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

Abstract

The conflict between the fundamental right to freedom of speech and expression (Article 19(1)(a)) and the imperative of communal harmony is a critical constitutional dilemma in India, structurally addressed by subjecting the right to the exhaustive restrictions of Article 19(2), notably “public order” and “incitement to an offence.” This article provides a comprehensive analysis of the Supreme Court’s “reasonable restriction” test. It traces the evolution of this jurisprudence from the post-Independence validation of communal laws in Ramji Lal Modi v. State of U. P[1] which established the “proximate and direct nexus” test—to the modern digital safeguards set forth in Shreya Singhal v. Union of India (2015), which introduced the doctrines of constitutional vagueness and the chilling effect. The analysis integrates the criminal law framework under the new Bharatiya Nyaya Sanhita, 2023 (BNS) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). It affirms that the judicial balancing act demands both the restriction’s proportionality and proof of malicious mens rea (as established in Manzar Sayeed Khan) to target genuine incitement to hatred.[2] Ultimately, the jurisprudence confirms that the freedom to hate cannot exist where it threatens the equality, dignity (Article 21), and public peace of the nation, requiring stringent judicial oversight to prevent the statutes’ misuse against legitimate political dissent.

Keywords

Freedom of speech, Equality, Public order, Reasonable restrictions, State power, Modern scrutiny, Tendency test, Hate speech.

Introduction

The Constitution of India, forged in a period of intense communal and political upheaval, deliberately granted a qualified right to free expression. While Article 19(1)(a) is a democratic pillar, it is immediately limited by Article 19(2), which enumerates the specific and exhaustive grounds upon which the State can impose “reasonable restrictions.” These grounds, notably public order and incitement to an offence, form the constitutional basis for regulating hate speech.

The legal landscape governing the punishment of hate speech has recently been codified under the Bharatiya Nyaya Sanhita, 2023 (BNS), replacing the Indian Penal Code, 1860 (IPC). However, the constitutional principles derived from decades of Supreme Court jurisprudence remain the final authority. The judicial task is to ensure that the restrictions, whether legislative or executive, meet the non-negotiable standard of reasonableness and maintain the spirit of liberty.

Validating State Power: The Foundational Jurisprudence

The initial phase of jurisprudence focused on establishing the necessary direct link between restricted speech and the maintenance of public order.

1. Ramji Lal Modi and the Proximate Nexus Test

The landmark case of Ramji Lal Modi v. State of U.P.[3] is the touchstone for validating laws against religious offence.[4] The challenge was directed at the predecessor section to the current BNS provision against outraging religious feelings.[5] The Supreme Court upheld the law, ruling that for a restriction to be valid under Article 19(2), it must have a “proximate and direct nexus” with the maintenance of Public Order.

The Court reasoned that deliberately insulting religious beliefs has an inherent “tendency” to provoke violence, which satisfied the direct nexus requirement. This “tendency” test prioritized social security over absolute liberty, legitimizing the State’s pre-emptive power to curtail communally inflammatory speech.

2. Distinguishing Causes and Consequences: The Incitement Threshold

While Ramji Lal Modi confirmed the State’s power to restrict speech, subsequent judgments constrained how remote the link to public disorder could be. In Superintendent, Central Prison v. Ram Manohar Lohia[6], the Supreme Court struck down a law that punished incitement that was merely likely to cause public mischief.

The Court demanded that the connection between the speech and public disorder must be close and integral, like a “spark in a powder keg,” and not a remote or fanciful possibility. This principle, reinforced in the sedition case of Kedar Singh v. State of Bihar,[7] requires the State to prove the intent or propensity of the speech to create disorder or incite to violence. This prevents the prosecution of mere abstract criticism or hostile opinion.

The Statutory Framework Under BNS: Defining Criminal Intent

The criminal procedure governing arrests and investigations is now covered by the Bharatiya Nagarik Suraksha Sanhita (BNSS), but the definitions of hate crimes are in the BNS. Judicial scrutiny remains vital to ensure these statutes comply with the “reasonable restriction” mandate of Article 19(2).

1. Promoting Enmity: BNS Section 196

The primary tool against hate speech is BNS Section 196 (corresponding to former IPC Section 153A), which criminalizes promoting enmity, hatred or ill-will between different groups.[8]

The constitutional interpretation of this section is governed by Manzar Sayeed Khan v. State of Maharashtra.[9] The Supreme Court mandated a strict, objective test for conviction, requiring the effect of the offending words to be judged from the standards of “reasonable, strong-minded, firm and courageous men. This crucial standard ensures that the law targets genuine incitement, and not the over-sensitive reactions of “weak and vacillating minds,” thereby requiring proof of malicious intent to incite communal hatred.[10]

2. Outraging Religious Feelings: BNS Section 197(1)(b) and the Contextual Test

The offense of outraging religious feelings is now covered under BNS Section 197(1)(b). Here, the judicial analysis frequently employs the contextual test to determine intent. In Ramesh v. Union of India,[11] the Court protected a film depicting communal violence, ruling that if the overall message of the work is to promote peace, the inclusion of hateful elements for artistic or corrective purposes does not violate the constitutional standard.[12]

The Digital Age Challenge: Protecting Free Speech Online

The constitutional principles of vagueness and the chilling effect established in the digital age are essential guardrails against arbitrary state action, regardless of the new criminal codes.[13]

1. Shreya Singhal and the Chilling Effect Doctrine

The case of Shreya Singhal v. Union of India (2015) is a landmark victory for digital free speech. The Court struck down Section 66A of the Information Technology Act on grounds directly related to Article 19(2)[14]

1. Constitutional Vagueness: Terms like “grossly offensive” were found to be vague and indefinable.
2. Overbreadth and Lack of Nexus: The provision restricted speech based merely on annoyance, which fell outside the permissible heads of public order or incitement in Article 19(2). The Court firmly established the distinction between protected discussion/advocacy and unprotected incitement.
3. The Chilling Effect: The Court explicitly recognized that the law’s vagueness would lead to individuals self-censoring legitimate speech for fear of arbitrary state action.

Shreya Singhal demands that any future legislation under the BNS/BNSS framework be narrowly tailored and strictly comply with the restrictive heads of Article 19(2).

2. Modern Scrutiny: The Status of the Speaker

In Amish Devgan v. Union of India,[15] the Supreme Court provided criteria for applying the incitement test to powerful media figures. The Court stressed that the ultimate test is whether the speech creates hostility, enmity, or hatred between groups. Key factors for determining intent include the context and effect of the speech, the audience, the status of the speaker, and the need to differentiate strong disagreement from actual incitement.

The Horizontal and Dignitary Dimensions

Modern jurisprudence has deepened the rationale for restricting hate speech by linking it to the core principles of dignity and equality guaranteed under Article 21 (Right to Life). Hate speech is viewed as a direct assault on the dignity and equal social standing of targeted groups, justifying state intervention under Article 19(2) to protect the fundamental rights of all citizens.

Despite the expansion of this dignitary framework, the judiciary maintains strict textual adherence to Article 19(2). In the Constitution Bench ruling of Kaushal Kishore v. State of U.P.[16] the Court firmly re-asserted that the grounds for restricting free speech are exhaustive and confined only to those specified in Article 19(2). This ruling ensures that restrictions on speech must always be traceable to the explicit constitutional text, preventing the creation of novel restrictions.

Conclusion: The Constitutional Equilibrium

The Indian constitutional equilibrium, now enforced under the BNS/BNSS statutory regime, demands a rigorous balance between liberty and public order. The entire framework is governed by Article 19 jurisprudence, which insists on a high standard of proximate nexus and proof of malicious mens rea for the restriction of speech. Landmark rulings, from Ramji Lal Modi[17] to Shreya Singhal, consistently demonstrate the judiciary’s dual role: legitimizing the State’s power to protect communal peace while acting as a vigilant sentinel against its arbitrary overreach. The courts effectively separate protected political and social critique from unprotected incitement to violence. This system affirms that while free expression is fundamental, the freedom to hate cannot exist where it threatens the equality, dignity (Article 21), and life of others, or the communal peace of the nation. Judicial oversight is, therefore, the final, indispensable guarantor of both liberty and harmony in India’s diverse democracy.

References:

1. P. Jain, Indian Constitutional Law (8th ed. 2018).
2. Mahendra P. Singh, N. Shukla’s Constitution of India (13th ed. 2021).
3. Granville Austin, Working A Democratic Constitution: The Indian Experience (1999).
4. Rajeev Dhavan, The Constitution of India: A Commentary on The First Amendment (2023).
5. Durga Das Basu, Commentary on The Constitution of India (9th ed. updated).

[1] A.I.R. 1957 S.C. 620

[2] Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 S.C.C. 1 (India)

[3] A.I.R. 1957 S.C. 620

[4]India Const. art. 19, cl. 2 (as amended by the Constitution (Sixteenth Amendment) Act, 1963).

[5] Ramji Lal Modi v. State of U.P., A.I.R. 1957 S.C. 620 (India)

[6] A.I.R. 1960 S.C. 633

[7] A.I.R. 1962 S.C. 955

[8] Superintendent, Central Prison v. Ram Manohar Lohia, A.I.R. 1960 S.C. 633, 639 (India).

[9] (2007) 5 S.C.C. 1

[10] Kedar Nath Singh v. State of Bihar, A.I.R. 1962 S.C. 955, 970 (India).

[11] A.I.R. 1988 S.C. 1033

[12] Bharatiya Nyaya Sanhita, 2023, § 196 (corresponding to former IPC § 153A) (India).

[13] Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 S.C.C. 1, ¶ 16 (India).

[14] Shreya Singhal v. Union of India, A.I.R. 2015 S.C. 1523 (India).

[15] (2021) 1 S.C.C. 1.

[16] (2023) 4 S.C.C. 1.

[17] A.I.R. 1957 S.C. 620