Published On: August 19th 2025
Authored By: Shruti Kumari
Bharati Vidyapeeth New Law College Pune
Abstract
The Indian Constitution, under Article 19(1)(a), grants citizens the essential right to freedom of speech and expression, an indispensable pillar of democratic governance. Yet, the rising use of speech that is inflammatory, divisive, or ideologically charged, whether in politics, religious spaces, or online forums, raises important questions about the boundaries of this freedom. While Article 19(2) permits the government to impose restrictions in the name of public order, state security, or morality, Indian law remains silent on an exact definition of “hate speech.” This article explores how the legal and judicial system manages this uncertainty through constitutional reasoning and penal provisions like Sections 153A, 295A, and 505 of the Indian Penal Code. It also reviews significant Supreme Court rulings such as Shreya Singhal v Union of India, Ramji Lal Modi v State of UP, and Pravasi Bhalai Sangathan v Union of India. Additionally, it considers the challenges that arise from regulating hate speech in the digital domain and the inconsistent enforcement of existing laws. In closing, it argues for statutory reform to clearly differentiate between protected expression and speech that incites violence or discrimination, thereby safeguarding democratic values while maintaining social harmony.
Keywords: Freedom of Speech, Hate Speech, Article 19(1)(a), Indian Constitution, Reasonable Restrictions, Indian Penal Code, Digital Expression
Introduction to Free Speech in India
The right to freedom of speech and expression is one of the most critical constitutional guarantees in India. Protected under Article 19(1)(a) of the Constitution, this right enables individuals to articulate their views and share information in various forms, including spoken word, writing, and digital expression.¹ Far from being a personal liberty alone, it serves as a foundation for democratic governance, allowing people to challenge authority, express dissent, and participate in civic life. However, this right is not without limits. Article 19(2) permits the State to impose “reasonable restrictions” on expression to protect interests like sovereignty, security, and public morality.² The ongoing challenge lies in defining the threshold at which speech stops being a democratic exercise and begins to pose a risk to social harmony.
Judicial Expansion of Free Speech Interpretation
The judiciary has significantly shaped the meaning and reach of Article 19(1)(a) by interpreting it in the context of a dynamic democracy. A pivotal moment came in Romesh Thappar v State of Madras, where the Supreme Court invalidated an order that barred the circulation of a political journal, reinforcing that both the right to speak and the right to receive information are constitutionally protected.¹ Justice Patanjali Sastri observed that free speech and a free press are fundamental pillars upon which a democratic society must stand.² This foundation was strengthened in Maneka Gandhi v Union of India, where the Court connected freedom of expression with Article 21, embedding it within the broader principle of substantive due process.³ Collectively, these judgments signaled a departure from narrow legal formalism and embraced a more expansive, purposive understanding of fundamental rights particularly the right to dissent and criticize the State.
The Constitutional Limits: Article 19(2) and Reasonable Restrictions
While Article 19(1)(a) of the Indian Constitution upholds the individual’s right to express themselves freely, this right is not without limits. Article 19(2) introduces the framework for “reasonable restrictions” that the State can impose to safeguard interests such as public order, national unity, morality, decency, and to prevent defamation or incitement to criminal acts.¹ The Supreme Court addressed the scope of these restrictions in the case of Chintaman Rao v State of Madhya Pradesh, emphasizing that such limitations must be precise and directly related to the harm they are intended to avoid.² The Court underscored that these restrictions cannot be arbitrary or overly broad, and must align proportionately with the objective they aim to achieve.³ This judicial affirmation of proportionality has become a cornerstone of Indian constitutional law and continues to influence how courts evaluate the validity of laws affecting free speech.
The Legal Vacuum: Absence of a Statutory Definition of Hate Speech
Although public concern over inflammatory and divisive speech continues to rise, Indian statutory law still does not offer a clear or formal definition of “hate speech.” Neither the Constitution nor primary legal texts like the Indian Penal Code (IPC) or the Code of Criminal Procedure (CrPC) explicitly mention or define the term. Consequently, courts are often left to interpret and apply the concept on a case-by-case basis, which can lead to variability in judgments and inconsistent enforcement.¹ To address this legislative gap, the Law Commission of India, in its 267th Report released in 2017, recommended introducing Sections 153C and 505A to the IPC to criminalize speech that incites hostility, fear, or violence against individuals based on religion, caste, gender, community, or sexual identity.² The Commission stressed the necessity of drawing a constitutional line between speech that merely offends and speech that causes harm, cautioning against excessive censorship.³ Supporting this perspective, constitutional scholar Faizan Mustafa has argued that the definition of hate speech should be narrowly focused on speech that incites discrimination or violence, rather than punishing expression simply for being controversial or disagreeable.⁴ In the absence of legislative clarity, enforcement remains subjective and is often influenced by political or ideological considerations.
Penal Code Provisions Addressing Hate Speech
Due to the absence of a precise statutory definition, hate speech in India is addressed through broad and often ambiguous provisions within the Indian Penal Code. Section 153A penalizes actions that foster hostility among different groups based on religion, language, race, or ethnicity.¹ Section 295A deals with intentional and malicious behavior aimed at offending religious sentiments.² Additionally, Section 505 targets statements likely to incite public unrest or provoke animosity between communities.³ Though intended to uphold public order and social harmony, the vague phrasing of these sections often leads to inconsistent application. The judiciary has attempted to delineate the scope of these laws. In Ramji Lal Modi v State of UP, the Supreme Court upheld the constitutionality of Section 295A but made it clear that the provision should only be invoked when there is clear, deliberate intent to insult religion and threaten public peace.⁴ Nonetheless, these sections are frequently used in practice to curb satire or genuine criticism, giving rise to serious apprehensions about freedom of speech and the misuse of legal provisions.
Digital Hate Speech and Platform Responsibility
The emergence of social media has reshaped how hate speech manifests and circulates, enabling such content to spread swiftly and often anonymously. Platforms like Facebook, X (formerly known as Twitter), and WhatsApp have increasingly served as channels through which inflammatory speech is disseminated, sometimes resulting in tangible harm or unrest.¹ To initially address digital misconduct, Section 66A of the Information Technology Act was enacted. However, the Supreme Court, in the significant case of Shreya Singhal v Union of India, struck down this provision, citing its vague wording and potential to suppress free speech.² While this judgment strengthened protections for online expression, it simultaneously created a legal gap in addressing hate speech in digital spaces. To fill this void, the government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These rules mandate that intermediaries take action against unlawful content within 36 hours of receiving notice.³ Critics, however, have raised concerns that these guidelines give disproportionate control to digital platforms, which could result in arbitrary censorship.⁴ In its ruling, the Supreme Court underscored that any limitation on digital speech must be closely linked to a real threat to public order and not imposed simply because the content is discomforting or unpopular.²
Misuse and Selective Application of Hate Speech Laws
Despite the presence of statutory provisions, enforcement of hate speech laws in India has often been marred by inconsistency and selective targeting. Peaceful critics, comedians, and activists are frequently prosecuted under Sections 153A or 295A, while inflammatory speech by powerful figures often goes unpunished.¹[1] This pattern of selective prosecution creates a chilling effect on legitimate dissent and raises concerns about the politicization of free speech regulation.²[2] In Indibily Creative Pvt Ltd v Union of India, the Delhi High Court cautioned against the vague and sweeping application of censorship provisions, observing that they risk stifling artistic and political expression.³[3] Such judicial warnings underscore the need for clear guidelines and non-partisan enforcement mechanisms to ensure that hate speech laws serve their intended purpose without undermining democratic discourse.
Reform Recommendations: Towards a Balanced Framework
To strike a constitutional balance between protecting free speech and curbing hate, India must move beyond vague penal provisions and adopt a more structured legal framework. First, a clear and narrowly defined statutory provision for hate speech based on intent, content, and likelihood of harm should be enacted, as suggested by the Law Commission in its 267th Report.¹[4] Second, courts may consider issuing temporary judicial guidelines, as done in Vishaka v State of Rajasthan, to prevent misuse until Parliament enacts a dedicated law.² [5]Third, law enforcement agencies must receive standardized training to ensure uniform application of hate speech laws, free from political bias. Finally, public education and civil society efforts to counter hate with informed speech and empathy are essential to long-term change.³ [6]As noted by the Supreme Court in Pravasi Bhalai Sangathan, awareness and democratic resilience, not over-criminalization, are the most effective remedies against hate.⁴[7]
Pathways to Reform: Towards a Balanced Legal Framework
Given the ambiguity in statutory language, uneven enforcement, and lack of definitional clarity, reforming India’s approach to hate speech must be rooted in constitutionalism and evidence-based policymaking. The first and most urgent reform is to adopt a statutory definition of hate speech, as suggested by the 267th Report of the Law Commission.¹[8] The proposed Sections 153C and 505A of the Indian Penal Code would narrowly define hate speech as any act that incites violence, discrimination, or hostility against a protected group, thereby preventing its misuse to suppress unpopular but lawful speech.²[9]
Second, the Supreme Court could issue interim guidelines to bridge the legislative vacuum, much like it did in the Vishaka case concerning sexual harassment.³[10] These guidelines could define hate speech through objective criteria such as the presence of incitement, intent to cause harm, and the likelihood of disruption until Parliament enacts specific legislation. Public interest litigation (PIL) on this issue has already reached the apex court, making this intervention both timely and constitutionally sound.
Third, institutional reform is crucial. Law enforcement agencies often lack proper training in constitutional law and digital forensics, which leads to erratic investigation and prosecution of hate speech.⁴[11] Specialized hate speech cells, operating within cybercrime units and trained in constitutional limits, could ensure consistency and fairness in enforcement.
Fourth, the digital space must be governed by a clear co-regulatory framework where platforms are obliged to act against unlawful content but are also held accountable for transparency and due process. Presently, under the IT Rules 2021, platforms must act within 36 hours of receiving a takedown request, but the absence of independent oversight opens the door to arbitrary censorship.⁵ [12]A multi-stakeholder regulatory body with representation from civil society, legal experts, and digital platforms could help strike the right balance.
Finally, and perhaps most importantly, India must invest in public education, media literacy, and civic dialogue to counter hate speech through informed counter-speech rather than over-criminalization. The Supreme Court, in Pravasi Bhalai Sangathan v Union of India, observed that “the idea of a plural and inclusive society must be taught in schools and reinforced by the media and civil institutions.”⁶ Lasting solutions to hate speech lie not just in penal provisions but in cultivating a democratic culture that values dignity and dialogue.
Conclusion
The Framers of the Indian Constitution envisioned a democratic society where freedom of expression would not only be protected but also exercised with responsibility and integrity. Yet, the ongoing lack of a well-defined legal standard for hate speech has created confusion between legitimate dissent and unlawful incitement. This ambiguity often results in the suppression of critical voices under vague statutes, while genuinely harmful content is overlooked due to systemic inertia or selective enforcement. What India requires is not intensified censorship, but rather legislative precision, unbiased implementation, and a more engaged and informed citizenry. As Justice Rohinton Nariman aptly observed in Shreya Singhal v Union of India, “liberty of thought and expression is the lifeblood of democracy.”¹ Upholding this liberty, while also safeguarding marginalized groups from targeted hostility, is a responsibility enshrined in the Constitution.
The right to free expression, as guaranteed by the Constitution, is both a powerful tool and a delicate trust. It enables individuals to voice opinions, challenge authority, and hold systems accountable. However, when speech is misused to incite hatred or violence, it erodes the very democratic principles it was meant to uphold. The current legal reliance on broad provisions such as Sections 153A, 295A, and 505 of the Indian Penal Code has proven insufficient both in shielding democratic dialogue and preventing misuse of the law.²
As highlighted throughout this article, genuine reform must rest upon four foundational principles: clarity in statutory language, vigilant judicial interpretation, unbiased enforcement mechanisms, and widespread public education. A narrowly framed, constitutionally sound definition of hate speech, grounded in intent, context, and actual harm, can help reduce misuse while strengthening protections. The judiciary must remain a guardian of this balance, especially in the digital era, where content can rapidly amplify societal harm.² Law enforcement agencies and online platforms must also be subject to transparent oversight and held accountable to constitutional norms. Above all, India must embrace a culture of counter-speech and democratic dialogue. The most effective response to hate is not silence, but a more courageous, inclusive, and constitutionally guided expression.
References
[1] Faizan Mustafa, ‘Debating Hate Speech and Freedom of Expression in India’ (2016) 10 Indian Journal of Constitutional Law 1, 9.
[2] Gaurav Pathania, ‘Hate Speech in the Digital Era: Challenges and Constitutional Responses’ (2020) 12 NUJS Law Review 1, 5.
[3] Indibily Creative Pvt. Ltd. v. Govt. of W.B., 2019 SCC OnLine SC 564
[4] Law Commission of India, Report No. 267, Hate Speech (March 2017)
[5] Vishaka v. State of Rajasthan, (1997) 6 SCC 241
[6] Faizan Mustafa (n 1) 11.
[7] Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477
[8] Law Commission of India, Report No. 267, Hate Speech (March 2017)
[9] ibid 26–30.
[10] Vishaka v. State of Rajasthan, (1997) 6 SCC 241
[11] Gaurav Pathania, ‘Hate Speech in the Digital Era: Challenges and Constitutional Responses’ (2020) 12 NUJS Law Review 1, 10.
[12] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, Rule 3(1)(d).
