Freedom of Speech vs Hate Speech in India: Finding the Constitutional Balance

Abstract

This paper explores the complex relationship between freedom of speech and hate speech within the Indian constitutional framework. While Article 19(1)(a) guarantees the fundamental right to freedom of speech and expression, Article 19(2) imposes reasonable restrictions to preserve public order and societal harmony. The study examines landmark Supreme Court judgments such as Romesh Thapar v. State of Madras, Kaushal Kishore v. State of U.P., S. Rangarajan v. P. Jagjivan Ram, Shreya Singhal v. Union of India, and Pravasi Bhalai Sangathan v. Union of India to understand how the judiciary interprets and balances these rights. It further explores the definition and impact of hate speech, as outlined in the 267th Law Commission Report, and emphasizes the importance of intent, context, and effect in determining its legitimacy. The paper concludes with policy recommendations aimed at bridging the gap between upholding free speech and countering hate speech, including public education, legal reforms, and ethical media practices.

Introduction

Everyone expresses themselves to the world through speech, gesture, and art, establishing direct connections with people. When such expression is delivered to the people, we presume that it has been communicated. The expression may influence people positively or negatively. Before the independence of India, national leaders spread patriotism through their speeches. The Constitution Assembly members recognized that freedom of speech must be established as a fundamental right to ensure transparency and accountability of the government. This is the reason why freedom of speech became a fundamental right of the citizen. In India, everyone has the freedom of speech under Article 19(1)(a) of the Indian Constitution. However, it has certain restrictions under Article 19(2).

Freedom of Speech in the Indian Constitution

Article 19(1)(a): Article 19(1)(a) guarantees the fundamental right to freedom of speech and expression to all citizens.[1]

Article 19(2): Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests 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.[2]

Speech Protected Under the Law

Every citizen in India knows they have the freedom of speech, a fundamental right enshrined in the Constitution. This right allows individuals to express their thoughts, opinions, and ideas openly. However, it is crucial for citizens to understand that this freedom comes with certain restrictions aimed at maintaining public order and respecting the rights of others. For example, while we enjoy the ability to provide valid criticism of the government or individuals, we must be careful not to cross the line into defamation, which unfairly harms someone’s reputation, or hate speech, which incites violence or discrimination against specific groups. Therefore, it is important for citizens to be aware of the nuances and boundaries of their freedom of speech to navigate the complexities of expressing themselves responsibly and ethically.

The ongoing debate surrounding the concepts of freedom of speech and hate speech shows no signs of resolution. Despite the judiciary’s diligent efforts to delineate between these two important aspects of expression, the contention continues. A significant case to consider in this discourse is Romesh Thapar v. State of Madras.[3] In this landmark ruling, the Supreme Court firmly asserted that freedom of speech is not just a privilege but a fundamental right that underpins the very foundation of democracy. This right, the Court noted, could only be subject to restrictions in circumstances where it poses a clear and present danger or direct threat to public safety and order.

The implications of this judgment are profound and illustrate the critical importance that freedom of speech holds within a democratic society. By emphasizing that this freedom should be protected unless it endangers the community, the ruling serves as a powerful reminder of the delicate balance that must be maintained between allowing individuals to express their thoughts and opinions while also considering the potential impact that those expressions may have on societal harmony. Consequently, the above judgment clearly demonstrates how essential freedom of speech is to the democratic fabric, and how the ruling not only safeguards this right but also reinforces its significance in fostering an open and free society.

In Kaushal Kishore v. State of U.P.,[4] the Supreme Court held that the freedom of speech, which is a fundamental right guaranteed by the Constitution, cannot be restricted on any ground unless the speech in question falls under the specific limitations set out in Article 19(2). This article enumerates certain categories of speech that may be subject to restrictions, such as public order, security of the state, and defamation, among others. Even in instances where the speech might violate others’ fundamental rights, it must still be regulated within the framework provided by the law. This significant judgment establishes that any restrictions imposed on the freedom of speech must fall squarely under the provisions outlined in Article 19(2); otherwise, such restrictions cannot be lawfully imposed. This ruling underscores the importance of protecting the right to free expression while also recognizing the need for reasonable limitations in certain circumstances.

In S. Rangarajan v. P. Jagjivan Ram,[5] the Court held that speech cannot be suppressed unless there is a direct and proximate connection between the speech and public disorder. This case clearly demonstrates that when speech is restricted, it must meet this strict criterion. The ruling emphasizes the importance of protecting free expression, suggesting that any action to limit speech should not be taken lightly. The Court’s decision reinforces the principle that the mere possibility of disorder does not justify preemptive suppression of speech; rather, a clear and immediate link must be established. This case thus serves as a significant precedent in safeguarding the right to free speech against unwarranted interference.

As discussed above, the Supreme Court plays a prominent role in interpreting what freedoms of speech are protected and what is restricted. This essential function of the Court involves not only analyzing existing laws but also setting precedents that shape the understanding of free expression in society. The Court’s decisions can either expand or limit these freedoms based on the context of the cases presented, weighing the importance of individual rights against the interests of public order and national security. Through its rulings, the Supreme Court significantly influences how freedom of speech is understood and applied in everyday life, highlighting the delicate balance between liberty and responsibility in a democratic society.

Hate Speech

In the 267th Report of the Law Commission of India, hate speech is described as a form of communication that incites, promotes, or encourages hatred, hostility, or violence primarily against a specific group of individuals.[6] This incitement is often defined in terms of various characteristics such as race, ethnicity, gender, sexual orientation, religious belief, and other similar attributes. Such expressions can create a divisive environment within society and pose a threat to the peace and harmony that is essential for the coexistence of diverse communities. It is crucial to address and regulate hate speech in order to safeguard the rights and dignity of individuals belonging to marginalized or vulnerable groups, ensuring that all members of society can live free from fear and discrimination.

The context of speech is crucial in determining whether it constitutes hate speech. This means that the circumstances surrounding the speech, including the speaker’s intent, the audience’s perception, and the broader societal implications, play a significant role in assessing its impact.

Hate speech can cause harm to the targeted individuals and groups, as well as to society at large, by inciting hatred, violence, discrimination, and intolerance. Such speech has the potential to perpetuate negative stereotypes, fuel divisions among communities, and contribute to a culture of animosity and fear. By fostering an environment that normalizes hostility, hate speech undermines social cohesion and can have far-reaching consequences for both individuals and the community as a whole. It is imperative to recognize and address these harmful effects to promote understanding and respect among diverse populations.

Pravasi Bhalai Sangathan v. Union of India:[7] The Supreme Court did not penalize hate speech, primarily because it does not exist in any pre-existing legislation in India. In other words, there was not any specific legal framework that addressed hate speech as a criminal offense. Instead of taking a suo motu approach to curtail what could be seen as harmful speech, the Supreme Court specifically requested the Law Commission to undertake a thorough examination of this issue. This request aimed to explore the potential development of legal provisions that could effectively address and regulate hate speech without overstepping the boundaries of judicial authority and avoiding the pitfalls of judicial overreach.[8]

Shreya Singhal v. Union of India:[9] In this landmark case, significant issues were raised regarding Section 66A of the Information Technology Act, 2000, which pertains to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution. The Supreme Court of India undertook a thorough examination of the provisions in question, emphasizing the critical importance of free expression in a democratic society. The Court made a clear distinction between three key concepts: discussion, advocacy, and incitement. It articulated that while discussion and advocacy are integral to the essence of Article 19(1), enabling vibrant public discourse and facilitating the exchange of diverse ideas and viewpoints, incitement—which entails urging unlawful actions or violence—falls outside the protective ambit of free speech. Therefore, the Court ruled that Section 66A was unconstitutional as it imposed unreasonable restrictions on the right to free speech and expression, thus reaffirming the fundamental principles enshrined in the Constitution.[10]

Based on the earlier discussion, it is clear that hate speech fundamentally aims to undermine the integrity of the nation or to act against the state, societal stability, or peace. The Supreme Court plays a crucial role in ensuring that there is no violation of the fundamental right to freedom of speech when it comes to valid criticism of governmental actions or policies. This delicate balance between upholding freedom of expression and protecting the state from harmful rhetoric must be carefully navigated to maintain a healthy democratic society.

Bridging the Gap Between Freedom of Speech and Hate Speech

The following strategies can help reconcile the tension between freedom of speech and hate speech:

1. Public Education and Awareness: Advocate for enhanced education and awareness concerning the ramifications of hate speech, stressing its adverse consequences for individuals and societal cohesion.

2. Legal Reforms: Enhance current legislation or introduce new laws aimed explicitly at hate speech, supported by additional strategies like promoting media literacy, fostering dialogue, encouraging counter-speech, implementing self-regulation, and involving civil society.

3. Promoting Tolerance: Implementing these strategies can effectively curb the proliferation of hate speech, confront its underlying narratives, amplify diverse perspectives, and cultivate an environment of tolerance and respect.

4. Accountability Measures: Create and implement conduct guidelines for legislators, ensuring accountability for lawmakers and political parties regarding hate speech, while also encouraging media ethics to reduce its spread.

Conclusion

Freedom of speech is a cornerstone of democracy, but it must be exercised with a sense of responsibility. The Indian Constitution provides both the right to free expression and the means to limit it when it threatens the integrity of the state or societal peace. Judicial interpretations have consistently highlighted the importance of balancing these interests, allowing space for dissent while condemning incitement and hate. Hate speech, by targeting specific communities and spreading hostility, undermines democratic values and threatens public order. To reconcile the tension between free speech and hate speech, India must adopt a multi-pronged approach—enhancing legal clarity, promoting media ethics, and fostering public awareness. Only through a collective effort can we preserve the freedom of expression while nurturing an inclusive and respectful society.

References

[1] Article 19(1)(a) of the Indian Constitution.
[2] Article 19(2) of the Indian Constitution.
[3] Romesh Thapar v. State of Madras, 1950 AIR 124 
[4] Kaushal Kishore v. State of U.P., (2023) 4 SCC 1 
[5] S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 
[6] Law Commission of India, Report No. 267, Hate Speech (2017).
[7] Pravasi Bhalai Sangathan v. Union of India, AIR 2014 SC 1591 
[8] Id.
[9] Shreya Singhal v. Union of India, AIR 2015 SC 1523 
[10] Id.