Freedom of speech and expression occupies a sacred space in the Constitution of India. Often described as the heartbeat of democracy, it empowers citizens to speak without fear, question the government, and dissent against the majority. However, this liberty is not unbridled.
By: Rudra Pratap Singh
The framers of the Indian Constitution, having witnessed the suppression of voice during colonial rule, enshrined Article 19(1)(a) as a fundamental right. Yet, they were equally cognizant that speech, if weaponized, could jeopardize the unity, integrity, and peace of a diverse nation. Thus, the right to free speech walks a tightrope alongside Article 19(2), which imposes “reasonable restrictions.”
These freedom under Article 19(1) are not completely absolute, they are restricted to certain limits which have been given under Article 19(2)[2] which is like the First Amendment of the United States Constitution that permit the State to limit speech in the interests of sovereignty and integrity, the security of the State, friendly relations with foreign states, public order, decency, morality, contempt of court, defamation, or incitement to an offence which is similar in the Indian Constitution too. Among these grounds, the concept of public order and incitementhas been most often used in the cases of hate speech[3].
Hate speech is any speech that seeks to stigmatize, marginalize or provoke hostility and violence against individuals or groups based on their religion/caste/ethnicity (such as homosexuals speaking in public about their hatred or being outraged by anti-establishment policies). India is a dangerous place for hate speech, with widespread social divisions and intense communal sentiments. The problem of hate speech is not growing now; it has been around for decades, and the major dilemma is “WHAT MUST BE CONSIDERED HATE SPEECH?”
India, as a country, does not have any specific laws regarding hate speech, but various laws make hate speech fall under a criminal offence that is sometimes favorable and sometimes a problematic one. This legislative mix, along with judicial interpretation, has created opportunities and obstacles. The courts have been given the ability to utilize constitutional principles in diverse situations. The outcome has resulted in uncertainty and the possibility of misuse by political actors or authorities who are determined to silence critics under the guise of preventing hate speech.
This article seeks to completely analyze the judicial approach to hate speech and how it deals with the freedom of speech cases of Article 19(1) and the reasonable restriction on it, Article 19(2). This article will track the evolution of legal theory through landmark cases, define the criteria and systematization by courts, as well as identify current issues concerning online platforms & political speech, and place the Indian experience in a comparative constitutional sense. It will also address criticisms of the judiciary’s approach and suggest a way forward for both freedom of expression and maintaining communal harmony.
This article argues that while the Indian court has shown a practical appreciation for a pluralistic society, there is an important need for a specific law on hate speech for better understanding and to prevent its misuse.
Conceptual Understanding of Hate Speech
The fight for regulation is initiated by the difficulty of defining hate speech correctly. The concept of hate speech is not confined to specific legal contexts, unlike other types like contempt of court, defamation, and obscenity. In India and other democracies, the legal and policy debates are often conceptually uncertain.
2.1 Academic and International Perspectives
Jeremy Waldron and Alexander Tsesis argue that hate speech encompasses not just language, but also the social implications of using words to express their opinions. In The Harm in Hate Speech, Waldron argues that hate speech diminishes the worth and significance of marginalized groups in society, leading to an atmosphere of fear and exclusion. According to Thesis, hate speech is a common catalyst for violence and discrimination in the public sphere. This tactic promotes prejudice rather than just rhetoric.
International institutions have been confronted with the challenge of defining boundaries. The ICCPR’s Article 20(2[4]) mandates States to prohibit the promotion of national, racial, or religious hatred that incites discrimination, hostility, and violence through speech, to which India is a party. Additionally, the European Court of Human Rights has established guidelines for speech that is harmful or derogatory towards minor groups based on their ethnicity/race or origin.
In contrast, the United States follows a nearly flawless course.’ Even if it is highly offensive and hateful speech, the First Amendment generally protects such speech as having the potential to incite imminent lawlessness (Brandenburg v. United States). Ohio (1969).
2.2 The Indian Context
India lacks a legal definition for hate speech, making it challenging to regulate it effectively. Nevertheless, there are several provisions where someone can face indirect consequences for such behaviour. Section 153A, Section 295A and Section 505 respectively aim to prevent hatred between groups by using language or words. During the colonial period, these provisions were designed to prioritize public order over human rights or hate in accordance with modern democratic ideals.
India presents a unique challenge. With deep social fissures and intense communal sentiments, speech often acts as a matchstick in a powder keg. In Amish Devgan v. Union of India (2020), the Supreme Court made a pivotal observation:
“Hate speech has no redeeming or legitimate purpose other than hatred towards a particular group… It dehumanizes groups and impairs the equal standing of citizens.”
The Court distinguished between “Free Speech” (which includes the right to offend or dissent) and “Hate Speech” (which seeks to marginalize/kill the dignity of a group).. This ruling also addressed the issue of social exclusion. The Court stated that hate speech is not a matter of suppressing opinions, but rather of prohibiting expression that could harm or confine vulnerable groups.
2.3 Theoretical Justifications for Regulation
Philosophically speaking, the regulation of hate speech is justified by recognizing that speech goes beyond individual liberty and includes consequences for society. On the basis of his book On Liberty, John Stuart Mill advocated for almost absolute freedom of speech, but acknowledged that it must be limited when such speech causes harm to others. In the context of India, speech has historically been a catalyst for communal riots and large-scale violence, making the harm principle more relevant. A time of communal rhetoric and inflammatory propaganda was prevalent in India before the partition. The memories of such events still have an impact on judicial responses to hate speech. According to the Law Commission of India’s 267th Report (2017), hate speech is believed to undermine the core values of the Indian Constitution, including equality and fraternity. It was suggested that regulation should not solely focus on preserving order but ensuring equal and complete participation of vulnerable groups in democratic processes, without fear of vilification.
Thus, the speech becomes hate when it undermines the nature of its words and acts as a fuel to incite hatred among the people. The main challenge for the Indian courts is to use the laws correctly and punish hate speech, along with carefully looking at the merit of the speech. The right to freedom of speech must not be compromised in the effort to restrict hate speech, and restrictions must not act as a tool for curbing someone’s voice.
Constitutional Framework in India
The constitutional framework for free speech in India is both robust and carefully qualified. It reflects the framers’ desire to protect democratic debate and dissent, while also recognizing the fragility of a newly independent nation divided by caste, religion, and language. Understanding hate speech regulation in India requires revisiting this constitutional design, particularly Article 19(1)(a) and the “reasonable restrictions” laid down in Article 19(2)
3.1-Article 19(1)(a): Guarantee of Freedom of Speech and Expression
Although it may seem unremarkable, India’s democracy is based on Article 19(1)(a) that guarantees freedom of speech and expression to all citizens. The Supreme Court has consistently acknowledged that it can include not only spoken language but also figurative expression, protests, demonstrations, and the right to information. As an instance, Maneka Gandhi v. Union of India, the right to know is a fundamental aspect of free speech, which was recognized by the Court in its ruling. Similarly, in Sakal Papers v. Union of India (1962), while recognizing the importance of free speech, including the freedom of the press, the Court rejected restrictions on newspaper circulation that were implemented. Article 19(1)(a) protects the right to public discussion, criticism of government policies, and challenge established beliefs. This is important not only for individual freedom, but also for collective decision-making in a democratic society.
3.2Article 19(2): Reasonable Restrictions
The- Constitution’s creators acknowledged that unrestricted free speech could be a threat to the social cohesion and harmony in India. In order to protect free speech, the State can enforce “reasonable limits” under Article 19(2).
.The sovereignty and integrity of India, The security of the State, Friendly relations with foreign States, Public order, Decency or morality, Contempt of court, Defamation, and Incitement to an offence.
These restrictions reflect both historical and contextual concerns.’ The. In the 1950s, criticism of foreign dignitaries caused diplomatic ties to become strained, leading to the inclusion of “friendly relations with foreign States.” Additionally, “public order” was introduced after the Romesh Thappar and Brij Bhushan cases [5](1950), where the Supreme Court struck down restrictions because “public order” was not then a listed ground.. The most significant grounds for hate speech include public order and inciting an offense. The courts have frequently analysed whether speech simply offends our sensibilities or if it represents a real and immediate threat to the preservation of public order. The central idea is that “reasonableness” implies that limitations must not be arbitrary or excessive but must be proportional to the desired outcome.
3.3. Equality, Fraternity, and Free Speech.
Free speech is one of the fundamental principles that are also incorporated into the constitutional structure. Article 14 guarantees equality before the law, while Article 15 prohibits discrimination based on factors such as religion, race, caste, sex, or place of birth. Article 51A of the Fundamental Duties mandates all citizens to promote unity and common brotherhood…. Together, these provisions require that freedom of speech is preceded by equality and fraternity. Because hate speech undermines these values by stigmatizing communities and causing hostility, there is little constitutional protection against such speech.
Balancing rights, the Supreme Court has frequently relied on these values. In Amish Devgan, the Court observed that hate speech breaches the principles of fraternity and constitutional morality, which means it is not afforded the same level of protection as criticism or dissent.
3.4. Judicial Review and Reasonable Restrictions.
One of the most important safeguards in the constitutional system is the doctrine of judicial review. Although Article 19(2) permits restrictions, it’s up to the judiciary to determine if they are “reasonable.”. The Court has devised various standards to judge the concept of reasonableness:
It must be restricted by a close proximity (not remote, not fanciful).
The extent to which it causes harm should be proportional.
It is not ambiguous or excessively broad.
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Legislative Framework on Hate Speech.
The Constitution of India provides the general set of rights and restrictions, but there are laws regulating hate speech in the country. The laws do not explicitly forbid “hate speech,” but they also limit it to language that may provoke hostility, anger or disturb the peace. Legislation comprises various provisions such as the IPC, RPA, IT Act and many others.
4.1. Indian Penal Code, 1860.
Hate speech is still the primary means of prosecution under the IPC, which was originally a statute from the colonial period. Several provisions are relevant:
The Section 124A (Sedition) sanctions speech that incites hatred or contempt towards the government established by law. Although it was primarily concerned with sedition, it has occasionally been used in instances of provocative speech. Even so, after Kedar Nath Singh v State of Bihar (1962), [6]sedition is restricted to speech that results in violence or public disturbance. Hate speech cases are subject to controversy, with some arguing that it is frequently employed for incitement rather than actual inciting action.
Section 153A criminalizes the promotion of hatred between different groups based on their beliefs, race, origin, language, and religion, as well as hindering peace.. Among the most frequently used provisions in hate speech prosecutions is this provision. For instance, the politicians are typically charged with sedition for giving communal speeches during elections.
In Section 505: Reprimands any statements that are likely to cause public disturbance, such as those that provoke fear or anxiety in the public or encourage one community against another.
These regulations form the foundation of hate speech regulation in criminal law when taken together. Despite their colonial background, they were designed to maintain public order rather than protect individual dignity or prevent discrimination.
4.2 Information Technology Act, 2000.
The internet’s acceptance of hate speech increased alongside the rise of public discourse.
Shreya Singhal v. The Union of India [7]eliminated section 66A. While online sanctions for posting offensive content were often exploited and deemed unclear.
Although the government has the power to ban content on the Internet that could threaten public order or security, Section 69A is still subject to criticism.
4.3 Other Statutes.
The Cable Television Networks Act of 1995 prohibits programs that promote disharmony.
To prevent films from provoking hatred, the Cinematograph Act was passed in 1952.
Press Council Act 1978 sanctions newspapers that promote communal disharmony.
4.4 Criticisms.
1. Hate speech is not defined, which is a major problem and is used as a tool for the defence as well as silencing the voice of the people.
2. The broad misuse of the terms, which eventually leads to artists/discoverers/critics in trouble.
3. Those who engage in selective enforcement are often subject to prosecution, while high-profile individuals frequently avoid consequences.
4. The laws, such as 295A and 153A, were not Colonial in nature but rather sought to preserve public order.
5.Current laws are inadequate in dealing with the vast amounts of online hate that are present and ongoing.
4.5 Law Commission’s Suggestions
In its 267th Report (2017), the Law Commission[8] proposed inserting new IPC provisions (153C and 505A) to specifically criminalize speech that is gravely threatening, abusive, or intended to cause fear or violence. These have not yet been implemented. This is the need of the hour and curbing hate speech needs immediate reform.
Judicial Approach – Landmark Cases
The judiciary in India has been entrusted with the responsibility of striking a balance between the cherished freedom of speech guaranteed under Article 19(1)(a) and the permissible restrictions contained in Article 19(2). The section undertakes a chronological and thematic analysis of the judicial approach.
5.1 The Early Constitutional Era: Free Speech as a Fundamental Value
During the early years of the Republic, the judiciary was highly active in upholding free speech, even when it resulted in public dissatisfaction. Two similar cases illustrate this. In Romesh Thapar v. The State of Madras(1950), the government prohibited a leftist journal due to concerns about public safety. This journal was banned by the then-government officials. The Supreme Court held that the speech restriction was unconstitutional, as it could only be used in situations where the State’s safety was at high risk or where violence was encouraged. It was affirmed that democracy could only be preserved through free political discourse. In the Brij Bhushan v. State of Delhi (1950), Pre-censorship was deemed to be a violation of Article 19(1)(a) by the Court, as it prohibited newspaper expression without prior restraint.
The term “public order” was added by the First Amendment of the Constitution in 1951. It was added in order to have some restriction on free speech, which sparked public outrage. The framers’ perspective on free speech as the fundamental basis of democracy was reflected in these judgments. Even so, the rulings did not seem to be in keeping with the government of that day.
5.2 Sedition and the Threshold of Incitement
Section 124A of the IPC codified the law of sedition as one of its initial provisions that had to determine the freedom of speech. This was an early development. Kedar Nath Singh v. State of Bihar (1962), court laid the foundation for the interpretation of Article 19(2), which resulted in shortening the scope and authority of Section 124A, while upholding its constitutionality. The verdict ruled that any severe critique of the government should not be considered sedition, unless it provoked public anger or violence.
The incitement test, which has become a central issue in hate speech law, was made possible by this interpretation. It established that any severe criticism of government officials cannot be seditionary unless it promotes violence or public disturbance. Additionally,
This interpretation was a very important part of the incitement test, which has since become central to jurisprudence on hate speech. According to the Court, advocating unpopular views could only be restricted in the sense of “incitement” and not beyond it. This principle is particularly relevant to current free speech debates, especially with digital platforms that frequently host offensive but non-violent speeches.
5.3 Religion and Hate Speech: Protecting Sentiments vs. Free Expression
In India’s history, religion has been the most sensitive subject for speech regulation. Ramji Lal Modi v State of U.P. (1957[9]). was the first case in this matter. The validity of Section 295A IPC was confirmed, which prohibited acts that were intentionally committed to provoke religious sentiments. By virtue of their nature, the expressions were considered a threat to public order and thus fell under Article 19(2), as per the Court’s reasoning.
Ramji Lal Modi carries the weight of its impact. It imposed restrictions on literature, art, and academic works that were believed to have hurt sentiments by prioritizing public order over offensive speech. The Satanic Verses by Salman Rushdie or PK, among other works, have been banned or litigated with similar grounds.
Mens rea (deliberate intent) was required in later cases to further clarify this principle. In Mahendra Singh Dhoni v. Yerraguntla Shyamsundar (2017), the Supreme Court dismissed charges against Cricketer Dhoni for being mistakenly identified as Lord Vishnu on a magazine cover. Section 295A was cited by the Court as an exception because it could not be invoked unless there was intentional and malicious intent to insult religion, which meant protecting unintended or artistic expressions.
The protection of sentiments was a key focus of Ramji Lal Modi, but later rulings reinstated creative freedom by penalizing those who intentionally punished with intent.
5.4 Electoral Hate Speech and the Secular Framework
The judiciary has always acknowledged that hate speech during elections is a clear threat to secularism and democracy. In Z.B. Bukhari v. In Brij Bhushan (1975), the Court determined that appeals to religion during elections were a corrupt practice under the Representation of the People Act, in line with the constitutional commitment to secular democracy.
The principle was extended in Abhiram Singh v C.D. Commachen(2017)[10], which stated that candidates cannot be eligible for votes based on their religious, cast, or community affiliation, regardless of the voter identity.
The ruling significantly broadened the perspective on election corruption, highlighting that communal pleas, whether direct or inferred, are tantamount to hate speech that goes against constitutional principles. But opponents say the system’s enforcement has remained ineffective, with many politicians accused of communal talk barely getting credit. “.
5.5 Obscenity, Morality, and Overlapping Doctrines
Although not a form of hate speech, cases concerning obscenity and morality under Article 19(2) have had an impact on the legal framework. In Ranjit Udeshi v. The State of Maharashtra (1965), the Court upheld the sale of Lady Chatterley’s Lover, using the “Hicklin test” of naivety. Aveek Sarkar v. State of West Bengal (2014), the court chose a new method to decide on, which was known as the “community standards” test over the Hicklin test.
Hate speech debates are influenced by these cases as they illustrate the Court’s changing balance between morality, decency, and freedom of expression. The same principles that apply in court determine whether speech that insults religious or community sentiments is a constitutional restriction.
5.6 Digital Age and the Shreya Singhal Doctrine
Hate speech is widely present on social media platforms. Shreya Singhal v. Union of India (2015) the court held the highest significance Section 66A of the IT Act was found to be unclear and overstated by the Supreme Court, leading to its invalidation. It also criminalized the posting of offensive messages, resulting in arrests for innocent online posts.
The Court decided to restrict speech only to those who incited imminent lawless action. The decision was made to differentiate between discussion, advocacy, and incitement, with the latter being the only offense punishable. This doctrine played a crucial role in upholding free speech in India by curbing state manipulation of digital regulations.
Nevertheless, it also exposed the absence of particular measures to combat actual online hate speech.’.
5.8 Principles Emerging from Jurisprudence
From this body of case law, certain guiding principles can be distilled:
- Incitement Test: Speech must tend to incite violence or disorder to be restricted (Kedar Nath Singh, Shreya Singhal).
- Requirement of Intent: Sections like 295A apply only when there is deliberate and malicious intent (Dhoni case).
- Secular Democracy: Appeals to religion or caste in elections undermine constitutional secularism and are prohibited (Abhiram Singh).
- Balance with Dignity: Hate speech is not merely about public order but also about protecting equality and fraternity (Amish Devgan).
- Clarity and Narrow Tailoring: Vague laws like Section 66A are unconstitutional (Shreya Singhal).
5.9 Criticisms of Judicial Approach
Despite the evolution of doctrine, criticisms remain:
- The Court has sometimes leaned excessively towards protecting sentiments, giving rise to the “heckler’s veto.”
- Inconsistent standards mean outcomes vary across cases, creating uncertainty.
- Prosecutions against politicians often lack urgency, reducing deterrence.
- Indian jurisprudence still lacks a systematic framework integrating dignity, equality, and free speech, unlike in other constitutional democracies.
Way forward: Striking a balance in between
Hate speech in India sits at the crossroads of free speech (Article 19(1)(a)) and reasonable restrictions (Article 19(2)). The courts have walked a thin line, but the challenges of politics, religion, and social media demand stronger, clearer solutions. There are various solutions to it:
>The Definition of hate speech must be clear: There must be no ambiguity in the definition of hate speech. It must be clearly stated in any act or the law itself. The clear nature of the definition will prevent the abnormal use of hate speech in curbing the voice of the people. This will also give confidence to the people, as there will be no fear in their minds about speaking the truth in public.
> The intent behind the speech must be tested: Courts have earlier told the intent behind the speech must be taken into consideration before punishing the accused. This must be widely followed as it would help the voice to dissent independently without the fear of being subjected to hate speech and later on the punishment for it.
>Make the politician accountable for the speech: The politician must be accountable for the speeches they give during the elections to gather more and more public support and create a hostile situation that suits their dynamic. They must be held accountable if they spread hate speech among the people, and their nomination must be cancelled too, according to the rules of the Representation of the People’s Act.
>Tackle Online Hate: Social media is one of the fastest-growing platforms for spreading hate. The government should have a look at the content uploaded and implement censorship on these platforms for spreading online hate. Punishment must be prescribed for the people who engage in spreading online hate, and make the company responsible, too.
>Stricter implementation of laws and their awareness: The laws must be strictly adhered to, and there must be awareness among the people about the laws of hate speech. The consequences of the hate speech must be known to citizens so that they don’t engage in spreading hate speech. The laws must be strictly followed, not just by punishing the poor but also the privileged.
Conclusion
India’s experience with hate speech reflects the country’s democratic approach to safeguarding freedom and unity. Why is this so? The right to speak is protected by Article 19(1)(a), but Article 19(2) highlights the potential harm, division, and destabilization that words can cause. Courts have acted as referees, with Shreya Singhal advocating for independence and Amish Devgan advocating for peace.
Still, the real challenge lies ahead.. Given the ongoing divisive debates surrounding India’s elections, social media and identity politics we need more stringent laws, faster enforcement, and greater accountability. In the same breath, it must notattempt to silence criticism or opposition in the name of “offense.”.
Do we see free speech as a tool to question, to heal, to spark dialogue—a way to build bridges across our many diversities?
Or do we allow it to be hijacked by those who trade in anger, who weaponize words to divide neighbour from neighbour?
[1] Constitution of India 1950, art 19(1)(a).
[2] Constitution of India 1950, art 19(2).
[3] Romesh Thappar v State of Madras AIR 1950 SC 124.
[4] International Covenant on Civil and Political Rights, art 20(2) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
[5] Brij Bhushan v State of Delhi AIR 1950 SC 129.
[6] Kedar Nath Singh v State of Bihar AIR 1962 SC 955
[7] Shreya Singhal v Union of India (2015) 5 SCC 1.
[8] Law Commission of India, Report No 267: Hate Speech (March 2017).
[9] Ramji Lal Modi v State of UP AIR 1957 SC 620.
[10] Abhiram Singh v CD Commachen (2017) 2 SCC 629.