ABSTRACT:
The persistent conflict between hate speech and freedom of speech is not new.
Freedom of speech is the cornerstone of a democratic society; on the other hand, hate speech undermines the ability to maintain public order, communal harmony, internal security and law and order. This study examines key conflicts and analyses the constitutional framework, statutory provisions, and judicial interpretation through landmark cases using a doctrinal research methodology. The study concludes the balanced legal standard and enforcement mechanism to prevent the misuse of hate speech laws while ensuring the protection of freedom of speech.
KEYWORDS:
Freedom of Speech, Article 19(1)(a) and Article 19(2) of the Constitution Of India, Hate Speech, Article 19 of UDHR, Article 19 of ICCPR, Article 10 ECHR
INTRODUCTION:
The literal meaning of the term ‘speech’ is the act of communicating thoughts, opinions or ideas through spoken or written words. Whereas the expression includes the broader concept of any method by which a person can communicate their thoughts, feelings, such as art, gestures, symbols, films, digital communication, etc.
The freedom of speech and expression is protected under Article 19(1)(a) of the Constitution of India, providing the right to criticise, to give opinions, express your thought and all rights, but not absolute.
Hate speech as a concept includes speeches or opinions that advocate, incite, promote, or justify violence and/or discrimination against a person or group of persons for any reason.
The current era of digitalisation has blurred the line that separates speech and hate speech, and jurists, judges, scholars, and legislators are now providing different opinions and standards regarding the same, creating a conflict between the two most persistent concepts.
CONSTITUTIONAL BACKING OF THE CONCEPT:
The Constitution of India under Part 3, Article 19(1)(a) says that: – Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right— (a) to freedom of speech and expression, which includes the right to give opinions, speeches, criticism, silence, however, all rights.”
Article 19(2) of the Constitution of India provides the ground on which the above-mentioned right can be curtailed and infringed: –
“The sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. On these grounds, reasonable restrictions can be applied.”
WHAT CONSTITUTES ‘HATE SPEECH’:
According to the 267th Law Commission Report (2017), ‘Hate speech’ means words or actions meant to stir hatred against groups based on race, ethnicity, gender, religion, or sexual orientation. Thus, it includes spoken or written words, signs, or visuals intended to create fear, provoke violence, or incite hatred.
The concept of Hate speech gradually evolved in India through different judicial judgments and laws by legislators.
- Indian Penal Code,1860, section 153A: – Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony.
- Indian Penal Code,1860, section 295A: – Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
- Bharatiya Nyaya Sanhita,2023, section 196: – deals with the offence of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.
- Bharatiya Nyaya Sanhita,2023, section 299: – deals with deliberate and malicious acts intended to outrage the religious feelings of any class of citizens by insulting their religion or religious beliefs.
- Bharatiya Nyaya Sanhita,2023, section 152: – addresses acts that endanger the sovereignty, unity, and integrity of India.
- Representation of the People Act, 1951, section 8: -regarding the disqualification of members on conviction for certain offences, which includes doing any act prejudicial to maintaining public harmony.
Despite having different provisions in various laws, the ambiguity regarding hate speech continues to exist.
Philosophical Paradox:
Autonomy and freedom: – as understood by Immanuel Kant, this involves acting for a reason and duty rather than being controlled by external forces. In a true sense, it implies moral self-rule, where the individual can act according to their principles.
Harm principle: – articulated by the philosopher John Stuart Mill in his essay named “On Liberty” published in 1859. He mentioned, “The only purpose for which power can be rightfully exercised over any member of a civilised community, against the will, is to prevent harm to others”.
JUDICIAL INTERPRETATION:
In the initial decades after the Constitution came into force, the judiciary focused mainly on protecting free speech, even if the speech was unpopular or controversial.
Romesh Thappar Vs. State of Madras AIR 1950
Judgment: – Freedom of speech and expression includes the freedom of propagation of ideas, which includes the freedom of circulation of the same.
Superintendent Central Prison Vs. Ram Manohar Lohia AIR 1960.
Judgment: – there must be a proximate and reasonable nexus between speech and public disorder; mere criticism or unpopular opinions cannot be restricted unless they incite disorder.
K.A. Abbas Vs. Union of India AIR 1970
Judgment: The Supreme Court held that Censorship is a reasonable restriction but cannot be arbitrary, and found the Cinematography Act 1960 when directions were vague and unguided, and laid down that artistic freedom be protected while the government regulates films in the public interest.
Ramji Lal Modi Vs. State of U.P AIR 1957
Judgment: The Supreme Court validates Section 295A of the IPC 1860 as a reasonable restriction in the interest of public order and laid down that while Freedom of speech and expression is a fundamental right, it is subject to reasonable restrictions to maintain public order.
Pravasi Bhalai Sangathan Vs. Union of India AIR 2014
Judgment: The Court observed that hate speech can marginalise communities and disturb social harmony. The Court refused to create a new legal guideline and held that existing laws are sufficient, urging parliament to legislate if necessary.
Shreya Singal Vs. Union of India AIR 2015 (5) SCC 1
Judgment: Landmark ruling in the digital era to protect the freedom of speech, struck down Section 66A of the Information Technology Act, 2000. It laid down that a speech that incites violence or public disorder can be restricted, and adopted the incitement test rather than the advocacy test.
Amish Devgan Vs. Union of India AIR 2021
Judgement: Supreme Court provided the detailed conceptual definition of hate speech- “ a speech that targets a group based on religion, race, caste, gender, or ethnicity and seeks to incite hatred, discrimination, or violence”.
The court said that Freedom of speech is a fundamental right, but it must be exercised to protect the religious sentiments of others, highlighting the need for responsible media practices to prevent the spread of hate speech.
Shaheen Abdullah Vs. Union of India AIR 2022.
Judgment: The Supreme Court address the growing climate of hate against the Muslim community in India. The Court issued the interim direction to the state police authorities to ensure they register and investigate the hate speech offences proactively.
INTERNATIONAL RECOGNITION OF THE FREEDOM OF SPEECH:
The Freedom of speech refers to an individual’s right to express their ideas, views, opinions, beliefs, and information without undue interference from the government or its agencies.
Universal Declaration of Human Rights: –
Article 19 “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
International Covenant on Civil and Political Rights: –
Article 19 protects the freedom of expression internationally but not absolutely, allowing restrictions for national security, public order, public health or morality.
European Convention on Human Rights: –
Article 10: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”.
The right is not absolute subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
FREEDOM OF SPEECH IN DIFFERENT COUNTRIES:
United States of America: The freedom of speech and expression is protected by the First Amendment, providing the government will not abridge the freedom of speech, establishing a fundamental protection against government censorship of expression.
Brandenburg v. Ohio (1969). The court says that inflammatory speeches lose the protection granted under the First Amendment.
Britain: The Freedom of speech is protected in Britain by the “HUMAN RIGHTS ACT 1998” and “PUBLIC ORDER ACT “. These legislations protect and guarantees the freedom of speech and expression.
Reynolds v Times Newspapers Ltd: “The flexibility of the existing common law allows courts to consider individual cases and give appropriate weight to competing factors, including the importance of freedom of expression by the media as a “watchdog” on matters of public interest”.
China: Article 35 of China’s Constitution states that “citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration”, but this is not an absolute right restricted by a complex web of legislation. Likewise, Advertising Law, National Security Law, Cyberspace Law, etc.
LEGAL CHALLENGES IN INDIA:
Hate speech, as the word is not mentioned or defined by any legislation of the country, creates a loophole where the jurists, judges and individuals can interpret it in their own manner, and also creates an imbalance between the right to freedom of speech and expression with the need to protect the public order and rights of vulnerable communities across India.
The rise of digitalisation has surged the cases and instances of Hate speech as it is difficult to monitor and curb it effectively.
Cross-border challenges: A person now able to post online content from anywhere across the globe and access it in any country, and having a negative impact in other countries, creates obstacles and complexities in enforcement through the way of Mutual Legal Assistance Treaty.
SUGGESTIONS:
Clear definition: The definition of hate speech must be provided, as Justice Krishna Iyer said,” the definition is the direction of the law”.
Consolidated Legal Framework: Currently, the country has scattered legislation to curb the offence of hate speech, which results in delineating the boundaries between the protected right and the public order.
Institutional Mechanism: To establish an independent body to regulate and check on hate speech cases across India, and implement the mechanism of a whistleblower.
International Cooperation: In matters of cross-border cooperation, the countries mutually agreed to develop agreements or treaties to tackle and create a forum for cultural sensitivity and sharing strategies.
Concept of Vicarious Liability: The social media platform shall be provided a time period by a concerned authority within which the platform has to remove the post, account, story, etc., which incites, promotes, justifies the violence and discrimination or hampers public order.
CONCLUSION:
The debate between freedom of speech and hate speech is not about choosing one over the other, but about defining the boundaries of respect and responsibility in a free society. True freedom of expression thrives when it uplifts dialogue, not when it silences or dehumanises others. As societies evolve, so too must our understanding of speech—recognising that words can both build bridges or burn them. The challenge before us is ensuring that our right to speak freely strengthens democracy, as it is a cornerstone of it, without eroding the dignity that underpins it.
“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”
— United Nations Secretary-General António Guterres
I sum up the words by saying that freedom of speech protects a wide spectrum, including the offensive and hateful ideas, but the legal framework must intervene when such speech poses a risk of harm, incites, or promotes violence.
REFERENCES:
- Romesh Thappar v. State of Madras, AIR 1950 SC 124
- Superintendent Central Prison Vs. Ram Manohar Lohia AIR 1960
- K.A. Abbas Vs. Union of India AIR 1970 SCC (2) 780
- Ramji Lal Modi Vs. State of U.P AIR 1957 SCC 334
- Pravasi Bhalai Sangathan Vs. Union of India (2014) 11 SCC 477
- Shreya Singal Vs. Union of India AIR 2015 (5) SCC 1
- Amish Devgan Vs. Union of India AIR (2021) 1 SCC 1
- Brandenburg v. Ohio 1969, 395 U.S. 444 (U.S. Supreme Court)
- Reynolds v Times Newspapers Ltd 2001 2 AC 127
- Universal Declaration of Human Rights,1948
- International Covenant of Civil and Political Rights,1966
- European Convention on Human Rights,1953
- Indian Penal Code,1860
- Bharatiya Nyaya Sanhita,2024
- Constitution of China, Article 35
Kaustubh Gupta
BALLB 4th year student at City Academy Law College
guptakaustubh215@gmail.com
