AUTHOR: MANISI PATEL

Introduction

The right to free speech is a fundamental right enshrined in India’s Constitution and is an integral aspect of democracy. It empowers individuals to express their opinions without fear of retribution. However, this right is not absolute and can be curtailed if it infringes upon the rights of others or promotes violence and hatred. Balancing free speech with hate speech is a multifaceted issue that necessitates careful consideration of legal and ethical principles.

India’s legal system has grappled with striking a balance between these conflicting interests. While the Constitution guarantees freedom of speech, it also acknowledges the necessity of safeguarding citizens from hate speech. This article delves into the legal framework governing the balance between free speech and hate speech in India, including the types of speech that are safeguarded and those that are banned.

The right to free speech is a fundamental right enshrined in India’s Constitution and is an integral aspect of democracy. It empowers individuals to express their opinions without fear of retribution. However, this right is not absolute and can be curtailed if it infringes upon the rights of others or promotes violence and hatred. Balancing free speech with hate speech is a multifaceted issue that necessitates careful consideration of legal and ethical principles.

India’s legal system has grappled with striking a balance between these conflicting interests. While the Constitution guarantees freedom of speech, it also acknowledges the necessity of safeguarding citizens from hate speech. This article delves into the legal framework governing the balance between free speech and hate speech in India, including the types of speech that are safeguarded and those that are banned.

Legal Framework for Balancing Free Speech and Hate Speech

Article 19(1)(a) of the Indian Constitution guarantees citizens’ freedom of speech and expression. This power is not boundless, however, and can be limited under Article 19(2) in situations involving public order, morality, decency, and India’s sovereignty and integrity. If hate speech is likely to stir up chaos or encourage violence, it is likewise forbidden by Article 19(2).

The Indian Penal Code (IPC) contains provisions that specifically forbid hate speech, such as:

• Section 153A – illegal to incite animosity between various racial, ethnic, linguistic, or regional groups

• Section 295A – illegal to commit intentional acts with the intent to incite religious sentiment

• Section 298 – unlawful to use insulting or derogatory language to vilify religious beliefs of any group

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Regulations, 2021 regulate hate speech in the online space. Social media sites must remove content deemed provocative, offensive, or defamatory.

Platforms use community standards, automated tools, human moderators, and user reports to enforce rules. However, challenges include:

• Errors in takedowns

• Excessive removal of permissible speech

• Lack of transparency

• Outsourced moderation concerns

Platforms must maintain transparency, publish their policies, and ensure fair appeals when content is removed.

Types of Speech

India permits and prohibits several kinds of speech.

Protected Speech Includes:

• Political speech

• Creative expression

• Criticism of government actions

Prohibited Speech Includes:

• Hate speech

• Incitement to violence

• Defamation

Hate speech refers to any speech encouraging hatred, discrimination, or violence against groups based on race, religion, ethnicity, gender, or sexual orientation.

Effects of hate speech include discrimination, violence, and threats to social cohesion.

Common Forms of Speech:

1. Political Speech

Delivered during political debates, campaigns, protests, or policy discussions. Considered central to free speech protections.

2. Commercial Speech

Includes advertising and marketing. Protected but regulated against fraud or deception.

3. Obscene Speech

Sexually explicit content. Not protected.

4. Fighting Words

Words intended to provoke a violent reaction (e.g., racial slurs). Not protected.

Case Laws

Ram Manohar Lohia vs. State of Bihar

The Supreme Court upheld restrictions on speech promoting enmity, balancing speech with public order.

Arun Jaitley vs. NDTV

Delhi High Court held NDTV liable for airing allegations affecting reputation, balancing free speech with dignity.

Shreya Singhal vs. Union of India

Struck down Section 66A IT Act as vague and chilling free speech.

Navtej Singh Johar vs. Union of India

Struck down Section 377 IPC, affirming dignity, privacy, and equality.

These cases highlight balancing free speech with rights like reputation, privacy, and equality.

Arnab Goswami vs. State of Maharashtra

Supreme Court granted bail, affirming importance of dissent and press freedom.

Challenges

Balancing free speech with hate speech is an ongoing struggle requiring continuous discussion and assessment.

Key Challenges Include:

1. Defining Hate Speech

Highly subjective, varies across cultures, languages, and social contexts. India’s diversity makes universal definitions difficult.

2. Enforcement Problems

Implementation often weak or politically influenced.

3. Misuse of Laws

Anti-hate speech provisions sometimes used to silence dissent or target minorities (e.g., misuse of sedition law).

4. Need for Transparency

Laws should be made through inclusive processes and applied fairly. Appeals must be accessible.

5. Promoting Positive Discourse

Encouraging empathy, inter-community dialogue, and tolerance can reduce hate speech.

Data and Facts

• Amnesty International reports hate speech and sectarian violence have increased significantly since 2014.

• Public figures have engaged in hate speech, including calls for violence.

• Digital Empowerment Foundation found over 50% of Indian women face online harassment, including hate speech and threats.

• Social media platforms often fail to act effectively.

Hate speech causes discrimination, violence, and has a chilling effect on free expression.

Conclusion

Striking a balance between free speech and hate speech remains a continuous challenge for governments, courts, and society. While free speech is fundamental, it must be balanced with equality, privacy, dignity, and public order.

Landmark cases provide guidance, but rising hate speech—especially online—demands stronger cooperation between:

• Judiciary

• Government

• Social media platforms

• Civil society

Regulation is essential to prevent harm while safeguarding legitimate expression.

Promoting positive speech, empathy, and productive dialogue is crucial for reducing hate speech and fostering a more inclusive society.