FREEDOM OF SPEECH VS HATE SPEECH: LEGAL BALANCE IN INDIAN DEMOCRACY

Abstract

Freedom of speech is the lifeblood of any democracy, yet unchecked expression can mutate into hate speech, threatening public order and minority rights. The right to freedom of speech and expression forms the cornerstone of Indian democracy, acting as both a safeguard of individual liberty and a catalyst for social change. However, in a plural and often polarized society, this freedom frequently collides with the growing menace of hate speech. This article delves into the complex legal framework governing freedom of speech and hate speech in India. It draws upon key constitutional provisions, landmark Supreme Court judgments, and legislative enactments to examine how India attempts to strike a balance between protecting democratic freedoms and preserving social harmony. The piece further critiques the ambiguities in legal standards, the role of digital platforms, and the challenges of selective enforcement. In doing so, it suggests reforms that are both constitutionally sound and socially necessary to ensure that free speech remains a tool for empowerment rather than a shield for hatred.

Introduction

In a democracy like India, where over a billion people speak different languages, practice different religions, and belong to diverse castes and communities, the right to free speech is not just important—it is essential. It enables people to question authority, protest injustice, and express diverse opinions. Article 19(1)(a) of the Indian Constitution enshrines the right to freedom of speech and expression, a cornerstone of the nation’s democratic framework.[1] However, this freedom is not absolute. Article 19(2) authorizes reasonable restrictions in the interests of sovereignty, public order, decency, morality, and more.[2] The conflict arises when speech becomes a tool for provocation, prejudice, or persecution—it begins to erode the very values it was meant to protect. This is the paradox India grapples with: how to protect freedom of speech while curbing hate speech?

This is where the law must step in, not to silence dissent, but to draw a line between democratic discourse and dangerous speech. As the Supreme Court observed in Pravasi Bhalai Sangathan v. Union of India: “Hate speech poses complex challenges to freedom of speech and expression. It must be curbed to protect the values of dignity, equality, and fraternity in a plural society like ours.”[3] This article examines how Indian law tries to resolve this tension, what challenges persist, and how the balance can be recalibrated.

Constitutional Framework: Right with Restrictions

Article 19(1)(a) of the Indian Constitution guarantees every citizen the right to freedom of speech and expression. However, this right is not absolute. Article 19(2) empowers the State to impose “reasonable restrictions” in the interests of public order, decency, security of the state, and other specified grounds. The language of this clause provides a constitutional justification for curbing speech that poses a threat to social peace or national security. This flexible framework allows courts and legislatures to shape speech regulations contextually.

The Constituent Assembly Debates reflect an inherent tension. While Ambedkar emphasized the necessity of free criticism and dissent, others like K.M. Munshi acknowledged the need for curbs against propaganda targeting communal harmony or national integrity.

Defining Hate Speech in the Indian Context

India currently lacks a single, definitive legal definition of what constitutes hate speech. Broadly, it refers to words or actions—spoken, written, or even online—that attack, insult, or spread hatred against a person or group because of who they are. This may stem from factors such as religion, caste, race, gender, language, place of birth, or other aspects of identity.

The Law Commission of India, in its 267th Report, explained that hate speech should mean any speech that stirs up hatred or violence against a group based on discrimination.[4] In simple terms, hate speech is not just something that hurts feelings—it’s speech that can create divisions, fuel prejudice, or lead to real-world harm.

Which Laws Are Used to Deal with Hate Speech in India?

India may not have a single, well-defined law that spells out what hate speech is, but that doesn’t mean the law is silent on it. Various provisions under the Bharatiya Nyaya Sanhita, 2023 (BNS), which has replaced the Indian Penal Code, are used to curb hateful or provocative speech, especially when it threatens social peace or targets communities based on religion, caste, language, or region.[5]

Section 194 BNS – Promoting enmity between groups: This section replaces the older Section 153A of the IPC. It punishes anyone who tries to create hatred, tension, or division between different communities or groups, whether based on religion, caste, race, language, or regional identity. Whether it’s a political leader giving a provocative speech or someone sharing incendiary posts on social media, this section can be invoked if the speech can disturb public peace or promote violence. Punishment is up to 3 years’ imprisonment and fine. If done in a place of worship or during religious ceremonies, the punishment can extend up to 5 years.

Section 195 BNS – Offending religious feelings: This provision replaces Section 295A of the IPC. It applies when a person deliberately and maliciously insults the religion or religious beliefs of others. Unlike casual or unintentional remarks, this section requires a deliberate intent to hurt. So, if someone burns a religious text publicly, mocks a sacred symbol, or makes abusive comments about religious practices with the aim to provoke, this section may be used. Punishment is up to 3 years in jail and a fine.

Section 356(2) BNS – Statements creating or promoting enmity, hatred or ill-will: This is the new version of IPC Section 505(2). It punishes anyone who makes, circulates, or shares statements—spoken or written—that promote hostility between communities. Whether it’s a speech at a public gathering, a YouTube video, or even a forwarded WhatsApp message, if it spreads enmity between groups, this section applies. Punishment is up to 3 years of imprisonment, and the offender can also be fined.

Where Are These Laws Used in Real Life?
These laws are commonly applied in cases involving: hateful speeches during elections or political campaigns; communal violence where leaders or influencers use words to mobilize mobs; social media posts or videos that attack or demean religious or caste groups; satirical content or creative works that, when misinterpreted or exaggerated, are perceived as hurtful to religious sentiments.

During the 2020 Delhi riots, multiple FIRs were filed under the previous Section 153A and 505(2), now mirrored by Sections 194 and 356(2) of the BNS, against individuals accused of making inflammatory speeches that allegedly contributed to the violence.

Concerns Around Misuse and Overreach
While these laws aim to protect peace and promote tolerance, they are also often criticized for being too vague or prone to misuse. Following are some common issues:

1. Overbroad language: Words like “hatred,” “ill-will,” and “outrage” are open to interpretation. What one person sees as critique, another may claim as hate.

2. Chilling effect on free speech: Artists, writers, comedians, and journalists often avoid sensitive topics fearing legal backlash, even when they are not promoting hate.

3. Political misuse: There have been instances where governments or police have used these laws to target critics or dissenters, especially on online platforms.

4. Uneven application: Many times, only opposition figures or minority voices are booked, while others who may have committed worse offenses are let off due to political backing.

Landmark Judgments: Drawing the Line

Understanding the difference between free speech and hate speech isn’t just about what laws say—it’s about how courts interpret those laws in real situations. Over the years, Indian courts have drawn careful lines through key judgments. These decisions help us understand when speech is protected and when it crosses the line into unlawful territory. Here are some landmark cases that shaped the way we think about freedom of speech and its limits:

S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574:[6]
A Tamil film was about to be released, but some people claimed it might hurt religious sentiments. The government stepped in and blocked the release to “prevent unrest.” The Supreme Court made it crystal clear that you can’t block speech just because someone threatens violence over it. In a democracy, such threats cannot be allowed to dictate policy.

“Freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would be tantamount to the negation of the rule of law and a surrender to blackmail and intimidation.”

This ruling still echoes today. It reminds us that public outrage isn’t enough reason to silence someone. The state must protect free speech, not cave in to mob pressure.

Brij Bhushan v. State of Delhi, AIR 1950 SC 129:[7]
Just a few years after independence, a newspaper critical of the government was slapped with pre-censorship orders. That meant the government wanted to screen what they published before it went out. The Court struck it down and famously observed, “Freedom of speech lies at the foundation of all democratic organisations.”

This was one of the first big tests of free speech in India. The judgment set the tone that criticism of the government is not sedition—it’s democracy in action. It also made it clear that prior restraint is rarely acceptable.

Indibily Creative Pvt. Ltd. v. State of West Bengal, (2020) 12 SCC 436:[8]
A satirical Bengali film called Bhobishyoter Bhoot was pulled from theatres shortly after release. No official ban was issued; it was just “removed” due to complaints. The filmmakers weren’t even given a proper explanation. The Supreme Court saw through the pretense. It warned the state against using vague fears of public disorder to shut down artistic work.

“The State cannot act in a manner that has a chilling effect on the freedom of speech and expression.”

The Court reaffirmed that freedom of expression includes satire, critique, and art, and that state interference must be backed by legal process—not silent coercion. This judgment reflects how freedom of speech isn’t just about what you say—it’s also about your right to be heard.

Shreya Singhal v. Union of India, (2015) 5 SCC 1:[9]
Section 66A of the Information Technology Act was used to arrest people for online posts, including jokes, memes, or just criticizing public figures. It was vague and open-ended. The Supreme Court struck it down as unconstitutional, saying that the law was too broad and stifled legitimate speech.

“Mere discussion or even advocacy of a particular cause, however unpopular, is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.”

This case is a milestone in internet freedom. It set a clear standard: only speech that incites actual harm—not just offends or annoys—can be restricted. It also reinforced the idea that vague laws are dangerous tools in the hands of the state.

Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477:[10]
An organization asked the Court to issue strict directions to curb hate speech by politicians. The Court sympathized with the concern but pointed out that existing laws already deal with it. The Court refused to lay down new guidelines but made an important observation: “Hate speech poses complex challenges to freedom of speech and expression. It needs to be tackled through the existing legal framework.”

This case highlights the tension between free speech and social harmony, and the Court’s reluctance to overstep Parliament’s domain. But it also laid the groundwork for future debate on whether India needs a clearer, standalone hate speech law.

Why These Judgments Matter Today
These cases show that Indian courts are deeply aware of the need to balance rights and responsibilities. They’re not blindly defending speech, but they also don’t accept vague, emotional reasons to restrict it. The underlying message in all these decisions is: speech can be loud, messy, and uncomfortable—but unless it leads to actual harm, it should be protected.

This is especially crucial today, when:
– Social media spreads speech faster than ever before.
– Political rhetoric is increasingly polarized.
– Satirists, comedians, and journalists face legal threats for speaking truth to power.

What these judgments make clear is this: India does not ban speech just because it offends. The test is whether it incites violence, promotes enmity, or disrupts public order in a real and immediate way.

Hate Speech in the Digital Age: A Double-Edged Sword

The internet has fundamentally changed the way we communicate. Today, a single tweet, video, or forwarded message can reach millions in seconds. While this connectivity empowers voices that were once unheard, it also creates fertile ground for hate speech to spread unchecked and unfiltered. Platforms like X (formerly Twitter), WhatsApp, Facebook, YouTube, and newer apps like Telegram or Koo allow rapid, anonymous dissemination of ideas—good and bad. What used to be said in private rooms can now go global with a single tap. Unfortunately, this power has been exploited by troll factories, political actors, and hate groups to target minorities, incite communal tensions, and foster societal division.

Challenges in Implementation

Challenges in implementation are significant and multifaceted:

Lack of a Clear Legal Definition: India still does not have a single, uniform legal definition of hate speech. Different interpretations by the courts, Parliament, and enforcement agencies create confusion. This legal vagueness leads to inconsistent application and subjective enforcement.

Political Misuse: Hate speech laws are often used selectively. Dissenting or critical voices, especially those opposing government narratives, may face legal action under the guise of maintaining order. Meanwhile, actual perpetrators of hate sometimes escape scrutiny due to political protection or inertia.

Slow Legal Process: By the time a hate speech case moves through the courts, the social damage is already done. Delays in investigation and prosecution dilute accountability and reduce the law’s deterrent effect.

Unregulated Media Narratives: Prime-time TV debates and news coverage often prioritize controversy over accuracy. Sensationalism becomes a business model, and hateful rhetoric is given a platform, normalizing toxic discourse under the cover of “debate.”

Public Desensitization: When hate-filled content is encountered repeatedly—on screens, in memes, in everyday conversation—it begins to lose its shock value. Society gradually becomes indifferent to the danger, allowing hate to seep into the mainstream.

The Way Forward: Striking a Balanced Approach

The road to regulating hate speech in a democracy as diverse as India must be paved with constitutional prudence, legislative clarity, and an unwavering commitment to the rights framework under Article 19(1)(a). While the Hate Crimes and Hate Speech (Combat, Prevention and Punishment) Bill, 2022 is a commendable attempt to codify long-overdue protections against hate-driven violence and speech, its effectiveness will depend on how precisely it balances the twin imperatives of preventing harm and preserving liberty.[11] Despite its comprehensive vision, the bill has drawn criticism for its vague thresholds of harm and its potential to stifle legitimate political or dissenting expression.

Any future legislation must:

• Clearly define hate speech using a test that incorporates intent, imminence of harm, and targeted identity-based animus, rather than vague notions of offensiveness or public disorder.
– Include narrow exceptions and uphold the Shreya Singhal standard, which protects speech unless it incites imminent lawless action.
– Ensure independent oversight, rather than vesting wide discretion in police or executive authorities, whose biases may undermine the neutral application of the law.
– Protect digital freedom by avoiding vicarious criminal liability for intermediaries without a clear mens rea or failure to act after notice.
– Embed procedural safeguards such as prior judicial review, time-bound adjudication, and remedies against wrongful prosecution.

Ultimately, combating hate speech must not become a Trojan horse for state censorship or political vendetta. The goal should be not just protection from hate, but also the protection of dissent, which lies at the heart of constitutional democracy.

Conclusion

India’s democratic identity rests on a delicate but essential equilibrium—the right to speak freely, and the duty to prevent harm. Hate speech isn’t just about harsh words; it’s about the potential of those words to tear communities apart, inflame passions, and erode the trust that binds a pluralistic society together. At the same time, the cure for hate cannot be censorship alone. A nation cannot legislate itself into harmony. Laws are tools, not solutions. True progress lies in a cultural shift—one where disagreement doesn’t descend into dehumanization, where criticism is not confused with sedition, and where debate is grounded in facts, not fury.

We must remember—the Constitution was not written for the convenience of the majority or the comfort of power. It was written to protect voices that are easy to ignore, inconvenient to hear, or difficult to defend. Free speech loses its meaning if it only protects the agreeable. But equally, hate speech is not free speech. When expression becomes a weapon targeting people for their faith, caste, gender, or identity, it ceases to be protected and starts demanding accountability. This line is thin, but it is real.

Justice Holmes once said, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”[12] In today’s world, hate speech is that false fire. It’s urgent, loud, and often deliberate. Thus, the path forward isn’t about silencing speech—it’s about sharpening our understanding of its power. It’s about creating laws that are clear, consistent, and constitutionally rooted. It’s about empowering institutions that act without fear or favor. And most of all, it’s about cultivating a society where speech uplifts more than it destroys. The future of Indian democracy will not be judged by how loudly we can speak, but by how wisely we choose to use that voice.

References

[1] The Constitution of India 1950, art. 19(1)(a).
[2] The Constitution of India 1950, art. 19(2).
[3] Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477, 25.
[4] Law Commission of India, Report No. 267: Hate Speech (2017).
[5] The Bharatiya Nyaya Sanhita 2023, §§ 194, 195, 356(2); Indian Penal Code 1860, §§ 153A, 295A, 505(2).
[6] S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
[7] Brij Bhushan v. State of Delhi, AIR 1950 SC 129.
[8] Indibily Creative Pvt. Ltd. v. State of West Bengal, (2020) 12 SCC 436.
[9] Shreya Singhal v. Union of India, (2015) 5 SCC 1.
[10] Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477.
[11] The Hate Crimes and Hate Speech (Combat, Prevention and Punishment) Bill 2022 (Private Member’s Bill No. 81 of 2022, Lok Sabha) introduced by Shashi Tharoor.
[12] Justice Oliver Wendell Holmes Jr., Schenck v. United States, 249 U.S. 47 (1919).
[13] Tejaswini Kaushal, “A Bird’s Eye View of the Right to Freedom of Speech and Expression in India” (Feb. 16, 2023) https://articles.manupatra.com/article-details/A-Bird-s-Eye-View-of-the-Right-to-Freedom-of-Speech-and-Expression-in-India.