From Soapbox to Courtroom: Who Decides Where Free Speech Ends and Hate Speech Begins

Abstract

The piece interrogates the complex relationship between freedom of expression and hate speech in India by examining constitutional principles, judicial interpretations, and the constantly changing landscape of public debate. By exploring significant developments in the exercise of free expression, including contemporary controversies, this piece showcases the tension between protecting open democratic debate while trying to prevent a marginalised public discourse. The piece advocates for strong statutory clarity and procedural protections, inviting its readers to reflect on the nature and extent of speech in a pluralistic, digitally mediated society.

Introduction

India’s democracy is based on a constitutional structure that finds its genesis in Article 19 (1) (a) which guarantees freedom of speech and expression. The freedom to express oneself, however, is not simply an input in a public debate, or literary criticism, or a vehicle of social change; it includes not only words expressed but also symbolic and artistic acts of expression. Article 19(2) however qualifies that no one may do so without the Government imposing justified and reasonable, in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to an offence, and in the balance[1]. We must figure out the best and most just way for individuals to conduct themselves in society, as individuals in a collective good.

In India, freedom of speech is an essential right that allows citizens to criticise government actions and discuss various social issues, although some restrictions on the right exist in Article 19(2). Hate speech is not written into law in India. There are vague but authoritative guidelines based on the Law Commission, Reports, and case law that hate speech is commonly understood to be any expression that incites hatred, discrimination or violence against persons or groups based on religion, caste, ethnicity, sex, place of birth, etc.[2]

According to the 267th Report of the Law Commission of India, hate speech is “an incitement to hatred mainly against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like”.[3] The Supreme Court has also added that hate speech is a form of marginalisation as it disapproves of individuals based on group identity and the hate speech delegitimises these individuals in the eyes of the majority and diminishes their socio-political presence.

Hate speech is not protected as free speech. Hate speech is an abuse of the freedom of expression. There are provisions in Bharatiya Nyaya Sanhita banning speech that flares up enmity, hatred or malicious feelings between different groups or instigating, or with the intent of outraging religious feelings.

Literature Review

1. Hate Speech and Its Impact on the Democracy of India: A Critical Study by Meena Ketan Sahu and Pankaj Singh:

This considerable body of work provides insight into how constitutional principles are integrated into legislative schemes and the conditions of contemporary social media. Social media platforms such as Twitter, Facebook, and YouTube have changed the composition of the public sphere by providing opportunities for citizen engagement, democratizing information, and making the voices of previously marginalised groups more publicly visible. At the same time, these digital public spheres have facilitated the increased propagation of hate speech, cyber harassment, and heightened censorship by state actors.[4]

2. Report 2024: Hate Speech Events in India by SSRN:

 Empirical reports provide a useful basis, as, for example, SSRN’s study in 2024 registered a 74.4% year-on-year rise in hate incident speech incidents, which, regarding the COVID pandemic, resulted in a disproportionate incidence, alarming and perplexing due to various national political regimes and clear religious polarisation.[5]

3. Hate Speech Must Be Addressed Strictly: Supreme Court Warns Against Communal Hatred:

The Supreme Court of India has expressed clearly and repeatedly the potential hazards of uncontrolled hate speech in a diverse and plural society. In its recent orders and observations, it has inter alia:

• Mandated prompt, strict and fair action by the Police against hate speech offences.
• Emphasised the need for the exercise of judicial vigilance, particularly in an election period or time of communal tension.
• Recognised the amplifying factor of media and digital platforms in spreading hate and called for safeguards and regulation to promote accountability, as well as prevent the normalisation of hate speech.[6]

Current Constitutional Framework

1. Article 19(1)(a) – The Right and its scope:

Under Article 19(1)(a) of the Constitution of India, every citizen is guaranteed freedom of speech and expression, which includes verbal expression, written expression, and symbolic expression-such as the right to remain silent; it also includes the press and art.

2. Article 19(2) – Reasonable restrictions:

Article 19(2) places some limits on this right by permitting the State to impose “reasonable restrictions” for the following purposes: Sovereignty and integrity of India, Security of the State, Friendly relations with foreign States, Public order, Decency or morality, Contempt of court, Defamation, incitement to an offence.

 The Supreme Court has made authoritative pronouncements on these restrictions by stating that to be justified, restrictions must be narrowly defined, proportionate, and not arbitrary.

Legal Boundaries: Where Speech Becomes Hate

1. Section 196 BHARATIYA NYAYA SANHITA, 2023: Penalises speech promoting enmity or hatred between religious, racial, or social groups. Punishment up to 3 years, or 5 if in a religious place.
2. Section 299 BHARATIYA NYAYA SANHITA, 2023: Criminalizes deliberate and malicious insults to religious beliefs, with up to 3 years imprisonment.
3. Section 353 BHARATIYA NYAYA SANHITA, 2023: Targets spreading false information to incite violence or hatred, especially relevant for digital misinformation.
4. Section 66A Information Technology Act, 2000 (Struck Down): Banned electronic messages or communications that were offensive (not defaming one). In 2015, the Supreme Court in Re: Shreya Singhal ruled it unconstitutional for free speech.
5. Section 69A Information Technology Act, 2000: Allows the Government to stop any content online or on social media it believes threatens India’s sovereignty, security, friendly relations with foreign states, or public order, including hate speech.

The Judicial System as Arbitrator

1. Romesh Thappar v. State of Madras (1950)[7]

Facts: The State of Madras prohibited the distribution of a journal that was critical of the government.

Holding: The Supreme Court held that the freedom of speech is essential to democracy and the restrictions based on “public order” should be narrowly construed. This case led to the addition of “public order” as a ground for restriction in the First Amendment.

2. Kedarnath Singh v. State of Bihar (1962)[8]

Facts: Kedarnath Singh was convicted for seditious speech under Section 124A IPC.

Holding: The Supreme Court upheld the constitutionality of sedition, but limited the speech application that incites violence or public disorder. Criticism of the government, no matter how strong, does not constitute seditious speech.

3. Pravasi Bhalai Sangathan v. Union of India (2014)[9]

Facts: The petitioner sought stricter laws against hate speech from public figures.

Holding: The Supreme Court acknowledged the severity of hate speech, but added that there are sufficient laws available if they are enforced properly. The Court stated that public figures should exhibit self-restraint and emphasized the need to enforce current laws, not implement new laws.

4. Tehseen S. Poonawalla v. Union of India (2018)[10]

Facts: The case focused on the issues of mob lynching and hate crimes.

Holding: The Supreme Court issued preventive, remedial, and punitive guidelines in cases of mob violence and hate crimes, and held that hate speech and fomenting hate through speech could lead to lawlessness if it is not curtailed by law.

5. Shreya Singhal v. Union of India (2015)[11]

Facts: The constitutionality of Section 66A of the IT Act was challenged.

Holding: The Supreme Court unanimously held Section 66A unconstitutional since it was vague and overly broad; stated that any law that seeks to restrict speech must be clear, precise, and not vague.

Contemporary Challenges

1. The Arrest of Sharmistha Panoli: Free Speech, Hate Speech and Selective Enforcement:

The June 2025 arrest of Sharmistha Panoli, a law student and social media influencer, has magnified the ambiguous and contested boundaries between free speech and hate speech in India. Panoli was arrested by Kolkata Police from Gurugram, after a complaint was made that her viral Instagram video, which falsely portrayed Bollywood celebrities as complicit for silence on Operation Sindoor – carried communal and derogatory religious content that was alleged to incite disrespect and disrupt the harmony of the community. Although she deleted her post and publicly apologised, police alleged that she was not responsive to the notices provided, which warranted her arrest and ordered judicial custody.[12]

It sparked a national debate: on one side were those who argued that it represented an overreach of police powers, a violation of free expression, and a threat to free speech; on the other, were those who contended that her posting was indefensible and traversed the threshold into hate speech. Kolkata Police did clarify that their actions were not simply for expressing patriotism, but because of the sharing of content that has the potential to incite hatred between communities and stressed that hate speech and abusive language are not constitutionally protected speech. It drew international attention as well as political critique, with critics referencing perceived lack of consistency in law enforcement’s response to very similar incidents involving consumers from disparate communities.[13]

2. Counter-complaints and accusation cycles

In a remarkable turn of events, Wajahat Khan Qadri—the complainant whose FIR led to Panoli’s arrest—was himself the subject of several hate speech complaints in multiple states, including West Bengal, Assam, and Maharashtra. Qadri is currently absconding, and police are investigating allegations that he posted inflammatory, derogatory content about Hindu religious beliefs. This counter-complaint cycle of complaint, arrest, counter-complaint, and arrest further reflects the polarisation in Indian society, as well as the weaponised use of hate speech laws, often reflecting deeper social and political divisions rather than principled enforcement.[14]

3. The broader picture: Algorithmic amplification and legal underenforcement

The Panoli case is an isolated incident and raises larger questions about regulating online speech in an age where algorithms shape outrage and offensive behaviour for the sake of engagement, usually faster than the law can keep up. The problematic statutory language and discretion exercised by enforcement agencies have led to both overenforcement and underenforcement, which feeds perceptions of a lack of fairness or selective justice. As courts and lawmakers come to grips with the reality of online speech, the immediate discussion on the need for clear legal standards, procedural safeguards, and adherence to legal standards reflects the continuing debate on freedom and hate speech in India.

Conclusion

In India, the tension between free speech and hate speech represents the ongoing tension between protecting individual freedoms while also maintaining social harmony in a very pluralistic society. The Constitution and the laws as interpreted by the courts, have generally attempted to strike a balance between free speech and hate speech, but the practical circumstances of selective enforcement, politicisation of free speech, and the evolution of digital platforms make this balance a difficult one to uphold. The Panoli incident and the counter-complaints illustrate how the laws against hate speech can be weaponised, and in the process, they demonstrate societal polarisation and reinforce it rather than deflating it. With the rise of AI-mediated communication, there is a serious risk of state actors stepping in through hate speech controls, both by way of overreach and underenforcement. As a society, we need to consider criminal statutory definitions, procedural restrictions on state actors, and to develop a judicial culture to oversee the enforcement of hate speech to protect free speech. Where free speech ends, and hate speech begins, cannot just be determined by the State or a volatile public; we must rely on a more robust context-specific framework to address our democratic values, protect vulnerable people, and promote reasoned discord. The future of India’s democracy would hinge on its ability to walk this rope with legal integrity and moral consistency.

 

References 

[1] Hate speech laws in India’ (Wikipedia, 3 June 2025) https://en.wikipedia.org/wiki/Hate_speech_laws_in_India accessed 5 June 2025

[2] Hate Speech in India’ (Vajiram & Ravi, 26 August 2023) https://vajiramandravi.com/upsc-daily-current-affairs/mains-articles/hate-speech-in-india/ accessed 5 June 2025

[3] Hate Speech’ (Drishti IAS, 7 October 2023) https://www.drishtiias.com/daily-updates/daily-news-analysis/hate-speech-5 accessed 5 June 2025

[4] Meena Ketan Sahu and Pankaj Singh, ‘Hate Speech and Its Impact on the Democracy of India: A Critical Study’ (2025) 7(3) International Journal for Multidisciplinary Research (IJFMR) 1 https://www.ijfmr.com/papers/2025/3/46445.pdf accessed 7 June 2025

[5] Center for the Study of Organized Hate, ‘Report 2024: Hate Speech Events in India’ (10 February 2025) SSRN https://ssrn.com/abstract=5130832 accessed 7 June 2025

[6] Hate Speech Must Be Addressed Strictly: Supreme Court Warns Against Communal Hatred’ (CourtBook, 2025) https://courtbook.in/posts/hate-speech-must-be-addressed-strictly-supreme-court-warns-against-communal-hatred accessed 7 June 2025

[7] Romesh Thappar v State of Madras [1950] SCR 594, AIR 1950 SC 124 https://indiankanoon.org/doc/456839/ accessed 8 June 2025

[8] Kedar Nath Singh v State of Bihar [1962] Supp (2) SCR 769, AIR 1962 SC 955 https://indiankanoon.org/doc/111867/ accessed 8 June 2025

[9] Pravasi Bhalai Sangathan v Union of India (2014) 11 SCC 477, AIR 2014 SC 1591 https://indiankanoon.org/doc/194770087/ accessed 8 June 2025

[10] Tehseen S Poonawalla v Union of India (2018) 9 SCC 501, AIR 2018 SC 3354 https://indiankanoon.org/doc/71965246/ accessed 8 June 2025

[11] Shreya Singhal v Union of India (2015) 5 SCC 1, AIR 2015 SC 1523 https://indiankanoon.org/doc/110813550/ accessed 8 June 2025

[12] Hindustan Times, ‘Why was Sharmistha Panoli arrested? Kolkata Police’s clarification amid row’ (Hindustan Times, 3 June 2024) https://www.hindustantimes.com/india-news/why-was-sharmistha-panoli-arrested-kolkata-polices-clarification-amid-row-101748844957924.html accessed 5 June 2025

[13] Indian Express, ‘Sharmistha Panoli’s arrest and a question: Whose free speech?’ (Indian Express, 3 June 2024) https://indianexpress.com/article/opinion/editorials/sharmistha-panolis-arrest-and-a-question-whose-free-speech-10044561/ accessed 5 June 2025

[14] Indian Express, ‘Wajahat Khan, whose complaint led to Sharmistha Panoli’s arrest, absconding after cases against him in 3 states: Police’ (Indian Express, 5 June 2024) https://indianexpress.com/article/cities/kolkata/wajahat-khan-absconding-sharmistha-panoli-arrest-10047974/ accessed 6 June 2025