Published On: October 5th 2025
Authored By: Sonakshi Kumar
Shankarrao Chavan law College
Abstract
This paper explores the complex relationship between hate speech and free speech, a central challenge in modern democratic societies. Article 19(1)(a) of the Indian Constitution guarantees the fundamental right to freedom of expression, although this right is not unqualified and may be subject to reasonable limitations. Hate speech, is defined as public communication that incites hatred or violence based on factors like race or religion, is not protected under this right. The paper examines key legal precedents, including Pravasi Bhalai Sangathan v. UOI and Amish Devgan v. UOI, to distinguish between the two concepts. It highlights the essential components of free speech, such as freedom of the press, commercial speech, and the right to information, as established in landmark judgments like Romesh Thappar v. State of Madras and Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. Ultimately, the research identifies the profound harms of hate speech, including incitement to violence, psychological trauma, and the subversion of democracy, while also acknowledging the practical difficulties in drawing a clear line between hate speech and free speech due to the lack of a precise legal definition, the subjective nature of offense, and the challenges posed by online platforms.
Introduction
The tension between hate speech and free speech represents one of the most challenging debates in modern democratic societies. The issue of where to draw the line when speech can endanger others continues to split legal experts, governments, and citizens worldwide, despite the fact that freedom of expression is a basic human right.
Hate Speech is defined in the Dictionary as “public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation” [1].
According to the Dictionary, free speech is “the right to express your opinions publicly [2].
But in legal terms, hate speech is not defined in a single law in India but is addressed through various provisions in the Bhartiya Nyaya Sanhita and other acts. While the Constitution of India guarantees freedom of speech and expression, but this right is not absolute and is subject to reasonable restrictions, including those related to public order, defamation, contempt of court, and inciting criminal activity.
Essential components under freedom of speech and expression
Some of the components that came into force through various case laws are sated below:
- Freedom of Press: This allows the press the rights to circulate and publish information, to conduct interviews, to report court proceedings and also to advertise through print, broadcast, and online media.
In Romesh Thappar v State of Madras (1950) [3], the Supreme Court, by a majority of 5:1, decided in favour of Romesh Thappar. It was a landmark judgement as the court held that freedom of speech and expression explicitly includes the freedom of the press.
The court underlined in Sakal Papers v. Union of India (1962) [4], that press freedom is an essential requirement for free speech. The court also stated that, a law that restricts the number of pages, the content or the price of a newspaper, directly limits the promulgation of ideas and information and such law in invalid.
- Freedom of Commercial Speech: It allows constitutional protection to the speech that proposes commercial transaction, such as an advertisement for a product or a service.
A significant ruling in favor of Tata Press Ltd. was rendered in the 1995 case of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd [5]. The Court ruled that one of the fundamental components of freedom of speech and expression is commercial speech. The court asserts that in a democracy, customers must have access to free commercial information in order to make informed judgments.
- Right to information: It allows the citizens to question the government about its working to promote openness and accountability in government operations.
In Association for Democratic Reforms vs Union of India (2002) [6], It stated that for a country to work democratically, citizens must have access to information about their rulers. Without this information, regarding candidate’s criminal and financial background, the voter cannot make an informed choice.
- to criticize: One aspect of freedom of speech and expression that guarantees and upholds accountability to citizens is constructive criticism of the government.
- Right to remain Silent: This provides the right to the individuals to not to speak or express their ideas or information if they choose not to do so.
The court ruled in Bijoe Emmanuel & Ors vs. State of Kerala & Ors (1986) [7], that the right to silence is a part of the right to speak. The court reasoned that forcing someone to say against their conscience would be a violation of their right to freedom of expression.
Constitutional and Statutory Provisions Governing Hate speech and Free speech
Constitutional provision:
Article 19(1)(a): The freedom to openly communicate one’s thoughts, opinions, and ideas is guaranteed by Article 19(1)(a). This covers the freedom to communicate verbally, in writing, in print, through visual aids or in any other way. However, for the sake of India’s sovereignty and integrity, the security of the State, good relations with other countries, public order, decency or morality, contempt of court, defamation, incitement to an offense, or the sovereignty and integrity of Parliament, this right may be subject to reasonable limitations [8].
Article 19 (2): Nothing in clause (1) subclause (a) will interfere with the operation of any current laws or stop the State from enacting new ones insofar as those laws place reasonable limitations on the exercise of the rights granted by the aforementioned subclause in the interests of India’s sovereignty and integrity, state security, friendly relations with other countries, public order, decency or morality, or in connection with contempt of court, defamation, or incitement to an offense [9].
Bharatiya Nyaya Sanhita provisions:
Section 196: Encouraging animosity between various groups based on religion, race, place of birth, residence, language, etc., and engaging in actions that undermine the preservation of harmony through spoken or written words, signs, or visual representations, or otherwise, is punishable by up to three years in prison, a fine, or both. The promotion or attempt to promote animosity, hatred, or ill-will between various religious, racial, language, or regional groups, castes, or communities is prohibited [10].
Section 353: Anyone who makes or spreads statements or rumours with the intention of inciting fear among military personnel, inciting crime against the state of public peace or inciting animosity among various social or religious groups faces up to three years in prison a fine or both [11]
In Pravasi Bhalai Sangathan v. Union of India (2014) [12], the difference between hate speech and free speech was made clear and it also stated though Article 19(1)(a) guarantees freedom of speech. The Court acknowledged that hate speech is not protected by free speech since it incites hatred, discrimination, and violence, undermining the fundamental basis of a democratic, pluralistic society. It also pointed out that hate speech can have a wider societal impact than just upsetting people
In Amish Devgan v. Union of India (2020) [13], court examined the difference between hate and free speech and also provided crucial guidelines regarding to differentiate between hate speech and free speech.
Impact of Hate Speech
No country is immune from hate speech and it causes harm like:
- Hate speech causes psychological stress and trauma and this can also bring out psycho-social problems.
- It disrupts harmony in the society and the victims do not feel the same belongingness towards the community they belong to.
- Hate speech can attract brutal violence and communal riots disrupting the peace in a society.
- Hate speech is a direct attack on democracy as it creates an environment of fear and hostility.
The practical challenges of distinguishing between hate speech and free speech
Some of the practical difficulties are:
- There is no clear and comprehensive legal definition of hate speech.
- It is difficult to know the context and intent of the speaker which is essential to prove hate speech.
- Repercussions for hate speech can incite fear amongst people to raise their opinions and this can, on the other hand, effect the democratic environment of the country.
- Due to increasing use of social media and online platforms it has become nearly impossible to track or act on any instance of hate speech.
- Hate speech is a very subjective term that means one person can find it offensive but to another it may be harmless.
Conclusion
The tension between free speech and hate speech is a perennial challenge that requires a delicate and nuanced approach, particularly in a diverse democracy like India. While the Indian Constitution provides robust protection for freedom of expression, the judiciary, through landmark cases, has consistently emphasized that this right is not a license for unbridled hatred. The cases of Pravasi Bhalai Sangathan v. UOI and Amish Devgan v. UOI are pivotal in clarifying that hate speech, by its very nature of inciting hatred, discrimination, and violence, falls outside the protective ambit of Article 19(1)(a). The paper has demonstrated that the essential components of free speech from the freedom of the press to the right to information are vital for a functioning democracy. However, these rights are not without limits. The legislative provisions in the Bharatiya Nyaya Sanhita, coupled with judicial pronouncements, attempt to strike a balance by criminalizing speech that promotes enmity and undermines social harmony. Despite these legal safeguards, the practical difficulties in distinguishing between the two remain significant. The lack of a clear legal definition, the subjective nature of offense, and the rapid proliferation of hate speech on online platforms make enforcement a complex task. Ultimately, a lasting solution lies not just in stricter laws but in fostering a societal culture of tolerance, critical thinking, and empathy, where the power of free speech is harnessed for constructive dialogue rather than destructive divisiveness.
References
[1] hate speech, noun. Cambridge Dictionary, Cambridge University Press
[2] free speech, noun. Cambridge Dictionary, Cambridge University Press
[3] Romesh Thappar v State of Madras, AIR 1950 SC 124
[4] Sakal Papers v Union of India, AIR 1962 SC 305
[5] Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd, (1995) 5 SCC
[6] Association for Democratic Reforms vs Union of India, (2002) 5 SCC 294
[7] Bijoe Emmanuel & Ors vs State of Kerala & Ors, 1986 (3) SCC 615
[8] Article 19(1)(a), constitution of India
[9] Article 19(2), constitution of India
[10] Section 196, Bharatiya Nyaya Sanhita (2003)
[11] Section 353, Bharatiya Nyaya Sanhita (2003)
[12] Pravasi Bhalai Sangathan v. UOI, AIR 2014 SC 1591
[13] Amish Devgan v. UOI, (2020) 1 SCC 1
