Freedom of Speech vs. Hate Speech: Legal Balance in Indian Democracy

ABSTRACT:  

The freedom of speech and expression is the basic right of any citizen under Article 19(1)(a) of  the Indian Constitution. It is the essence of any democratic society. Like any other right this one  too has restrictions which are reasonable and prescribed under Article 19(2) of public order,  decency, morality and the sovereignty and integrity of India. In recent times, we have noticed an  increase of incidents of hate speech, especially with the rise of digital media. This poses serious  legal and ethical challenges on balancing hate speech with societal harmony. This paper looks  into the legal components surrounding free speech and hate speech in India, constitutional  provisions, statutory laws such as Indian Penal Code and other important court rulings. Also  discussed are high profile cases such as Amish Devgan v. Union of India which illustrate the  worrying trends where expression is protected but moves towards inciting hatred and or violence.  The purpose of this analysis is to see how Indian democracy has been able to maintain this thin  balance and what role the judiciary bears in protecting individual rights while maintaining  public. 

INTRODUCTION:

A democratic society such as India thrives on freedom of speech and expression. Freedom of  speech and expression is a fundamental right protected under Article 19(1)(a) of the Constitution,  and an essential mechanism for the free exchange of ideas, government criticism, and debate,  allowing citizens to hold opinions on matters and issues relating to governance, and enabling  democratic grey areas. That said, freedom of speech and expression incurs limits to that right.  Article 19(2) allows for reasonable restrictions on freedom of speech and expression in the  interest of public order, morality, decency, and the sovereignty and integrity of the country. The prevalence of polarised media narratives, as well as social media and identity-based politics,  has caused an increase in hate often blurring the lines between permissible expression, and speech that incites hatred, or violence or discrimination against a community. Hate Speech both  counteracts the constitutional values we hold dear, and threatens social cohesion, and the dignity  of individuals and groups. Finding a legal medicament to balance protecting the freedom of  speech and expression and stopping hate speech has become a constitutional and judicial  moments away matter. 

WHAT IS FREEDOM OF SPEECH:  

In India, freedom of speech and expression is a fundamental right guaranteed to all citizens under  Article 19(1)(a) of the Indian Constitution. This right allows individuals to express their thoughts  and opinions freely through various means like words, writing, printing, or any other mode. The  freedom to speak and express thoughts is fundamental, even when these ideas might offend some 

people. However, this freedom comes with certain responsibilities, and we acknowledge that  there are situations where restrictions are justified. Shreya Singhal vs U.O.I on 24 March,  2015¹

Absolute freedom of speech does not exist. The Constitution acknowledges that unrestricted  freedom can result in abuse and disruption of social order. Hence, under Article 19(2), the State  is empowered to impose reasonable obligations on this right with a view to safeguarding specific  interests. There are also these interests which are: 

• The sovereignty and integrity of India,
• The security of the state,
• Maintaining friendly relations with foreign states,
• Ensuring public order,
• Preserving decency and morality,
• Preventing contempt of court,
• Avoiding defamation, and
• Preventing incitement of an offense.

The reasonableness of restriction is a justifiable issue, i.e., the Courts have the authority to  determine whether a particular restriction is reasonable or not, and this has introduced the  doctrine of judicial review into our Constitution. As observed by the Supreme Court, “The determination by the legislature of what constitutes a reasonable restriction is not final or  conclusive; it is subject to the supervision of the Court. In the matter of fundamental rights, the  Supreme Court watches and guards the rights guaranteed by the Constitution, and in exercising its functions, it has the power to set aside an Act of the Legislature if it is a violation of the  freedoms guaranteed by the Constitution. (Chintamanrao v. State of M.P., A.I.R. 1951 S.C. 118)

WHAT IS A HATE SPEECH?

Hate speech is any communication that puts down, threatens, or discriminates against people  based on things like race, religion, gender, sexual orientation, disability, or ethnicity. Hate  speech comes in different forms: – Hurtful words or insults – Bullying online using social media – Symbols or images that spread fear or discrimination – Public speeches or writing that encourage  violence While freedom of speech is important, hate speech goes too far by disrespecting  people’s dignity and rights. It can cause emotional pain, isolation, and even violence.

In the case Amish Devgan vs Union of India on 7 December 2020² During the 15th of June  2020 debate show, Amish Devgan allegedly made offensive remarks against Pir Hazrat  Moinuddin Chishti, also known as Khwaja Gareeb Nawaz, a revered Sufi saint respected by both  Muslims and many Hindus.

He allegedly said: “Aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle.” (In English: “Terrorist Chishti came… Robber Chishti came… then the religion changed.”)

These words were interpreted to insult the saint, implying that he used violence and fear to  convert Hindus to Islam. As a result, it was alleged that:

• The statement hurt religious sentiments, and
• It incited hatred against Muslims.

Reasonable restrictions under Article 19 of the Indian Constitution

There are some reasonable restrictions under Article 19 (2) to ensure that no one exploits their  right to freedom of speech and expression. The restrictions are:

• Any speeches which endanger national security are restricted.
• Speech, which is likely to incite riots, violence or disturb the public peace is limited. • Any speech or expression which can cause harm to the diplomatic relations of the country with others is restricted.
• If any speech threatens the unity of the country, then it is not allowed. • If any speech or expression provokes others to commit a crime, it is also prohibited. • If any speech or expression undermines the court’s dignity or authority, then it is restricted.
• Defamation statements are prohibited.
• Speech and expression which promotes obscenity or offends public decency are restricted as well.

LEGAL PROVISIONS:

Article 19(1)(a): 

• All citizens shall have the right to freedom of speech and expression.
• This implies that all citizens have the right to express their views and opinions freely. • This includes not only words of mouth, but also a speech by way of writings, pictures, movies, banners, etc.
• The right to speech also includes the right not to speak.
• Freedom of the press is an inferred freedom under this Article.
• The right to freedom of speech and expression also includes the right to communicate, print and advertise information.
• This right also includes commercial as well as artistic speech and expression.

Section 196 of Bharatiya Nyaya Sanhita (BNS): 

Section 196 of the Bharatiya Nyaya Sanhita (BNS), 2023, deals with promoting enmity between  different groups based on religion, race, caste, community, language, or other grounds. It  criminalizes acts that promote conflict or feelings of hatred and grudges between these groups, or  that are prejudicial to the maintenance of harmony. This includes using words, signs, visible  representations, or electronic communication to incite hatred or organize activities that use or  train participants to use criminal force against any group. 

• Punishment (general): Imprisonment up to 3 years, or fine, or both.

Indian Penal Code (IPC):

The Indian Penal Code (IPC) and the Constitution aim to balance freedom of speech with the  need for public order and harmony. Article 19(1)(a) of the Constitution guarantees the right to  freedom of speech and expression, but it also allows for reasonable restrictions. To address hate speech, the IPC includes Sections 153A, 153B, 295A, and 505, which penalize actions that  encourage bitterness between groups, insult religious beliefs, or encourage violence. • Section 153 A: Promoting bitterness between different groups on grounds of religion,  race, place of birth, residence. 

• Section 295 A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

CASES:  

1. N.V.S.J. Rama Rao v. Broadcasting Corporation Of India.

Facts: The party-in-person understand that it would be difficult to control law and order  due to the media repeatedly spread the contents of the alleged speeches of Sri Akbaruddin  Owaisi, MLA, without realizing that it may lead to a law and order problem and incite the  religious sentiments of both communities. The party-in-person asserts that the State  should curb the press and the media from giving publicity to the same.

Ruling: The Court finds that the party-in-person’s apprehensions are exaggerated and  without basis. There must be a real threat perception before the State can invoke its  powers under Article 19(2) of the Constitution. The Court concludes that the party-in person’s writ petition is dismissed.

Reasoning: The Court acknowledges that freedom of speech and the press is interminably  woven into the fabric of our social and democratic polity. However, freedom of the press  is not an end but a means to the end of a free society. The Court applies the standard of  the reasonable man’s response to the press and media reports of the alleged speeches of  the MLA and finds that the party-in-person’s apprehensions are exaggerated and without  basis.

Disposition: The writ petition is dismissed.

2. SANSKAR MARATHE PETITIONER V. THE STATE OF MAHARASHTRA THROUGH COMMISSIONER OF POLICE, MUMBAI.

Assem Trivedi, a political cartoonist and social activist, was arrested on September 8,  2012. His arrest stemmed from a First Information Report (FIR) filed on January 30,  2012, which accused him of sedition under Section 124A of the Indian Penal Code. This  FIR claimed that Trivedi’s cartoons disparaged Parliament, the Constitution of India, and  the Ashoka Emblem, and attempted to incite hatred and disrespect towards the  Government.

Trivedi’s cartoons were posted on the ‘India Against Corruption’ website. He chose not to  apply for bail until the sedition charges were dismissed. Following the publication of his  cartoons, multiple complaints were lodged against him.

In a court ruling, the judge stated that Section 124A of the IPC unduly limits the freedom  of speech and expression guaranteed by Article 19(1)(a) of the Constitution. Citizens  have the right to criticize the Government and its policies, if their comments do not incite  violence or lead to public disorder. The court emphasized that it was addressing the specific issue of the sedition charge under Section 124A and the legitimate restrictions on  free speech that are necessary for maintaining public order.  

The Court examined the essential right to freedom of speech and expression in relation to  censorship under the Cinematograph Act. It stated that this right, which is protected by  the Constitution, should not be restricted by a group of intolerant individuals. Cartoons  and caricatures are meant to convey wit, humor, or sarcasm. While the Court found that  Trivedi’s cartoons did not contain wit or humor, it held that the freedom to express strong  criticism of corruption in the political system whether through words or visuals cannot be  limited unless there is evidence of inciting violence or intending to disrupt public order.

The Public Interest Litigation was concluded, and the Court clarified that the guidelines  provided in the judgment were not exhaustive. Other relevant factors may also be  considered when applying Section 124A of the IPC.⁵

3. Jamuna Prasad v. Lachhi Ram, A.I.R. 1954 S. C. 68:

The Supreme Court has held that Ss. 123(5) and 124(5) of the Representation of the  People Act do not interfere with a citizen’s fundamental right to the freedom of speech;  rather, they merely prescribe the conditions to be observed if he wished to become a member of Parliament. The right to contest an election is not a common law right, but a  right created by a statute, to be exercised according to the conditions prescribed by such a  statute. If a person wishes to exercise his right of freedom of speech, he can exercise that  right, and not stand as a candidate for Parliament.⁶

4. Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554:

In an interesting case before the Supreme Court, a question arose whether an  advertisement designed to promote the sale of certain medicines was covered by the  guarantee of freedom of speech and expression. Answering the question in the negative, the  Court held that although an advertisement was a form of speech, the right to publish and  distribute a commercial advertisement (advertising an individual’s commercial business) was not  part of the freedom of speech guaranteed by our Constitution.⁷

CONCLUSION:

Finding the right balance between freedom of speech and hate speech is one of the most  important and intricate challenges facing Indian democracy today. Freedom of speech and  expression, which is protected under Article 19(1)(a) of the Indian Constitution, is fundamental  to democratic engagement. However, in a diverse and sensitive society like India, it can’t be  completely unrestricted. The Constitution acknowledges this by permitting the State to impose  reasonable limitations under Article 19(2) to safeguard the country’s sovereignty and integrity,  maintain public order, uphold decency and morality, and prevent hate speech, defamation, and  incitement to violence. 

Lately, we’ve seen a troubling trend where free speech is misused—particularly on social media,  in political discussions, and through religious propaganda. This has raised alarms about the  increase in hate speech that targets specific communities, spreads false information, and  threatens peace and harmony. Indian courts have been pivotal in clarifying the line between  legitimate criticism and harmful or inflammatory speech. Landmark rulings, like Shreya Singhal  v. Union of India, have made it clear that only speech that incites immediate violence or public  disorder can be restricted.

Yet, the real challenge is ensuring that laws designed to combat hate speech aren’t misused to  silence dissent or stifle unpopular opinions. We need a careful and consistent approach to  defining hate speech, and enforcement should be free from any political or religious bias. At the  same time, it’s crucial for citizens to recognize that with freedom of speech comes responsibility. 

It should be exercised in a way that honors the dignity, beliefs, and rights of others, especially in  a multi-religious and multicultural society like India.

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