FREEDOM OF SPEECH VS. HATE SPEECH : WHERE’S THE LINE?

AUTHOR : TAMANNA SAMOTA, CHHAJU RAM LAW COLLEGE, GURU JAMBESHWAR UNIVERSITY

ABSTRACT

The recent contest regarding India’s Got Talent has reignited the debate on detest Speech versus Freedom of Speech in India. Now the question arises where do we draw a line? Should content be regulated under detest Speech laws? This issue has gained significant attention in recent times due to the rise of Social media and the increasing influence of digital platforms on the general public and their converse. This composition explores the legal frame of regulations for detest Speech and how laws and courts rulings have shaped this debate. This composition also focuses on indigenous vittles, statutory laws, along with transnational perspective. The main focus of this composition is to strike a balance between freedom of expression and social responsibility. Freedom of speech is a pillar of Indian society which ensures that everyone has the right to express one’s ideas and shoes. This right, still, isn't absolute and subordinated to certain reasonable restrictions.

KEYWORDS

Freedom of speech, Composition 19( 1)( a), Composition 19( 2), Indian Constitution, Judicial Precedents, detest speech, Social media regulations.

INTRODUCTION

“If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter,”

— George Washington

Freedom of speech and expression refers to the right to express one’s beliefs and opinions freely through speech, writing, printing, images or any other medium. This right is not limited to expressing one’s personal views but also includes the freedom to share and publish the opinions of others. Without this aspect, the right to free expression would be incomplete. Freedom of expression serves four key purposes:( 1) it enables individuals to achieve self- fulfilment;( 2) it aids in the pursuit of truth;( 3) it enhances an individual’s ability to participate in decision making;( 4) it provides a platform for balancing stability and social change. However, Article 19( 2) of the Indian Constitution imposes reasonable restriction on this freedom in specific circumstances, including:( a) Security of the state;( b) Friendly relations with foreign nations;( c) Public order;( d) Decency or morality;( e) disdain of court;( f) vilification;( g) Incitement of an offence;( h) Sovereignty and Integrity of India. Analysing the current state of free speech is crucial to understand what truly qualifies as detest speech and whether suppression is justified. Hate speech in India has historical roots, dating back to colonial times when it was used to create divisions along religious and caste lines. Hate speech in amateur terms refers to statements that are obnoxious and may incite hostility or resentment towards an individual or group based on their inherent characteristics such as race, religion, estate or gender that may bring public unrest. In recent years, the rise of digital platforms has significantly influenced public discourse, where speech spreads incontinently. With the ease of internet access, the number of social media druggies in India stood 900 million by 2025. Platforms like Instagram, You Tube, X (formerly Twitter) allows instant communication, making opinions spread fleetly, but also amplifies misinformation, collaborative rhetoric, and detest speech escalate. Thus, defining and regulating hate speech without violating free speech remains a challenge. This composition assesses whether India’s approach to hate speech strikes the right balance between guarding expression and precluding detriment.

LITERATURE REVIEW

1. Theoretical Foundations of Free Speech and detest Speech.

John Stuart Mill( On Liberty, 1859) : Mill’s main point in “ On Liberty ” is that individual freedoms must be defended from political, profitable, and social despotism. He believed that an existent’s complete autonomy should be shielded, as long as their studies or conduct do n't harm others. Mill regarded freedom as the abecedarian structure block of a progressive, humane society. He believed that the ability to think, act, and organize freely- provided it does not infringe upon the rights of others- is crucial to attain true liberty. Mill emphasized the topmost way to insure pleasure was to cover individual liberty, so long as it does n't harm anyone differently. He outlined three crucial freedoms( 1) Freedom of study and emotion;( 2) Freedom to pursue particular tests;( 3) Freedom to unite. He considered freedom of study and speech the most pivotal, arguing that indeed unpopular opinions should be defended because they might eventually prove to be true, serving both individualities and society.

Jeremy Waldron (The detriment in detest Speech, 2012) : Every liberal republic has laws or codes against hate speech- except the United States. From an indigenous perspective, regulation of hate speech infringes upon the First Amendment and undermines the foundation of a free society. However, in contrast to this absolutist view, Jeremy Waldron argues that hate speech should be regulated as part of our commitment to mortal quality and to addition and respect for members of vulnerable nonages. Waldron differentiates obnoxious speech from hate speech, arguing that while offence is n’t fairly punishable, detest speech threatens social addition. Symbols of abomination like racist propaganda produce fear and instability, signaling rejection and demarcation. Waldron urges us to move once knee- haul American exceptionalism in our debates over the serious consequences of spiteful speech.

“A important little book that seeks to strike familiar defenses of right to unpardonable speech”

- Kelefa Sanneh, New Yorker

Ronald Dworkin( Freedom’s Law, 1996) “ The Constitution is America’s moral compass, and we must have the courage to upload the conviction that it embodies- a belief that we can each be equal citizens of a moral democracy. That's a noble faith, and only optimism can sustain it. ”In the preface to this thought- provoking and compelling book, Dworkin argues that a true commitment to the constitution and the rule of law requires judges to make contemporary decisions based on the principle of political morality. He emphasizes that judicial ruling should openly reflect moral foundations. His book explores key indigenous issues such as revocation, free speech and affirmative action, championing action and a liberal interpretation of the U.S. Constitution. His “moral reading” approach emphasized that indigenous rights, including free speech, must be interpreted through moral principles like justice, political morality, and decency.

Legal Framework in India.

Article 19(1)(a): All citizens shall have the right to freedom of speech and expression.

Article 19(2): Imposes reasonable restriction which include:

Security of the state;
Friendly relations with foreign states;
Public order;
Decency or morality;
Contempt of court;
Defamation;
Incitement of an offence;
Sovereignty and Integrity of India.

Article 25(1): Every individual has the equal right to freedom of conscience and the liberty to profess, practise, and propagate their religion, subject to public order, morality, health and other provisions of this part.

Section 192: Want only giving provocation with intent to cause riot- if rioting be committed; if not commited. Anyone who deliberately or maliciously engages in an unlawful act that provokes another person, intending or knowledge that such provocation is likely to lead to rioting, shall be subject to the following penalties:(a)If rioting occurs as a result of the provocation, the offender may face imprisonment for up to one year, fine or both.(b)If rioting does not occur, the offender may face imprisonment for up to six months, fine or both.

Section 196: Anyone who (a) through spoken or written words, signs, visible representations or any other means, promotes or attempts to promote, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities based on religion, race, place of birth, residence, language, caste or community or any other ground or (b) engages in any act that harms harmony among different religious, racial, language or regional groups, castes or communities, and which disturbs or is likely to disturb the public tranquillity, shall be punished with imprisonment for up to three years, fine, or both.

Section 299: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.

Section 8 of the RPA, 1951:

Disqualified individuals convicted of misusing their right to free speech from contesting elections.

Sections 123(3A) and 125 of the RPA:

Prohibits the promotion of feelings of enmity or hatred between different classes of Indian citizens based on race, religion, community, caste, or language in context of elections and classifying as corrupt electoral practices.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989:

Prohibits hate speech directed at Scheduled Caste or a Scheduled Tribe in any publically visible location.

Protection of Civil Rights Act, 1955:

Punishes the incitement or promotion of untouchability through spoken or written words, signs ,visible representations or any other means.

Judicial Precedents on detest Speech

Shreya Singhal v. Union of India( 2015) : The case of Shreya Singhal deals with the constitutionality of Section 66A of the Information Technology Act, 2000. This provision criminalized the transferring of" obnoxious" dispatches through communication service, which was astronomically defined. Shreya Singhal, a supplicant, challenged this provision on grounds that it was unconstitutional as it violated the abecedarian rights guaranteed under Composition 19( 1)( a)( freedom of speech and expression) and Composition 21( right to life and particular liberty). The Supreme Court ruled Section 66A of the Information Technology Act, 2000, unconstitutional and struck it down. The Court held that the provision was violative of Composition 19(1) (a) and did not meet the test of" reasonable restrictions" under Composition 19(2). This judgment reinforced the importance of protecting free speech and expression while also establishing that any imposed restrictions assessed should be precise and not open to arbitrary interpretation. This emphasizes that vague laws cannot be used to limit free speech arbitrarily.

Pravasi Bhalai Sangathan v. Union of India( 2014) : In Pravasi Bhalai Sangathan v. Union of India, the Supreme Court held that the effective implementation of existing laws would significantly address the issue of hate speech. The Court also referenced the Canadian Supreme Court’s decision in Saskatchewan v. Whatcott( 2013). Stating that hate speech poses a substantial barrier to the full participation of groups similar to nonage in our democracy.

METHODOLOGY

This research adopts a doctrinal legal research approach, The doctrinal method of research which focuses on examining existing legal principles, doctrines, statutes, and case laws to gain a thorough understanding of a legal issue, analyzing constitutional provisions (Article 19(1(a) and Article 19(2)), judicial precedents, scholarly works to examine the balance between free speech and hate speech. Studying landmark cases such as Shreya Singhal v. Union of India (2015), Pravasi Bhalai Sangathan v. Union of India (2014). Reviewing works by John Stuart Mill, Ronald Dworkin, and Jeremy Waldron to explore philosophical debates on free speech limitations. This approach ensures a comprehensive legal, theoretical and contemporary understanding of this issue.

RESULTS

The findings suggest that while free speech is vital for democracy, unchecked hate can harm social order. Although freedom of speech is an essential part of democratic society, free speech is not inalienable. Balancing the right of freedom of speech and with the responsibility to prevent hate speech is crucial. This article highlights the power of community while emphasizing the importance of recognising the harm caused by hate speech and ensuring the protection of individual rights and safety. Therefore, a balanced legal framework with clearer definitions, transparent enforcement is needed to uphold the line between freedom of speech and hate speech.

DISCUSSION

“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”

— United Nations Secretary-General Antonio Guterres, May 2019

Freedom of speech and expression are fundamental human rights and essential pillars of free and democratic societies. However in recent times, there has been a rise in hate speech, often propagated either by politicians or influencers on digital platforms leading to violence among the general public. Media outlets contribute to this by sensationalizing news for viewership, while Politicians use hate speech as a tool to secure votes. Additionally, offensive messages created by malicious individuals are frequently shared and forwarded without scrutiny. The digital age has made it significantly easier for harmful and unchecked language to reach and offend a vast audience. Let’s take the classical example of shouting “fire” in a crowded theater. No one can stop you from using the word “fire”, but they are restricting the place in which you shout that, to prevent a threat of imminent real danger. This is a very specific law that has very narrow conditions which must be met, and it is a time-and-place law. Opinion can never be restricted but can be subject to some reasonable restrictions. It is not only legal but social, where the challenge lies in managing free speech and preventing potential hate violence. India must implement a law to stop hate speech in the country. There must be thoughtful consideration to manage freedom of speech and hateful speech. For that, legal systems have to be reasonable, rational, and objective. Engage more actively or cooperatively with civil society- the media and tech companies should be responsible. Furthermore, values of respect and understanding should be entrenched in the educational system. All in all, the great thing about India is that there is a mix of multiple diversities. To protect this diversity, it is important to have measures that manage and control language in a thoughtful way. It is through inclusive action that we can achieve and protect free speech while creating an environment that doesn’t entertain hate speech. Although it is a conventionally soft balance, it is one we must achieve for the welfare and harmony of our country. But, to narrow the divide theory and implementation, proactive measures must be taken by the government.

CONCLUSION

The foundation of democracies all around the globe is freedom of speech. This right enables the exchange of ideas and opinions without government intrusion. However, like any right, freedom of speech is not absolute. It does not give individuals based on their caste, race, religion, ethnicity or gender. Similarly, in India, movies are not only considered a form of creative art; they also play a vital role in the formation of popular culture and social values. One of the most controversial films in India is “Padmavat” which faced severe criticism and was banned in multiple states for allegedly historically inaccurate and socially damaging portrayal. The Central Board of Film Certification (CBFC) evaluates and assigns categories to movies in India. As set forth in section 5 of Cinematograph Act, the CBFC is monitoring the content of films to ensure they do not advocate for communal discontent or violence. The guidelines put forth by CBFC on “objectionable content” are particularly sensitive about the inclusion of hate speech. All people should be allowed freedom of speech but not when it comprises public decency or order. Accepting hate speech and understanding its attributes makes it simpler to formulate laws prohibiting it. Hate speech has far more reaching effects on social harmony and individual well-being. We can adopt some measures to control hate speech i.e. responsible content dissemination, laws shouldn’t be ambiguous but clear and avoid uncertainties, state should take strong stand on promoting legal awareness to curb hate speech, strict laws should be introduced for social media like in Australia, Germany which imposes fines and penalties. These measures collectively aim to balance free speech and responsible content regulation, preventing the spread of hate speech while upholding democratic values. This article provides a legal and contemporary perspective on hate speech v. free speech, incorporating real-world issues, and calls for balanced legal reforms to uphold democratic principles while curbing speech and courts must ensure laws are not misused to silence dissent.

References

1. Books

Mill, J. S. (1859). On Liberty. London: John W. Parker and Son.
Waldron, J. (2012). The Harm in Hate Speech. Cambridge, MA: Harvard University Press.
Dworkin, R. (1996). Freedom’s Law: The Moral Reading of the American Constitution. Cambridge, MA: Harvard University Press.

2. Constitutional References