Hate Speech Versus Freedom of Speech: Analysis in India

Freedom of Speech and Expression

Freedom of speech is a fundamental right, irrespective of the circumstances or the decisions made by governing authorities to maintain control over the populace. The regulation of public discourse by governments is a contentious issue warranting thorough examination.

A primary argument against the restriction of public speech is that the current generation is unlikely to suppress their opinions or refrain from expressing their thoughts on various matters, as the modern world differs significantly from the past in terms of communication and opinion-sharing.

In an era characterized by rapid scientific and technological advancements and abundant opportunities for global interaction through diverse media platforms, it is impractical to isolate oneself.

Freedom of expression ensures the right of individuals to articulate their views and opinions freely, facilitating the exchange of diverse ideas and allowing individuals to either concur with or dissent from specific viewpoints.

There exists an implicit duty to uphold individuals’ rights within any cultural community where such rights are proclaimed and enforced, regardless of constitutional guarantees. Although these rights are universally applicable, they serve no purpose if individuals disregard them.

Consequently, it is imperative to respect others’ rights and operate within one’s own boundaries to ensure the proper functioning of the system. No right can be absolute, as a community cannot sustain an unrestrained or absolute right. Thus, freedom of expression does not confer an unlimited license that shields individuals from accountability or grants an unrestricted right to express or disseminate any content at will.

Index Terms

• Freedom of Speech
• Comparative Analysis
• Legal Framework
• India
• United States
• Constitutional Protection
• Historical Context
• Cultural Factors
• Contemporary Challenges
• Free Expression

Introduction

Without thought, expression is impossible. The ability to articulate one’s thoughts is contingent upon the freedom of thought. Expression is derived from thought and belief, with faith occupying a more elevated position than both. The foundation of individuals’ faith is the freedom of thought and expression.

Freedom of speech and expression is a cornerstone of democratic governance, essential for the effective operation of the democratic process. It is regarded as the primary condition of freedom, holding a privileged position in the hierarchy of freedoms, and conferring value, meaning, and protection to all other freedoms. It is aptly stated that freedom of speech is the progenitor of all other freedoms, paving the way for them.

The right to freedom of speech and expression is enshrined for all citizens under Article 19(1)(a) of the Constitution of India, 1950. Although the Constitution guarantees this fundamental right, Article 19(2) permits the State to impose restrictions in the interest of the ‘sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offense.’

At its core, the Constitution includes a chapter on fundamental rights, among which is the right of every Indian citizen to freedom of speech and expression. It is noteworthy to consider that this significant fundamental right belongs to the transformative, rather than the status quo, aspect of the Constitution. This marked perhaps the first instance in Indian history where political rights, inspired by individualistic Western values—such as the right to life, personal liberty, and equality—were formally recognized in a legally enforceable constitutional document.

In one of India’s landmark cases, Maneka Gandhi v. Union of India, the Supreme Court of India determined that Article 21 should not be interpreted in isolation; all violations and procedural requirements under Article 21 are also subject to scrutiny under Articles 14 and 19. In this case, the Supreme Court adopted the broadest possible interpretation of the right to life and personal liberty as guaranteed by Article 21 of the Constitution.

Furthermore, considering the relationship between Articles 19 and 21, the Court held that Article 21 is governed by Article 19, meaning it must satisfy the requirements of Article 19. Consequently, a law that deprives a person of ‘personal liberty’ must withstand the scrutiny of not only Article 21 but also Articles 19 and 14 of the Constitution.

Indian tribunals from time to time have remarked on the need of freedom of expression.

The Supreme Court and Shreya Singhal against Subramanium Swamy v. Union of India.

The Union of India argued that freedom of speech and expression will always be a priceless jewel in a dynamic society. Democracy, it also declared, has the top rank in the Indian constitutional structure for freedom of thought and expression as well.

Why Freedom of Speech Is Important

Freedom of speech allows individuals to convey their emotions to others, but this is not the sole reason for safeguarding it. There are additional motivations for defending these fundamental liberties.

If excessive limitations on speech through governmental regulations are accepted, society hinders the revelation and dissemination of truthful information and valuable viewpoints. This implies that the right to free speech and expression aids in uncovering the truth.

Another reason for granting people freedom of expression is that it is a crucial component of each person’s right to personal growth and self-fulfillment, which serves as a foundation for a civilized society. Restricting what we can say, write, hear, or read will impede our personal development. It enables individuals to achieve self-realization.

Social change is only feasible when individuals have the freedom to express their beliefs and challenge existing conditions. Freedom of speech provides people with the opportunity to express themselves. Democracy is a key feature of the modern world.

Freedom of speech is intended to protect every citizen’s right to comprehend political matters to engage effectively in the democratic process. This suggests that freedom of speech enhances an individual’s capacity to participate in decision-making.

In Romesh Thapar v. State of Madras, Patanjali Shastri C.J noted that “freedom of speech and of the press is the foundation of all democratic organization, for without political discussion there is no public education, which is essential for the proper functioning of popular government.”

Legal Restrictions on Speech

• According to IPC, 1860
  It is a criminal act to incite hostility among different societal groups through words, depictions, or other means as outlined in Section 153A. It is also an offense to spread rumors or incite rebellion or refusal of duty by military personnel, causing panic within a community and leading individuals to commit crimes against the government or public peace, or to incite one group to commit crimes against another (Section 505). Additionally, it is illegal to speak or create representations intended to harm the religious sentiments or beliefs of individuals or any community (Section 295A and Section 298).
• The Police Act, 1922
  Under Section 3, it is a crime to engage in actions that cause or are likely to cause disaffection towards the legally established Government of India among police force members, or to induce or attempt to induce any police member to withhold services or breach discipline.
• The Drugs and Magic Remedies Act, 1954
  Prohibits, for public health reasons, offensive advertisements related to magical treatments and self-medication for sexual disorders.
• Section 11 of the Customs Act, 1962
  (Which replaces the Sea Customs Act, 1878, and the Land Customs Act, 1924) allows the State to restrict the import and export of goods if deemed necessary.

Impact of Hate Speech on Freedom of Speech

The right to freedom of speech and expression is a fundamental aspect of any democratic society. According to the liberal theory of freedom of expression, speech is seen as an essential component of all freedoms, which is why this theory emphasizes judicial review when any law imposes restrictions on this freedom.

The purpose of free speech in a democracy is to facilitate the exchange of opinions. J.S. Mill highlighted the significance of allowing even unpopular opinions in his work ‘On Liberty’, stating, “If all mankind minus one were of one opinion, and only one person held the opposite view, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”

It is crucial to permit a diversity of opinions in a democracy, as it serves as a guiding principle for free speech and expression in society. Therefore, even when speech is unpleasant, harsh, or sharp, state intervention should be minimal.

Hate speech refers to expressions likely to cause distress or offend others, often stemming from an individual’s beliefs about another. In many cases, people unintentionally hurt others’ feelings by relying solely on their beliefs. In India, there is no comprehensive legal definition of hate speech, except that it is regulated when it opposes the norms of a civilized society.

Freedom of expression has long been considered the cornerstone of any democracy. The concept of free speech emerged as a defense against the state’s power to control speech. The liberal idea acted as a check on the state’s undemocratic authority. The right to free speech was one of the fundamental liberties included in the Charter of Human Rights. Due to the high value placed on expression in the context of rights, legislators and judges are hesitant to create exceptions that would limit this freedom’s spirit. This may explain why defining hate speech is challenging.

Relevant Case Law

Shreya Singhal vs. Union of India
This case is significant in India’s legal history, as its ruling invalidated Section 66A of the IT Act, which was deemed to violate Article 19(1) of the Indian Constitution, guaranteeing the right to freedom of speech and expression to all citizens. Shreya Singhal filed a petition in 2012 seeking an amendment to Section 66A, prompted by the arrest of two young women in Mumbai for a Facebook post criticizing the city’s shutdown following the death of Shiv Sena leader Bal Thackeray; one posted the comment, while the other merely ‘liked’ it.

Anuradha Bhasin vs. Union of India
Here, three judges are sitting on a petition questioning the legality of curfew and internet shutdown orders imposed in Jammu and Kashmir after the revocation of the state’s special status in August 2019. The court noted that such indefinite suspension over the internet is not allowed and reiterated that orders under Section 144 CrPC will be tantamount to abuse of power. The court further opined that the government should make public the restriction orders and must adhere to the principles of proportionality to impose less restrictive measures.

Protection Against Hate Speech

A justification for free speech that is closely related to the points just made but that focus on the speaker more than his listeners is the idea that the government should treat people with dignity and equality. As a matter of the basic human respect we may owe it to each other to listen to what each of us has to say, or at least not to foreclose the opportunity to speak and to listen. Under this view, suppression represents a kind of contempt for citizens that is objectionable independent of its consequences and when suppression favours some points of view over others it may regarded as failing to treat citizens equally.

Arnab Goswami Vs Union of India⁹, the sudden arrest and alleged assault of Republic TV editor-in-chief Arnab Goswami by the Raigad police in Maharashtra has brought to the forefront concerns about Maharashtra government opposed a Bombay High Court order that stayed a probe into first two information reports filed television programme on the Palghar lynching incident and migrant labourers gathering in large numbers in Bandra area. His lawyer has alleged that the TV anchor was denied access to his legal team and against Republic TV had earlier observed that “some people were targeted with greater intensity and needed more protection”. The first information report pertained to Goswami’s observation during his police used force at the time of request.

In the Tablighi Jamaat Case¹⁰, a bench led by Chief Justice S.A. Bobde, which was reviewing petitions from Jamiat Ulama-i-Hind and others, criticized the government for its vague and audacious affidavit regarding claims that certain media groups were inciting communal discord over the Tablighi Jamaat gathering at the start of the COVID-19 pandemic. The Chief Justice remarked that freedom of speech has become one of the most misused rights recently.

The court also sought the Press Council of India’s opinion on actions taken against TV channels accused of broadcasting false news that blamed the Tablighi Markaz for the spread of COVID-19 in the country. The petitioners alleged that the media was communalizing the pandemic’s spread, violating all TV broadcasting content rules and the Cable TV Act. Generally, liberty involves accepting that there are differing opinions, but anger can be more perilous than disagreement. There must be cultural organization in all human activities, and self-imposed limitations should be part of all rules and regulations. In India, freedom of expression cannot be an unrestricted right.

As Holmes J. stated, “The strictest protection of freedom of expression does not preclude a man who unjustly sets fire to a theater and causes fear.” The Indian Constitution empowers the judiciary to safeguard individuals’ fundamental rights from state abuse.

In A.K. Gopalan v. State of Madras¹¹, the Court attempted to interpret the Constitution’s “amendment” as preserving, rather than completely destroying, fundamental rights. Mukherjee J. noted in A.K. Gopalan v. State of Madras, “There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country to be essential to the safety, health, peace, general order, and morals of the community.”

The Supreme Court case of Narendra Kumar v. Union of India¹² interprets the restriction as “full protection” when it applies. The use of the right is limited. An unreasonable restriction won’t affect this right, but it will still restrict how the right can be exercised when the restriction is necessary. This restriction can be either partial or complete. Therefore, the principle behind all restrictions is the idea of adequacy.

In Sahara India Real Estate Corpn. Ltd. v. SEBI¹³, the apex court ruled that the limits on fundamental rights under Article 19 (1) must align with those set out in Article 19 (2). If a restriction doesn’t fit any category in Article 19(2), it cannot be justified simply because the intended purpose seems worthwhile. Thus, a detailed examination of the restrictions outlined in Article 19(2) is necessary.

Comparative Analysis with Other Nations

United States Model

The US has a strict approach to free speech, with some limitations under the First Amendment. Speech can only be restricted if it incites “imminent lawless action,” as established by the Supreme Court in Brandenburg v. Ohio.

Section 230 of the Communications Decency Act protects online services from being held liable for user-generated content, making them safe from actions involving hate speech. It values freedom of expression, with few exceptions for direct incitement to imminent lawless action.

Indian law has partially adopted this approach, especially with the “clear and present danger” test from Shreya Singhal vs Union of India (2015). However, India has broader restrictions that it considers necessary for its diverse society.

European Model

The EU takes an active approach to regulating hate speech. It has laws like the Digital Services Act (DSA) and the General Data Protection Regulation (GDPR).

The DSA requires transparency in content moderation and algorithm-based decisions, while the GDPR focuses on data privacy. The EU promotes dignity and equality, allowing more extensive limits on hate speech.

India’s approach is more in line with this model in recognizing protections for groups but differs in how it enforces laws and frames them constitutionally.

Analysis of International Instruments

The Rabat Plan of Action, created by the United Nations, offers a way to balance free speech and the ban on hate speech. It stresses the need for a context-specific look at hate speech, considering factors like intent, content, and social effects.

While the plan is not legally binding, it guides policymakers around the world.

The Indian Approach

India’s way of handling hate speech is unique because it focuses on preserving religious harmony in its multi-faith society.

• Laws like Sections 153A and 295A of the Indian Penal Code punish actions that increase hostilities among groups based on religion, race, or language.
• India also recognizes caste-based hate speech under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which addresses discrimination against marginalized groups.

The country balances federal oversight with state-level enforcement to ensure laws are applied locally. Additionally, India’s legal system is adapting to tackle digital hate speech, with regulations like the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, reflecting the challenges presented by the digital age.

Suggestions

• Clear Legal Definitions and Thresholds for Hate Speech:
  To reduce confusion in enforcing the definition, governments should define hate speech more clearly than before. Vague and broad laws often lead to misuse and overreach, which can stifle legitimate expression. Clear thresholds must be set, focusing on incitement to violence, discrimination, or hostility while excluding simply offensive or controversial speech. International tools like the Rabat Plan of Action can guide the creation of such definitions. Legal frameworks should also align with international human rights standards to ensure global consistency.
• Legal and Institutional Enhancements:
  The legal framework should improve by developing a clear legal definition of hate speech that offers objective criteria while protecting legitimate expression. This should include procedural changes that speed up cases while ensuring due process protections. Institutional improvements are crucial; these include specialized courts for timely decisions, an independent monitoring authority to track enforcement patterns, and programs to train law enforcement and the judiciary.
• Promoting Counter-Speech Initiatives:
  Encouraging counter-speech—responses to hate speech that challenge harmful ideas and promote inclusivity—can be a better option than censorship. Governments and tech companies should help civil society organizations start counter-speech campaigns during times of social tension. Examples include hashtags that promote unity or public figures who address divisive rhetoric. Counter-speech initiatives not only lessen the impact of hate speech but also build a culture of open and constructive dialogue. Stakeholders can balance the need to protect freedom of expression with addressing the harms caused by hate speech when these strategies are used. By doing this, legal, technological, and social tools can work together to create a safer and more equitable digital space.
• Technology Governance:
  Technology governance must improve with greater platform accountability that includes strong transparency requirements. Regular assessments of content recommendation algorithms that may spread harmful content are needed, along with the development of effective multilingual detection tools for India’s diverse languages.

  These regulatory actions should be paired with educational initiatives that add digital literacy to school curricula, civil society programs that counter hate speech with positive messages, and dedicated research funding to better understand changing patterns and effective interventions. This comprehensive approach recognizes that addressing hate speech needs both legal boundaries and broader social involvement to build a digital environment that protects vulnerable communities while upholding democratic discourse.

Conclusion

This research shows that regulating hate speech in India involves complex issues surrounding basic rights, cultural sensitivities, and enforcement challenges. The current legal framework is significant, but it has problems with unclear definitions, procedural delays, and inconsistent application. These issues become more complicated with the fast changes in digital communication technologies that go beyond traditional regulatory limits.

Freedom of expression is often suppressed. In the last five years, hate speech cases have increased sharply in India. Some Indian media outlets spread heated content that can incite the public. Individuals now struggle to express their opinions due to intense political pressure and surveillance, especially compared to earlier times.

Lawmakers misuse the law against individuals viewed as threats, aiming to silence those who challenge the government’s authority. There have been cases where people who worked to help underprivileged minorities by informing and educating them were labeled as criminals by the media and the government.

This label arises from the fear that these individuals might inspire doubts about the system. Activists and students face serious charges simply for thinking critically. The government and media depict these people as anti-nationals. This situation raises concerns about a person’s rights. Some media channels also restrict freedom of speech and expression. By reporting events falsely and misleading the public, they damage the concept of free speech.

The ultimate goal should be to create a system that reduces harmful speech without overly restricting legitimate expression. In a diverse democracy, the freedom to speak and the right to dignity should be seen as complementary, not opposing, values in constitutional governance. Through careful reform, India has a chance to develop a model that respects its unique social context and aligns with changing global standards for speech regulation in the digital era.

This requires finding a balance between protecting free speech and regulating hate speech, all while respecting human rights and ensuring accountability. Promoting an inclusive, transparent, and understanding environment will support expression without compromising dignity and equality. The challenge is complicated, but it is crucial for the global community concerning democracy and human rights.

Important Cases and Statutory Provisions

1. Maneka Gandhi v. Union of India AIR 1978 SC 597
2. Romesh Thapar v. State of Madras AIR 1950 SCR 594
3. Indian Penal Code 1860. NO 505, Act of Parliament, 1860 (India)
4. Police Act 1922, NO 3, Act of Parliament 1922 (India)
5. Drugs and Magic Remedies Act, 1954, Act of Parliament 1954 (India)
6. Customs Act, 1962, NO 11, Act of Parliament 1962 (India)
7. Shreya Singhal v. Union of India AIR 2015 SC 1523
8. Anuradha Bhasin v. Union of India AIR 2019 SCC 1031
9. Arnab Goswami v. Union of India AIR 2018 10 SCC 753
10. Tablighi Jamaat Case AIR 2020
11. A.K. Gopalan v. State of Madras AIR 1950 SC 27
12. Narendra Kumar v. Union of India AIR 1989 SCR 43 1990
13. Sahara India Real Estate Corp Ltd. v. SEBI AIR 2012 SC 8643

References:

1. Abhinav Chandrachud, Republic of Rhoteric Free Speech and The Constitution of India, A.J.
2. Anderson, Problem in Intellectual Freedom and Censorship, R.R. Boweker Company, 1974
3. Durga Dass Basu, Introduction to the Constitution of India, Lexis Nexis, 23rd edition, 2018
4. Aparajita Baruah, Preamble of the Constitution of India
5. Gray Dorsey, Equality and Freedom, Oceania Publication, 1977
6. Prof. G. Manohar Rao, Constitutional Development Through Judicial, Asia Law House, 2006
7. G. Vishwanathis, Democracy, Constitution and Judiciary, Surendra Publication, 2012