Voices and Boundaries: Navigating Free Speech and Hate Speech in a Constitutional Democracy

Abstract

The right to free speech and expression is the foundation stone of a democracy. It is an indicator of a working and functioning democracy. Hate speech, on the other hand, lacks a clear and universally accepted definition. Anything can amount to hate speech when it poses a risk or threat to others, thereby infringing upon their basic rights. This research article aims to clarify the distinction between free speech and hate speech. First, it seeks to define the concepts of free speech and hate speech. Second, it explores the factors that help to draw a line between the two. Finally, it examines how our constitution addresses the need to create a balance between the two.

Introduction

According to Benjamin Franklin, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” Every democratic society is based on the foundation of free speech. The freedom to express opinions, ideas, dissent, are the very core of free speech. Article 19 of the Universal Declaration of Human Rights (UDHR) recognizes freedom of expression as a human right. It is considered the “mother” of all other freedoms and is regarded as one of the most essential fundamental rights that are protected from state repression or limitation. The objective of free speech in a democracy is to promote plurality of opinions. The right to express one’s own ideas and convictions without hindrance or the fear of unreasonable consequences is an essential factor in the development of that particular society. When people voice out their opinions without the fear of punishment, it is a sign of a more progressive state since there is exchange of ideas, opinions and even dissent. There is a sense of reasonability, questionability and critical thinking process which is important for the growth of the society as a whole.

Right to free speech and expression

As John Milton said, “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” Freedom of speech and expression is indispensable in a democracy. The preamble of our constitution, in its objectives, has laid down the idea of liberty of thought, expression, belief, faith and worship. Article 19(1)(a) of the Indian constitution states that all citizens shall have the right to freedom of speech and expression. Under this article, one, being a citizen of India, has the right to express one’s own opinions and convictions freely by words of mouth, writing, printing, pictures or any other means. This also includes any communicable medium or visual representation, such as, signs or gestures, thereby reinforcing commitment to free expression in all forms. Article 19(1)(a) also encompasses the right to receive and transmit information. 

Right to speech and expression also includes the right to remain silent. In the case of Bijoe Emmanuel v. State of Kerala the petitioners stood up in respect for the national anthem however, they did not sing due to religious sentiments. The court stated that the petitioners did not sing the national anthem since they were exercising their rights under article 25 of the constitution that grants religious freedom. The court held that, in this case, no violation took place under article 19(1)(a).

In State of Uttar Pradesh v. Raj Narain, the apex court held that article 19(1)(a) grants its citizens the right to indulge in free speech, as well as the right to receive and spread information on matters of public importance. The freedom of expression of ideas is secured by freedom of circulation.

Time and again, the freedom of press has been upheld in several instances, though not explicitly stated as part of the freedom to speech and expression in the constitution under article 19(1)(a). Freedom of press is essential for the proper functioning of democracy. The American Press Commission has said, “Freedom of the press is essential to political liberty.” In Romesh Thapper v. State of Madras the apex court upheld the entry and circulation of journal in a state that was earlier banned by a law. The court held that liberty of circulation is a vital aspect along with publication. Without circulation, the publication would be of little value. 

However, this right is not an absolute right. In other words, it comes with certain limitations. The state under article 19(2) is empowered to impose ‘reasonable’ restrictions on the grounds as stated in the constitution. In A.K. Gopalan case, it was observed, “man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”. 

In the landmark case of Shreya Singhal v. UOI J. Nariman elaborated on the doctrine of vagueness, a key reasoning that supported the striking down of S.66A of the Information Technology Act, 2000. The Court held that expressions such as “grossly offensive” and “menacing” were vague and overbroad, failing the test of reasonable restrictions under Article 19(2) of the Constitution. Thereby establishing reasonability of such restriction as a necessary element.

Reasonable Restrictions

Article 19(2) of the Indian Constitution deals with the reasonable restrictions that can be imposed on article 19(1)(a). The grounds that can be imposed by the state are as follows:

1. Security of the state: Reasonable restrictions can be imposed by the state on freedom of speech and expression in the interest of security of the state. In Romesh Thappar v. State of Madras, the Supreme court has interpreted the meaning of words “security of the state”. It further stated that there are different grades of offences against ‘public order’. Every public disorder cannot amount to a threat to the security of the state.
2. Friendly Relations with foreign states: In a globalized economy, it is essential to maintain good and friendly relations with other countries. This ground was added by the constitution by the First Amendment Act, 1951. The object is to prohibit unrestrained malicious propaganda against a friendly foreign state which may jeopardise the maintenance of good relations between India and that state. However, this provision cannot be used to justify the suppression of fair criticism of foreign policy of the government.
3. Public Order: ‘Public order’ is an expression of wide connotation. It is synonymous with public peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs public order. Thus, communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offences against public order.
4. Decency or Morality: This has a wide meaning. The word ‘obscenity’ of English law is identical with the word ‘decency’ in the Indian constitution. The restriction on such grounds is to create a balance between individual rights and the duty of the state to protect ‘morals.’ The rationale behind such grounds is to protect the right to free speech and expression of an individual and prevent it from getting exploited to deprave and corrupt the community.
5. Contempt of Court: Restrictions on such grounds can be imposed if the right to free speech and expression exceeds the reasonable and fair limit and leads to the contempt of court. Under S.2 of the Contempt of Courts Act, 1971, contempt of court is categorized as ‘civil contempt’ and ‘criminal contempt’.
6. Defamation: The right to free speech and expression is subject to the protection of another’s right to reputation. Defamation, under the constitution, has been defined as any statement that injures a person’s reputation. It consists in exposing a man to hatred, ridicule, or contempt. In India, defamation is not categorized as libel or slander, which is not the case in the English law. S. 356 of the Bharatiya Nyaya Sanhita (S. 499 of the IPC previously) deals with defamation. The civil law relating to defamation is uncodified in India to this date and, subject to certain exceptions.
7. Incitement of an offence: The word ‘offence’ is not defined anywhere in the constitution. However, defined in the General Clauses Act, it means any act or omission that is made punishable by any law in force at that time. The word ‘incitement’ has no definite meaning. However, in simple understanding, it refers to speech or expression that may lead to provocation or directly encourage an individual or group to engage in harmful activities or commit an ‘offence’.
8. Sovereignty and Integrity: To maintain the sovereignty and integrity of the state is enshrined in the preamble itself. Taking this into consideration, the right to free speech and expression is subject to restriction if it challenges the sovereignty and integrity of the state or preaches cession of any part of India from the union, that is, challenges the integrity of the country.  This ground was added by the 16th Amendment Act, 1963.   

What amounts to Hate speech? 

There is no specific definition of ‘hate speech’ provided by any law in India. However, there are some legal provisions in certain legislations that prohibit selected forms of speech as an exception to article 19(1)(a). According to the 267th Law Commission Report, ‘Hate speech’ is an expression which is likely to cause distress or offend other individuals on the basis of their association with a particular group or incite hostility towards them. Jeremy Waldron, a prominent legal philosopher, has argued that there exists a middle ground of injury caused by certain type of speech. The class of injury caused by such speech does not amount to physical harm, but amounts to a more serious harm than mere offence or hurt. When speech injures dignity, it causes more harm than merely offending its target. This, further, has the potential to undermine the “implicit assurance” that is bestowed upon the citizens of a democracy, especially minorities or vulnerable groups, whose rights are more likely to be infringed. The concept of Waldron’s “implicit assurance” is that a society offers its people inclusivity and equal dignity. It is the sense of belonging and one enjoys and one’s inherent dignity is recognized. The assurance that their rights are protected without the need of constant assertion. 

The Law Commission in its report has laid down certain criteria to identify Hate speech.

1. The Extremity of speech: In order to fulfill the criteria of hate speech, the speech must be offensive and project the extreme form of emotion. Every offensive statement does not amount to hate speech.
2. Incitement: In Shreya Singhal vs UOI it was stated that speech must amount to incitement in order to be restricted. Incitement, not only regarding violence but also to discrimination has been recognized as a ground.
3. Status of the author of the speech: According to the ECtHR, the position of the author of the speech is essential in determining the legality of restriction. The petitioners, in the Pravasi Bhalai Sangathan case challenged the hate speeches made by politicians, elected representatives and religious figures and asked the court to declare them unconstitutional. The argument here was that, people who hold power have the potential to influence the public at large and can cause violence more easily.
4. Status of victims of the speech: The status of the targeted audience, that is, recognizing their identity or characteristic of the person targeted, to assess whether such speech qualifies as a hate speech. This could be based on any of the grounds- caste, religion, region, gender or sexual orientation of a person, disability.
5. Potentiality of the speech: The potential impact of the speech has to be understood to determine the speaker’s state of mind at the time of delivery of the speech. In Ramesh v. UOI the Supreme court examined the validity of restriction of a movie to the audience based on its potential.
6. Context of the speech: The context in which the speech was made is an essential determining factor. Every speech that appears to be in the ambit of hate speech may not be so. In order to identify one as a hate speech, it is important to understand the context of such speech.

Conclusion: 

The right to free speech is an inevitable element of a democratic society. The founding fathers of our constitution have ensured that the citizens of this country are well-equipped with this fundamental right. However, the right to free speech is not absolute. One’s right is another’s duty. The duty is to ensure that while exercising one’s right to free speech, the right of another is not infringed. The state can impose reasonable restrictions on certain grounds as provided under the constitution. These reasonable restrictions are imposed particularly to curb hate speech, which is an extreme form of expression and possesses some sense of danger that has the potential to hamper peace and tranquility. The constitution, as a living document, creates a balance or a golden mean or a middle ground while dealing with the two.