Published on 26th July 2025
Authored By: Riya Sharma
Maharishi Dayanand University, Gurugram
Abstract
Where the free speech ended, the hate speech begins but does this right to speak freely can be controlled? This article critically examined what Is free speech from where we derive this immunity or is this right Is an absolute right or it can be restricted, however this article also highlights the danger of unchecked expression and approaches to curb hate speech. Since hate speech has not been defined under Indian Penal Laws but it does not mean that one can hurt anyone’s sentiment by using “Right of freedom of speech and expression”, it must be balanced against the need to protect individuals and communities from harm. With the help of legal cases this article shows how unchecked and unrestricted speech can fuel violence. In the end it contends that fair freedom of speech comes with a responsibility to speak wisely and we need to think before speaking freely anything if the speech is of nature to incite violence, spreading hatred it can be restricted.
Introduction
Freedom of Speech and expression is one of the most cherished and Fundamental right in Constitution of India given under Article 19(1). It empowers individual to speak and express their Views, Opinions and beliefs without fear of censorship by government. It is the most beautiful and important right that forms cornerstone of democracy by encouraging open dialogue, however this right is not absolute, the framers of Indian Constitution had mindfully applied their sense that if these rights given without reasonable restricted it would create disorder in society, encourage hate speech towards others, incitement of violence and harm to the dignity of other. This article aims to shed light on the question that “whether the Hate Speech Protected under Freedom of Speech Article 19(1)(a) and to explore the legal and moral boundaries which separate Free Speech from Hate Speech.
What is Freedom of Speech?
Freedom of Speech and Expression is a constitutional protection which gives freedom to people to present their idea, views and opinions publicly without fear of being censored by The Government. There are five more freedom given under Article 19 of The Indian Constitution; however, these Freedoms are not Absolute. “Patanjali Shastri” in “AK Gopalan’s case”[1] Observed that “man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled”.
In the case of Romesh Thapper v. State of Madras[2] Justice Patanjali Sastri Observed that Freedom of Speech is the base of every democracy without ability to speak freely about politics and sharing opinions people cannot be properly educated about the government and without this right a democratic country will not work well.
Importance of Free Speech.
Free Speech allows people to share ideas or criticize the government which ultimately helps democracy to work even better, “Democracy is based on free debate and open discussion.”[3] Many social reforms were started just because of people raised their voices against injustice, in a society where free speech is cherished it evolves new thoughts, creativity and innovation.
From the abolition of slavery to the fight for women’s suffrage to the civil rights, free speech has been essential and crucial element in support of human rights and equality, free speech is not mere a legal right; it is the backbone of a free and just society because it is important to grow a society even faster.
Origin of Freedom of Speech
Freedom of speech originally seen in Ancient Germany around 5th century BCE, Citizens of Athens were encouraged to participate in open debate but with certain limitations. In Post World War Era, The Universal Declaration of Human Rights[4] established that freedom of speech is a fundamental right. But during British Raj in India Freedom of Speech were heavily Restricted. Not just under the British rule but also with the brutal regime of Adolph Hitler who had created who had created a ministry to centralized the nazi’s control[5]
Limitation on Freedom of Speech.
In India Article 19(1)(a) guarantee freedom of speech and expression, but Article 19(2) permits state to impose reasonable restriction on following grounds-:
- Sovereignty and integrity of India
- Security of state
- Friendly relations with foreign states
- Public order
- Decency or morality
- Contempt of court
- Defamation
- Incitement of an offence
Hate speech and its legal status
“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.[6]”- UN
Any public speech which encourages violence and incites hatred towards person or community which can be conveyed through writing, words, expression on any subject matter such as caste, race, religion, literacy etc are hate speech
Although hate speech is not a specific crime in India nor it is defined anywhere under Indian Penal Laws but few sections of Bhartiya Nyaya Sanhita, 2023 address “Hate Speech such as section- 196 (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc.), section- 197 (imputations, assertions prejudicial to national integration.), section 298 (Injuring or defiling place of worship with intent to insult the religion of any class), section 299 (Deliberate and malicious acts intended to outrage religious feelings of any class, by insulting its religion or religious beliefs.), section 553 ( statements conducting to public mischief) erstwhile Indian Penal Code, 1860 sections- 153A, 153B, 295, 295A, 298 and 505.
According to Law Commission of India’s 267th Report[7] “Hate speech is any word written or spoken, signs, visible representation within the hearing or sight of a person with the intention to cause fear or incitement to violent” however this definition is not ratified by Parliament or judiciary, but one can lodge FIR for hate speech on above mentioned sections of BNS 2023. There are other provisions of different statutes which govern “Hate speech” such as Section123(3A) of Representation of People’s Act, 1951, Section 66A of Information Technology Act, 2000 but in a Landmark Judgement this section was struck down in Shreya Singhal v. UOI, 2015[8] This section was declared unconstitutional.
Spreading hate speech in Today’s world where everyone wants to go viral on internet is easy, targeting any people is not that hard due to feasibility of internet and thus such speeches must be accountable to protect violence and public order.
Recent Controversial case in India
“In India’s Got Latent show” which is hosted by Samay Rana featured an episode were Panellists were Ranveer Allahbadia and Apoorva Makhija passed some derogatory remarks which most of the people found offensive and multiple FIR filed against them in different states but this speech conveyed “obscenity” which did not fall under the ambit of “incitement of hatred or violence against a group based on religion, caste or gender” the main essential of hate speech is it must incite violence or hatred.
In a very recent and controversial case of “Sharmistha Panoli” who is a 22year Law Student and a social media influencer in may 2025 she passed derogatory remarks on Muslim Community related to “operation Sindoor” which provokes inter-religious enmity and considered as hate speech FIR was filed against her and later Kolkata police arrested her on charge of – Section 153A(promoting enmity between different groups on ground of religion, race), Section 295A(Deliberate and malicious acts intended to outrage religious feelings.) , Section 505(2) (statements creating or promoting enmity, hatred or ill-will between classes) which falls under the scope of exception of “Freedom of Speech” under Indian Constitution. [9]
Global Approach
Freedom of speech is protected under various international laws but also provide reasonable restriction on it such as Universal Declaration of Human Rights, 1948, In United States Freedom of speech is protected under The First Amendment Act and any speech which not Spreading hate, incite violence not considered as hate speech.
In Germany there are strict anti-speech laws due to its past history and in United Kingdom “The public Order Act,1986” and Racial and Religious Hatred Act,2006, criminalize hate speech.
Various Global Approach took place to curb hate speech such as, “No Hate Speech Movement” was run by The Council of Europe to curb the problem. Different online Platforms like Facebook, Google, Microsoft and twitter agreed to European union to struck down content of hate speech on their platforms within 24hrs and various not only this but different countries are organizing different moves and changes or rules to tackle with the issue of “Hate Speech”
Hate speech vs Free speech.
Free Speech considered as cornerstone of democracy it allows peoples of society tp present their views and expression freely which can also include criticize the government to make them accountable but hate speech meanwhile attacks people if hate speech allowed in free speech it can lead to various problems like violence due to rapid spread of hatred that is why with respect to this freedom of speech article 19(2) provides reasonable restriction
The term “reasonable” here applies restriction which are necessary and fair in the case of “Chintaman Rao v. state of Madhya Pradesh 1950”[10], the court held that a restriction is said to be reasonable when when it is not arbitrary or unjust. Restricting hate speech is not a violation of Democracy or Freedom of Speech because imposing such restriction is important to protect the nation. In a diverse society like India unrestricted freedom of speech can lead communal violence and threat to national security.
In a recent Judgement by Hon’ble Supreme Court in the case of “Amish Devgan v. Union of India, 2021[11], Amish Devgan was a journalist and he passed some hatred statement against a “Sufi Saint” later he claimed that his remarks were unintentional and seeks protection under article 19(1) (a), the court held that such hate speech is not protected under Article 19(1) (a) and said that a public “apology” does not absolve criminal liability
Speech which violates fundamental rights can be challenged under hate speech?
In the case of Kaushal v. State of Uttar Pradesh & Ors 2023[12] in this case a derogatory speech of a minister violates a rape victim’s dignity and right to life under article 21 here a question arises that whether the freedom of speech can be restricted to protect violation of fundamental rights of others under Article 21. The court held that that restriction is given under article 19(2) of the Indian Constitution no new grounds can be added further by the judiciary and if such speeches violate any fundamental rights, it can be challenged under articles 32 or 226.
Conclusion
In today’s digital and fast world any hate speech can rapidly become viral on social media people often post derogatory post on their social media handle to spread hatred in society and this became the shortcut to get fame to safeguard democracy it is very much needed to criminalizes it, while in Indian Penal Laws there is no straight section specifically for “Hate Speech” but has corresponding sections. However, punishment alone is not the real solution India can adopt more ways to curb hate speech such as – imposing strict restrictions on media platforms, separate section criminalizing hate speech and an independent monitoring body to track and respond on such harmful speech online. Curbing hate speech is not just about regulations and law it is about building a culture and respect towards each other’s emotions any harmful speech can cause a person lifelong trauma, so restricting such rights is important for society to maintain peace, protect individuals’ sentiments and unity between individuals.
References
[1] A.K Gopalan vs the state of Madras. Union of India 1950 AIR 27, SCR 88,
[2] Romesh Thapper v. State of Madras, AIR 1950 SC 124; Life Insurance
Corprn. Of India vs Manubhai D Shah (1992) e3 SCC 637
[3] Maneka Gandhi vs Union of India 1978 AIR 597, SCR (2) 621
[4] UDHR
[5] Peter Longerich goebbels: A Biography 212-213 (Random House Ney Yok 2015)
[6] United Nation Secretary-General’s Statement Antonio Guterres, May 2019
[7] Law Commission 267TH Report (chairman Dr. Justice B.S Chauhan, 2015-2018)
[8] Shreya Singhal v. UOI MANU/SC/0329/2015
[9] Times of India, News desk/ Jun 9,2025
[10] Chintaraman Rao vs. The State of Madhya Pradesh AIR 118, 1950 SCR 759
[11] Amish Devgan v. Union Of India & Ors. (2021) 1 SCC 1
[12] Kaushal Kishor v. State of Uttar Pradesh & Ors (2023) 4 SCC 1
