Author: Kashika Verma, Institute of Law, Nirma University
To the point
Freedom of speech and expression as guaranteed under Article 19(1)(a) of the Indian Constitution is one of the most important and cherished rights granted to the citizens of India. Its inclusion was very important for the onset of a democratic nation allowing individuals to express their thought and opinion without any fear. It encourages citizens to show their dissent against the government or any of their policy and engage in public debate. However, this freedom provided is not absolute and certain restrictions are imposed under Article 19(2) in the interest of public order, decency, morality, integrity and sovereignty of the nation.
One of the most complex areas where this balance is tested is in the context of hate speech. Hate speech is defined as any remark, gesture, behaviour, writing, or display that encourages violence or discriminatory action against a group on the basis of characteristics including religion, ethnicity, sexual orientation, handicap, or nationality is generally considered hate speech. In Pravasi Bhalai Sangathan v. Union of India (2014), the Supreme court observed that hate speech is supposed to marginalize individuals and communities by delegitimizing them in the eyes of society often leading to discrimination or oppression and sometimes even violence.
This tension between the right of an individual to freely express himself and the need to curb harmful speech raises a lot of legal and ethical questions. How can the law differentiate between hate crimes and acceptable dissent? Should speech that offends or disturbs be restricted to preserve social harmony and vulnerable groups, or should it be allowed in the name of democracy? These questions becoming increasingly more important with the rise of social media where hate speeches can spread on a large scale and that too quickly.
There has also been an increase in use of inflammatory language by the public figure often to target specific communities in the disguise of free speech. At the same time, the measures that are taken to curb hate speech such as banning books or speeches can sometimes be misused to suppress legitimate dissenting voices.
A balance should be maintained between freedom of speech and hate speech so as to ensure a proper functioning.
Abstract
The right to freedom of speech and expression is a basic entitlement ensured by Article 19(1)(a) of the Indian Constitution, serving as the foundation of a democratic society. It enables people to share views, participate in political discussions, and hold those in power responsible. This right is not unconditional and is subject to reasonable limitations according to Article 19(2) for the sake of public order, morality, decency, and state sovereignty. A highly debated aspect of this framework is the governance of hate speech.
Although free expression is essential for encouraging discussion and opposition, hate speech characterized as any message that provokes violence or encourages animosity towards groups due to religion, caste, gender, or ethnicity poses significant dangers to social harmony and constitutional principles. The absence of a clear legal definition in Indian law has resulted in varying interpretations and enforcement, frequently obscuring the distinction between legitimate dissent and illegal expression.
The article examines important legal clauses, such as Sections 153A and 295A of the Indian Penal Code (currently Sections 196 and 299 BNS), alongside electoral and caste-related regulations that deal with hate speech. Landmark cases like Shreya Singhal and Pravasi Bhalai Sangathan and Shaheen Abdullah case are analysed to comprehend judicial attempts in upholding this constitutional equilibrium.
Furthermore, the article assesses the effects of political discourse, online platforms, and the abuse of legislation that either stifles opposition or allows unregulated hate speech. It underscores the necessity for a comprehensive legal structure that safeguards freedom of expression while limiting speech that endangers dignity and societal harmony.
Ultimately, the article supports the need for more precise legal definitions, uniformity in judicial decisions, and accountability in institutions to guarantee that the freedom of expression functions as a fundamental right.
Use of Legal Jargon
At the heart of the discussion lies Article 19(1)(a) of Constitution of India, which guarantees the right of freedom of speech and expression. The right is very broad in scope including the right of press, right to information and even right to silence. All of these rights are not absolute and is qualified by some reasonable restrictions under Article 19(2). The restrictions are made in interest of integrity and security of the State, public order, contempt of court, defamation, and incitement. The article employs the notion of “reasonable restrictions” as a legal benchmark to assess legislative constraints on free speech. The judiciary has elucidated these terms via landmark cases, highlighting the necessity for a connection between the speech and possible threats to public order or state integrity. For instance, in Ram Manohar Lohiya, the Supreme Court struck down a limitation for not having that connection. Likewise, decency and morality are evaluated via the “Hicklin test,” endorsed in Ranjit Udeshi case.
Specific penal clauses are referenced to illustrate the criminalization of hate speech, including Section 153A IPC (now Section 196 BNS), which punishes fostering enmity among groups, and Section 295A IPC (now Section 299 BNS), which penalizes intentional offenses against religious sentiments. These are invoked in connection to legislative intent and historical background such as the Rangila Rasul case which led to the insertion of section 295A in the colonial era.
Statutory laws such as Representation of People Act, 1951, particularly section 8,123(3A) and 125 bars corrupt electoral practices involving hate speech. The Scheduled Castes and Scheduled Tribes, Prevention of Atrocities Act, 1989 and Protection of Civil Rights Act,1955 extends the ambit for caste related hate speech.
Finally, mentions of press freedom underscore legal limitations imposed by legislation such as the Official Secrets Act and the previous Prevention of Terrorism Act (POTA), illustrating the conflict between national security and individual rights.
Proof
The increasing conflict between free speech and hate speech highlights a constitutional issue that threatens democratic principles and social cohesion. According to Black’s Law Dictionary, hate speech is defined as “speech that conveys no meaning other than the demonstration of hatred for a certain group… likely to incite violence.”
The impact of failing to regulate hate speech is clear from history, Nazi propaganda and the Rwandan genocide serve as extreme examples. Currently, comparable trends have appeared in online environments.
Modern Indian legal cases emphasize the necessity for equilibrium. Rahul’s statement regarding people named Modi resulted in him becoming a part of a criminal defamation case conviction and his consequent removal from Parliament, prompting concerns over the fairness of the stifling voice of the opposition party.
Likewise, influencer Sharmistha Panoli was imprisoned due to a communal video despite publicly apologizing, and several content creators such as Ranveer Allahbadia, are facing legal consequences for inappropriate or offensive online speech. Although offensive language warrants examination, the excessive application of legal measures such as FIRs and custodial arrests threatens to suppress authentic expression and important discussion.
Therefore, even though free speech is essential for a working democracy, it needs to be used responsibly. However, excessive regulation can become a means of censorship and suppressing political voices. A democratic society must balance this challenge maintaining vigorous discourse while safeguarding individuals from injury. Striking a balance between the two is essential it is fundamental to constitutional governance.
Case Laws
In Shaheen Abdulla v. Union of India (2022), the SC of India stressed that fraternity is not achievable without inter-religious harmony and expressed concerns regarding the increase in hate speech occurrences. The Court instructed police officials to act suo motu without waiting for formal complaints, emphasizing the need for proactive governance in upholding constitutional values.
In Pravasi Bhalai Sangathan v. Union of India (2014), the Supreme Court recognized that current laws insufficiently tackle hate speech, which does not have a legal definition in Indian legislation. The Court, avoiding judicial overreach, encouraged the Law Commission to examine the matter and suggested granting the Election Commission the authority to take action against political figures inciting hate.
The groundbreaking case Shreya Singhal v. Union of India (2015) reviewed Section 66A of the IT Act,2000. The law made it illegal to send “offensive” online messages, but it was overturned for breaching Article 19(1)(a) of the Constitution. The Court made a distinction among discussion, advocacy, and incitement only the last can be legally limited. It ruled the law imprecise and excessively broad, likely to suppress genuine expression. The lack of precise definitions for words such as “annoyance” and “inconvenience” made the section seem random and unconstitutional.
Globally, in Saskatchewan (Human Rights Commission) v. Whatcott (2013), the Supreme Court of Canada established a complex precedent. It asserted that hate speech needs to be evaluated based on its probable impact on affected groups, restricting it to severe instances of hatred or abuse. This case highlighted that intent does not matter, what is significant is the impact on public perception and the potential for encouraging discrimination or harm.
Conclusion
The developing legal principles regarding the overlap of free speech and hate speech showcase a careful constitutional equilibrium. The right of speech and expression, guaranteed by Article 19(1)(a) of the Indian Constitution, is fundamental for a smooth democratic governance. It allows individuals to express disagreement, encourage conversation, and demand accountability from institutions crucial foundations of a lively democracy. Conversely, hate speech, especially when unregulated, can provoke violence, isolate communities, and undermine the core principles that freedom of expression seeks to uphold. The comparative evaluation of Indian and global jurisprudence Shaheen Abdulla, Pravasi Bhalai Sangathan, Shreya Singhal, and Saskatchewan v. Whatcott shows that courts have regularly acknowledged the importance of safeguarding democratic liberties while simultaneously ensuring social cohesion. The proactive approach of the Indian Supreme Court in Shaheen Abdulla advocating for suo motu police action demonstrates an immediate awareness of the societal damage caused by hate speech. Simultaneously, the Shreya Singhal ruling established an essential basis by upholding the idea that discussion and advocacy should be safeguarded, whereas only incitement to violence or public disorder justifies limitations. Simultaneously, these legal endeavours face their own difficulties. Vaguely articulated or excessively broad laws such as the recently invalidated Section 66A of the IT Act exemplify the chilling effect that inadequate legislative drafting can impose on authentic expression. On the other hand, failure to act against overtly hateful speech, frequently disguised as “free speech,” can strengthen discrimination and violence, evident in rising communal conflicts and politically motivated language in public discussions. The constitutional challenge is not about selecting between free speech and hate speech, but rather in creating a refined, context-aware system that can safeguard the exchange of ideas while simultaneously restricting speech that threatens dignity, equality, and public order. The current necessity is evident, accurate legal definitions, uniformity in the judiciary, and active institutional oversight. Only then can India genuinely fulfil the democratic ideals of freedom, equality, and brotherhood, guaranteeing that free expression serves as an instrument of empowerment, not repression.
FAQS
1.What distinguishes free speech from hate speech according to Indian law?
The right to free speech is a core entitlement safeguarded by Article 19(1)(a) of the Indian Constitution, permitting individuals to voice opinions, critique governmental actions, and participate in public discussions. Nonetheless, hate speech characterized as communication that provokes violence or discrimination towards specific groups is limited by Article 19(2) and penal provisions such as Sections 153A and 295A IPC (currently Sections 196 and 299 of BNS).
2.Is there a precise legal definition of hate speech in Indian law?
No, Indian statutory law does not offer a consistent or exact definition of hate speech. In Pravasi Bhalai Sangathan v. Union of India (2014), the Supreme Court of India acknowledged this legislative void and urged the Law Commission to examine and suggest a definitive legal structure. At present, regulations concerning hate speech are spread throughout different laws such as the IPC, Representation of the People Act, and the SC/ST (Prevention of Atrocities) Act. This uncertainty frequently results in uneven implementation and legal interpretations.
3.What makes it important to uphold a balance between free expression and the regulation of hate speech?
A democratic society flourishes on the liberty to challenge authority, exchange ideas, and critique governmental policies. Nevertheless, when language fosters violence, animosity, or societal splits, it has the potential to undermine society and ostracize at-risk populations. A balance guarantees that individuals maintain their democratic freedom to voice their opinions while safeguarding communities from damage. Abusing hate speech regulations to silence opposition or minority opinions may result in censorship, whereas not addressing harmful speech can heighten communal conflict and violence, as both history and current situations illustrate.
4.Is it possible for harsh criticism or contentious views to be classified as hate speech?
The pivotal ruling in Shreya Singhal v. Union of India led an essential differentiation among three types of speech incitement, advocacy and discussion. The Court decided that restrictions under Article 19(2) can only be justified for incitement to violence or public disorder. Simple criticism even if it is distasteful or not well-received is safeguarded by Article 19(1)(a). Consequently, contentious views or pointed political remarks should not be classified as hate speech unless they obviously incite animosity or aggression.
5.What has been the role of the judiciary in handling the problem of hate speech in India?
The judiciary has played an important role in defining constitutional boundaries on free expression and directing the oversight of hate speech. In Shaheen Abdulla case, the apex court raised alarms concerning the increase in hate speech and instructed police authorities to take suo motu measures acknowledging the need for immediate state intervention.
Conversely, in Shreya Singhal, the Court invalidated Section 66A of the IT Act due to its excessive vagueness and breadth, which endangered legitimate expression. Through these instances, the judiciary has highlighted the importance of a context-specific, precisely focused legal strategy that prevents both excessive criminalization and insufficient enforcement.
