Authored By: Sam Siryon
Apeejay Stya University School of Legal Studies
Abstract
There is a crucial need to draw a legal distinction between hate speech and the right to freedom of expression in India and Liberia, considering how the proliferation of hate speech has impeded the right to free speech and created a crumbling effect on democracy. As the backbone of democracy, free speech enables citizens to hold leaders accountable, fosters informed decision-making through open debate, promotes truth-seeking in a marketplace of ideas, and encourages innovation. Serving as a safety valve for dissent, free speech ensures that diverse perspectives are represented in governance. It prevents authoritarianism by allowing the expression of critical ideas, ensuring the government serves the people. A society supported by a free press and diverse viewpoints empowers citizens to make sound political decisions. However, free speech is often threatened by government censorship, hate speech, and disinformation, which can incite violence and undermine democratic institutions. Furthermore, corporate control and societal pressures—such as “cancel culture,” where public backlash and online shaming discourage the expression of unpopular but legal views—can chill speech through fear of reprisal. Alongside issues like the misuse of immigration laws to target activists and overreaching regulations, these threats from both state and non-state actors deeply impact the media, academics, activists, and ordinary citizens.
Keywords
Freedom of Speech and Expression, Public Shaming, Hate Speech, Authoritarianism, Democracy.
Introduction
The foundation of a successful democracy is free speech. It creates an environment where people feel safe expressing dissenting opinions on governmental policies without fear of being targeted or intimidated by the state or other actors. The freedom to criticize flawed policies and express opposing viewpoints on issues affecting the general population should not be mischaracterized as hate speech or secessionism. When citizens are encouraged to engage with contradictory arguments, society can learn from its mistakes and find common ground that prevents deepening divides. Free speech protects not just popular ideas, but radical or unpopular ones, allowing them to be openly debated rather than suppressed and left to fester in the shadows. Unnecessarily restricting free speech undermines societal balance. The core tension lies in allowing maximum expression while preventing tangible harm or disruption.
To build and sustain Liberia’s post-civil war democracy, freedom of speech and expression is vital. It enables public participation in governance, ensures free and fair elections through an informed citizenry, and allows for crucial investigative journalism that holds power accountable. Free speech scrutinizes public policies and fosters an open society where citizens can demand information, supported by constitutional guarantees and a vibrant, albeit vulnerable, media landscape. Similarly, in India, the true spirit of democracy is only prevalent when expression is free from oppression or unjust state sanctions. Freedom of expression enables self-fulfillment by discovering truths and ensuring a pluralistic society that allows citizens to criticize the government and participate in public discourse—elements vital for national development.
Research Queries
This paper seeks to provide clarity and answers to the following queries:
What are the factors undermining free speech in India and Liberia?
What constitutes hate speech, and what are the regulating frameworks that protect free speech?
What legal frameworks strike a balance between free speech and hate speech, preventing unjust encroachment on freedom of expression?
How is freedom of speech and expression crucial for democracy in India and Liberia?
What mechanisms are being employed by the Judiciary to guard free speech from State encroachment and foster investigative journalism in India and Liberia?
Research Methodologies
This paper is expository in nature and adopts both primary and secondary sources for an authentic and credible discourse on the subject matter. By utilizing primary sources like constitutional provisions, landmark judgments, and prominent judicial interpretations, the paper provides a detailed understanding of the subject with authenticity and precision. Scholarly works, literature, articles, blogs, and reputable journals are analyzed as secondary sources to provide a structured intellectual discourse.
Literature Review and Scholarly Analysis
Hate speech negatively impacts freedom of speech by creating a hostile environment that silences targeted groups, erodes democratic pluralism, escalates to violence, and undermines the foundation of open discourse. Restrictions on free speech are often implemented not to limit ideas, but to protect the dignity, safety, and equal participation of all citizens, creating a complex balance between free expression and social order. While the core principle of free speech is to protect diverse viewpoints, hate speech targets inherent characteristics like race, region, religion, and gender to dehumanize or incite hostility. This harms public order and the rights of others, necessitating legal regulation.
Serving as guardians of the Constitution, Indian courts have repeatedly employed mechanisms to address threats to free speech, acting as a check on executive overreach in cases involving internet bans, film censorship, and digital content. In Liberia, free speech is protected through constitutional interpretation, judicial review of government actions, and the enforcement of statutory rights. The 1986 Liberian Constitution serves as the foundational mechanism prohibiting the government from restricting speech, with narrow exceptions for defamation or privacy violations.
Legal Frameworks Protecting Free Speech in India: Constitutional Guarantee
In India, free speech is a fundamental right guaranteed under Article 19(1)(a) of the Indian Constitution, protecting expression through various mediums. However, this right is not absolute. The Constitution allows citizens to voice opinions, ideas, and beliefs without state interference, subject only to reasonable restrictions for national security, public order, morality, defamation, and incitement to offenses. This balances individual liberty with societal interests and remains central to democratic governance.
The Indian Judiciary: Protecting Free Speech Through Judicial Interpretations
In the landmark 1950 case of Romesh Thappar v. State of Madras, the Indian Supreme Court declared freedom of speech and the press as the foundation of democracy. The Court ruled that restrictions must fall within the specific grounds listed in Article 19(2), establishing that vague justifications like “public safety” were insufficient to curtail this fundamental right unless they directly threatened the security of the State. This judgment distinguished between minor public order issues and extreme threats to state security.
Similarly, in Brij Bhushan v. State of Delhi (1950), the Court struck down the pre-censorship of newspapers. The rationale was that pre-censorship creates a chilling effect on free speech by discouraging critical reporting, stifling diverse viewpoints, and allowing governments to control narratives before publication.
In the 1986 case of Bijoe Emmanuel v. State of Kerala, the Supreme Court held that the right to silence was an essential part of free expression, ruling that students with conscientious religious objections could not be forced to sing the National Anthem. More recently, the 2015 case of Shreya Singhal v. Union of India was a watershed moment for online speech. The Court struck down Section 66A of the Information Technology Act, 2000, which criminalized sending offensive messages. The Court held that the provision’s vague terms allowed for arbitrary application, creating a chilling effect that violated Article 19(1)(a) without satisfying the test of reasonable restriction under Article 19(2).
The Indian Penal Code, 1860 and Bharatiya Nyaya Sanhita, 2023
The Indian Penal Code (IPC) historically restricted speech deemed “seditious” under Section 124A. This section posed a significant conflict with the constitutional right to free speech by creating a chilling effect on dissent. The vague nature of the term “disaffection” allowed for broad interpretations, discouraging legitimate criticism and journalistic expression.
The replacement of the IPC by the Bharatiya Nyaya Sanhita (BNS) of 2023 addressed some ambiguities. Replacing Section 124A, the BNS introduced Section 152, which criminalizes acts endangering India’s sovereignty, unity, and integrity, including inciting secession, armed rebellion, or “subversive activities.” However, critics argue the inclusion of “subversive activities” remains vague and could still threaten free speech by suppressing legitimate dissent. As established in the 2021 case of Vinod Dua v. Union of India and earlier in Kedar Nath Singh, mere criticism of the government does not constitute sedition unless it incites violence.
Constitutional Guarantee of Free Speech in Liberia: Evaluation of Judicial Interpretations
The Liberian Constitution of 1986 guarantees freedom of speech and expression under Article 15, ensuring the right is without restriction except during constitutionally declared emergencies. Despite this, free speech remains challenged by self-censorship, civil libel suits, and unofficial government pressure. Previously, Sections 11.11 and 11.12 of the Liberia Penal Law defined sedition and criminal libel in ways inconsistent with democratic principles, leading to efforts to decriminalize libel. The threat of sedition charges historically discouraged journalists from openly criticizing the government.
In the 2015 case of Press Union of Liberia v. Government of Liberia, the Supreme Court ruled that the closure of the National Chronicle was unconstitutional, as it was executed without a court order during the Ebola crisis under claims of national security. The Court affirmed that freedom of expression is a fundamental right not easily suppressed by the government. The Liberian judiciary continues to navigate the balance between a free press and the civil libel laws often used to intimidate journalists.
Analyzing the Chilling Effect of Vague Laws and Arbitrary Powers
Vague laws profoundly undermine democratic plurality by creating a chilling effect: the fear of arbitrary punishment causes individuals to self-censor. Without clear guidelines, authorities can selectively enforce rules against critics and activists, eroding public trust. The use of subjective terms like “anti-national” or “grossly offensive” turns the law into a tool for intimidating opposition. Furthermore, the vagueness of “public order” as a ground for restriction allows broad government discretion, chilling legitimate expression, especially online.
Reasonable Restrictions Aiming to Protect Free Speech
While freedom of speech is fundamental, it is not absolute. The 1986 Constitution of Liberia explicitly allows for limitations to protect public safety, order, health, morality, and the rights of others. Similarly, Article 19(2) of the Indian Constitution authorizes the state to impose reasonable restrictions to protect India’s sovereignty, state security, public order, and morality, and to prevent defamation or incitement to an offense. The Indian Supreme Court has consistently held that for a restriction to be “reasonable,” it must be imposed by law (not just executive order), be proportionate, and have a direct nexus with the specific constitutional grounds.
Discovery of Facts and Challenges Impacting Free Speech
Despite legal reforms like repealing criminal libel, Liberian journalists face threats, self-censorship, and economic pressure through civil defamation suits and advertising withdrawals. In India, challenges include the use of national security laws to silence critics, internet shutdowns, and legal interpretations restricting expression.
The 2019 Kamara Abdullah Kamara Act in Liberia was a significant step toward international standards like the Table Mountain Declaration. However, further efforts are needed to refine civil defamation laws to prevent their misuse. Establishing a more independent judiciary that adjudicates cases without executive influence is crucial for both nations.
Conclusion and Recommendation
Free speech is the bedrock of a healthy democracy. It ensures power is held accountable and that voters have access to a “marketplace” of ideas. It allows citizens and the media to act as watchdogs, exposing corruption without fear of retaliation.
The obligation to protect the fundamental right to free speech lies heavily with the Judiciary, which serves as a watchguard over legislative and executive actions. The judiciaries in both India and Liberia have made immense contributions to upholding free discourse. To strengthen these protections, laws regarding hate speech and public order must be narrowly defined to prevent arbitrary interpretation. Furthermore, implementing media literacy in education will empower citizens to critically evaluate information, reducing the perceived need for broad state censorship.
