Hate Speech vs. Free Speech: A constitutional and legal balancing act

Abstract

The tension between hate speech and free speech lies at the heart of constitutional democracies, challenging societies to protect individual liberty while preserving public order and dignity. In India, this balancing act is especially complex. The Constitution guarantees the right to freedom of speech and expression under Article 19(1)(a), recognizing it as a cornerstone of democracy. However, this right is not absolute; Article 19(2) allows the state to impose reasonable restrictions in the interests of sovereignty, security, public order, decency, morality, and to prevent incitement to an offence.

Hate speech, broadly understood as expression that incites hatred, discrimination, or violence against specific groups, tests the limits of free expression and often threatens the social fabric. Indian law addresses hate speech through provisions like Sections 153A and 295A of the Indian Penal Code, which prohibit promotion of enmity and deliberate acts intended to outrage religious feelings. The judiciary has played a pivotal role in interpreting these boundaries, emphasizing the need to safeguard liberty while ensuring that speech does not cross into incitement or harm.

This article explores the constitutional and legal framework governing hate speech and free speech in India, analyzing key statutes, landmark judgments, and the underlying principles that guide this delicate equilibrium. By examining how courts and lawmakers navigate the thin line between liberty and liability, the discussion highlights the ongoing challenge of fostering a society where robust debate thrives without endangering vulnerable communities or public harmony.

Introduction

In today’s democracies we see the issue of hate speech in the scale of what is and isn’t free speech. Free speech is a basic right as per Article 19(1)(a) of the Indian Constitution which also includes the rights to put forth your point of view, to dissent, and engage in public life in a constructive way, however it is not an absolute right. When speech goes past the mark into incitement, discrimination or violence which we term as hate speech it becomes a threat to social cohesion and rights of individuals. It is very hard to achieve a balance between the open exchange of ideas which is the base of our democratic structure.

Constitutional Framework

The constitutional structure which puts forward the balance between what is allowed and not between the concepts of hate and free speech in India is that which is presented in Article 19 of the Constitution of India.

Article 19 (1) (a) provides for the basic freedom of speech and expression to all citizens. This right is wide in scope to include not only what is said or written but also forms of art, trade, and symbolic expression which may include use of banners, film, and even that of silence. However this right is not absolute. Article 19(2) puts into place that the state may put in to action “reasonable restrictions” on what is said to the public for:

• 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.

We see the goal is to protect the right to free expression at the same time as we see to not use that right as a platform for promoting hatred, violence, or discrimination which in turn may disrupt social peace or individual’s sense of self worth.

What is Hate Speech?

Hate speech, while not given a specific definition in Indian statutory law is in the public perception to be any type of expression which includes speech, writing, or symbol that brings out hatred, discrimination, enmity or violence against persons or groups which are based on they’re religion, race, caste, tribe, gender, sexual preference or other identity features. In its 267th report the Law Commission of India reported that hate speech is “an incitement to hatred mainly against a group of people defined in terms of race, tribe, gender, sexual orientation, religious belief and the like”.

In what environment speech takes place is very much a factor in which we identify it as hate speech the same words can play out very differently based on context and intent. What sets hate speech apart from free speech is its role in bringing out violence, discrimination or social disharmony which in turn puts at risk the dignity, equality and security of targeted groups as well as public order.

Legal Provisions Related to Hate Speech

Main Elements of the Indian Penal Code (IPC)

• Section 153A: Penalties for promotion of enmosity between different groups which may be based on religion, race, place of birth, residence or language and for actions that break up harmony. Punishment may be up to three years’ imprisonment, a fine, or both.
• Section 153B: Addresses issues which pertain to national unity, which includes action and words that undermine the whole.
• Section 295A: Targets of which are to cause outrage to religious feelings through the inscription of religion or religious beliefs. Penalties up to three years’ imprisonment, a fine, or both.
• Section 298: Penalizes which are directed at provoking the religious sensibilities of any individual. Also a person found guilty is to be put in jail for a term not exceeding one year, fined, or both.
• Section 505(1), 505(2): Penalties for those who spread reports, rumours which create public disorder and fuel enmity, hate, or ill will between groups. Also may be sentenced up to 3 years’ imprisonment, fined, or both.

Other Relevant Laws

• Representation of the People Act, 1951: Sections 123A and 125 put forward that which a person shall not promote enmity during elections; also Section 8 which reports that certain persons are to be disqualified if they do so.
• Protection of Civil Rights Act, 1955: Provision of Civil Rights Act, 1955:. Section 7 outlaws the promotion of untouchability via words or actions.
• 1988 Religious Institutions’ Act: Section 3(g) outlaws the use of religious properties for the cause of enmity or hatred.
• Cable Television Networks (Regulation) Act, 1995: Bans against putting out material which breaks the rules on hate speech.
• Cinematograph Act, 1952: Authorizes authorities to control and ban films which feature hate speech.

Recent and Proposed Changes

• Bharatiya Nyaya Sanhita, 2023: Section 297 will take the place of Section 295A which will see a greater range of cases included which in large part will be of electronic nature and also will put forward the same penalties for what we may see as premeditated and very much intentional actions which are done to upset religious beliefs.
• Hate Crime and Hate Speech (Prevention and Punishment) Bill (Proposed): Seeks out to put forward a definition and punish hate speech which may see penalties of up to three years’ imprisonment or a fine.

Procedural Safeguards

Code of Criminal Procedure, 1973: Sections 95, 107 and 144 see to it that authorities may break up a case, prevent peace breaches, and issue urgent notices for public tranquillity.

Judicial Interpretation

Indian courts have been at the forefront in the issue of hate speech which also relates to free speech. They put forth the importance of the base which is our right to expression while also stressed the issue of public order, dignity and equality.

Key Judicial Principles and Cases

• Difference Between Hate Speech and Free Speech: The Supreme Court has again and again determined that which is labeled free speech does not include hate speech. In a recent ruling the Court said that “hate speech is not a matter of fundamental right” and that we may suppress any put forth which degrades an individual or a community even if it is put forth as a matter of free expression.
• Reasonable Restrictions and Legislative Role: Courts have supported the constitutionality of what Article 19(2) allows in terms of speech which is controlled by the state for the purposes of public order, health and morality. In Campaign against Hate Speech v. State of Karnataka¹ it was reported that although Parliament does not have a specific law on hate speech what we do have are present statutes like the IPC and the Representation of People Act which serve as sufficient remedy.
• Public Order and Dignity: Jurists have in the past used the terms of public order and dignity to pass down rules which suppress hate speech. In the case of Pravasi Bhalai Sangathan v. Union of India² the Supreme Court noted out the issues with hate speech which include exclusion, discrimination and marginalization but did not go as far as to put forward new guidelines, instead they told the Law Commission to look into it.
• Evolving Approach and Reluctance: In spite of strong statements by courts against hate speech and what they see as its dangers, they have also put forth careful, large scale prescriptions into what is considered hate speech at a great length. The judiciary has determined that hate speech is to be separated out from that which is just false or incorrect and that only speech which incites hatred or violence is to which they will apply legal intervention.

Recent Directions

In the wake of an increase in such incidents the Supreme Court has asked police to file reports on issues of hate speech which they may do so without any petition having been filed.

Indian courts over the years have put forward that which is hate speech is out of the purview of free speech they at the same time have passed down that which is reasonable to put in place to protect public order and maintain dignity.

International Perspective

The issue of free versus hate speech is global one in which we see that different countries have put in place a variety of constitutional and legal measures which reflect their own past, values, and social settings.

International Human Rights Law

• Universal Standards: International treaties including the ICCPR put forth large principles. Article 19 protects freedom of expression, but Article 20(2) requires states to suppress what is in the nature of advocacy of national, racial or religious hate which in turn is a call to discrimination, hostility or violence.
• United Nations Approach: The UN reports that we do not put forward free speech as a reason to ignore hate speech, instead we put in place what is necessary to stop the former while at the same time we support the later.

Comparative National Approaches

• United States: The U.S. has the most extensive free speech protection as outlined in the First Amendment which includes that of what is offensive or hateful except for when it calls for the immediate breaking of the law.
• European Union and Member States: Many in Europe have see that based on Council of Europe’s guidelines which has led to the criminalization of what is considered wide ranging forms of hate speech and the application of more severe penalties than what is required by international law. For example in France, Germany and Denmark we see that they have put in place laws which ban public incitement to hatred based on race, religion, or ethnic background and also require social media companies to remove hate speech at once.

Other Jurisdictions: Other Provinces

1. South Africa: Explicitly includes in the realm of criminal speech that which is put forth as hate speech and which incites harm or is directed at large groups based on what may include race, gender, and religion.
2. Norway, Finland, and Poland: Prohibit hate speech via penal codes which in turn see courts grapple with the issue of what is to be considered the line between protected free speech and that which is hateful thus reflecting on going social and judicial issues.
3. China and Russia: Enact punitive measures for acts of incitement to hate or discrimination which will have wide scope and large scale state intervention.

Challenges in Regulation

Regulation of hate speech that at the same time protects free speech is a issue which in India is very much in play and ever evolving.

1. Variable and Unreliable Enforcement: Authorities at times have supported provocative and incendiary speech which at the same time suppressed dissent which in turn damages the rule of law and causes social polarization. Political and in many cases social elements play a role in enforcement which includes the use of hate speech as a tool for political organization thus which in turn complicate regulation.
2. Outbreak of online hate speech: Social media and digital platforms’ growth has put out which hate speech is more common and harder to deal with as it spreads quickly and anonymously. The lack of a specific law which addresses online hate speech, post the strike down of Section 66A of the IT Act, leaves large regulatory gaps.
3. Platform Responsibility and Digital Oversight: Tech companies’ role in the detection and removal of hate speech is a topic of great debate. In the absence of clear safe harbor provisions or robust self regulation platforms may over step and remove content to avoid liability or may do nothing at all which in turn has free speech implications.
4. Judicial and administrative issues: Courts deal with vague laws which at times are applied inconsistently and which do not have clear standards thus creating uncertainty. The Supreme Court has put forth guidelines that for strict action against hate speech, but enforcement is still uneven and at the discretion of local authorities.
5. Social and Political Issues: Hate speech is a part of the fabric of issues related to community, religion and politics which in turn makes regulation of it a delicate issue and a subject to misinterpretation. The issue of political involvement in hate speech regulation sees to be that it is used as a tool to target or protect certain groups at the expense of others which in turn questions what is put forth as legal solution.

In India the issue of hate speech regulation is at large due to which we have vague laws, inconsistent enforcement. These issues in turn put us to a hard task of at the same time protecting groups which are vulnerable to harm and also preserving the basic right to free expression.

Conclusion

The balance between free speech and hate speech is a complex issue in a diverse democracy like India. While the Constitution guarantees the right to free speech, it also allows for reasonable restrictions on hate speech that threatens social harmony and individual dignity. Indian law supports free speech but also addresses hate speech that incites violence or enmity. Judicial interpretation shows that such speech is beyond constitutional protection. However, challenges such as abusive legal language, variable enforcement, the growth of online platforms, and political misuse contribute to the challenge of achieving balance. Internationally, there is no one-size-fits-all solution, and each society must create its own set of laws reflecting its unique values and issues. A balanced approach to hate speech and free speech requires clear laws, vigilant judicial scrutiny, aggressive enforcement, and public education and discussion.

 

References

1. Article 19 of the Constitution of India
2. https://indiankanoon.org/doc/246413/
3. https://indiankanoon.org/doc/194770087/
4. Hate speech versus freedom of speech (no date) United Nations. Available at: https://www.un.org/en/hate-speech/understanding-hate-speech/hate-speech-versus-freedom-of-speech
5. Momsia, Dr.T. (2025) Balancing Liberty and liability: The Thin Line between free speech and hate speech ” Lawful legal, Lawful Legal. Available at: https://lawfullegal.in/balancing-liberty-and-liability-the-thin-line-between-free-speech-and-hate-speech/
6. Gorenc, N. (2022) ‘Hate speech or free speech: an ethical dilemma?’, International Review of Sociology, 32(3), pp. 413– Doi: 10.1080/03906701.2022.2133406.
7. Issue area 1: Balancing free speech with appropriate restrictions at the national level | IFES – The International Foundation for electoral systems. Available at: https://www.ifes.org/issue-area-1-balancing-free-speech-appropriate-restrictions-national-level