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

1. Introduction

In the modern world, Human Rights are becoming top priority of any nation, the Indian Constitution, one of the largest Constitutions of the world, has provided its citizens with certain Fundamental Rights and liberties to safeguard their own as well as others rights.

Freedom is the power or right to speak, act, and change as one wants without hindrance or restraint. Freedom is often associated with liberty and autonomy in the sense of “giving oneself one’s own laws.

Art 19 stands as India’s as India’s one of the strongest commitments towards democracy and individual freedom. It enables voices from all the sides to come together and shape the nation, ensuring that the ideal of democracy, freedom to reside and profess any profession.

Part 3 of the constitution contains Fundamental Rights Art 12 to 35 entailing its citizens with various basic rights which acts as a shield from any undue interference by the state authorities in the personal and professional life of individuals.

Freedom of speech is the heart of a democracy, it allows people to share opinions, criticize the government, and join public life. In India, Article 19(1)(a) of the Constitution guarantees this basic right. But democracy also needs to protect social harmony, public safety, and a sense of dignity. That’s why Article 19(2) allows the government to limit speech in certain cases like when it threatens national security, public order, decency and morality, damages someone’s reputation, or encourages people to break the law.

The real challenge is finding the right balance: letting people speak freely while preventing harmful or inflammatory words from creating division. This tension between freedom of speech and hate speech touches on legal rules, moral questions, and how the law is applied in society and politics.

Freedom of speech and expression means the right to speak, and the right to express oneself through any medium. Every citizen has a right to hold an opinion and to be able to express it, including the right to receive information and impart information.

There are various facets of the freedom of speech and expression which have been recognised by the courts. Some of those rights that constitute the freedom of speech and expression are mentioned below-

• Freedom of Press
• Right to know and to obtain information
• Right to know the antecedents of the candidates at election
• Right to reply
• Right to silence
• Right to fly the national flag
• Sedition Laws

2. Constitutional Frameworks:

Art 19(1) of the COI guarantees six fundamentals freedoms to every citizen of India, namely-

1.Freedom of Speech and expression;

2.Freedom to assemble peacefully and without arms;

3.Freedom to form associations, unions, or co-operative societies;

4.Freedom to move freely throughout the territory of India;

5.Freedom to reside and settle in any part of the territory of India;

6.Freedom to practise any profession, or to carry on any occupation, trade or business.

• Art 19(1)(a): Freedom of Speech and Expression

Article 19(1)(a) of the Indian Constitution gives every Indian citizen the fundamental right to freedom of speech and expression. This means you can share your thoughts, opinions, and beliefs whether spoken, written, published, or expressed through art, media, or any other form without fearing punishment by the government.

This right is essential for democracy. It allows open discussion, helps uncover the truth, lets people participate in government, and supports individual growth and social change.

However, this freedom is not unlimited. That’s where Article 19(2) comes in. It allows the government to place “reasonable restrictions” on speech, but only for specific and important reasons:

• Protecting the sovereignty and integrity of India
• Ensuring national security
• Maintaining friendly relations with other countries
• Keeping public order
• Upholding decency and morality
• Preventing contempt of court, defamation, or incitement to crime.

In simple terms: you can say most things but if your words threaten the country, incite violence, defame someone, or offend decency, the government can step in but only through a clear law, and only when it’s reasonable and necessary.

So, Article 19(1)(a) supports free expression as vital to democracy, while Article 19(2) ensures that this freedom doesn’t harm public safety, order, or others’ rights.

3. Legal Framework Against Hate Speech: –

Indian Penal Code (IPC) relevant sections-

• Section 153A: Makes it a crime to promote enmity or hatred between groups (religion, race, caste, language etc
• Section 153B: Punishes statements that harm national integration.
• Section 295A: Criminalizes deliberate and malicious acts intended to outrage religious feelings.
• Section 298: Targets speech intended to wound religious feelings.
• Section 505: Covers statements that cause public mischief such as inciting fear, alarm, or hatred between communities.

Other key laws-

• Representation of People Act (1951): Sections 123(3A) and 125 prohibit hate speech during elections, classing it as corrupt practice.
• of Atrocities) Act (1989): Include offences for hate speech targeting Dalits, Sikhs, Scheduled Castes/Tribes.

Bharatiya Nyaya Sanhita (BNS, 2023)-

• Section 196 (replaces 153A): Addresses promoting animosity online or offline, with harsher penalties including up to 5 years in worship settings.
• Section 197 (replaces 153B) and Section 299 (replaces 295A): Mirror their IPC predecessors but incorporate digital communication as well.

4. Enforcement & Challenges-

505. The Supreme Court has directed police in several states to proactively register FIRs under hate speech provisions without waiting for complaints—specifically under Sections 153A, 153B, 295A, and 505.
506. Still, these laws are vague and broad, leading to misuse—criticized for chilling free voice rather than targeting genuine threats.

5. Landmark Judicial Interpretations-

Landmark judgments have shaped how courts strike the balance between speech and order-

1. Romesh Thappar v. Madras (1950) – Declared freedom of speech essential for democracy; rejected restrictions without valid grounds.
2. Pravasi Bhalai Sangathan v. Union of India (2014) – While not providing stand-alone hate speech legislation, the Court upheld existing IPC provisions and highlighted need for stronger enforcement.

6. The International Legal Perspective-

Globally, limits on speech face a three-part test:

1. Must be prescribed by law.
2. Pursue a legitimate aim (e.g., public order).
3. Be necessary and proportionate 

7. Digital Era and Pressure on Speech-

  The digital age has made sharing ideas easy but also helped hate speech and lies spread fast.

  India’s new IT Rules force platforms to remove content quickly, which might over-censor.

  The government has blocked sites that document hate crimes, raising concerns about silencing critical voices.

  Courts say platforms should remove only harmful posts, not entire accounts.

  Experts and courts push for platforms to regulate themselves fairly protecting free speech while limiting hate.

8. The Ongoing Legal and Civic Balance-

Definitional Gaps & Vagueness

Indian law still lacks a standalone hate speech definition: current statutes are broad, leading to arbitrary enforcement. Committees like Bezbaruah (2014) and Viswanathan (2019) recommended standalone provisions (like Sections 153C, 505A) to better tackle this long-term, community-level harm 

Proportionality & Enforcement

Courts insist on careful analysis speech must have intent, impact, and risk to public order before restriction. But judicial inconsistency and political pressure have led to over-criminalization, especially for dissent.

Education & Counter-Speech

Experts advocate for multi-pronged responses:

• Civic education to build empathy and tolerance.
• Religious/social leaders promoting harmony.
• Digital literacy to recognize and counter hate speech.
• Legal literacy to discourage misuse of laws.

9. Judicial Role in Combating Hate Speech in India-

1. Enforcing Suo Motu Action-

The Supreme Court has ordered state police in Delhi, Uttarakhand, and Uttar Pradesh to initiate hate speech cases on their own, without waiting for public complaints, especially under IPC Sections 153A, 153B, 295A, and 505.
This ensures accountability and fair enforcement, irrespective of the speaker’s community or political affiliation .

2. Universal Application of Law-

The Court has emphasized that hate speech cases must be prosecuted equally, regardless of the speaker’s religion or community.

3. Clear Legal Standards-

Courts have insisted that hate speech must be clearly distinguished from mere wrong or offensive claims.
Restrictions are only justified when speech intends to incite violence or disturb public order a principle rooted in both national and constitutional law

4. High-Level Warnings Against Inaction-

In October 2022, the Supreme Court criticized the Central Government for acting like a silent observer while communal hate increased, calling for stronger institutional mechanisms

5. Highlighting Targeted Abuse-

In April 2025, Justice Abhay Oka noted that most hate speech targets religious minorities and oppressed groups, often used strategically by politicians during elections

6. Judicial Caution and Contextual Consideration-

Courts have differentiated between offensive statements and hate speech. For example, they ruled that expressing support for Pakistan online doesn’t automatically threaten national unity unless it clearly incites rebellion.

10. The Indian judiciary’s approach includes:

• Proactive enforcement, urging police to act without waiting for complaints.
• Equal application of laws, regardless of a speaker’s religious or political status.
• Strict legal standards, requiring evidence of intent to incite violence or public disorder.
• Criticism of government inertia, advocating for better institutional frameworks.
• Judicial checks on public figures, reinforcing boundaries on hate speech.

Through these measures, the judiciary plays a central role in preserving peace, pluralism, and constitutional values ensuring that speech remains free yet responsible.

11. Social Media and Offensive Speech-

1. Offensive Speech on Social Media-

The rise of social media platforms like Facebook, WhatsApp, YouTube, and Instagram, has transformed public debate allowing instant sharing and wide discussion. But this same power has also fueled offensive speech, ranging from personal insults to hate campaigns targeting communities or public figures.

2. Harmful Speech Modes-

• Hate speech directly attacks someone’s identity religion, caste, gender.
• Fear speech is subtler: it instills fear about a community (e.g.,“they’re taking over us”) effectively polarizing societies without overt insults.

3. Legal Safeguards and The Shreya Singhal Ruling-

• The Shreya Singhal (2015) case struck down the vague Section 66A of the IT Act, which criminalized “offensive” online speech, recognizing it as a threat to free debate and requiring narrowly defined limits. The Court affirmed online expression holds the same constitutional weight as offline speech.
• However, the IT (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021 now require platforms to remove illegal content hate speech, defamation, misinformation within 36 hours of a complaint, or risk losing their safe-harbour protection . Critics argue that auto-removal and fear of penalties drive over-censorship.

4. Real-World Incidents-

• A law student was denied bail for allegedly posting hate content online where courts reaffirmed that mere offense isn’t enough; intent to harm must be shown.
• High-profile arrests of YouTubers and online content creators such as Ranveer Allahbadia highlight the tension between comedy, free speech, and offense, raising fears of regulatory overreach

12. Case Law-                                                                                          

While Section 66A is repealed, offensive speech online is still punishable under IPC/IT Rules and hate-speech sections.

• Amish Devgan lost protection due to insult to religious sentiments via TV.

13. Path Forward: Harmonizing Speech & Harmony-

1.     Statutory Reform-

• Draft a modern standalone hate speech provision with clear definitions, intent requirement, and proportional punishments.
• Amend IPC Sections 153A/295A for clarity to prevent misuse.

2. Judicial Consistency

• Reinforce standards like Rangarajan and Amish Devgan in judgments.
• Enforce requirement of intent, context, and imminent danger before curbing speech.

3. Platform Responsibility & Transparency

• Social media platforms should improve transparency reports.
• Courts must oversee take-down orders to prevent misuse of IT Rules 2021.

4. Civil Society & Education

• Promote inter-community cultural dialogues.
• Digital literacy campaigns to enable critical self-regulation.
• Empower media watchdogs and independent trackers of hate speech.

14. Conclusion-

Freedom of speech is central to India’s democracy it empowers individuals to express opinions, critique power, and engage in public life. Yet this right is not absolute. The Supreme Court has repeatedly made it clear that speech intended to demean, incite hatred, or provoke violence does not merit constitutional protection.

 As recently emphasized on May 5, 2025: “Hate speech can’t be wrongly seen as a fundamental right,” and such expression may be limited to preserve dignity, equality, and public harmony. In the digital age, judges continue to walk this fine line between expression and offense. On July 14, 2025, the Supreme Court urged social media users to value free speech but also called on platforms to self-regulate harmful content warning against the temptation of over-censorship. In essence, the judiciary affirms that while diverse and even uncomfortable views are vital for democracy, any form of hateful or divisive speech that threatens our social fabric must be firmly checked striking a balance that protects both liberty and communal peace.