Hate Speech vs. Free Speech: A Constitutional and Legal Balancing Act

Abstract

Freedom of speech and expression is one of the most celebrated rights in a democratic polity. Enshrined in Article 19(1)(a) of the Constitution of India, it is considered a precondition for the flourishing of democracy, the exchange of ideas, and the pursuit of truth.^[1] However, Article 19(2) tempers this liberty by providing for “reasonable restrictions” in the interests of sovereignty, integrity, public order, decency, morality, and other specified grounds.^[2] Hate speech — broadly understood as expression that incites hostility or discrimination against individuals or groups on the basis of characteristics such as religion, caste, ethnicity, race, language, gender, or sexual orientation — lies at the intersection of these two provisions.^[3] It tests the limits of tolerance in a democracy while posing challenges to social harmony and equality.

This article examines the constitutional architecture governing free speech in India, statutory provisions addressing hate speech, and judicial efforts to define the permissible boundaries of expression. It also draws on comparative perspectives from jurisdictions such as the United States and the European Court of Human Rights (ECHR) to highlight different approaches to balancing liberty with protection. The discussion culminates in recommendations for crafting a proportionate, precise, and procedurally safeguarded framework that respects both constitutional freedoms and the dignity of vulnerable communities.

Introduction

Freedom of speech is both a moral and political imperative in democratic governance. It safeguards citizens’ ability to critique authority, disseminate ideas, and participate in public discourse. Article 19(1)(a) embodies this vision, drawing inspiration from liberal constitutional thought and the jurisprudence of open societies.^[4] Yet, the framers of the Indian Constitution recognised that speech could also be a tool of disruption, division, and harm, particularly in a country as diverse and sometimes volatile as India.

The inclusion of Article 19(2) in its amended form in 1951^[5] reflected an early recognition that absolute speech rights could threaten communal peace and stability. This dual structure, an expansive guarantee in Article 19(1)(a) and a detailed list of permissible restrictions in Article 19(2), sets the stage for the constitutional balancing act that underpins hate speech regulation.

The tension between protecting liberty and preventing harm is heightened in plural societies. Words that may be mere opinion in one context can, in another, ignite communal violence. The challenge for law and courts is to develop a principled framework that punishes dangerous expression without chilling legitimate dissent.^[6]

Constitutional Framework in India

Article 19(1)(a) of the Constitution of India guarantees to every citizen the right to freedom of speech and expression.^[7] This provision is interpreted liberally, covering spoken and written words, symbolic conduct, artistic works, audiovisual media, and even the right to receive and impart information.^[8] The Supreme Court has consistently recognised that this right is not merely about individual self-expression but also about enabling public participation in governance and fostering an informed citizenry.^[9]

However, Article 19(2) qualifies this guarantee by permitting the State to impose “reasonable restrictions” on specified grounds — namely, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, and incitement to an offence.^[10] These restrictions are exhaustive; no additional grounds can be read into the constitutional text.^[11]

The concept of “reasonable restrictions” has been a cornerstone of Indian free speech jurisprudence. In State of Madras v. V.G. Row, the Supreme Court held that the test of reasonableness must account for the nature of the right infringed, the purpose of the restriction, the urgency of the evil sought to be prevented, the proportionality of the restriction to the harm, and the prevailing conditions at the time.^[12] This proportionality analysis requires the State to demonstrate that the measure is narrowly tailored to achieve a legitimate aim under Article 19(2).

In Romesh Thappar v. State of Madras, the Court invalidated a pre-censorship order banning the entry of a political journal into the State of Madras, reasoning that “public order” under Article 19(2) cannot be conflated with general public safety and that only speech having a proximate connection to one of the enumerated harms can be curtailed.^[13]Later cases, such as Superintendent, Central Prison v. Ram Manohar Lohia, further refined this test by insisting on a “proximate and reasonable connection” between the speech in question and the apprehended danger.^[14]

The constitutional text does not explicitly mention “hate speech” as a separate ground for restriction. Any regulation of hate speech must therefore be subsumed under existing Article 19(2) grounds — most commonly “public order,” “decency or morality,” or “incitement to an offence.” This structural choice means that hate speech laws in India are always measured against the dual requirements of (a) fitting within one of the enumerated grounds and (b) meeting the reasonableness and proportionality standards set by the Court.

Defining Hate Speech & Its Harms

Hate speech as a legal and philosophical category is inherently difficult to define with precision. The Indian legal system does not have a consolidated statutory definition, resulting in a piecemeal approach where various provisions of the Indian Penal Code, the Representation of the People Act, and other laws capture aspects of the phenomenon.^[15] The absence of a singular legislative definition often forces courts to interpret statutory language such as “outraging religious feelings” or “promoting enmity” on a case-by-case basis, leading to uneven application.

The Law Commission of India’s 267th Report attempted to provide conceptual clarity by recommending that hate speech be defined as any form of expression — whether spoken, written, or symbolic — that employs threatening, abusive, or insulting language or behaviour with the intent to incite violence, discrimination, or hostility against a person or group based on characteristics such as religion, caste, ethnicity, language, gender, sexual orientation, or other protected attributes.^[16] This definition aligns with international norms such as Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), which obligates States to prohibit advocacy of hatred constituting incitement to discrimination, hostility, or violence.^[17]

Hate speech is not merely a matter of offensiveness; it is distinguished from general insult or robust criticism by its capacity to cause concrete harms. These harms manifest in multiple dimensions:

1. Public Order Harm – In a country as socio-culturally diverse as India, communal relations are often sensitive to inflammatory rhetoric. Hate speech can act as a catalyst for riots, mob violence, or retaliatory attacks, particularly in times of political mobilisation or communal tension. Historical incidents, such as speeches preceding communal clashes, illustrate that certain types of speech can have a direct causal connection to large-scale unrest.^[18]
2. Dignitary Harm – Beyond immediate disorder, hate speech inflicts harm by attacking the inherent dignity of individuals and communities. Articles 14 and 21 of the Constitution recognise equality and the right to life with dignity as fundamental values.^[19] The Supreme Court in Amish Devgan v. Union of India recognised that hate speech undermines these guarantees by portraying targeted groups as inferior, unworthy of respect, or deserving of hostility.^[20]
3. Participatory Harm – Hate speech can deter members of targeted communities from engaging fully in public life, political debate, and civic spaces. When individuals believe that participation will expose them to abuse, threats, or discrimination, the quality of democratic deliberation diminishes. Over time, this can lead to systemic exclusion and weaken the representative character of democratic institutions.

The philosophical foundation for regulating hate speech in this manner resonates with the dignitarian approach prominent in European jurisprudence. This approach views free expression not solely as an individual liberty but as part of a democratic framework where all citizens must be able to participate as equals. Speech that strips others of dignity or marginalises their voices is seen as incompatible with a functioning democracy.^[21] Thus, the regulatory aim is not to protect individuals from offence per se, but to safeguard the conditions of equal citizenship necessary for meaningful democratic participation.

Indian Statutory Provisions on Hate Speech

The Indian legal framework addressing hate speech is dispersed across multiple statutes, with the Indian Penal Code, 1860 (IPC) serving as the primary repository of criminal provisions. These sections aim to maintain communal harmony, protect religious sentiments, and prevent public disorder.

1. Section 153A — Promoting enmity between different groups
   Section 153A criminalises acts that promote disharmony, feelings of enmity, hatred, or ill will between different religious, racial, language, or regional groups.^[22] It also penalises acts prejudicial to the maintenance of harmony, including speech, writing, signs, or visible representations. The offence is cognisable and non-bailable, and conviction may result in imprisonment for up to three years, or up to five years if committed in a place of worship. The provision requires proof of both intent and the likelihood that public tranquillity will be disturbed. Courts have held that stray or isolated remarks without the requisite intent do not attract liability.^[23]
2. Section 295A — Outraging religious feelings
   Enacted in 1927 after the Rangila Rasool controversy, Section 295A penalises deliberate and malicious acts intended to outrage the religious feelings of any class of citizens by insulting its religion or religious beliefs.^[24] It requires the twin elements of (a) deliberate intent and (b) malice, thereby excluding casual remarks or unintentional statements. In Ramji Lal Modi v. State of U.P., the Supreme Court upheld the constitutionality of this section, reading it narrowly to apply only to aggravated forms of insult that have the tendency to disrupt public order.^[25]
3. Section 505 — Statements conducing to public mischief
   Section 505(1) penalises the making, publishing, or circulating of any statement, rumour, or report with intent to cause fear or alarm to the public, whereby any person may be induced to commit an offence against the State or public tranquillity.^[26] Section 505(2) specifically addresses statements creating or promoting enmity, hatred, or ill will between classes. The focus is on preventing speech that could trigger unrest or hostility among groups.
4. Information Technology Act, 2000 — Online hate speech
   While the IPC covers most offline speech, the Information Technology Act, 2000 provides mechanisms to regulate online hate content. Section 69A authorises the blocking of public access to information in the interest of sovereignty, integrity, and public order.^[27]

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 impose duties on social media platforms to remove unlawful content within specified timelines. However, provisions such as Section 66A, struck down in Shreya Singhal v. Union of India for vagueness and overbreadth, highlight the dangers of poorly drafted speech regulations.^[28]

Key Judicial Pronouncements in India

Judicial interpretation has been central to defining the permissible scope of hate speech regulation under the Constitution. Several landmark cases illustrate the balancing act between protecting free speech and safeguarding public order and dignity.

1. Kedar Nath Singh v. State of Bihar
   In this 1962 decision, the Supreme Court upheld the constitutional validity of Section 124A (sedition) but confined its application to speech or acts involving incitement to violence or intention to create public disorder.^[29] The Court stressed that mere criticism of the government, however strong, is protected unless it has a proximate tendency to incite violence. This “proximity requirement” has become a cornerstone for assessing restrictions under Article 19(2).
2. Pravasi Bhalai Sangathan v. Union of India
   Here, the Supreme Court acknowledged the serious harm posed by hate speech but declined to issue judicially crafted guidelines to curb it, noting that such matters required legislative action.^[30] The Court urged Parliament to consider more specific statutory measures, but emphasised that restrictions must still satisfy constitutional standards.
3. Shreya Singhal v. Union of India
   In 2015, the Supreme Court struck down Section 66A of the IT Act for being vague and overbroad.^[31] The judgment is significant for clarifying that speech can be restricted only if it falls under one of the Article 19(2) grounds and that the law must be narrowly drawn to avoid chilling legitimate expression. The Court distinguished between “advocacy” and “incitement,” protecting the former and allowing regulation of the latter only when it posed imminent danger.
4. Amish Devgan v. Union of India
   In 2020, the Supreme Court refused to quash multiple FIRs filed against a television anchor who referred to a Sufi saint as an “attacker.”^[32] The Court held that hate speech laws apply where the content, in its full context, is capable of promoting hatred or ill will, and that public figures bear a heightened responsibility to avoid divisive statements.

Comparative Insights

A meaningful examination of hate speech regulation benefits from looking beyond domestic jurisprudence to see how other constitutional systems have addressed the tension between liberty and harm. While the Indian Constitution and courts have charted their own path under Articles 19(1)(a) and 19(2), both U.S. First Amendment doctrine and European human rights law offer instructive contrasts.

A. United States — The Imminence Requirement

In the United States, the First Amendment to the Constitution provides one of the world’s strongest protections for speech.^[33] The leading standard for incitement is found in Brandenburg v. Ohio, where the U.S. Supreme Court held that the State may only punish advocacy if it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.”^[34] This “imminence” requirement places heavy emphasis on temporal proximity and probability of harm, making it extremely difficult to regulate hate speech unless it is accompanied by a direct, immediate threat.^[35]

Under this framework, speech that is offensive, bigoted, or shocking is generally protected unless it falls into narrowly defined categories such as “fighting words” (speech intended to provoke an immediate breach of the peace)^[36] or “true threats” (serious expressions of intent to commit unlawful violence).^[37] While this approach maximises expressive freedom, critics argue it neglects the dignitary and participatory harms that can result from unchecked hate speech.

B. European Court of Human Rights — The Proportionality Approach
The European Court of Human Rights (ECHR) adopts a more balanced approach under Article 10 of the European Convention on Human Rights, which protects freedom of expression, subject to restrictions “necessary in a democratic society” for purposes such as protecting the rights of others and maintaining public order.^[38] The ECHR also applies Article 17, which prohibits the abuse of rights to destroy other Convention rights. In Erbakan v. Turkey, the Court upheld restrictions on a politician’s religiously divisive statements, emphasising the duty of politicians to avoid speech that fosters intolerance.^[39]

This proportionality analysis considers the context of the speech, the speaker’s influence, the vulnerability of the target group, and the risk of social unrest. Unlike the U.S. model, which narrowly focuses on imminence, the ECHR’s test allows regulation where speech undermines democratic equality or promotes discrimination, even absent an immediate threat of violence.

C. International Law Standards
Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) requires states to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”^[40] The United Nations’ Rabat Plan of Action provides a six-part threshold test for assessing incitement: (1) context, (2) speaker, (3) intent, (4) content, (5) extent of dissemination, and (6) likelihood, including imminence, of harm.^[41] These standards seek to reconcile freedom of expression under Article 19 of the ICCPR with the obligation to protect against discriminatory harm under Article 20(2).

Balancing Tests & Doctrinal Approaches

Indian courts have not formally codified a hate speech balancing test, but their jurisprudence under Article 19(2) reflects an implicit proportionality analysis. In practice, courts assess several factors:

1. Nature and Intent of the Speech — Was the expression intended to persuade, provoke debate, or incite harm? Speech with a deliberate intent to promote hatred is more likely to be restricted.^[42]
2. Imminence and Likelihood of Harm — Consistent with Ram Manohar Lohia and Kedar Nath Singh, courts look for a proximate connection between the speech and the potential disorder.^[43]
3. Vulnerability of the Target Group — Hate speech directed at historically marginalised communities may be treated as more harmful, given its potential to exacerbate structural inequality.^[44]
4. Medium and Reach — Speech disseminated via mass media or social media platforms is more likely to have a greater harmful impact than speech in a small, private setting.
5. Availability of Less Restrictive Alternatives — Restrictions should be a last resort, with preference for counter-speech, civil remedies, or narrowly targeted sanctions.^[45]

The Law Commission of India has proposed codifying such a balancing framework in legislation to guide law enforcement and reduce arbitrary application.^[46] Academic commentators have also urged adopting clear statutory definitions incorporating both intent and harm, drawing from the Rabat Plan to ensure proportionality and context-sensitive evaluation.^[47]

Challenges & Risks in Regulation

While the need to address hate speech is undisputed, designing and enforcing laws in this area is fraught with constitutional and practical challenges. Indian experience demonstrates that the problem is not only whether to regulate, but how to regulate without undermining the foundational commitment to free expression.

1. Overbreadth and Vagueness
   A recurring risk is that statutory language may be framed too broadly or vaguely, allowing for subjective interpretation.^[48] Provisions that prohibit “hurting sentiments” or “offensive content” without clear definitions invite arbitrary enforcement. In Shreya Singhal v. Union of India, the Supreme Court struck down Section 66A of the IT Act precisely because its vague terms—such as “grossly offensive” and “menacing”—could encompass a wide range of protected speech.^[49]
2. Selective Enforcement and Political Misuse
   Hate speech laws, when loosely drafted, can become tools for silencing political dissent.^[50] Governments and law enforcement agencies may target opposition leaders, journalists, or activists under the guise of maintaining public order, while ignoring similar speech from politically aligned actors. This selective application erodes public trust and undermines the legitimacy of hate speech regulation.
3. Under-Enforcement and Impunity
   Conversely, there are numerous instances where authorities fail to act against harmful speech that meets the threshold of incitement.^[51] The lack of timely prosecution emboldens perpetrators and can contribute to a normalisation of hate-filled rhetoric. Under-enforcement is often compounded by political considerations, capacity limitations within the police, and evidentiary challenges in proving intent and causation.
4. Chilling Effect on Legitimate Speech
   Even when laws are not enforced, their mere existence—if overly broad—can have a chilling effect, deterring individuals from engaging in legitimate debate, satire, or artistic expression for fear of legal consequences.^[52] Such self-censorship is antithetical to democratic deliberation and disproportionately affects marginalised voices who may already face structural barriers to participation.
5. Enforcement in the Digital Age
   The rise of social media has amplified both the reach and speed of hate speech dissemination.^[53] The scale of online platforms makes monitoring and enforcement difficult, while the global nature of digital communication poses jurisdictional hurdles. Content removal mechanisms can also be misused to suppress unpopular political opinions, raising concerns about due process and transparency.

Recommendations for India

Given these challenges, India needs a calibrated, constitutionally sound approach to regulating hate speech. The objective must be to deter and punish genuinely harmful expression without chilling legitimate dissent or debate.

1. Statutory Clarity and Precision
   Parliament should enact a clear, narrowly tailored statutory definition of hate speech.^[54] The definition should incorporate both intent (to incite hostility, discrimination, or violence) and harm (imminent risk or actual occurrence), aligned with Article 19(2) grounds and Supreme Court jurisprudence.
2. High Threshold for Criminalisation
   Criminal sanctions should be reserved for intentional, targeted expression that presents a real and imminent risk of harm.^[55] Mere offensiveness, political criticism, or unpopular opinion should never meet the threshold for prosecution.
3. Procedural Safeguards
   Before registering an FIR or initiating prosecution for hate speech, prior sanction from a judicial or independent authority should be mandatory.^[56] This safeguard can help prevent frivolous or politically motivated cases, while ensuring judicial oversight at the inception stage.
4. Alternative and Complementary Remedies
   Civil remedies—such as damages, injunctions, or mandatory apologies—should be encouraged in cases that do not meet the criminal threshold.^[57] Counter-speech campaigns, fact-checking initiatives, and community dialogues can also mitigate harm without resorting to punitive measures.^[58]
5. Training and Capacity Building
   Law enforcement officers, prosecutors, and magistrates should receive regular training on constitutional free speech principles, international human rights standards, and the socio-political contexts of hate speech.^[59] Such training would promote consistency, reduce arbitrary enforcement, and foster a rights-based approach to regulation.
6. Transparency and Accountability in Digital Regulation
   Content takedown orders under Section 69A of the IT Act should be accompanied by written reasons, subject to review, and publicly disclosed to the extent possible without compromising investigations.^[60] This will enhance public trust and align India’s digital governance with due process requirements.

Conclusion

Balancing free speech and hate speech regulation is one of India’s most delicate constitutional tasks. Article 19(1)(a) protects expression, while Article 19(2) permits restrictions to safeguard public order, decency, and the rights of others.^[61] Indian courts, through cases like Kedar Nath Singh, Shreya Singhal, and Amish Devgan, have adopted a harm-based approach that protects robust debate but restricts incitement and discriminatory speech.^[62]

The way forward is clear statutory definitions, high thresholds for criminalisation, procedural safeguards, and transparency in enforcement.^[63] India need not aim to eliminate all offensive speech, but must ensure that expression does not silence or endanger vulnerable voices.^[64] Striking this balance affirms both liberty and equality as complementary pillars of constitutional democracy.^[65]

 References

^[1] INDIA CONST. art. 19, cl. 1(a); see also Romesh Thappar v. State of Madras, 1950 SCR 594, 597 (India) (emphasizing the centrality of free speech to democracy).

^[2] INDIA CONST. art. 19, cl. 2; see State of Madras v. V.G. Row, AIR 1952 SC 196, 199 (India) (holding that restrictions must be “reasonable” and proportionate to the objective sought).

^[3] Law Comm’n of India, 267th Report on Hate Speech 1–2 (2017) (defining hate speech as expression inciting hostility or discrimination based on identity factors); International Covenant on Civil and Political Rights art. 20(2), Dec. 16, 1966, 999 U.N.T.S. 171 (requiring prohibition of incitement to discrimination, hostility, or violence).

^[4] INDIA CONST. art. 19, cl. 1(a); see Maneka Gandhi v. Union of India, (1978) 1 SCC 248, 263 (India) (observing that free expression is essential to democracy and liberty).

^[5] See The Constitution (First Amendment) Act, No. 1 of 1951, INDIA CONST. amend. 1 (introducing expanded grounds for restrictions under art. 19(2)); State of Bihar v. Shailabala Devi, AIR 1952 SC 329, 331 (India) (discussing the amended scope of permissible restrictions).

^[6] Superintendent, Cent. Prison v. Ram Manohar Lohia, AIR 1960 SC 633, 637 (India) (requiring a proximate connection between speech and public disorder to justify restriction).

^[7] INDIA CONST. art. 19, cl. 1(a).

^[8] Union of India v. Ass’n for Democratic Reforms, (2002) 5 SCC 294, 309 (India) (recognising the right to receive information as part of free speech); K.A. Abbas v. Union of India, (1970) 2 SCC 780, 798 (India) (holding that freedom of expression includes cinematographic expression).

^[9] Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985) 1 SCC 641, 686 (India) (describing press freedom as essential to democratic functioning).

^[10] INDIA CONST. art. 19, cl. 2.

^[11] Express Newspapers (P) Ltd. v. Union of India, (1959) SCR 12, 120 (India) (noting that art. 19(2) grounds are exhaustive).

^[12] State of Madras v. V.G. Row, AIR 1952 SC 196, 200 (India).

^[13] Romesh Thappar v. State of Madras, 1950 SCR 594, 599 (India).

^[14] Superintendent, Cent. Prison v. Ram Manohar Lohia, AIR 1960 SC 633, 636–37 (India) (requiring proximate connection between speech and public disorder).

^[15] Indian Penal Code, No. 45 of 1860, INDIA CODE, §§ 153A, 295A, 505; Representation of the People Act, No. 43 of 1951, INDIA CODE, § 123(3A).

^[16] Law Comm’n of India, 267th Report on Hate Speech 10–13 (2017).

^[17] International Covenant on Civil and Political Rights art. 20(2), Dec. 16, 1966, 999 U.N.T.S. 171.

^[18] Shreya Singhal v. Union of India, AIR 2015 SC 1523, 1545 (India).

^[19] INDIA CONST. arts. 14, 21.

^[20] Amish Devgan v. Union of India, (2021) 1 SCC 1, 57 (India).

^[21] Alexander Tsesis, Dignity and Speech: The Regulation of Hate Speech in a Democracy, 44 Wake Forest L. Rev. 497, 505–07 (2009).

^[22] Indian Penal Code, No. 45 of 1860, INDIA CODE, § 153A.

^[23] Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431, 435 (India) (holding that mens rea is essential under § 153A).

^[24] Indian Penal Code, No. 45 of 1860, INDIA CODE, § 295A.

^[25] Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, 623 (India).

^[26] Indian Penal Code, No. 45 of 1860, INDIA CODE, § 505.

^[27] Information Technology Act, No. 21 of 2000, INDIA CODE, § 69A.

^[28] Shreya Singhal v. Union of India, AIR 2015 SC 1523, 1548 (India).

^[29] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, 967 (India).

^[30] Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477, 483 (India).

^[31] Shreya Singhal v. Union of India, AIR 2015 SC 1523, 1545–48 (India).

^[32] Amish Devgan v. Union of India, (2021) 1 SCC 1, 55–57 (India).

^[33] U.S. CONST. amend. I.

^[34] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).

^[35] Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29, 30–33 (Michael Ignatieff ed., 2005).

^[36] Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

^[37] Virginia v. Black, 538 U.S. 343, 359 (2003).

^[38] Convention for the Protection of Human Rights and Fundamental Freedoms art. 10, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221.

^[39] Erbakan v. Turkey, App. No. 59405/00, ¶ 64 (Eur. Ct. H.R. 2006).

^[40] International Covenant on Civil and Political Rights art. 20(2), Dec. 16, 1966, 999 U.N.T.S. 171.

^[41] U.N. High Comm’r for Human Rights, Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence, U.N. Doc. A/HRC/22/17/Add.4 (Jan. 11, 2013).

^[42] Amish Devgan v. Union of India, (2021) 1 SCC 1, 56–57 (India).

^[43] Superintendent, Cent. Prison v. Ram Manohar Lohia, AIR 1960 SC 633, 637 (India); Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, 967 (India).

^[44] See Law Comm’n of India, 267th Report on Hate Speech 9–10 (2017).

^[45] Shreya Singhal v. Union of India, AIR 2015 SC 1523, 1545–48 (India).

^[46] Law Comm’n of India, 267th Report on Hate Speech 21–22 (2017).

^[47] See Tsesis, supra note 7, at 512–14 (advocating proportionality-based hate speech regulation).

^[48] Express Newspapers (P) Ltd. v. Union of India, (1959) SCR 12, 120 (India) (warning against vague restrictions).

^[49] Shreya Singhal v. Union of India, AIR 2015 SC 1523, 1548 (India).

^[50] Gautam Bhatia, Offend, Shock, or Disturb: Free Speech Under the Indian Constitution 230–31 (2016).

^[51] Law Comm’n of India, 267th Report on Hate Speech 12–13 (2017).

^[52] K.A. Abbas v. Union of India, (1970) 2 SCC 780, 797 (India) (discussing the chilling effect of vague censorship powers).

^[53] U.N. Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, ¶ 24, U.N. Doc. A/HRC/38/35 (Apr. 6, 2018).

^[54] Law Comm’n of India, 267th Report on Hate Speech 21–22 (2017).

^[55] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, 967 (India).

^[56] Law Comm’n of India, supra note 7, at 22.

^[57] Adrienne Stone, The Comparative Constitutional Law of Freedom of Expression, in The Oxford Handbook of Comparative Constitutional Law 978, 995 (Michel Rosenfeld & András Sajó eds., 2012).

^[58] U.N. High Comm’r for Human Rights, supra note 9, ¶ 36

^[59] Law Comm’n of India, supra note 7, at 23.

^[60] Information Technology Act, No. 21 of 2000, INDIA CODE, § 69A; Shreya Singhal, AIR 2015 SC 1523, 1548 (India).

^[61] INDIA CONST. arts. 19(1)(a), 19(2).

^[62] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, 967 (India); Shreya Singhal v. Union of India, AIR 2015 SC 1523, 1545–48 (India); Amish Devgan v. Union of India, (2021) 1 SCC 1, 55–57 (India).

^[63] Law Comm’n of India, 267th Report on Hate Speech 21–22 (2017).

^[64] John Stuart Mill, On Liberty 33–36 (1859).

^[65] Alexander Tsesis, Dignity and Speech: The Regulation of Hate Speech in a Democracy, 44 Wake Forest L. Rev. 497, 505–07 (2009).