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Freedom of Speech V. Hate Speech- Striking a Constitutional balance in India

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Authored By: Prisha Dhimmer

Bharti Vidyapeeth, New Law College, Pune

Abstract

The intersection of the Right to Freedom of Speech and Expression and the prohibition of hate speech remains one of the most contentious legal frontiers in contemporary jurisprudence. This case study explores the tension between the “Right to Freedom of Expression” and the ban on “Hate Speech” within the Indian legal context. The main points include the clarification of the “Rabat Threshold” as a universally recognized benchmark to differentiate dissent from incitement. The issues described include the absence of a concrete definition of hate speech under the Indian legal framework to the abuse of colonial-era penal laws. Solutions include the adoption of the Law Commission’s proposal to include the definition of hate speech in the Indian law books and the adoption of a “likelihood of harm” test. The study looks at global laws, including the UN norms, and then leads into the framework of the Indian constitution under Art. 19, providing a roadmap for balancing individual liberty with communal harmony.

Keywords:

Freedom of Expression, Hate Speech, Article 19(1)(a), Reasonable Restrictions, Rabat Plan of Action.

Introduction:
Freedom of speech is the “basis of all freedom,” forming the “cornerstone of democracy” because it provides ideas and allows the search for truth. In the Indian framework of law, freedom of speech is guaranteed by Article 19(1)(a), however is “qualified” by Article 19(2), which provides limitations against public order and morality. The focus of the paper is “the Constitutional Balance between the state’s duty to uphold the defence of offence and the defense of incitement.”
Arguments about free speech indicate that truth emerges by having an open debate, hate speech, however, is an infringement of human dignity. Free speech ensures that democratic rights are exercised, whereas hate speech uses those very rights to exclude vulnerable groups and effectively silences those groups through intimidation. The challenge must be to ensure that laws designed to curb hate do not become tools for censorship. One striking fact comes from the India Hate Lab (IHL) 2024 Report, which says that India recorded more than 650 documented incidents of hate speech during the first half of 2024, with around 75% occurring in states scheduled for elections-a sign of how speech is often strategically deployed for the outcome of breaking social stability for political gain.

The Global Scenario: 

The UN Threshold and the “Harm” Distinction International law, primarily through the International Covenant on Civil and Political Rights (ICCPR), establishes that while expression is a right, it carries “special duties.” The United Nations distinguishes hate speech and freedom of expression in the context of incitement. According to the Rabat Plan of Action, in 2012, the United Nations proposed criteria to determine if speech should be criminalized in the following context: the context in which the speech occurs, the status of the person giving the speech, the intent to incite, the speech itself, the scope of the speech, and the “imminence” of the threat. It appears that, in the international context, in order to regulate speech, a speech must present a direct and likely threat, and not the offense of sentiments.

The Indian Legal Framework and Landmark Cases

Unlike many Western democracies, there is no “Hate Speech Act” per se in the Indian system. The judiciary as well as the executive rely upon a number of provisions of the Indian Penal Code (IPC) now enshrined as the Bharatiya Nyaya Sanhita (BNS) with regard to hate speech:

Section 153A IPC (Sec. 196 BNS): This section holds someone guilty if he promotes hostility between groups because of religion, race, or language.

Section 295A IPC (Sec 299 BNS): Aimed at “deliberate and malicious” actions that are intended to outrage religious feelings.
The Indian judicial system has experienced a major paradigm shift with the eventual replacement of the Indian Penal Code (IPC) with the “Bharatiya Nyaya Sanhita (BNS) of 2023.” Though the Law Commission’s 267th Report of 2017 called for the introduction of Sections 153C & 505A to incorporate a modern definition of hate speech aimed at grouping “offences of this character based on identity such as sex, gender, sexual orientation”—such sections were not incorporated into the new code. In this regard, Sections 196 BNS (previously IPC 153A) punish “promoting enmity between different groups,” Section 197 BNS (previously IPC 153B) deals with imputations “prejudicial to national integration,” while Section 299 BNS (previously IPC 295A) is aimed at “intentional outraging of religious feelings.”

This evolution of the laws is best contextualised through landmark judicial precedents:

Romesh Thappar v. State of Madras (1950): Supreme Court explained that restrictions on speech could be made only if the speech posed a threat to the very foundations of the State or of its overthrow, and not merely because there is a local disturbance of a limited character.

Shreya Singhal v. Union of India (2015) :This indeed was a landmark judgment wherein the Court drew a thin line of distinction between “advocacy,” “discussion,” and “incitement.” The Court ruled that speech could be restricted only when it reached the level of incitement.

Amish Devgan v. Union of India, 2021: It defined hate speech as an “assault” on the concept of fraternity and constitutional values. It underlined that “intent” and “purpose” of the speech are crucial in determining criminality.

III. Challenges: Violence and the Lack of Definition

The major problem in India is the “Chilling Effect.” As “hate speech” is not defined, such acts are regularly employed to repress journalists, stand-up comedians, and activists. On the other hand, actual cases of hate speech by those in power regularly occur without retribution. The advent of social media sites, where “fake news” and “hate speech” get equated, causing mob lynching, communal riots, like those in the 2023 conflicts in both the Manipur and Nuh areas, in which hate speech in cyberspace triggered violent outbreaks in the physical space.

Striking the balance: A Way forward:

The court currently argues that any limitation of the right to free speech will have to be “reasonable”, meaning there must not be any arbitrariness in the limitation and the necessity to limit the right will have to be absolute to either maintain the public order and/or the nation’s security.

In an attempt to fill the legal voids where the term ‘hate speech’ has yet to be defined, the Bharatiya Nyaya Sanhita (BNS) 2023 has dedicated sections. These include Section 196 of the act: ‘promoting enmity between groups,’ Section 197: ‘imputations prejudicial to national integration,’ and Section 299: ‘Malicious acts to outrage religious feelings.’ Others include Section 353: ‘Public mischief.’ These act together to give the police power to regulate the inflammatory speech addressed to the ‘fraternity’ of the country.

Many expert committees have recommended changes to enhance such a framework. This includes the report of the 267th Law Commission (2017) and the T.K. Viswanathan Committee (2019) on the need to introduce certain sections (like Section 153C and Section 505A) on incitement of hatred and cyber provocation. This is similar to the Bezbaruah Committee (2014), which emphasized the need to impose punishment on racial insults that undermine human dignity.

Government actions have moved towards online accountability and state-level legislations. While the IT Rules, 2021 require the removal of hate speech by intermediaries in 24 to 72 hours, the Online Hate Speech (Prevention) Bill, 2024 targets automated virality. Finally, the Karnataka Hate Speech Bill, 2025, known as the Karnataka Prevention of Harmful Speech Act, 2025, represents India’s first state-level legislation, defining hate speech and criminalizing the same to counter communal incitement in the online era.

A balanced solution must involve:

The Proportionality Test: Ensuring the restriction is not more than what is necessary.

Objective Thresholds: Shifting the focus from “hurt sentiments” to “objective harm” or “incitement to violence.” 

Conclusion

The balance between the right to free expression and the need to regulate hate speech remains one of the most emblematic challenges for the Indian judiciary. But as the “life-force of the Constitution,” the right protected under Article 19(1)(a) cannot be utilized to destroy the same “fraternity” enshrined within the Preamble. The present legal scenario has remained reactive, thereby promoting selective policing and causing the stifling of democratic dissent. For the sustenance of the democratic order, India needs to advance along the path leading to the adoption of a clear definition of hate speech that conforms to the international framework embodied within the Rabat Plan. The Indian state needs to utilize the changed focal point for the regulation of hate speech from “outraged feelings” to “tangible harm” and thereby make the marketplace of ideas plural and “silence the voices which utilize words as swords for the commission of violence.” True freedom of speech finds its strength not in the license to divide, but in the liberty to dissent without the incitement to destroy.

ReferenceS (Bluebook 20th Ed.)

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