HATE SPEECH VS. FREE SPEECH: A LEGAL BOUNDARY

ABSTRACT

This article examines the conflict between hate speech and free speech, presenting a significant challenge to both constitutional and legal frameworks. It requires a careful balance to safeguard individual expression while addressing issues such as discrimination, violence, and societal conflict. The article analyses this balance from the perspectives of India, the international community, and the United States.

In India, Article 19(1)(a) of the Indian Constitution grants the right to free speech, but this is subject to reasonable restrictions outlined in Article 19(2), which includes considerations for public order and harmony. Key court rulings, such as “Shreya Singhal vs. Union of India AIR 2015 SC 1523” have invalidated overly broad rules on online expression, the Supreme Court of India struck down Section 66A of the Information Technology (IT) Act, 2000. These restrictions are enforced under Sections 153A and 295A of the Indian Penal Code.

Global, treaties like the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) encourage the prohibition of hate incitement. These principles have been reinforced by institutions such as the UN Human Rights Committee and the European Court of Human Rights, which use proportionality assessments in cases like “Perinçek v. Switzerland [GC] – 27510/08. Judgment 15.10.2015 [GC]”.

However, the United States takes a different stance. The First Amendment grants strong protections for free speech, and the courts generally refuse to exclude hate speech from protection unless there is an immediate threat of harm. This approach was highlighted in cases like “Brandenburg v. Ohio 492 by. Warren Court 395 US 444 (1969)”.

and “R.A.V. v. City of St. Paul 505 US 377  (1992)”, which emphasise the importance of counter-speech over censorship. The article utilises primary sources such as constitutions, treaties, and court decisions, along with secondary analyses, to assess inconsistencies in how thresholds and enforcement are applied. It proposes reforms based on international standards such as the Rabat Plan, aiming to improve clarity and ensure protection against misuse in various democratic environments.

INTRODUCTION 

The ongoing discussion regarding hate speech and free speech has become more relevant in today’s society. Many incidents have shown that expressions considered free speech can be interpreted as hate speech, while some hate speech is defended under the guise of free speech. This complexity leads to a need for careful examination of what qualifies as free speech and what constitutes hate speech.

To clarify this distinction, consider an example: Imagine Person A who gives thoughtful and respectful criticism of Person B’s policies, aiming to engage in a productive dialogue. In this case, Person A’s comments are an acceptable use of free speech. However, if Person A changes their approach and starts attacking Person B’s beliefs or identity to belittle or hurt them, this shifts the criticism into hate speech. This example demonstrates the fine line between expressing opinions and using language that can cause emotional damage, emphasising the importance of intent and context.

Within the Indian legal framework, this delicate balance is recognised in the Constitution, which grants a qualified right to free speech. Yet, this right is accompanied by conditions that allow for reasonable restrictions when needed to protect the public interest. Internationally, numerous frameworks emphasise the need to prohibit hate incitement while ensuring strong protections for free expression.

To thoroughly examine these complex issues, this research draws on a wide range of primary sources, including constitutional documents, international treaties, legislative acts, and court decisions. It also incorporates secondary sources such as academic articles, detailed reports, and critical analyses that add further insight. The focus of this investigation is on both the Indian and international dimensions of the issue, with a particular emphasis on how courts and legal systems manage the difficult task of setting restrictions without unnecessarily limiting free speech. This in-depth look aims to better understand the intricate relationship between individual freedom and responsibility in public discourse.

INDIAN ASPECTS BY CONSTITUTIONAL PROVISIONS 

India’s framework for free speech is covered in the Constitution, which provides a qualified right rather than an absolute one.

“The Constitution of India, 1950, Art. 19(1)(a)”ensures the right to freedom of speech and expression for all citizens, but Article 19(2) allows for reasonable restrictions under conditions such as sovereignty and integrity of India, national security, friendly relations with foreign countries, public order, decency, or morality, or in relation to contempt of court, defamation, or incitement to an offense. This provision supports restrictions on hate speech when it threatens public order, although the Constitution does not directly define hate speech.

Here are several instances where free speech turned into hate speech 

On 8 December 2024, Justice Shekhar Kumar Yadav, a judge of the Allahabad High Court, gave a speech at a gathering organised by the Vishwa Hindu Parishad, Many observers viewed this speech as hate speech directed against Muslims.

In “Qurban Ali v. Union of India is Writ Petition(s)(Civil) No. 24 of 2022.” a Public Interest Litigation (PIL) was filed against alleged hate speech in Haridwar and Delhi. The petition was initiated by Senior Advocate Anjana Prakash and Journalist Qurban Ali, who argued that comments made at these events openly called for the genocide of Muslims.

“Shreya Singhal vs. Union of India AIR 2015 SC 1523” Case: The Supreme Court struck down Section 66A of the Information Technology (IT) Act, 2000, The Court found the law unconstitutional for being vague and disproportionately restricting free speech. This landmark ruling expanded free speech protections online but created a legislative gap regarding online harassment.

Tehseen S Poonawalla v. Union of India, (2018) 9 SCC 501(2018) Case: This public interest litigation addressed the alarming rise of mob violence and lynchings, often incited by hate speech spread on social media. The Court issued a set of comprehensive guidelines to the central and state governments to prevent mob violence. It directed that nodal officers be appointed in every district to take note of hate crimes and register First Information Reports (FIRs).

INTERNATIONAL ASPECTS REGARDS HATE SPEECH

Developments regarding hate speech and free speech over the last 10 years from 2014 to 2024 have been dominated by the challenges of online platforms and the varying approaches taken by different countries and international bodies. While international law broadly prohibits incitement to violence, individual nations differ significantly on where to draw the line between protected expression and punishable hate speech.

Here are some international development regarding hate speech

EU Code of Conduct: In 2016, the European Union launched a Code of Conduct on countering illegal hate speech online. Tech giants like Meta (Facebook), X (Twitter), Google (YouTube), and TikTok voluntarily agreed to review the majority of valid notifications for illegal hate speech within 24 hours https://www.coe.int/en/web/cyberviolence/-/european-commission-the-eu-code-of-conduct-on-countering-illegal-hate-speech-online .

UN Strategy and Plan of Action: In 2019, UN Secretary-General António Guterres launched a strategy to combat hate speech globally. It emphasizes countering hate while respecting freedom of expression and includes working with technology companies, civil society, and media. The UN has also declared June 18 as the International Day for Countering Hate Speech https://www.un.org/en/genocideprevention/documents/UN%20Strategy%20and%20Plan%20of%20Action%20on%20Hate%20Speech%2018%20June%20SYNOPSIS.pdf .

United States: Unlike many other countries, the U.S. has maintained robust protection for speech, even if it is offensive or hateful. This is due to the First Amendment, which protects the expression of viewpoints from government censorship. https://constitution.congress.gov/browse/essay/amdt1-10-2/ALDE_00000223/#:~:text=First%20Amendment:%20Congress%20shall%20make%20no%20law,the%20Government%20for%20a%20redress%20of%20grievances.

“Murthy v. Missouri, 144 S.Ct. 1972 (2024), United States Supreme Court”. The Supreme Court addressed whether the U.S. government unconstitutionally coerced social media companies to remove content, including misinformation related to the COVID-19 pandemic. The court ruled that the government had not violated free speech protections by encouraging platforms to moderate content.

Germany: German constitution guarantees free speech but includes established limitations, such as prohibitions on Holocaust denial and the use of Nazi symbols. Offensive or hateful content is explicitly a criminal offense. https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698043/EPRS_BRI(2021)698043_EN.pdf

United Kingdom: Hate crime legislation like the Crime and Disorder Act 1998 and the Sentencing Act 2020 allow for harsher sentences for offenders convicted of crimes with a hate-based motivation. https://www.legislation.gov.uk/ukpga/1998/37/contents

COMPARATIVE INSIGHTS

India’s approach aligns with international standards in allowing restrictions for public order but faces criticism for vagueness and selective enforcement, unlike the different countries or the U.S.’s strict scrutiny. According to the CSOH (centre for the study of orgnised hate)  report 2024 India Hate Lab (IHL), a dedicated initiative of the Center for the Study of Organized Hate (CSOH), has meticulously documented a troubling surge in in-person hate speech events in 2024. The report highlights a staggering total of 1,165 incidents specifically targeting religious minorities, with a pronounced focus on Muslims and Christians. These incidents unfolded across a diverse landscape of 20 states, two union territories, and the National Capital Territory (NCT) of Delhi, highlighting the widespread nature of this issue.https://www.csohate.org/wp-content/uploads/2024/07/report-India-Hate-Lab-Report-Final-13.pdf

On average, three hate speech events occurred each day, underscoring the alarming frequency of such occurrences. Notably, this marks a significant increase of 74.4% compared to the previous year, 2023, when 668 incidents were recorded. This sharp rise raises critical concerns about the growing climate of intolerance and the impact on the affected communities.

On the other hand National, ethnic, religious, or linguistic minorities are frequent targets of hate speech, especially online. According to the Special Rapporteur on Minority Issues, over 70% of individuals targeted by hate crimes or hate speech on social media belong to minority groups. Not only are these groups the primary victims of hate speech, but they are also more likely to face restrictions or removal of their content by social media moderation systems. https://www.ohchr.org/en/special-procedures/sr-minority-issues

Recent incidents of hate speech ranging from racist slurs to incitement of violence or genocide illustrate a troubling global trend of targeting minority groups. This includes diverse communities such as the Igbo people in northern Nigeria, the Rohingya in Myanmar, the Roma and Sinai in Europe, and people of African descent, among others.

This trend has been worsened by extremist groups and populist figures worldwide, who have exploited the COVID-19 pandemic to spread anti-minority narratives, disinformation, and conspiracy theories. Many of these narratives unjustly blame Jews, Muslims, Christian minorities, individuals of Asian descent (particularly those perceived as Chinese), and other communities for the spread of the virus.

CONCLUSION

In navigating the intricate interplay between hate speech and free speech, democratic societies worldwide confront the imperative of safeguarding expressive freedoms while preserving communal harmony and individual dignity. The Indian framework, anchored in Article 19 of the Constitution and bolstered by statutory provisions such as Sections 153A and 295A of the Indian Penal Code, exemplifies a pragmatic approach that permits reasonable restrictions to avert public disorder, as illuminated in judicial precedents like Shreya Singhal v. Union of India. Internationally, instruments including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination advocate for measured prohibitions on incitement to hatred, with tribunals such as the European Court of Human Rights applying proportionality in cases like Perinçek v. Switzerland to harmonize rights with societal protections. In the United States, the First Amendment’s robust safeguards, reinforced through landmark rulings such as Brandenburg v. Ohio and R.A.V. v. City of St. Paul, underscore a commitment to viewpoint neutrality, favoring countermeasures like counter-speech over broad curtailments.

These diverse paradigms reveal shared aspirations for justice and equity, albeit through varying thresholds of intervention—India’s emphasis on public order, international norms’ focus on incitement, and the U.S.’s prioritization of unfettered discourse. Yet, challenges persist, including definitional ambiguities, enforcement disparities, and the risk of overreach in an increasingly digital era. To advance this equilibrium, it is advisable for policymakers and jurists to draw upon cross-jurisdictional insights, such as the Rabat Plan of Action’s six-part test, fostering collaborative reforms that enhance clarity, proportionality, and respect for cultural contexts. Ultimately, by promoting inclusive dialogue and vigilant oversight, nations can cultivate environments where free expression flourishes without compromising the foundational principles of mutual respect and peaceful coexistence.