Freedom of Speech vs. Hate Speech : Legal Challenges in India

Setting the scenes

You are free to speak your mind, but not to poison someone else’s. 

Words in today’s world are very powerful and have the power to spark debate, challenge the foundation of democracy and disrupt peace. India is the largest democracy in the world. However, the main question that arises is – where does free speech end and hate speech begin? There is a very thin line between these two which is often blurred due to legal ambiguity, public sentiments or politics. In a democratic country like India, freedom of speech and expression act as the mainstay of democracy. Freedom of speech in India is guaranteed under Article 19 of the Indian Constitution. It is a fundamental right. However, this right is not absolute in nature.

Freedom of speech and expression : Article 19 of the Indian Constitution 

As per the Indian Constitution, Article 19 defines freedom of speech and expression. Article 19 states that all citizens of the country shall have the right to freedom of speech and expression. The Universal Declaration of Human Rights (UDHR) recognises freedom of speech and expression as a human right. Under this right, one can express their beliefs, ideas and opinions without any fear of legal actions, government censorship or any type of retaliation. 

The right includes:

  1. Freedom of press
  2. Symbolic speech
  3. Right to express opinions
  4. Artistic expression
  5. Political speeches
  6. Academic freedom  

In the landmark ruling of Damyanti Naranga vs. Union of India (1971), it was ruled by the Supreme Court that the right to freedom of speech and expression will include the freedom to circulate ideas, propagate ideas, right to express opinions using writing, mouth, printing, and other ways, and right to know information and news related to the government. 

Reasonable restrictions under Article 19 of the Indian Constitution

There are some reasonable restrictions under Article 19 (2) to ensure that no one exploits their right to freedom of speech and expression. The restrictions are:

  1. Any speeches which endanger national security are restricted.
  2. Speech which is likely to incite riots, violence or disturb the public peace is limited.
  3. Any speech or expression which can cause harm to the diplomatic relations of the country with others is restricted.
  4. If any speech threatens the unity of the country, then it is not allowed. 
  5. If any speech or expression provokes others to commit a crime, it is also prohibited.
  6. If any speech or expression undermines the court’s dignity or authority, then it is restricted.
  7. Defamation statements are prohibited.
  8. Speech and expression which promotes obscenity or offends public decency are restricted as well.

What is hate speech?

In simple words, hate speech is a statement which is offensive in nature and might incite disaffection and hatred towards any group or individual on the basis of its colour, race, caste, religion, etc. Hate speech is an evil which is spreading discrimination and inequality in the society. As per Law Commission’s 267th report, hate speech is an incitement to hatred mainly against a group of people on the basis of their gender, race, religious belief, ethnicity, sexual orientation, etc. In the case of Bilai Ahmed Kloo vs. State of Andhra Pradesh (1997), the court stated that it is hate speech only when it is directly targeted and should result in public disorder. 

Role of digital media and social media in spreading hate speech

In the current era, social media has emerged as one of the most powerful platforms where people can express themselves; however, it also presents many challenges in the regulation of digital content. Indian legislative frameworks like the Information Technology Act, 2000, and its rules aim to reduce the misuse of freedom of speech and expression using digital media. There are many landmark rulings surrounding the same, such as the famous Shreya Singhal case from 2015, the Anuradha Bhasin case from 2020 and the recent Vinod Dua case from 2021, which show how there are constant efforts being made to balance public order along with free speech. 

The most recent India’s Got Latent controversy is an excellent example of how boundaries between community standards and expressions are blurred. 

Laws governing hate speech in India

There are many laws which govern hate speech in India to ensure that no one misuses their fundamental right of freedom of speech and expression. 

Legal Provisions/ Acts Particulars 
Article 19 of Indian Constitution  This Article guarantees the right to freedom of speech and expression to all the citizens as a fundamental right. 
Indian Penal Code, 1860  (Now Bharatiya Nyaya Sanhita, 2023) Section 153A  and Section 153B (Now Section 196 and 197 of BNS) – the acts which cause hatred and enmity between different groups are punished. Section 298 (Now Section 302 of BNS) – Addresses the situations where the intent is to hurt religious feelings. Section 295A (Now Section 299 of BNS) – The acts which have malicious intent or deliberately commit acts to outrage religious feelings are punished.  Section 505 (1) and Section 505 (2) (Now Section 353 of BNS) – Any content which causes hatred or ill will; publication and circulation of such content is considered an offence. 
Representation of the People Act, 1951 Section 8 – A person is prohibited from contesting the election if they are convicted of using the freedom of speech and expression illegally.Section 123 (3A)  and Section 125 –  It does not allow people to create ill intentions and hatred for different groups in the country on the basis of language, caste, sex, religion, or race at the time of election. 
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 The hate speech which targets the SC and ST is prevented. 
Protection of Civil Rights Act, 1955 Any incitement or encouragement done in relation to untouchability using words, either by writing and speaking or by using signs or any visible representations.  

Legal challenges in regulating freedom of speech in India

The legal challenges faced in regulating the freedom of speech and expression in India are:

  1. There is a lack of definition of hate speech which leads to subjective interpretation of the phrase. There are many inconsistencies in law enforcement due to this. 
  2. Hate speech is often used in the form of criticism or to suppress dissent. 
  3. There are many constitutional debates which lead to complex issues when it comes to regulating hate speech without violating the fundamental rights.
  4. The excessive use of digital media plays a key role in the circulation of hate speech and misinformation.
  5. Many citizens still do not recognise their rights and legal implications of hate speech, which allows for spreading of misinformation.  
  6. Deterrent effects of the cases of hate speech are seen due to slow prosecution of cases by the judiciary. 

Key takeaways

It is very vital to strike the right balance between combating hate speech and freedom of speech. In order to strike a perfect balance, there is a need for a holistic approach. The regulatory measures must be fair, enforced constantly and clear. Society has to stay cautious and responsive. The technology companies and media must exercise responsible behaviour. In conclusion, the strength of India lies fully in diversity. So it is vital to protect this diversity by means of prudent regulations of hate speech. 

Frequently Asked Questions (FAQs)

What are the harmful effects of hate speech?

The harmful effects of hate speech are:

  • Psychological Harm
  • Social Division
  • Incitement to Violence
  • Suppression of Free Speech
  • Undermining Democracy and Human Rights
  • Economic Impact

References

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