FROM LIBERTY TO LIABILITY: CONSTITUTIONAL APPROACHES TO HATE SPEECH AND ITS REGULATION

ABSTRACT: –

Our Constitution of India give an indirect recognition to “hate Speech” from the Fundamental Right given to citizens of the country by Article 19(1) (a), in Part -III and inserts restrictions on it of six kinds by Article 19(2). But there is no proper definition given to hate speech, and a proper difference between the liberty and the liability to exercise this fundamental right. The scenario about the freedom of speech is being interpreted as “Free Speech” in many cases, which leads to public defamation, abuses, deficiency, immorality and a non-civilized society in the final. In this way, a proper recognition and legal definition of hate speech become very important to ensure this right properly, and it should be entertained in the name of free speech, under Article 19(1)(a) of the Constitution of India, by implementation of the
Liberty to liberty in a proper form. In this article, we will be going to know about the Right to freedom of speech and expression, within its exceptions and exclusions from hate speech, and how the recent judgments and developments have taken place in this part. What are the scenarios, in relation to the constitutional provision for it? What are the statutory provisions? What is the Judicial Interpretation of it? What are the contemporary challenges? And what is the need and importance? While implementing these scenarios properly in a society.

INTRODUCTION: –

Everyone in this world has the right to speak and express their opinion or put their needs and demands against the world to demand their own rights by speaking freely. Sometimes it goes wrong by converting into bad or immoral speech and becomes Hate Speech, which is not an acceptable form of speech in society and for the people living in it. Freedom of Speech is a basic human right and included as a Fundamental Right under Article 19(1) (a) of the Indian Constitution, provided to all the Citizens of the country, within some restrictions provided in Article 19(2) of the Indian Constitution. The definition of Hate Speech is not provided by any provision of the Constitution of India or in any other Indian Statutes or Laws to clarify any speech as hate speech.
 According to the definition given by the Law Commission of India in its 267th Report, “hate speech” is “stated as an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like”. These provisions under Article 19(1) (a) and 19(2) consider the Right to Freedom of speech as a fundamental right in a restricted manner by restraining it from being converted into Hate Speech by extending the limits imposed by this Article.

CONSTITUTIONAL FRAMEWORK: –

Under Part III of the Indian Constitution, Article 19 (1) (a) talks about the Right to Freedom of Speech and Expression, conferred as the Fundamental Right of the citizens of the country. According to this Article, every citizen of the country has the right to speak and express themselves against the world and society, claiming their rights and duties. Additionally, Article 19(2) of the Constitution provides restrictions on this fundamental right by stating that nothing in Article 19(1) (a) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by this Article, In the interests of six (6) related to sovereignty and integrity of India, including;
a) the security of the State,
b) friendly relations with foreign States,
c) public order,
d) decency or morality, or
e) in relation to contempt of court,
f) defamation or incitement to an offence.
In this way, these provisions of the Indian Constitution establish the Right to Freedom and expression as a fundamental right, while implementing some restrictions on the freedom granted under this Article.

STATUTORY AND REGULATORY FRAMEWORK: –

The Indian Penal Code (IPC), 1860, provides the regulatory and statutory framework regarding hate speech-related statements and governs the right to freedom of speech and Expression in Criminal forms, as historically outlined in sections 353 A, 295 A, 505, and 124 under the Indian Penal Code, 1860. These are now replaced and governed under the Bharatiya Nyaya Sanhita, 2023, after the enactment of new criminal laws in India became effective from 1 July 2024. The provisions as stated by the sections of this statute include, but are not limited to: Sections 103 (2) and 117 (4) newly added in support of the hate speech, and sections 152, 299 and 351, and 352, which are respectively replacing the sections 124(A), 295(A), 153(A), and 505 of the Indian Penal Code, 1860 which provides recognition to hate speech variously and put some punishment against them including the imprisonments. Additionally, the Protection of the Civil Rights Act under its Section 5. Representation of the People’s Act, 1951, and the Information Technology Act, 2000, provide provisions and restrictions on hate speech, respectively: hate speech during the election campaigns and matters of online hate speech.

JUDICIAL INTERPRETATION

During the recent developments, the judiciary or the Supreme Court of India has given so many Bharatiya Nyaya Sanhita, 2023, Sections 103 (2) and 117 (4), 152, 299 and 351, and 352
Information Technology Act,2000. Judicial interpretations regarding the Right to Freedom of Speech and Expression, as provided under Article 19(1) (a) of the Indian Constitution. Punishments under other statutes, such as the Information Technology Act, 2000, the Indian Penal Code (IPC), 1860, and many more, are also interpreted by the judiciary in many cases. Many landmark judgments given by the
Supreme Court of India to interpret the Right to Freedom of Speech and expression, differentiate free speech from hate speech, including but not limited to

1) Navtej Singh Johar v. Union of India, (2018) 10 SSC 1:- Into this landmark judgement of the Hon’ble Supreme Court of India, the principle of “morality and decency” was followed by
a five-judge bench under Article 19(a) of the Indian Constitution. In this case, the court held that sexual orientation and gender identity should be protected under Article 19 (1)(a) of the Indian Constitution as a form of expression.
2) Shreya Singhal v. Union of India, (2015) 5 SCC 1: – Into this landmark judgement of the Supreme Court of India the Section 66 A of the Information Technology Act, 2000 was held unconstitutional to the Article 19(1)(a) of the Constitution of India in relation to freedom of Speech and Expression and the Principal of the Free Speech on Internet is established in restrain of the hate speech.
3) Kaushal Kishor v. State of Uttar Pradesh & Ors., (2023) 4 SCC 1: – In this landmark judgement of the Supreme Court, it was held that the free speech is exhaustive within the exceptions as provided under Article 19(2) of the Indian constitutional, and the public officials can be held liable on the grounds of hate speech for conduction immorality.

CONTEMPORARY CHALLENGES: –

Article 19(1) (a) of the Indian Constitution is not absolute in nature due to the enforcement of provisions provided in it within the restrictions introduced under Article 19(2) of the Constitution, and when it goes beyond the restrictions of Article 19(2), it becomes a hate speech scenario. The application of this Article within restrictions has brought some contemporary challenges, which are as follows: –
1. Ambiguity in legal definition of the “hate speech”:- There is no legal definition the “hate speech ” is provide by the Indian Constitution or any other statutes in relation to the hate speech, under Bharatiya Nyaya Sanhita Sections 103 (2) and 117 (4) newly added in support of the hate speech, and sections 152, 299 and 351, and 352, which are respectively replacing the sections 124(A), 295(A), 153(A), and 505 of the Indian Penal Code, 1860 are only extended to the recognition of the hate speech and for punishment of it, there is no legal definition provided in relation to
the hate speech.
2. Dominance of Digital and Social Media Platforms: – In today’s world, there are so many digital and social media platforms like Twitter, Facebook, X-gender, YouTube, etc. that are rapidly extending the restrictions on freedom of speech and entertaining hate speech in various ways.
3. Political and Religious Biasness: – In many cases, in relation to politics and religious matters, bias based on religion, caste, race, nationality, etc., is followed, and hate speech is processed by such matters.
4. Judicial Uncertainty: – Judicial Interpretation of different kinds based on many case judgments is also bringing challenges against the interpretation of the right provided under Article 19(1)(a) of the Indian Constitution.
5. Cross-Jurisdictional Challenges and Globalization: Within globalization and the cross-jurisdictional challenges, the concept of freedom of speech and expression
faced some challenges in its application in the country.
6. Constitution of India, Article 19(1)(a) and Article 19(2) Bharatiya Nyaya Sanhita, 2023, Sections 103 (2) and 117 (4), 152, 299 and 351, and 352
Information Technology Act,2000.

NEED AND IMPORTANCE: –

1) To bring statutory clarity: – by having a difference between the Liberty and Liability to entertain the right provided under Article 19(1)(a), and recognizing the hate speech properly can bring a statutory clarity and a better interpretation for the Right to Speech and Expression can be received.
2) To enforce judicial guidelines: – By having clarity between the liberty, liability and recognition of hate speech, it can help in regulating the judicial guidelines properly.
3) To regulate the digital world: – The regulation of the digital world can be done by having proper knowledge about the liberty and liability regarding the right to speech and expression, and online defamation, misinformation, aggressive talks, etc., can be controlled.
4) To provide public education: By having clarity on this topic, public education can be received properly by the people in society.
5) To have media and political accountability: – accountability in media and political matters can be entertained properly by giving them a difference between free speech and hate to set a line between liberty and liability on the right to speech
and expression.

CONCLUSION: –

Article 19 (1)(a) of the Indian Constitution provides the Right to Speech and Expression as a fundamental right to the citizens of the country, within some restrictions put forth by Article 19(2) of the Constitution as well. Several statutes, including the Bharatiya Nyaya Sanhita (BNS), 2023, the Information Technology Act, 2000, and the Representation of the People’s Act, 1951, among others, support this Article in various ways. There have been many recent judgments and developments made by the judiciary for these purposes in various ways. However, the clarity between liberty and liability is not established properly, and there is no legal definition given for “hate speech” to differentiate it from free speech. Which proceeds to defamation, decency, immorality and nuisance variously and contributes to
a non-civilised society properly. In this way, the differentiation between the two regarding the right to freedom of speech and expression becomes necessary, and clarity about free speech and its exclusion from
hate speech can establish these scenarios in a better manner.