Hate speech vs Right to freedom
Mr. Paramjeet Sangwan

Hate speech vs Right to freedom

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What is Hate speech?

Free speech and "hate speech" are sometimes juxtaposed as though they were compatible concepts. In actuality, the idea of "free speech" derives from the notion of equality, from the democratic urge, whereas the propensity for inciting hatred is rooted in the oldest, most antiquated form of "bullying for power." In that regard, the term "hate speech" is somewhat misleading because the issue is not one of free speech but rather one of institutionalized bullying motivated by a desire for exclusive political power. Although the provocation is not always intended to result in physical violence, it is violent all the same because it continues to stigmatize and calls for exclusion.

"Hate speech" does not include insulting or profane language directed at a group of individuals or even venomous criticism of the government.

In the 2014 case of Pravasi Bhalai Sangathan v. Union of India, the Supreme Court of India said that "the notion of discrimination lies at the heart of hate speech," and this is true. Its impact is determined by how successfully and consistently it marginalizes a population, not just by its harmful value:

"Hate speech is an attempt to marginalize somebody because of their affiliation with a group. Hate speech tries to delegitimize group members in the eyes of the majority, lowering their social position and acceptance within society, by using communication that exposes the group to hatred. (I added emphasis.)

What ambassadors have failed to see

According to the ambassadors' letter, "hate speech" should not be selectively condemned based on the speaker's religion, ethnicity, or philosophy. Of course, this is sound counsel. The IPC's provisions also apply to hate speech when it stirs up animosity and mistrust among communities, incites violence, or results in public disorder.

But, by applying the same IPC sections to all forms of vehement or even hateful speech, it is concealed that some forms of speech actually contain an element of discrimination while others do not. Munawar Farooqui may have imagined a joke that, if truly spoken, might have hurt religious sensitivities. But the police believed it was appropriate to charge him under Section 295A. (outraging religious feelings of a class).

Another illustration is the rude and dangerous threat made by Akbar Owaisi, who claimed that if the police were not there, he would attack and kill Hindus. Speaking in a way that is violent towards the community should be punished criminally. But it differs from genocidal discourse only in that his threat is currently out of proportion to his social and political standing. Thankfully, he lacks the resources necessary to support his claims or undermine Indian Hindus in any way. On the other hand, hate speech turns into a particular form of threat when it appears to coincide with political strategy and institutional silence.

The idea of "varying context" has also been acknowledged by the Supreme Court, which in Amish Devgan v. Union of India (2020) declared that contextually, "all speeches are not alike. This is not simply due to group affiliations, but also when hate speech is used by a dominant group against a group that is weak and subject to discrimination. Moreover, the impact of hate speech also depends on the speaker. To put it another way, the damage communication causes is differentiated based on the tangible results it has on the individual or community it targets.

The Freedom Comes in

The fundamental right to freedom of speech and expression has been construed quite broadly in a number of court decisions. This fundamental freedom has, however, been subject to a fair restriction, and its abuse may be considered to constitute hate speech. In the framework provided by international human rights law, which acknowledges both the right to freedom of speech and expression and the responsibility of states to restrict speech that promotes hatred, various principles have been made to uphold the validity of freedom of speech and expression as an internationally recognised human right. For instance, the United Nations General Assembly approved the Universal Declaration of Human Rights in 1948.

Freedom of Speech and Expression is protected as a fundamental right in the Lengthiest Constitution i.e., Constitution of India under Article 19(1)(a) which states as all citizens shall have the right to freedom of speech and expression.

However, under Art 19(2), a reasonable restriction has been put forth by the Indian constitution where the word reasonable should strike a balance between the use and misuse of this freedom. As per Article 19(2) of the Indian constitution

The Restriction

As long as it complies with Article 19's provisions, the SC decided that an anticipatory action or previous constraint on expression is acceptable. State of Maharashtra v. Babulal Parate, 1961 SCR (3) 423, Public order has been an exception that has received a liberal interpretation in a number of decisions made by constitutional courts, along with other exceptions mentioned in Art. 19(2). This exemption covers any actions that may result in public disorder, regardless of whether there is any actual disruption brought on by the activity or not. In cases when a legislation does not specifically address public order, it may be interpreted to be "in the interest of" public order (see Ramji Lal Modi v. State of UP17 (Ramji Lal Modi), where public order has been further interpreted).

The Government Role

The printing or dissemination of certain statements, rumours, or reports that with the intent to cause trouble or disturb public peace is illegal under Section 505 of the Indian Penal Code. As a result, the IPC's Section 505 allows for a more expansive implementation. While the judiciary interprets Section 502 in a conservative manner, this interpretation comes within the purview of Article 19(2) of the Indian Constitution's definition of a "reasonable limitation of public order." The IPC's Section 505 is specifically designed to prevent and penalise the dissemination of false information intended to disturb public peace. Sedition is discussed in Section 124A of the IPC, which also outlines penalties for it.

The Law Commission acknowledges in its 267th report that groups that are discriminated against because of their "sex, gender identity, and sexual orientation" should likewise be protected by hate speech laws. There are many well-known legal cases, one of which is Arundhati Roy, Hurriyat leader Syed Ali Shah Geelani, and others who were arrested under section 124A by Delhi Police for speaking in an "anti-India" manner during a conference in 2010 and calling for the region of Kashmir to be independent. The Rajasthan government accused Praveen Tog Adia of sedition in the other well-known case, which occurred in 2003. An attempt to "fight a war against the nation" is alleged in the allegations.


As there is no clear definition of what constitutes "hate speech" or "not hate speech," there has been debate about the scope of free speech protections in our constitution. The term "hate speech" is used in the context of this article to refer to any speech, writing, or behaviour that attacks or employs disparaging or discriminatory language in relation to an individual or a group based on who they are, that is, based on their religion, ethnicity, nationality, race, colour, descent, gender, or other identity factor.

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