Published on: 24th December 2025
Authored by: Jahnavi Srivastava
IMS Law College, Noida
ABSTRACT
Freedom of speech and hate speech are just two different complex which are often conflicting concepts also. To have a legal balance in Indian democracy, the balance between freedom of speech and hate speech requires careful consideration of the intention and impact of speech. Freedom of speech is the foundation of any democratic society.
Freedom of speech is a fundamental right granted to all citizen in the constitution of India. The Indian Constitution guarantees freedom of speech under Article 19(1)(a). Freedom of speech is not absolute as Article 19(2) also allows for some reasonable restrictions for the sake of public interest. This right is crucial for democracy.
Hate speech is the kind of speech or expression which attacks individual or groups emotion intentionally based on religion, gender etc. Hate speech is specifically targeted with intention to harm others. It is very important to prevent the harm caused to people by [1]addressing hate speech.
This article examines all the legal framework which governs the freedom of speech and hate speech in India. The article highlights all important discussion related to the ongoing struggles to maintain a balance between the freedom of speech and the hate speech. It also analyzes related significant case laws to understand how judiciary applies these principles.
INTRODUCTION
Freedom of speech is a fundamental right given by the constitution of India to every individual in India. The individuals are free to express their thoughts, ideas and opinions without any fear of restriction or any sanctions. But the speech made against anyone should not be hateful towards anyone. Article 19(2) of the Indian Constitution permits the reasonable restriction on the freedom of speech. The freedom of speech is not absolute as it contains some restrictions. There is a presence of restrictions to maintain the public order, national security with morality.
Freedom of speech is the foundation of democracy in the society. The speech which is free to individuals can also be hateful to others. The speech which attacks individual or group of people based on the discrimination like on gender, race, religion etc. There is a big challenge to protect the constitutional freedoms in society while ensuring public order and harmony. Laws against hate speech vary by country to country. There are some strict regulations for making any hate speech towards anyone in India.
The debate over freedom of speech is complex because there are strong arguments present on both sides. There is difficulty to draw the line between the speech that should be protected and the speech that should be restricted. The drawbacks of freedom of speech includes the spread of harmful ideas, false statements and offensive comments towards any individual or against any group of people.
FREEDOM OF SPEECH
Freedom of speech is the fundamental right guaranteed by the constitution of India. It allows individual to be free to express their own thoughts, ideas and opinions without any kind of fear of any sanction. Freedom of speech is important to have a democracy in India. It is the process of exchanging ideas, critical thinking with each other in societies.
In India, freedom of speech is enshrined in Article 19(1)(a) of the India Constitution. The Supreme Court has interpreted this right broadly. However, this right is also not absolute and subject to reasonable restriction under Article 19(2) which allows the government to impose restrictions in interest of people in form of public order, decency and security etc. This Article 19(2) also helps to maintain the democracy in India.
Importance:
- freedom of speech is an essential key for the democracy of India. It allows individual to freely express their thoughts, views and ideas with others without the fear of any punishment.
- Freedom of speech is essential aspect of individual’s personal freedom. Freedom of speech helps in promoting the democracy in India as it promotes individual liberty.
- In democratic society of India freedom of speech empowers the citizens, society as well as media to freely ask questions and the authority is accountable to give the response[2].
- Freedom of speech promotes as well as encourages the social progress of India. If there will be freedom of speech then there can be easy formation of innovating something as well as it will become easy for any social change.
- Freedom of speech is important as it helps in supporting the human dignity in a society as it assures respect for the someone’s beliefs and opinion.
HATE SPEECH
There is no universal definition of hate speech. Legal definitions of hate speech vary from country to country. Hate speech is a public speech which gives or express hate or encourages violence among individuals or among the groups of people. Hate speech is basically based on race, gender, religion, colour or on any disability. Hate speech can have serious consequences which can be emotional distress and trauma for individuals or for the group of people. Secondly hate speech can cause violence and promotes harm against individuals and groups. Thirdly hate speech can contribute to the social exclusion of vulnerable groups. The hate speech can be in the form of speech, gesture, writing or any conduct that may incite violence among the group of people.
There is the big challenge in balancing freedom of expression with the protection from harm. There are different forms of solution presents to prevent hate speech and the solutions are education, regulation and community management to promote a respectful communication in the society. The balance between freedom of speech and hate speech is important in India to maintain the democracy in India.
BALANCING FREEDOM OF SPEECH AND HATE SPEECH
Freedom of speech is the fundamental right provided to every citizen of India. It is not absolute it must be balanced to protect individuals and the groups from causing harm by giving any hate speech publicly to anyone. hate speech gives rise to violence, discrimination that must be meant to protect.
Freedom of speech is important as it promotes democracy in India. There are clear legal definitions are given in fair and consistently enforce to deal with hate speech with legal protections. The balance between freedom of speech and hate speech is essential as it helps in protecting vulnerable groups, preventing violence and it helps in maintaining a healthy public dialogues and all together the balance creates a democratic society.
There are also several challenges in balancing the freedom of speech and hate speech together as the definition of hate speech varies. It also creates challenge for the freedom of expression as when the freedom of speech get turns in hate speech no one knows as there is a very thin line difference between the two. The spread of hate speech online in digital age is the biggest challenge these days.
To get the balance between the freedom of speech and the hate speech there are many legal frameworks which are enforceable as well as there are many proactive measures which we can take into consideration such as public awareness, education, different campaigns and media literacy also. We can also approach civil society organisation for educating people on human rights. Media and technology is also responsible for giving moderate content which does not creates hate speech against anyone in the society. International cooperation is also essential to address hate speech effectively.
Ex: case of “Samay Raina” is going on trend because his own speech turned out to be in a hate speech on his own show “India’s Got Latent”. This situation reflects fragile balance between free speech and societal sensitivity.
LEGAL FRAMEWORK FOR PROTECTION OF CERTAIN RIGHTS (ARTICLE 19) OF INDIAN CONSTITUTION
Article 19 of Indian constitution guarantees the right to freedom to every individual citizen in India. The freedom of speech is a basic human right of individuals. This rights to freedom include six different forms of right in India. The all six rights are discussed below:
Article 19(1) all citizens shall have the right
- To freedom of speech and expression
- To assemble peaceable and without arms
- To form association or union
- To move freely throughout the territory
- To reside and settle in any part of the territory of India
- To acquire, hold and dispose of property[3]
- To practice profession or to carry on any occupation, trade or business
- Freedom of speech and expression: Article 19(1)(a) of Indian constitution gives the fundamental right to every citizen of India to speak and express their own thoughts, ideas and opinions without any fear of sanction. The individual can express their views by through speech, writing, art, and even on any digital platforms. But all these are not absolute they are also limited by some laws to bring democracy in India.
- Freedom to assemble peaceably and without arms: Article 19(1)(b) of Indian constitution guarantees all citizens the right to assemble peaceably and without arms. The right to assemble is not absolute. The right prohibits carrying arms during the assembly. This right ensures the public safety from any kind of threat from the assembly.
- Freedom to form associations or unions or co–operative societies: article 19(1)(c) of the Indian constitution provides right to all citizen to establish or to join any association, union or co-operative societies. But this right is not absolute because it does not include the right to strikes or effective bargaining. The state can impose restriction on the right for the sake of public interest.
- Freedom to move freely throughout the territory of India: Article 19(1)(d) of the Indian constitution gives the right to move freely throughout the territory of India. It is not absolute as it allows state to impose reasonable restrictions for the interest of general public. Restrictions are imposed to maintain the public order and to maintain the democracy of India.
- Freedom to reside and settle in any part of territory of India: Article 19(1)(e) is the fundamental right of every citizen to reside and settle in any part of territory of India. Everyone has the freedom to choose their place of residence. This right is not absolute it contains some restricts by law for the sake of public interest related to public order and the protection of tribal areas.
- Freedom to practice any profession or to carry on any occupation, trade or any business: Article 19(1)(g) of the Indian constitution provides fundamental right to every citizen to practice any kind of profession or any business according to their own choice. The right to carry on any business is not absolute it contains some reasonable restrictions for the sake of public interest according to De Facto Law.[4]
There is no legal framework provided for the hate speech to the citizens of India by the Constitution of India. But there are some relevant statutory provisions which have which have been provided in criminal laws.
Sec 194 BNS 2023: promoting enmity between groups [5]
Sec 195 BNS 2023: imputation prejudicial to national integration[6]
Sec 197 BNS 2023: statements conducing to public mischief[7]
Sec 198 BNS 2023: deliberate acts to outrage religious feelings (malicious act)
“Hate speech related offences are mostly retained and updated under Section 194 to Section 198 0f BNS 2023.”
IMPORTANT CASE LAWS
Shreya Singhal v Union of India (2015) 5 SCC 1: the case has been filed on the issue of the constitutionality of section 66A of the IT Act 2000 which gives the freedom of speech online it also disturbs the democracy of India. Later SC judgement held section 66A was struck down for being vague and violating the Article 19(1)(a). In this case distinction was also made between advocacy, discussion and the incitement. At the end it was said that only incitement can be restricted.
Amish Devgan v Union of India (2021) 1 SCC 1: in this case related to freedom of speech and hate speech, Devgan was made alleged on commenting hateful comments against a religious figure. The many multiple FIRs were also be filed on his name by many people. Then the court passed the judgement that hate speech made by anyone must be judged by its tendency to incite violence or hatred. It was concluded that the intention and impact of the context are important in hate speech cases.
Pravasi Sangathan v Union of India (2014) 11 SCC 477: in this case the petitioner sought guidelines to regulate the hate speech against someone publicly. The court held that the existing legal framework for the hate speech BNS sections is sufficient and there is need of emphasized awareness and the education to the citizen to maintain the legal democracy for India. It was also said that the judiciary cannot legislate or create any new criminal offences through the guidelines provided.
CONCLUSION
Balancing the freedom of speech and hate speech is essential task to have a legal democracy in India. While freedom of speech is important for a healthy democracy of India but the hate speech can have severe consequences in India. Freedom of speech promotes critical thinking, exchange of ideas whereas hate speech promotes violence, social exclusion in the citizens of India.
Freedom of speech comes with the responsibilities such as protecting against hate speech, defamation and violence. Hate speech is a complex issue that requires approach. By understanding the impact of hate speech and implementing solutions to it we all can protect the freedom of speech.
A responsible legal approach, guided by constitution and judicial approach is essential to uphold both democratic freedom and societal peace. We can protect individual right to speech and expression by taking social harmony in consideration. India should strengthen the legal framework and judicial prospective and should promote civic awareness among citizens by educating them regarding their rights as well as about the consequences of hate speech towards anyone in the society by this we can gain the legal democracy in India
BIBLIOGRAPHY
- Constitution of India, Article 19(1)(a) and Article 19(2)
- MP Jain, Indian Constitutional Law (8th edition, Lexis Nexis 2018)
- https://www.un.org freedom of speech vs hate speech
- PRS Legislative Research, ‘Freedom of Speech and Expression’ https://prsindia.org/accessed 18 July 2025.
[1] Addressing hate speech does not mean limiting or prohibiting freedom of speech.
[2] Romesh Thapar v State of Madras [1950] SCR 594
[3] Article 19(1)(f): removed from list of fundamental rights by the 44th amendment Act of 1978; the right to property is now a constitution right under Article 300A.
[4] De facto: “in fact”; exists in fact but not legally or officially
[5] Offence related to promoting enmity on grounds of religion, race etc.
[6] Offence related to assertions affecting national integration.
[7] Spreading false or inflammatory statements.
