Where Freedom Ends and Hatred Begins: Reconciling Free Speech and Hate Speech in a Democratic Society

“The liberty of the individual must be thus far limited; he must not make himself a nuisance to others.”- John Stuart Mill

Abstract:

 ‘Freedom of speech and expression is the foundation of all democratic organizations.[1]’ Enabling citizens to express opinions and challenge authority. However, when expression turns into hate speech that incites hostility or discrimination, it undermines equality and public order. This paper examines the thin and often blurred line between free speech and hate speech in India’s constitutional and legal framework. It explores how vague definitions and inconsistent enforcement allow both citizens and authorities to misuse this freedom. The article emphasizes the need for reconciliation through clearer laws, judicial oversight, and responsible civic engagement to preserve democracy without permitting the spread of hate.

Keywords: Freedom of Speech, Hate Speech, Article 19, Reasonable Restrictions, Democratic Society, Government Misuse, Social Media, Judicial Interpretation, Responsible Expression

Introduction:

Freedom of speech is the corestone of a democratic society. A free society depends on the open exchange of ideas. Progress doesn’t come from a single authority dictating what can or cannot be said — it emerges when individuals, each with unique experiences and knowledge, contribute to a larger conversation. The ability to speak freely allows people to share insights, debate different viewpoints, and refine their understanding of the world.[2] In India, this freedom finds its constitutional protection under Article 19(1)(a) of the Constitution, symbolizing the people’s voice against oppression and injustice. Freedom of speech is not only guaranteed by Indian constitution but also by international statutes and conventions such as Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms, etc.

Yet, the same liberty that protects truth and dissent can also become a weapon when speech crosses the boundary from expression to incitement, when words are used not to inform or persuade but to provoke hatred, violence, or discrimination it ceases to be an exercise of liberty and becomes an abuse of it. And from here the free speech turns into hate speech. the Supreme Court of India has observed that “the freedom of speech cannot be used as a weapon to abuse and insult others in the garb of constitutional liberty.”[3] But the question that arises here is ‘At what point does a person’s freedom to express their opinion turn into speech that spreads hatred or violence. This tension reflects the heart of modern constitutional debates that is how to protect the right to dissent without permitting the right to discriminate. And how should democracy deal with that?’

The Blurred Border Between Opinion and Offence:

Freedom of speech gives people the right to express their ideas, opinions, and even disagreement. But when words stop expressing opinion and start targeting, humiliating, or provoking violence against others, they transform into hate speech. Furthermore, there is no agreement on what precisely constitutes hate speech, in particular the speech that should be banned and punishable by law. Despite its growing relevance in democratic society, there is yet no universal definition of hate speech.

However, in the absence of a statutory definition, judicial interpretation and institutional reports have played a crucial role in shaping the understanding of hate speech such as defined in-

• The Law Commission of India, Report No. 267 (2017) stated that– “Hate speech is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like. Hate speech generally seeks to delegitimize members of the group in the eyes of the majority, reducing their social standing and acceptance within society.”[4] According to the Commission, even if speech does not incite violence, but perpetrates discriminatory attitudes it could amount to hate speech.
• United Nations (UN) “Any kind of communication in speech, writing or behaviour that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, that is, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”[5]

And, Article 20 of International Covenant on Civil and Political Rights states that ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’.[6]

Hate speech is not merely offensive language; it has the potential to incite violence, spread discrimination, and disrupt social harmony. Recognizing this, legal systems around the world, including India, have acknowledged the need to penalize hate speech to safeguard public order and protect vulnerable communities. In India, while the Constitution guarantees freedom of speech under Article 19(1)(a), it simultaneously permits reasonable restrictions under Article 19(2) in so far as such restrictions are 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, or in relation to contempt of court, defamation or incitement to an offence.[7] Additionally, provisions in the Bhartiya Nyaya Sanhita (BNS) such as Sections 196, and 353 criminalize actions that promote enmity, insult religious beliefs, or incite communal violence.[8]

“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.

Vagueness Creating Opportunities for Misuse:

Even though the Constitution and other international treaties provide certain restrictions to regulate speech, but the absence of a precise and unanimous definition of hate speech creates significant legal challenges. These laws do not clearly define what constitutes hate speech, leaving considerable interpretational ambiguity. The Supreme Court of India mentioned that ‘The lack of a unanimous definition of hate speech further exacerbates the problem. In the absence of a definition of hate speech, the Supreme Court and other Indian courts have been unable to formulate an unambiguous and comprehensive response to cases involving allegations of hate speech’.[9] This vagueness in the legal framework provides an opportunity for individuals to exploit their freedom of expression by spreading hostility and discrimination under the guise of personal opinion or social commentary.

In the era of digital platforms and social media, users frequently post content that insults communities, spreads misinformation, or incites hostility, yet claim protection under the right to free speech. Online anonymity and the viral nature of digital communication have made hate speech easier to spread and harder to regulate. The Supreme Court on Monday (July 14, 2025) said the right to free speech was increasingly being abused, especially on social media, and called for self-restraint and regulation. A Bench of Justices B.V. Nagarathna and K.V. Viswanathan said the right to freedom of speech and expression carried with it reasonable restrictions. Using free speech to instigate divisive tendencies, at least on social media, needed to be curbed.[10] Social Media platforms monetise the addictive nature of the human race and arrogantly refuse to even recognise reasonable restrictions, much less follow even statutory regulations. This results in dangerous consequences.[11] 

While individuals exploit the vagueness in hate speech laws to spread hostility, the same ambiguity also allows authorities to misuse these provisions to silence dissent and curtail criticism. Instances of arrests for sharing misinformation have been increasingly reported, particularly in the context of political and social issues. The most concerning aspect of these arrests is that they often occur without a thorough examination of the intent of the individuals involved. Many of these cases appear to be driven by a broad interpretation of what constitutes misinformation, and on the grounds of disturbing public order which leads to arrests that may not consider whether the individual had disrupted public order, had malicious intent, or was simply expressing an opinion. Moreover, the lack of clear laws defining misinformation results in arbitrary arrests under laws like the Unlawful Activities (Prevention) (“UAPA”) Act, 1967, the Information Technology (“IT”) Act, 2000, and other criminal statutes. The lack of clarity is particularly troubling in the context of online expression, where social media has become a primary forum for sharing opinions. In many cases individuals have been arrested for posting opinions that authorities deem problematic or critical of the government. This raises concerns about the potential misuse of legal frameworks and suppression of legitimate dissent.[12]

Reconciliation of Free Speech and Hate Speech:

The combined effect of these misuses is a threat to both democratic freedom and social harmony, underscoring the urgent need to draw clear boundaries and balance the protection of free speech with the prevention of hate speech. Such reconciliation ensures that expression can challenge wrongdoing and encourage debate, while preventing speech from being weaponized against communities or silenced for political convenience. But the central challenge in regulating speech lies in drawing a clear line between legitimate expression and hate speech. The vagueness of existing laws creates a dilemma: while hate speech must be prevented to protect public order and vulnerable groups, legitimate criticism and dissent the essential components of democracy must not be silenced.

Courts have attempted to reconcile free speech and hate speech by interpreting constitutional provisions in a balanced manner protecting legitimate dissent while permitting reasonable restrictions to prevent harm. The Court observed that hate speech constituted three elements – content, intent, and harm or impact – and that the content of a speech must be coupled with the intent of the speaker to incite or cause harm. As far as the content of hate speech is concerned, the Court reaffirmed its earlier position that “the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view”.[13] The Court also emphasized that the freedom of speech may not be arbitrarily restrained by hate speech laws. The Court opined that defences of ‘good faith’ (in cases wherein speakers display prudence and caution with their expression or content) and ‘legitimate purpose’ (where the speech has some clear purpose other than just spreading hatred or inciting violence) were available to those accused of engaging in hate speech.[14]

Reconciliation also requires shared responsibility. Citizens must exercise freedom of expression ethically. Justice Nagarathna remarked that citizens must understand the value of freedom of expression. “…why can’t the citizens themselves regulate themselves? Citizens must know the value of freedom of speech and expression. If they don’t, then the State will step in and who wants the State to step in? Nobody wants the state to step in.[15]

Conclusion:

Freedom of speech is the lifeblood of democracy, allowing citizens to question, criticize, and express ideas without fear. Yet, when words are used to incite hatred or violence, they threaten the very values free speech seeks to protect. The challenge lies in drawing a line that preserves democratic debate while preventing harm. By combining clear legal definitions, proportional restrictions, contextual evaluation, judicial review, and citizen responsibility, India can ensure that free speech empowers democracy and accountability, while hate speech is effectively curbed. Freedom must coexist with restraint, speech should enlighten, not divide. True democracy thrives not when all speech is free, but when it is used with conscience and respect for others.

[1] Romesh Thappar v. State of Madras, AIR 1950 SC 124.

[2]  Stand Together, Why Free Speech Is Essential in a Democracy, STAND TOGETHER, https://standtogether.org/stories/free-speech/why-free-speech-is-essential-in-a-democracy,(last visited Oct, 7, 2025)

[3] Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477.

[4] Law Comm’n of India, Report No. 267, Hate Speech (Mar. 2017), https://l-awcommissionofindia.nic.in/reports/Report267.pdf.

[5] United Nations, United Nations Strategy and Plan of Action on Hate Speech (2019), https://www.un.org/en/hate-speech.

[6] Gorenc, N., Hate Speech or Free Speech: An Ethical Dilemma?, 39 Italian Journal of Public Law 1 (2022), https://www.tandfonline.com/doi/full/10.1080/03906701.2022.2133406.

[7] INDIA CONST. art. 19(1)(a), 19(2).

[8] Bharatiya Nyaya Sanhita, No. 45 of 2023, §§ 196, 353 (India).

[9] Pravasi Bhalai Sangathan v. Union of India, Writ Petition No. 157/2013, (2014) 11 S.C.C. 477, para. 25 (India).

[10] Citizens Must Know Value of Freedom of Speech, SC Tells Centre, States, The Hindu (Oct. 4, 2023), https://www.thehindu.com/news/national/citizens-must-know-value-of-freedom-of-speech-sc-tells-centre-states/article69810508.ece.Top of FormBottom of Form

[11]  Freedom of Speech: Supreme Court — 3 Judges, 3 Cases, 2 Days — Supreme Court’s Balance Message on Free Speech, NDTV (date published), https://www.ndtv.com/india-news/freedom-of-speech-supreme-court-3-judges-3-cases-2-days-supreme-courts-balance-message-on-free-speech-887.

[12] Curbing Misinformation or Chilling Free Speech? Navigating India’s Legal Response, Internet Freedom Foundation (Oct. 10, 2024), https://internetfreedom.in/curbing-misinformation-or-chilling-free-speech/.

[13] Ramesh v. Union of India, Writ Petition (Civ.) No. 107 of 1988, (1988) 1 S.C.C. 668 (India).

[14] Madan B. Lokur & Medha Damojipurapu, Navigating the Meaning of Hate Speech and Sedition in India (Policy Brief No. 138, TOAEP 2022), https://www.toaep.org/pbs-pdf/138-lokur-damojipurapu/.

[15]  Freedom of Speech: Supreme Court — 3 Judges, 3 Cases, 2 Days — Supreme Court’s Balance Message on Free Speech, NDTV (date published), https://www.ndtv.com/india-news/freedom-of-speech-supreme-court-3-judges-3-cases-2-days-supreme-courts-balance-message-on-free-speech-887