AUTHORS:
Jagdishwar Kumar, K. V. Sandhya Devi and Swati Bal-Tembe
Freedom of Speech vs. Hate Speech:
Striking a Constitutional Balance in India
Introduction:
Freedom of speech and expression is a fundamental right in a democracy, allowing individuals to voice their opinions. This fundamental right is enshrined in Article 19(1)(a) of the Constitution. However, it is not absolute and is subject to reasonable restrictions under Article 19(2), which are intended to protect public order, decency, and morality, and such other considerations. The challenge lies in balancing the right to free speech with the need to curb hate speech, which threatens social harmony.
Legal Framework Governing Free Speech in India
What is Freedom of speech:
Article 19(1) (a) of the Indian Constitution states that all citizens shall have the right to freedom of speech and expression.
Freedom of speech under Article 19(1)(a) includes the following:
- Freedom of Press – Expression
- Freedom of Commercial Speech – Advertising
- Right to Broadcast – Transmission
- Right to Information – Transparency
- Right to Criticize – Dissent
- Right to Expression Beyond National Boundaries – Global
- Right Not to Speak – Silence
Freedom of speech and expression means the freedom to express one’s views through any medium such as the spoken word, writing, print and broadcast media or in the present times, even social media.
However, freedom of speech and expression is not an absolute right. Under Article 19(2), the State can make any law to impose reasonable restrictions on the exercise of the right of freedom of speech and expression laid down is Article 19 (1)(a) in the interests of:
- Sovereignty and Integrity of India
- National Security
- Friendly Relations with Foreign Countries
- Public order
- Decency or morality
- Contempt of court
- Defamation or
- Incitement to an offence[i]
Also, the rights guaranteed by Article 19 can be suspended when a national emergency is declared on the grounds of war or external aggression.
The emergency provisions are contained in Part XVIII of the Constitution of India, from Article 352 to 360. These provisions enable the Central government to deal with any abnormal situation effectively.
The rationale behind the incorporation of emergency provisions is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution.
Hate speech:
Freedom of speech and expression is the ability to express one’s views in open public discourse and participate in democratic processes such as political, commercial, artistic and academic discourse. However, when speech promotes hate or incites violence, it undermines social harmony and public order, justifying restrictions to protect societal well-being.
According to Black’s Law Dictionary, 9th Edn., Hate speech is defined as “Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.”
Hate speech may target “religion, ethnicity, nationality, race, colour, descent or gender” and characteristics such as language, economic or social origin, disability, health status or sexual orientation among many others.
Hate speech encompasses various types of expression that endorse, provoke, encourage, or justify hostility, violence, and discrimination against individuals or groups for different reasons. It presents significant threats to the unity of a democratic society, the safeguarding of human rights, and the enforcement of the rule of law. When not effectively addressed, hate speech can escalate into widespread violence and conflicts. In this regard, it represents an intense form of intolerance that fuels hate crimes[ii]
In the absence of a legislative definition of hate speech, the Court in Para 7 of its judgement in Pravasi Bhalai Sangathan vs U.O.I. & Ors 2014 explains its interpretation of hate speech as an effort to marginalize individuals based on their membership in a group using expression that exposes the group to hatred, reducing their social standing and acceptance within society. Hate speech, therefore, beyond causing distress to individual group members can have a societal impact. It can give rise to further broad attacks on the vulnerable that can range from discrimination, to ostracism, segregation, deportation and violence.[iii]
Justice Nagarathna in her dissenting judgment in Writ Petition 113 (Criminal) of 2016 with Special Leave Petition No. 34629 of 2017 wrote specifically in Para 16.3 about hate speech denying human beings the right to dignity and advocated that freedom of speech and expression must be exercised in a manner that would protect and promote the rights of fellow-citizens. [iv]
Why should we stop hate speech
- To protect Human Dignity (hurting)
- Preventing violence and discrimination (differentiating)
- Promoting social harmony (balancing)
- Safeguarding democratic values (caring)
- Supporting mental strength (stress)
- Upholding legal and ethical values (safeguarding)
Guidelines Issued by the Supreme Court to curb Hate Speech:
Legal Provisions of Hate Speech:
Hate speech has not been defined in any law in India. However, legal provisions in certain legislations prohibit select forms of speech as an exception to freedom of speech. The Courts have time and again advocated that persons affected by hate speech take recourse to provisions laid down in the penal and other laws. Some laws which may provide remedies against hate speech are listed below:
- Indian Penal Code (IPC) Provisions –
- Under Section 153A of IPC, “promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”, is an offence punishable with imprisonment which may extend to three years, or with fine, or with both.
- Section 505(2) of IPC makes it an offence to make “statements creating or promoting enmity, hatred or ill-will between classes” which shall be punishable with imprisonment which may extend to three years and fine, or with both.
- Representation of the People Act, 1951 –
- Section 8 disqualifies a person from contesting election if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression.
- Protection of Civil Rights Act, 1955 –
- Section 7 penalizes incitement to, and encouragement of untouchability through words, either spoken or written, or by signs or by visible representations or otherwise.
- Religious Institutions (Prevention of Misuse) Act, 1988 –
- Section 3(g) prohibits a religious institution or its manager to allow the use of any premises belonging to, or under the control of, the institution for promoting or attempting to promote disharmony, feelings of enmity, hatred, ill-will between different religious, racial, language or regional groups or castes or communities and is punishable with imprisonment for a term extending to three years and fine.
- Information Technology Act of 2000:
○ Section 66A criminalized “offensive speech” online and was punishable with imprisonment for a term which may extend to three years and with fine. It was intended to protect women from cyber-crimes but was criticized for endangering civil and political liberties. In Shreya Singhal v. Union of India, the Court, ruling that Section 66A creates an offence that is vague and overbroad, struck down Section 66A as being violative of Article 19(1)(a) and not saved by 19(2).[v]
The Court upheld the constitutionality of Section 69A of the Act which gives the Government the power to block public access to online content which falls under Article 19(2) of the Constitution.
Important judgements:
Pravasi Bhalai Sangathan vs U.O.I. & Ors 2014 ((2014) 11 SC 477)
Pravasi Bhalai Sangathan, a welfare organization representing inter-State migrants, filed a public interest litigation (PIL) to address the increasing instances of hate speech based on religion, caste, region, and ethnicity. The petitioner argued that these hate speeches not only disturbed communal harmony but also violated the fundamental rights guaranteed under the Constitution.
In its judgement, the Court opined that the statutory provisions and the Penal law provide sufficient remedy to tame the menace of hate speech. The aggrieved person must resort to the remedy provided in the statutes. The root of the problem is not the absence of laws but rather a lack of their effective implementation. One of the primary challenges with these sections is the subjective nature of their enforcement, which often leads to inconsistent interpretations and selective application, making it difficult to uniformly apply these laws to modern instances of hate speech. [vi]
Amish Devgan v. Union of India
Amish Devgan, a News Anchor on a mainstream TV channel during a debate used derogatory language against the Sufi Saint Khwaja Moinuddin Chisti. Many FIRs were filed against Amish Devgan and he was abused on social media. Devgan later apologised and said he had inadvertently used the Saint’s name when he had actually meant someone else. He filed many writ petitions seeking the quashing of the FIRs against him. The Court refused to quash the multiple FIRs and opined that persons of influence must be more careful. The Court differentiated between “free speech” which includes the right to comment positively on or criticize government policies; and “hate speech”, which has the effect of creating or spreading hatred against a targeted group”. [vii]
Bilal Ahmed Kaloo v. State Of A.P. (1997 INSC 598
Bilal Ahmed Kaloo was an active member of a militant outfit which was formed with the ultimate object of liberating Kashmir from the Indian Union.
With this in mind, the appellant spread communal hatred among the Muslim youth in the old city of Hyderabad and exhorted them to undergo training in armed militancy and offered them arms and ammunitions. He himself was in possession of lethal weapons like a country-made revolver and live cartridges. He was propagating among the Muslims that in Kashmir, Muslims were being subjected to atrocities by the Indian Army personnel.
Bilal Ahmed Kaloo was prosecuted under the Terrorist and Disruptive Activities (Prevention) Act (TADA) and several sections of the IPC, including Section 124-A (Sedition), Section 153-A, and Section 505(2). Evidence of the prosecution relating to offences under Sections 153A and 505(2) of IPC, consisted of oral testimony of certain witnesses who claimed that appellant was telling others that the Army personnel have been committing atrocities on Muslims in Kashmir.
Although acquitted of offenses under TADA by the Designated Court, Kaloo was convicted under the IPC and the Arms Act. On appeal, the Supreme Court set aside the convictions under the IPC while affirming the conviction under the Arms Act. The Court emphasized the necessity of clear evidence when invoking serious sections like sedition and enmity promotion.
For Sections 153-A and 505(2) IPC to be applicable, the Court held that there must be an intentional act promoting enmity between at least two distinct groups. The evidence presented did not sufficiently demonstrate such involvement between two groups. Also, for Section 505(2) to be applicable, publication is a requirement.
The Court stressed the importance of “mens rea” in convicting individuals under these sections, ensuring that mere possession of offensive materials or making statements without intent does not suffice for conviction.
Conviction under the Arms Act (Section 25(1-B) IPC) was upheld based on verified evidence of firearm possession.[viii]
Campaign against Hate Speech v. State of Karnataka
One of the petitioners, an NGO, Campaign against Hate Speech sought action against the media houses for violating provisions of the Cable Television Networks (Regulation) Act, 1995 by indulging in hate speech along with other political leaders by making inciteful and irresponsible speeches in the media accusing certain sections of society for the outbreak of Covid-19.
The High Court of Karnataka ruled that the judiciary cannot decide on hate speech legislation because it is a matter for Parliament. There is no specific legislative definition of hate speech.
The Court also noted that the provisions of Indian Penal Code, 1860; Representation of People Act, 1951; Information Technology Act, 2000; Unlawful Activities (Prevention) Act, 1967; Protection of Civil Rights Act, 1955; Religious Institutions (Prevention of Misuse) Act, 1980; Cable Television Networks (Regulation) Act, 1995 and The Cable Television Network (Rules), 1994; Cinematographers Act, 1952 as well as Code of Criminal Procedure, 1973, amongst other statutes, provided substantive and procedural law to enable the petitioners to seek their respective remedies. Therefore, the Court dismissed the petition. [ix]
Shaheen Abdullah v. Union of India (2022)
The complaint raised in the writ petition relates to the growing climate of hate in the country. The petitioner reported a series of hate speeches made against a certain community.
The Court noted that the complaint of the petitioner is one of despondency and angst arising from the perception that despite suitable provisions in penal law being available, there is inaction or rather total inaction.
The Court directed the Commissioner of Police and Director General of State Police to take action against hate speech crimes without waiting for complaints and the State Governments to ensure this. The court also warned that non-compliance would be considered contempt of court.[x]
Conclusion
Although the Supreme court in many judgements has discouraged the use of writ petitions or public interest litigations to address the menace of hate speech, and has advocated instead that affected persons take recourse to provisions laid down in the penal and other laws; in practice, there are difficulties in the interpretation of these laws and their application to hate speech, for which they were not specifically formulated. There is a need for legislation against hate speech since hate speech manifests itself in different forms and to different degrees and may not fall directly under the restrictions imposed in Article 19(2) of the Constitution or the provisions of the penal law.
There is also a fine line between freedom of expression – expressing dissent or opposition to certain policies or actions of the Government or political parties, which tends to be viewed as anti-national, and may be considered hate speech; and speech made to incite certain factions or groups, to discriminate against them or hurt their dignity. Therefore, legislation purporting to regulate hate speech may run the risk of being used to silence dissent and opposition.
Even in cases where the penal provisions may apply, implementation is slow while these matters need to be taken up on a fast-track basis before situations get out of control. Further aspects of hate speech which need to be addressed are an analysis of hate speech during elections, when the occurrence is very high, but unfortunately rarely has serious action been taken against the offenders, particularly if they belong to the party in power.
Proliferation of digital media, including social media, has made it easier to retrieve, receive and share information and ideas. It is therefore a challenge for the Government, the legislature and the judiciary to address hate speech and control it without suppressing genuine freedom of speech and expression.
References:
[i] “Freedom of Speech & Expression, Article 19(1)(a) of Indian Constitution – Drishti Judiciary” (Drishti Judiciary) https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/freedom-of-speech-&-expression / accessed 27 January 2025.
[ii] “Hate Speech in India” <https://vajiramandravi.com/upsc-daily-current-affairs/mains-articles/hate-speech-in-india/ > accessed 27 January 2025.
[iii] “‘Hate Speech in India” & “Pravasi Bhalai Sangathan vs U.O.I. & Ors 2014’’ (Indian Kanoon) https://indiankanoon.org/doc/194770087/ accessed 27 January 2025.
[iv] ‘Hate Speech: Dissenting Views of the Supreme Court’ (Citizens for Justice and Peace, [date]) https://cjp.org.in/hate-speech-dissenting-views-of-the-supreme-court/ 27 January 2025.
[v] “Shreya Singhal v. Union of India” (Indian Kanoon) https://indiankanoon.org/doc/110813550/ accessed 30 January 2025.
[vi] Pravasi Bhalai Sangathan vs U.O.I. & Ors 2014 ((2014) 11 SC 477) ‘ (Indian Kanoon) https://indiankanoon.org/doc/194770087/ accessed 27 January 2025.
[vii] ‘Amish Devgan v Union of India (2020): A Case That Outraged Religious Grounds’ (iPleaders Blog) https://blog.ipleaders.in/amish-devgan-v-union-of-india-2020-a-case-that-outraged-religious-grounds/ accessed [date] and ‘Amish Devgan vs Union of India’ (Indian Kanoon) https://indiankanoon.org/doc/179868451/ accessed 27 January 2025.
[viii] Bilal Ahmed Kaloo v. State Of A.P. (1997 INSC 598′ (Indian Kanoon) https://indiankanoon.org/doc/639296/ accessed 27 January 2025.
[ix] ‘Campaign Against Hate Speech v State of Karnataka’ (Columbia Global Freedom of Expression) https://globalfreedomofexpression.columbia.edu/cases/campaign-against-hate-speech-v-state-of-karnataka/ accessed 30 January 2025.
[x] Shaheen Abdullah v. Union of India (2022)’ (Indian Kanoon) https://indiankanoon.org/doc/181114432/ accessed 30 January 2025.
