hate speech minutely:
Sections 153(A) and 153(B) – These sections discuss the imposition of punishment for promoting enmity and hatred between groups based on religion, gender, caste, or community.
Section 295(A) – This section addresses acts which are intended to outrage religious feelings.
Section 505(1) and 505(2) – These sections deal with the acts or statements that provoke public policies.
Apart from these laws, there are a few terms, such as the Chilling Effect. This term is used to describe how people withhold themselves from speaking freely under the fear of falling into legal troubles. Despite being in place, existing hate speech laws often fall short of settling the recurring tensions they aim to manage.
The proof
In India, debate around freedom of speech and hate speech is most often related to religion or politics, or artistic expressions. These areas form the core of the public’s sentiments and identity, making them especially vulnerable to both offense and outrage. However, there are two sides to the public face; one side is the critics who argue that laws are often invoked or remembered to suppress satire or dissent, or when someone is rendering an unpopular opinion that is not suited to the majority’s ideologies, while others maintain that restrictions are essential to preserve social harmony in a pluralistic democracy. For instance, in the case of Munawar Faruqui was arrested before his performance in 2021 on the grounds of insulting Hindu deities. Although there was no specific evidence proving his actions, the supporters of the arrest cited the need to prevent communal unrest, while civil liberties advocates viewed it as a troubling sign that authorities may act to censor speech before anything is said. Similarly, Sharashmitha Panoli, a law student with a huge social media following, made offensive statements against the Muslim prophet during the crucial situation between India and Pakistan. This sparked outrage in the Muslim community, and she was arrested for her remarks. These two controversies were religion-oriented; there were several other cases where religion was the main reason for the conflict, and these cases are shreds of evidence that highlight the need for clarity in the hate speech laws when it comes to religion, laws that define what is permissible and what is not.
It is not just religious-speech conflicts that require legal attention, but also artistic expressions. Recently, Samay Raina, a stand-up comedian, along with others, faced backlash for making controversial statements that were derogatory. This controversy sparked a debate on how much leverage should be given to the artists for expressing their views in the form of words. Similarly, a complaint was filed against MP Imran Pratapgarhi for expressing his poetry during political rallies. His art was seen by some as communal and provocative, whereas others defended his right to political expression.
These instances highlight that the line between free speech and hate speech in India is not always legally clear but socially constructed through public sentiment, media discourse, and political climate. On one hand, there are valid concerns about the selective and sometimes arbitrary application of hate speech laws, especially when used against comedians, artists, students, or activists. On the other hand, in a diverse and sensitive society like India, unchecked expression can indeed incite real-world tensions, reinforcing the state’s obligation to maintain order and protect vulnerable communities. The challenge lies in creating a legal and cultural environment where both values—free expression and communal harmony—are balanced without undermining either. Hence, there’s a growing need to review past incidents and legal responses to draw a sharper, more practical boundary between free speech and hate speech.
Case Laws
Shreya Singhal v. Union of India (2015):
The Supreme Court invalidated Section 66A of the IT Act, ruling that ambiguous expressions such as “grossly offensive” and “annoying” violated constitutional safeguards. This case clarified that mere offensiveness is not sufficient to curtail speech unless it incites violence or threatens public order.
Pravasi Bhalai Sangathan v. Union of India (2014)
Instead of framing fresh rules on hate speech, the Court emphasized that it was Parliament’s responsibility to enact appropriate legislation. It emphasized that hate speech must be judged contextually, and that existing laws need better enforcement rather than expansion.
K.A. Abbas v. Union of India (1970)
Addressed censorship and artistic expression, holding that pre-censorship of cinema is valid but must not violate constitutional freedoms. The judgment remains relevant for creative and performative speech.
Nupur Sharma v. Union of India (2022) (oral observations)
The Court criticized Sharma’s remarks on Prophet Muhammad, suggesting they incited unrest. Though these were not part of a final ruling, they reveal judicial perspectives on responsibility in speech, especially by public figures.
Conclusion
In India, freedom of speech is a fundamental but considering that India is a diverse, pluralistic democracy, freedom of speech, too, has certain restrictions. Despite the restrictions, India witnesses several wars of words regularly. These regular conflicts over religion, gender, art, politics, etc, imply the need for more defined and concise hate speech laws. As mentioned in the article, until there are laws that provide a clear view on the boundaries of freedom of speech in India, and define what hate speech is and what is not, India will remain caught in recurring disputes over expression, hindering societal harmony and progress.
FAQS
What is the legal difference between free speech and hate speech?
Free speech is protected under Article 19(1)(a), while hate speech falls under the reasonable restrictions of Article 19(2) when it incites violence, promotes enmity, or threatens public order.
Are hate speech laws clearly defined in India?
Not exactly, but various sections of the Indian Penal Code—like 153A, 295A, and 505—are used to handle speech that promotes enmity or hurts sentiments. These laws are often broad and open to interpretation, which leads to inconsistent application. As a result, what counts as hate speech can vary depending on context, intent, and who is enforcing the law.
Is freedom of speech unlimited?
No, the Indian law has not given its citizens complete freedom of speech; there are certain sensitive topics or issues where the citizens cannot go overboard with their words. Article 19(1)(a) gives the right to free expression, but Article 19(2) allows the government to impose “reasonable restrictions.” These include limits in the interest of public order, decency, morality, security of the state, and more. So while people can speak freely, that freedom ends where it begins to harm others or disrupt society.
Why is it that in India, most hate speech cases involve religion, politics, or art?
These areas are deeply connected to personal beliefs and public identity in India. Religion and politics often stir strong emotions, and even mild criticism can be seen as offensive or threatening. Art, especially satire or performance, challenges societal norms and often provokes reactions. Because of this, speech in these domains is more likely to face backlash or legal scrutiny, even if the intent wasn’t hateful.
