India with it's population of 13 billion people with different views,
opinions, backgrounds, social status and economic standing has witnessed
horrendous hate crimes such as communal riots, series of violent clashes between
religious communities arising out of provocative speech which makes us question
the entire ambit of freedom of speech provided under article 19 of our Indian
constitution and also makes us question the restrictions imposed herein under
There is a thin line between hate speech and freedom of speech and in this paper
we are going to discuss whether or not they can overlap each other and whether
the criminalization of hate speech goes against the ambit of freedom of speech
given under the Indian constitution. Should individuals be given absolute power
to express all their views even if they are lined with hatred for certain
Let's start by answering what is hate speech- Any form of speech that offends
the religious, ethnic, cultural, racial groups by vilification and is capable of
spreading 'hatred' among the heterogeneous populace, we classify it as 'hate
The Supreme Court in the case of Pravasi Bhalai Sangathan vs UOI
has analysed the issue and stated that Hate Speech marginalises individuals
based on their identity and that Hate Speech lays the foundation for attacks on
the vulnerable people including violent ones.
Spreading racial hatred is illegal under the Criminal Code (S 153A), and the
Illegal Activities (Prevention) Act of 1967 was revised to include a clause that
allows any organization that disobeys S 153A from operating. Promoting hatred
between groups "on grounds of religion, race, place of birth, domicile,
language, caste, or community, or any other cause whatsoever" is illegal,
according to S 153A of the Criminal Code. Imputed disloyalty to the Constitution
or the country on any of these grounds is illegal, according to Section 153B.
Arguments Why Do We Need To Regulate Hate Speech
Everyone has a basic right to express their opinion on any matters of public
concern, according to the S. Rangarajan v. P. Jagjivan Ram case. Honest
criticism of governmental operations and policies is not a justification for
limiting freedom of expression.
India was witnessed various hate crimes and restrcting it becomes necessary
because the harm in hate speech is so widespread that it travels beyond the
obvious and pervades the human psyche to leave behind permanent damage which
outlasts the physical.
Political philosopher Jeremy Waldron in his book The Harm in Hate Speech argues
that hate speech should be regulated for two reasons- that is, it harms the
public good of inclusivity and dignity. He also stated that targeting a person's
"immutable characteristics, ethnic background or religious identity causes
harm". Thus, to protect individual liberty, freedom and to ensure dignity it is
essential that speech that targets a person's identity, based on ethnicity,
race, religion etc., be not allowed to be unlimited.
As victims of hate speech, such individuals "feel fear, may be nervous to enter
public spaces or participate in discourse and may change their behavior or
appearance in an attempt to avoid hate speech." In this way, hate speech
constructs its targets as those who are not only "discriminated against but are
also seen by others as undesirable target and legitimate objects of
hostility."The most destructive and damaging to a person's sense of security and
right to live with dignity are such intangible effects of hate speech.
Arguments Relating To Why Not To Regulate Hate Speech
The best argument against regulating hate speech is that it does more harm than
good. It is completely inconsistent with individuality, liberty, equality, and
indeed democracy itself. Freedom of speech is essential to our democratic self
government where we the people have the sovereign power, we cannot exercise that
responsively or meaningfully unless we have access to information about our
government and the opportunities to communicate with those we elect to represent
us and we cannot hold them accountable if we are not able to exercise robust
freedom of speech, including the freedom to strongly criticise the government
officials and government policies.
Restricting hate speech has also started giving rise to cooked up cases where
they attribute something to a speaker that he or she has never said or in some
cases general criticism over government policies and ministers is termed as hate
speech where the speaker's fundamental rights get infringed.
The effect of such speech in silencing vulnerable sections of the society has
often been used as a justification for outlawing it, as has the issue of
preeminence of the right to life and liberty of the targeted communities over
free speech rights of individuals.
On the other hand, some people are treated as criminals for innocent jokes or
harmless tweets or mere expression of opinion Take for example, the judicial
treatment meted out to Umar Khalid for organizing protest against the
controversial Citizenship Amendment Act,2019 (CAA) by a lower court in Delhi,
and to those who organized a counter-protest/mobilization against Khalid's
protest by the Delhi High Court.
Prohibition of hate speech may result in an infringement of freedom of
expression, which could have an adverse effect on: (1) political awareness and
expression; (2) legitimate criticisms and scholarly analysis of religion; and
(3) humour and artistic expression. For instance, despite strong opposition, the
bad customs of sati and dowry were harshly condemned in India, leading to the
passage of laws prohibiting them. They claim that if constructive criticism of
other religions and civilizations had been prohibited and punished, such
societal transformations would never have taken place.
Freedom Of Speech And Hate Speech In US
Both Indian and American citizens have strong rights to free speech and
expression, but the former also has additional safeguards against violation by
other individuals. The COI permits the government to impose restrictions on hate
speech, in contrast to the US Constitution, particularly when it comes to speech
that purposefully insults religious beliefs. For instance, anyone who insults or
attempts to offend the religious beliefs of a group of persons is subject to a
fine and a sentence of up to three years in prison under Section 295A of the
Indian Criminal Code.
When politician Kamlesh Tiwari was prosecuted for defaming the Prophet Muhammad
during a political debate, it served as a significant illustration of how hate
speech laws are enforced. Tiwari was given a one-year prison term in accordance
with the National Security Act. In addition, Tiwari was accused of breaking
Section 295A because he "deliberately and maliciously" insulted Muslims. His
comments sparked nationwide protests, some of which turned violent.
This situation is a great illustration of how the COI allowed the government to
censor speech that might threaten public order. Legal repercussions for those
who disparage a religion or group of people deter people from enforcing their
own laws. Despite the terrible conclusion of Tiwari's story, India's speech code
forbids similar occurrences as often as they otherwise might.
Nevertheless, the US lacks the authority to penalise offensive speech in the
same manner. Although it is a very diverse country, it lacks India's level of
religious variety, thus there hasn't been a need to control speech or conduct
that would fuel internal conflict. It is obvious that the Indian government
should have the authority to reduce religious tensions by shielding its
residents from religious insults, despite the fact that India is a country with
a majority Hindu population and the third-highest number of Muslim citizens in
the entire globe.
I believe freedom of speech is an essential part of our democratic country and
everyone is entitled to their own views, expressions and beliefs but if their
beliefs are homophobic, casteist and are laced with hatred for certain groups of
our country then these views should not be given constitutional protection and
the restrictions we have on freedom of speech are valid.
But who will determine what is hate speech and what is not? One person's hate
speech might be another person's criticism. It is very hard to make the
distinction between constructive criticism and hate speech keeping in mind that
everyone has different understanding of words and are entitled to different
People might start to argue that touching others physically or violence can be a
freedom of speech and expression and that is how they express themselves and
that is the only way they know how to express themselves so if you allow total
upliftment of curbs and bans then it can take a very radical change and there
will be many extremists groups who will use it for their advantage. There is no
stopping to it as any time you draw a line people will say it is curbing our
freedom so as soon as it hits the markof affecting other people and not just
you, reasonable restrictions have to come in.
While deciding any case, consistency, uniformity, and objectivity are essential.
The judge must, however, exercise special caution when applying the law
consistently in cases involving hate speech and hate crimes because these crimes
have negative effects on society as well as the victim. And by doing this, hate
speech and hate crimes would only be deterred.
Award Winning Article Is Written By: Ms.Aastha Jain
Authentication No: AP310054391208-2-0423