Authored By – Mayank, Bennett University

INTRODUCTION:

Freedom of speech and expression is a backbone of democracy, permitting people to share ideas, challenge authority, and foster social progress. However, its misuse as hate speech raises profound constitutional, legal, and ethical encounters. Equalising the right to free expression against the essential to curb divisive and harmful speech is a persistent legal dilemma in India and across the globe. This article goes deep in constitutional framework, legal essentials, judicial precedents, and social implications covering this debate.

Keywords (Minimum 5):

1. Freedom of Speech and Expression.
2. Hate speech.
3. Reasonable Restrictions.
4. Public Order.
5. Article 19(1)(a), Constitution of India.
6. Article 19(2), Constitution of India.

Meaning, Definition & Explanation:

Freedom of Speech and Expression: Freedom of speech is the legal right to show views/opinions deprived of fear of restriction. It includes speech, writing, and other forms of communication such as art, media, and digital expressions. The essence of this right lies in its role as a vehicle for the barter of ideas, ensuring answerability, and empowering democratic participation.

Hate Speech: Hate speech refer to words that express hatred, prejudice, or discrimination against specific groups or individuals. Mainly this speeches targets characteristic such as race, ethnicity, religion, gender etc. which can lead to social division, conflicts, and psychological harm to victims. Hate speech not only come on social media and in public but is also appear in certain cultural and political contexts.

Historical Background / Evolution:

The evolution of free speech laws in India is deeply rooted in colonial history. During British rule, various laws were enacted to suppress dissention and control public dissertation, such as the sedition laws and the Press Act. these laws were aimed at stifling the voices of freedom fighters and critics of the colonial government. After getting freedom in 1947, India predictable the status of free speech as a fundamental right, enshrining it in Article 19 of the Constitution.

The makers of the Indian Constitution comprehend that while free speech is essential for a vibrant democracy, it also comes with responsibilities. They predicted that unrestricted freedom of expression could lead to harm, including provocation to violence, defamation, and the spread of hate speech, which could undermine public order and the rights of others. Therefore, Article 19(2) outlines specific grounds on which the State can impose restrictions, such as the sovereignty and honour of India, security of the state, responsive relations with international states, public order, decency, morality, and disdain of court.

These services show a managed balancing act, aims to protect individual freedoms while also safeguarding the common interests of society. The debates among the makers highlighted the different perspectives on the parameters of free speech, with some saying for broader boosting and others stressing the need for limits to maintain social harmony. Over the years, the interpretation of these articles by the judiciary has changed, often routing the difficulties of modern challenges like digital communication and construction, thereby continuing to shape the address around free speech in India.

Comparison with other Countries:

1. United States: “The 1st Amendment to the U.S. Constitution gives vigorous protection to free speech. However, exceptions exist for obscenity, defamation, and incitement to violence, as established in Brandenburg v. Ohio (1969).”[1] This landmark case set a high threshold for restricting speech, requiring both intent and likelihood of incitement to imminent violence.

In contrast to India’s proactive restrictions on hate speech, the U.S. approach prioritizes free expression, even at the risk of aggressive speech. While this allows vigorous public debate, it also poses problems in speaking the harmful effects of hate speech, basically on marginalized communities.

2. United Kingdom: The UK’s Public Order Act, 1986, and the Equality Act, 2010, talk hate speech by criminalizing provocation to hatred based on race, religion, or sexual orientation. The UK’s approach stresses proportionality and necessity.

The UK’s approach is rooted in the principle of proportionality, ensuring that limits on speech are narrowly personalized and necessary to achieve a legitimate aim. Unlike the U.S., the UK takes a more domineering stance, reflecting its stress on social harmony and inclusivity.

3. European Union: Under the “European Convention on Human Rights (ECHR)”, Article 10 safes free speech but licenses restrictions necessary for a democratic civilization. Hate speech laws are enforced to maintain social cohesion and prevent violence.
4. Canada: Canada’s address to hate speech is ruled by its Charter of Rights and Freedoms and certain legislation such as the Canada’s Human Rights Act and Criminal Code. Section 319 of the Criminal Code criminalizes the own-choice elevation of hatred against recognizable groups. The SC of Canada, in “R v. Keegstra (1990)”, upheld these essentials, focusing that hate speech lower the pride and equality of specific groups.

Canada’s idea shows a commitment to equal free expression with the need to save each person from harm. This test plays an important role in checking the constitutionality of hate speech laws.

5. South Africa: South Africa’s Constitution gives rigid securities for freedom of expression under “Section 16” but directly excludes hate speech. The notice of “Equality and Prevention of Unfair Discrimination Act, 2000”, stops hate speech and want steps to promote equality and social unity. South Africa’s historical context of bias tells its strong stand against hate speech, realizing its potential to continue discrimination and social divisions.

Types / Kinds:

1. Direct Provocation: Speech clearly uprising violence or discrimination against a group.
2. Indirect Hate Speech: indirect language supporting hate indirectly.
3. Cultural or Historical Hate Speech: Narratives fixed in historical partialities spreading stereotypes.
4. Cyber Hate Speech: Hate speech spread through digital platforms and social media.

Forms / Modes:

1. Verbal Communication: Spoken words pointing individuals or groups.
2. Written Communication: Hated messages in print or online mediums.
3. Artistic Expression: Art forms used to glorify or incite hatred.
4. Symbolic Speech: Use of gestures, signs, or symbols to propagate hate.
5. Digital Content: Memes, videos, and other online materials spreading hate.

Legal Provisions:

“Article 19(1)(a): It grants citizens the right to freely express their thoughts, opinions, and ideas. This includes the freedom to express oneself through speech, writing, printing, visual representations, or any other means. However, reasonable restrictions can be imposed on this right for the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign nations, public order, decency or morality, contempt of court, defamation, incitement to an offense, or the sovereignty and integrity of Parliament.”[2]

“Article 19 (2): Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests 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 offence.”[3]

Indian penal code provisions:

“Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities shall be punished with imprisonment which may extend to 3 years, or with fine, or with both.”[4]

“Section 505: whoever makes or circulates statements or rumours with intent to cause mutiny or fear among military personnel, incite offenses against the state or public tranquillity, or promote hatred between different religious or social groups cab be punished with imprisonment up to 3 years, or with a fine, or both.”[5]

Case Laws:

1. “S. Rangarajan v. P. Jagjivan Ram (1989): The Supreme Court says that restrictions on free speech must be proportional and necessary to maintain public order.”[6]
2. Shreya Singhal v. Union of India (2015): pull down Section 66A of the IT Act, supporting protection for online free speech.
3. “Pravasi Balai Sangathan v. Union of India (2014): shows the need for effective implementation mechanisms to struck down hate speech.”[7]

Doctrines / Theories:

1. Clear and Present Danger Test: Speech can be restricted if it poses a forthcoming harm to public safety.
2. Balance Test: controls individual rights against social interests.

Maxims / Principles:

Maxims:

1. “Salus populi suprema lex (The welfare of the people is the supreme law): This maxim underlines that public welfare is supreme. In regulating speech, this principle is applied to balance individual rights against social interests. For example, decrease hate speech protects public accord, guaranteeing that the greater good comes over open personal expression.”[8]
2. “Sic utere tuo ut alienum non laedas” (Use your property so as not to harm others): While this maxim basically refers to property law, it is relevant in speech regulation, accenting that one’s freedom should not harm another’s rights. Hate speech, by its nature, invades on the dignity and equality of others, justifying restrictions.”[9]

Principles:

1. Equalising Fundamental Rights: Indian Constitution struggles to blend the right to free speech with different fundamental rights like the right to equality and non-discrimination. This principle is understandable in judicial understanding that uphold limitations on hate speech to protect weak groups.
2. Proportionality: Restrictions on speech must be comparative to the harm caused. Courts often apply this principle to ensure that limits are not high and align with the points of public order and ethics.
3. Reasonable Restrictions: Article 19(2) represents the principle of reasonableness, demanding that any edges on free speech be justified, necessary. For example, laws against hate speech must serve genuine aims like maintaining public order or protecting dignity.
4. Clear and Present Danger: This principle checks whether speech making an urgent and certain threat to public protection. For example, inflammatory speech inciting violence may be restricted under this test.

Statistical Analysis / Data Analysis:

Hate Speech and Free Speech: Quantitative Insights

1. Online Hate Speech: According to a 2022 report by Internet Freedom Foundation, more than 50% of reported hate speech incidents in India appear on social media platforms, with shared, racial, and gender-based insults are the most common types.
2. Legal Cases: Data from the National Crime Records Bureau (NCRB) shows that cases registered in Section 153A of the IPC have seen a 25% increase over the past decade, dazzling growing social polarization.
3. Global Comparisons: Studies show that countries with rigid hate speech laws, like Canada and Germany, report less hate crimes per capita related to countries like USA where free speech protections are broader.

Analysis:

The rise of digital platforms has inflamed the reach of hate speech, making it easy to spread diverse content. However, vigorous enforcement of hate speech laws in countries like Germany highlights the potential for effective regulation to reduce social harm. In India, the growing number of hate speech cases highlights the urgent need for clear legislation and good enforcement to struck down this threat.

CONCLUSION & COMMENTS

The to and fro between freedom of speech and hate speech highlights the difficulties of democratic government. Whereas, free opinions are self-motivated for democracy, free hate speech can harm social harmony and individual respect. India’s legal framework reflects a different approach, controlling rights with limitations. However, clearer explanation, vigorous enactment, and public awareness are crucial to tackle upcoming challenges in today’s age. The requirement for regular judicial updates and legislative evolution remains dominant to hold democratic values while safeguarding social issues.

REFERENCES

1. Books / Commentaries / Journals Referred
   1. M. Seervai, Constitutional Law of India (4th edn, Universal Law Publishing 2018).
   2. Granville Austin, The Indian Constitution: Cornerstone of a Nation (OUP 1966).
   3. Internet Freedom Foundation, Annual Report on Hate Speech and Digital Platforms in India (2022).
   4. National Crime Records Bureau, Crime in India Report (2021).
2. Online Articles / Sources Referred
   1. Indian Kanoon, https://indiankanoon.org/ accessed [24 January 2025]
   2. Supreme Court Judgments Portal, https://main.sci.gov.in/ accessed [24 January 2025].
3. Cases Referred
   1. Rangarajan v. P. Jagjivan Ram (1989).
   2. Shreya Singhal v. Union of India (2015).
   3. R v. Keegstra (1990).
4. Statutes Referred
   1. Constitution of India – Articles 19(1)(a) and 19(2).
   2. Indian Penal Code – Sections 153A and 505.
   3. Public Order Act 1986 (UK).
   4. Equality Act 2010 (UK).
   5. Criminal Code, s 319 (Canada).
   6. Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (South Africa).

[1] Brandenburg v. Ohio (1969), 1^st Amendment

[2] Article 19(1)(a), constitution of India

[3] Article 19(2), constitution of India

[4] Section 153A, The Indian Penal Code, 1860.

[5] Section 505, The Indian Penal Code, 1860.

[6] S. Rangarajan v. P. Jagjivan Ram (1989), Supreme Court.

[7] Pravasi Balai Sangathan v. Union of India (2014), Supreme Court.

[8] Salus populi suprema lex, legal maxim.

[9] Sic utere tuo ut alienum non laedas, legal maxim.