Author: Harihar Narayan Shukla
College: LBR Law College, Varanasi
LinkedIn Link: My Linkedin
Abstract
Freedom of Speech is a principle that supports the individuals to communicate their opinion and ideas without any fear. But in the modern era some malignant individual uses the idea of freedom of speech to harass and bully others. The harassment and bullying can be personal as on height, weight, social status etc.; or with any political agenda like caste, Origin, ideology, popularity etc. In today’s modern world the digital platforms have transformed the way of communication of the individuals, which makes it harder to stop the hate speech in the name of Freedom of Speech and Expression. Also, till now we do not have any proper method or system to scrutinize the hate speech. This speech directly threatens social harmony, individual dignity, and constitutional values by inciting hostility against protected groups. The goal of this article is to evaluate the India’s Constitutional frameworks, scrutinize landmark judicial precedents, and address regulatory challenges unique to digital communication technologies.
To the Point
Digital Platforms have helped people to communicate by lowering barriers of reach, anyone can articulate their opinion freely to the whole world. You do not have to write any for the newspaper, or make a large gathering to share your thoughts anymore. You just have to type or make videos of what you were thinking and just upload. This makes the communication easier to people but also can be used as a weapon for hatemongers. Article 19(1)(a) of the Indian Constitution guarantees free expression, Article 19(2) explicitly limits it through reasonable restrictions.
I would like to quote the words of Thorbjørn Jagland, the Secretary General of the Council of Europe:
“Hate speech is an abuse of freedom of expression.”
This quote explains the perspective in which the Freedom of speech is defined in the constitution, and shall be followed by individuals. This difference between Freedom of Speech and Hate Speech can only be scrutinized by the Judicial Review and through active changes in the current law according to the modern world.
The Hatemongers often twist the Freedom of Speech and Expression for dodging the Hate Speech lawsuits. And after seeing those people getting away with Hate Speech Broadcast and getting away with it, others were overstepping their boundaries. The government and other constitutional bodies cannot overlook all the contents in the digital platforms. So, as a citizen of this country it is our duty to report those Hate Speeches to the government, also the government should make a system for taking that reported contents. Therefore, modern judicial review must look beyond traditional physical thresholds of incitement to address the unique viral speed, broad reach, and long-lasting presence of digital speech.
Use of Legal Jargon
The discourse surrounding freedom of speech and hate speech relies on an interconnected matrix of foundational legal concepts. At its core is the Fundamental Right to free expression guaranteed under Part III of the Constitution, which is balanced against Reasonable Restrictions. These statutory limitations are imposed by the State under Article 19(2) explicitly to safeguard national sovereignty, integrity, public order, decency, and morality. When speech crosses these boundaries, it can manifest as an Incitement to Violence—which targets speech encouraging unlawful acts—or as Defamation, which covers actions that injure a person’s reputation through false statements.
This helps ascertain whether the expression posed a direct threat to Public Order by disrupting societal peace and tranquility. Ultimately, contemporary courts navigate this tension through the lens of Constitutional Morality, utilizing its embedded values to guide progressive governance and judicial interpretation. Courts rely heavily on the Proportionality Test, a rigorous judicial standard designed to determine whether any State-imposed restrictions on individual rights are truly justified, narrow, and proportionate to the intended protective outcome.
The Proof
Constitutional Framework
Article 19(1)(a) of the Constitution of India guarantees every citizen the right to freedom of speech and expression, serving as the cornerstone of democratic governance by enabling citizens to express opinions, criticize authorities, and participate in public discourse. However, this right is bounded by Article 19(2), which empowers the State to impose reasonable restrictions to safeguard vital national and societal interests. These exhaustive grounds is to protect the sovereignty and integrity of India, maintaining the security of the State, preserving friendly relations with foreign States, and upholding public order.
Statutory Provisions
The Bharatiya Nyaya Sanshita, 2023 (BNS) has several provisions to curb Hate Speech and Disruption of Public Peace, which includes Section 196 Promote Enmity between different groups; Section 197 Imputations Prejudicial to National Integration; and Section 299 Outraging religious feelings. They may not the direct punishment for hate speech but merely a punishment of its after effects. Also, the after effects includes some more serious offenses like, Section 352 Intentional Insult to provoke Breach of Peace; Section 353 Statements Conducive to Public Mischief; Section 189 to 194 for unlawful assembly, Rioting and Affray. These Punishments can vary from 6 months to 5 years imprisonment and/or with fine.
The Information Technology Act, 2000, has also comes into force if these hate speeches were published on digital media. The provision is to make the person liable and minimize the effects of the disturbance caused by it. The key provisions are: Section 69A through which executive have the power to take down the alleged content off the digital platform; Section 79, This section makes the digital platforms liable for the content posted by their users, but generally they were shielded from civil or criminal liability for third party user content, but on one condition that they have to they have to follow statutory due diligence and take that content down.
Enacted as subordinate legislation under Section 87 of the Act, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules dictate exactly how platforms must combat hate speech: Rule 3(1)(b) Restrictions, Requires platforms to explicitly state in their terms that users are barred from hosting, displaying, or sharing content that promotes hate, violence, or systemic discrimination; Strict Removal Timelines of 36 hour; Grievance Officers, Mandates the appointment of a Grievance Redressal Mechanism to ensure user complaints regarding harmful digital text are addressed rapidly.
Case Laws
1. Kedar Nath Singh v. State of Bihar (1962)
Kedar Nath Singh, a member of the Forward Communist Party in Bihar, was prosecuted for a fiery public speech where he called the ruling Congress party leaders “goondas” and advocated a revolutionary overthrow of the government.
The Supreme Court dismissed Kedar Nath Singh’s appeal, ruling that his specific speech contained direct calls to a violent revolution and thus fell within the restricted, legal definition of Section 124A. This judgment shaped modern free speech limits and sedition jurisprudence. The Supreme Court upheld the validity of sedition-related provisions but strictly limited their application to situations involving an explicit incitement to violence or public disorder.
2. S. Rangarajan v. P. Jagjivan Ram (1989)
The controversy revolved around a Tamil film titled “Ore Oru Gramathile” (“In One Village”), which strongly critiqued the government’s caste-based reservation policy and advocated instead for economic-based reservation. Although the Censor Board’s examining committees recommended a “U” (Unrestricted) certificate, the Madras High Court revoked it.
The Supreme Court allowed the appeals and set aside the High Court’s order, reinstating the film’s “U” certificate. The film was allowed to be screened publicly, confirming that state machinery must protect artists and their right to dissent. The Court famously observed that the anticipated danger should not be remote, conjectural, or far-fetched, but must resemble a “spark in a powder keg.” This landmark ruling established an exceptionally high threshold for the State to justify any restriction on free expression.
3. Pravasi Bhalai Sangathan v. Union of India (2014)
A non-governmental organisation (NGO), Pravasi Bhalai Sangathan, filed a public interest litigation (PIL) requesting the Court to issue strict guidelines or direct the government to take immediate action against politicians who were delivering hate speeches based on religion, caste, or race. The petitioner plead the Court to direct the Election Commission to remove the political parties or disqualify candidates who indulge in hate speech, arguing that existing laws were weak and ineffective.
The Supreme Court disposed of the writ petition by passing the responsibility to the Law Commission. This directly led to the Law Commission’s 267th Report (2017), which recommended inserting specific sections (such as Section 153C and 505A) into the IPC to clearly define and punish hate speech. While declining to enact new judicial guidelines, the Supreme Court emphasized that the true legal remedy lies in the strict and effective implementation of existing statutory laws by enforcement agencies. This judgment served as a pivotal moment in recognizing the deep societal and psychological harms posed by targeted hate speech.
4. Shreya Singhal v. Union of India (2015)
The case was triggered after police arrested two young women under Section 66A for posting comments on Facebook criticizing the total shutdown of Mumbai following the death of a prominent political leader. Section 66A criminalised sending “grossly offensive” or “menacing” messages via computer resources. It also penalised transmitting information known to be false for causing “annoyance,” “inconvenience,” or “insult”.
The Supreme Court declared Section 66A void ab initio (void from the beginning). This effectively wiped the law from the statute books and halted all pending trials and investigations under the provision across the country. The Court emphasized that any state restrictions on expression must fall strictly and explicitly within the exhaustive grounds specified under Article 19(2). This ruling remains a landmark precedent protecting digital free speech by establishing that vague, open-ended, and overbroad restrictions on online communication are inherently unconstitutional.
5. Amish Devgan v. Union of India (2020)
Amish Devgan, a prominent television journalist and news anchor, hosted a live televised debate regarding the Places of Worship Act. During the broadcast, he referred to the revered Sufi saint Khwaja Moinuddin Chishti as a “terrorist” and a “robber” who forcibly converted people to Islam. The broadcast led to massive outrage, resulting in seven different FIRs being registered against Devgan across multiple states under different Sections of the IPC. The journalist approached the Supreme Court, seeking to quash all the FIRs. He argued that his words were a slip of the tongue, that he had issued an apology, and that prosecuting him violated his freedom of the press under Article 19(1)(a).
The Supreme Court refused to quash the FIRs against Amish Devgan, requiring him to face the investigation. However, to prevent procedural harassment, the Court clubbed all separate FIRs across different states and transferred them to a single jurisdiction in Ajmer, Rajasthan. It also granted him interim protection from immediate arrest, provided he fully cooperated with the ongoing police probe. The Court observed that true hate speech targets the structural identity and dignity of protected groups, seeking to exclude them from the social fabric and undermine fundamental constitutional values. This ruling provided a contemporary, sophisticated judicial framework for analyzing online hostility in the digital age.
Conclusion
The friction between constitutional expression and online hostility defines the modern digital frontier. Although digital platforms have successfully democratised public discourse, their structural design has simultaneously accelerated the proliferation of divisive content. The Indian constitutional matrix addresses this tension not through absolute text, but by balancing the expansive guarantees of Article 19(1)(a) with the precise, exhaustive boundaries of Article 19(2).
As established by contemporary jurisprudence, any regulatory intervention by the State must be narrowly tailored and strictly adhere to the doctrine of proportionality. However, judicial oversight must also account for how online hate speech actively erodes the foundational principles of social fraternity, individual dignity, and equal citizenship. As communication technologies continue to evolve, the traditional model of state-centric censorship must give way to a collaborative paradigm of algorithmic accountability, statutory precision, and judicial vigilance. Ultimately, safeguarding India’s constitutional democracy relies on a dual commitment: robustly defending the right to dissent while aggressively dismantling digital structures that weaponise speech to cause public disorder.
FAQ
1. What is freedom of speech under the Indian Constitution?
Freedom of speech and expression is a fundamental right guaranteed under Article 19(1)(a) of the Constitution of India, enabling citizens to express opinions and ideas freely.
2. Is freedom of speech an absolute right?
No. Article 19(2) permits reasonable restrictions in the interests of public order, security of the State, decency, morality, defamation, and other specified grounds.
3. What is hate speech?
Hate speech refers to expressions that promote hatred, discrimination, hostility, or violence against individuals or groups based on characteristics such as religion, caste, race, ethnicity, or gender.
4. Why is hate speech a concern in the digital era?
Social media platforms enable rapid and widespread dissemination of harmful content, increasing the risk of social unrest, discrimination, and violence.
5. What was the significance of the Shreya Singhal judgment?
The Supreme Court struck down Section 66A of the Information Technology Act, protecting online free speech and reaffirming constitutional safeguards against arbitrary restrictions.
6. Can social media posts attract legal liability in India?
Yes. Social media posts that amount to hate speech, defamation, incitement to violence, or other unlawful conduct may attract civil or criminal liability under applicable laws.
7. How can the balance between free speech and hate speech be maintained?
The balance can be maintained through constitutionally valid regulations, judicial oversight, platform accountability, digital literacy, and adherence to the principles of necessity and proportionality.
