Published On: February 2nd 2026
Authored By: Koneru Dinesh Goud
Alliance University
ABSTRACT
This article explores the constitutional, legal, and societal dimensions of individual liberty and the collective harmony in contemporary India. The freedom of speech is entitled to citizens through “Article 19(1)(a) of the Indian Constitution”. However, it is also subject to reasonable restrictions under article 19(2), i.e., public order, morality and national Integrity. Here, the Bharatiya Nyaya Sanhitha also comes into play under sections 196 and 197 regulating the hateful speech which promotes enmity and disruption of public order under the guise of religion, race and other factors through speeches, written and electronic media. It also adopts a legal approach supported by an analysis of landmark judgments, such as Romesh Thappar v. State of Madras, Shreya Singhal v. Union of India, Shaheen Abdulla v. Union of India, Ashwini Kumar Upadhyay v. Union of India, and Kunal Kamra v. Union of India. It also adopts comparative legal jurisprudence for the evaluation of hate speech and free speech in the context of India. In conclusion, the article proposes a statutory definition to prevent unnecessary violation of freedom of speech and also promotion of judicial enhancement to curb misuse of laws in BNS, which are prescribed for hate speech. It is embedded with safeguarding public spirit of free speech with protection under 19(1)(a), But cease the hate speech under article 19(2) of Indian Constitution.
Keywords: Free Speech and Hate Speech, Article 19(1)(a) and 19(2) , Public Harmony, Disruption of Public Order, Bharatiya Nyaya Sanhita, Indian Constitution, Reasonable Restrictions, National Integrity
INTRODUCTION
Democratic society works upon the foundation of freedom of speech and expression. In India, these rights are explicitly protected under Article 19(1)(a)[1] of the Indian Constitution. Although this right is not an absolute right, it is subject to restrictions under clause (2) of Article 19 of the Indian Constitution.[2] It permits the state to regulate speech in the interest of public order, morality, and the security of the nation, to prevent its misuse in the form of hate speech and incitement to violence. Evolution of regulatory laws relating to restrictions upon article 19(1)(a) began in 1860 through the Indian Penal Code, 1860, which has sections 153A, 295A and 505(2) embedded to regulate the free speech entitled by the Indian Constitution. As a consequence, a dual effect of restricting speech is visible through the misuse of the enforcement of Section 124A of the Indian Penal Code, 1860.
There is a concern that the authorities misuse these provisions of the constitution and criminal laws to curb the minority voices and create a chilling effect on legitimate criticism. The Judiciary, through its landmark judgments in Amit Jani v Union of India (2023)[3] The case emphasized the necessity and proportionality as essential safeguards against arbitrary curtailment of free speech rights. Therefore, this paper will analyze the balance between free speech and hate speech under BNS, 2023, with judicial safeguards, legal jurisprudence and case studies.
Free Speech: Constitutional Framework & Judicial Interpretations
The Indian Constitution has entitled fundamental right to free speech and expression under Article 19(1)(a) (Indian Constitution. art. 19(1)(a)), The preamble of the constitution ensures that the freedom of speech and expression is ensured to citizens of India. Although it’s totally not an absolute right, Article 19(2) imposes reasonable restrictions upon the free speech and expression if it promotes enmity, threat to national integrity, incites hatred or disturbs public order. The sub clause (2) in article 19 has been added later through the 1st Constitutional Amendment Act, 1951, when supreme court in (Romesh Thappar v. State of Madras, AIR 1950 SC 124) (1950)[4] has struck down Madras Maintenance of Public Order[5] as unconstitutional. It explicitly mentioned “public order cannot be equated with state security”. In another recent landmark judgement in Shreya Singhal v. Union of India, (2015) 5 SCC (2015)[6] supreme court struck down Section 66A[7] of IT Act due to its vagueness and overly broadness, which violates the right to freedom of speech granted under Article 19(1)(a) (Indian Constitution).
Hate Speech: Concept and Rationale of Regulation
Defining and categorizing hate speech is some of the perplexing question of the present times. The mere definition can be “hate speech “expressions that advocate incitement to harm (particularly, discrimination, hostility or violence) based upon the targets that are identified with a certain social or demographic group. It may include, but is not limited to, speech that advocates, threatens, or encourages violent acts, as defined by author Maya Mirchandani (Mirchandani, 2018) in a study conducted for the Observer Research Foundation. The concept of hate speech is restricted by Article 19(2) of the Indian Constitution, which is enshrined to prevent enmity & disruption in public order and emphasise communal harmony. The preamble of the Constitution declares India a secular state and an inclusive Republic. Therefore, it is the duty of the state to prevent speech and expression that undermines communal harmony.
All these provisions are in place to strike a balance between the free expression of speech and social stability and communal harmony. These are the forms of transition of colonial-era vagueness to precise targeted enforcement. The judicial interpretations in cases like (Shaheen Abdulla v. Union of India, (2022) 10 SCC 1) & (Ashwini Kumar Upadhyay v. Union of India, W.P. (Crl.) No. 940/2022)[8] supreme court instructed the state and union territories to register FIR for hate speech crimes without any formal complaint needed police can register Suo Muto FIR if a speech is promoting enmity, threat to national integrity and inciting hatred & public order. According to the Supreme Court Observer’s 2025 Half-Year Review: Free Speech Jurisprudence (Sahoo, 2025)[9] has seen two major trends: Increased Restraint and Digital Sensitivity. This expressed that it is extensive but not reckless, under BNS, 2023, for online and interpersonal offences.
The existing literature has revealed extensive scholarship and judicial reasoning of Article 19(1)(a) and its reasonable restrictions under Article 19(2) of the Indian Constitution. But it lacks the contemporary gap in how the BNS, 2023, redefines the balance between free expression and hate speech regulation, and admittedly, it has added a provision of electronic communication, which has not clearly defined hate speech regulations. Judicial precedents like (Shreya Singhal v. Union of India, n.d.) are the primary interpretation of hate speech jurisprudence. Here, Sections 152, 196, 197 and 298 (Bharatiya Nyaya Sanhita, (2023)) have never met with judicial interpretation with tests of proportionality, legality and constitutionality by the supreme court. Therefore, this research paper aims to fill all these gaps by systematic evaluation and analysis of BNS provisions with freedom of speech and its regulations under Article 19 of the Indian Constitution and will focus on evaluating the practical outcomes, especially in digital spaces where speech dynamics are rapidly increasing and transformative.
Case Law’s Subject to Statutory Provisions
BNS Section 196, It is imposed to prevent speech that promotes enmity between groups. In the older version of the Indian Penal Code, this provision (section 153A) doesn’t contain “electronic communication”. In BNS, it was added, and it has not clearly mentioned whether it is explicitly applicable to social media and intermediaries. As part of case law, Imran Pratapgarhi, a Rajya Sabha MP, has been booked under FIR U/s 196, 197, 392, 299 of BNS, 2023, for allegedly inciting communal disharmony via sharing an allegedly provocative poem he shared from his verified “X” account. Imran has challenged the FIR in Imran Pratapgarhi v. State of Gujarat (2025)[10] in supreme court, SC has quashed the FIR registered upon Imran Pratapgarhi stating ” ‘The Constitution is more than 75 years old. By this time, the police officer’s ought to have been sensitized about their duty of abiding by the Constitution and respecting the ideals of the Constitution. This judgement, after implementation of the new criminal law, proves that the authorities are still misusing the particular provisions of BNS, 2023, which are designed to curb hate speech against freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution[11]
Constitutional and Judicial Scrutiny of BNS Provisions
This is a conjunction between Article 19(1)(a) and 19(2) of the Indian Constitution with provisions of Bharatiya Nyaya Sanhita, 2023. The hate speech doesn’t have a clear definition in the BNS. Terms like “disharmony” or “ill-will” in BNS section 196 still maintain the “chilling effect” on legitimate, critical, or controversial speech. There is no clear distinction between intention and tendency of speech. For declaring an offence occurred under sections of 196, 197, 298 of BNS, 2023 test of reasonableness, legality, Rational Nexus and Proportionality should be established as prescribed in Shreya Singhal v. Union of India (2015). The supreme court is duty bound to protect the fundamental right to dissent and artistic expression, which state should ensure that BNS is not used as a weapon to restrict non- violent political expression which is a clear case of infringement of free speech and expression guaranteed under article 19(1)(a) of Indian Constitution.
Comparative Perspective: Global Models of Speech Regulation: The free speech is regulated in global diaspora. As we look after,
- United States of America, the free speech is protected under First Amendment. In Reno v. American Civil Liberties Union case US Supreme Court has declared that “The USA Government can no longer regulate a person‘s access to images, speeches or words on the Internet or social media than it can cover a naked statuette in a museum.”[12]
- In Germany, free speech and hate speech are determined by the distinctive constitutional philosophy that prioritizes human dignity and free democratic basic order as supreme constitutional values. Modern German Law Network Enforcement Act (NetzDG,2018) extend these principles to the digital sphere. It aims at deterring online hate and normative speech regulations.[13]
- Asian countries like Singapore and China has controlled free expression, specially China do not have independent free speech protection laws, but subject to restrictions China imposes censorship and in Singapore Protection from Online Falsehoods and Manipulation Act(POFMA), 2019 has been introduced to restrict the false and curb speeches which are harmful to nation and public trust.
Role of Media and Technology in Speech Regulation
The role of media and technology has wide range of access to free speech, where the speech is spread through social media applications within span of seconds. Press Council of India enforces ethical journalistic standards. Recently In , 2023 Parliament has introduced the Broadcasting Services Regulation Bill[14], 2023 to create oversight framework for digital Media and OTT, Yet the bill has not been passed. Presently Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[15] is the framework controlling upon digital media platforms if any of the content promotes enmity to public harmony subject to article 19(2) of the Indian Constitution, then there can be reasonable restrictions upon article 19(1)(a) expressing online. Recently , supreme court while hearing criminal cases against social media influencers “Samay Raina and Ranveer Allahbadia”[16] stated that “Centre should form some guidelines to regulate content on social media with ‘effective consequences’, as they are monetising from the social media content”[17] which gives a scope that free speech in online or offline, which disturbs public ethics, decency and standards, will be restricted by reasonable restriction guaranteed under article 19(2) of the Indian Constitution and relevant sections of BNS, 2023. Furtherance in the role of media and technology in speech regulation is by AI based- fact checking units like PIB to takedown false information or expressions spreading in online medium. It is a constitutional morality upheld without affecting free speech and expression guaranteed by article 19(1)(a) of Indian Constitution.
CONCLUSION
The present research critically examines the relation between free speech and expression guaranteed by Article 19(1)(a) under India Constitution and Provisions of Bharatiya Nyaya Sanhita, 2023. This study demonstrates the constitutional framework safeguarding individual liberty and expression, societal harmony and restrictions that should be enforced to curb hate speech. In some of the above-mentioned notable cases in India test of legality, proportionality and rationality in enforcing reasonable restrictions under article 19(2) of Indian Constitution to curb hate speech which promotes enmity, public disharmony and hatred to incite communal violence. This paper advocates for the statutory clarity of definitions , careful judicial interpretations and policy documents of government to ensure that reasonable restrictions under article 19(2) of Indian Constitution will not violate genuine free speech and expression guaranteed under article 19(1)(a). The balance between free speech and hate speech is vital to uphold the democracy and constitutional morality
REFERENCES
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305.
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
Amit Jani v. Union of India, W.P. Crl. No. 1034/2023.
Shaheen Abdulla v. Union of India, (2022) 10 SCC 1.
Ashwini Kumar Upadhyay v. Union of India, W.P. Crl. No. 940/2022.
Kunal Kamra v. Union of India, 2024 SCC OnLine SC 52.
Imran Pratapgarhi v. State of Gujarat, 2025 SCC OnLine SC 331.
Tejendar Pal Singh v. State of Rajasthan, 2024 SCC OnLine Raj 1241.
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
S.G. Vombatkere v. Union of India, W.P. Crl. No. 682/2021.
Samay Raina v. Union of India, Ranveer Allahbadia v. Union of India, W.P. Crl. Nos. 259–260/2025.
Maya Mirchandani, Fighting Hate Speech, Balancing Freedoms: A Regulatory Challenge, 9 J. Indian L. Soc’y 47 (2018).
Namrata Chakraborty, Human Rights and Digital Media: A Study on the Status of Free Speech in Virtual World with Respect to US, UK, Indian Outlook, 3 Int’l J.L. Legal Juris. Stud. 376 (2016).
Oliver Butler & Sophie Turenne, The Regulation of Hate Speech Online and Its Enforcement—A Comparative Outlook, 14 J. Media L. 20 (2022) .
Sarthak Sahoo, Supreme Court Half Yearly 2025 Freedom of Speech, SCObserver, July 18, 2025,https://www.scobserver.in/journals/supreme-court-half-yearly-2025-freedom-of-speech
[1] “Indian Constitution. art.19(1)(a)”
[2] “Indian Constitution. art.19(2)”
[3] “Amit Jani v. Union of India, W.P. (Crl.) No. 1034/2023”
[4] “Romesh Thappar v. State of Madras, AIR 1950 SC 124”
[5] “Madras Maintenance of Public Order Act, 1949”
[6] “Shreya Singhal v. Union of India, (2015) 5 SCC 1”
[7] “Information Technology Act, No. 21 of 2000, 66A (India)”
[8] “Ashwini Kumar Upadhyay v. Union of India, W.P. (Crl.) No. 940/2022”
[9]“ Sarthak Sahoo, Supreme Court Half Yearly 2025: Freedom of Speech, SCObserver (July 18, 2025), https://www.scobserver.in/journal/supreme-court-half-yearly-2025-freedom-of-speech/.”
[10] “Imran Pratapgarhi v. State of Gujarat, (2025) SCC OnLine SC 331”
[11] “Indian Constitution, 1950”
[12] “Namrata Chakraborty, Human Rights and Digital Media: A Study on the Status of Free Speech in Virtual World with Respect to US, UK & Indian Outlook, 3 Int’l J.L. & Legal Juris. Stud. 376 (2016)”
[13] “Oliver Butler & Sophie Turenne, The Regulation of Hate Speech Online and Its Enforcement—A Comparative Outlook, 14 J. Media L. 20 (2022)”
[14] “Broadcasting Services Regulation Bill, 2023”
[15] “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”
[16] “Samay Raina v. Union of India & Ranveer Allahbadia v. Union of India, W.P. (Crl.) Nos. 259–260/2025”
[17] “Krishnadas Rajagopal, Social Media Influencers Monetise Free Speech, Supreme Court Observes, The Hindu, Aug. 25, 2025 https://www.thehindu.com/news/national/sc-directs-samay-raina-others-to-display-apology-on-their-podcast-over-ridiculing-differently-abled/article69974275.ece”
