HATE SPEECH VS FREEDOM OF SPEECH

Introduction:

From what I learnt to what I am learning!!

As coming from the rich cultural and historical place from India, in Tamil Nadu, Speech and  language are weaved into the emotions, blood and soul of the people. From one of the most  ancient form of text in Tamil Grammar which sounds as TOLKAPPIAM by TOLKAPPIAR , it has stated EDAM (Place/context), PORUL(Subject matter/content), EVAL(Delivery/style)in  2nd century BCE ¹or earlier i.e the age where there is no constitution itself. This emphasizes  about what to speak, when to speak and how to speak. This is not the restriction that is made  on people but a strong foundation to protect the self and the other from the infringement of the duties, rights and freedom. So this concept and the Speech Act theory ²is something that goes  hand in hand and explains the same concept which we will discuss in this article. 

Abstract:

The most powerful tool of communication and a way of expression is Speech. When it comes  to the social or public arena, we tend to focus on what is being delivered out there, which is a  key to make a huge social impact i.e. either it can be positive or negative, which solely depends  what is being delivered. In this modern world everything has a possibility of being a weapon  or a magic wand, decided on what we speak. Yet again it has the power to make the ordinary  person to be the talk of the town and the famous one to be infamy. 

So, the question that arises in the mind which often goes with the crowd is that;

Does a person truly have the right to say anything they want?

Where do we draw the line between freedom of expression and social responsibility? ∙ Could such unfiltered speech lead to conflict among people or communities? ∙ Does it risk defaming someone or spreading misconceptions?

Would that not infringe on the rights and dignity of others?

At that point, is it still freedom—or is it the result of personal judgment, prejudice, or  Is it the grudge/judgment the individual hold or the violation of the freedom that we have?

These question lies at the heart of the debate of India in terms of both legal and moral grounds. But as a law student and a legal researcher I always believe, “Freedom of speech champions  expression but when the words fuels hatred it is not a matter of opinion but crossing the  bridge of the law”. So let’s dive and analyze about this in this article. 

Before getting into the concept of hate speech v. freedom of speech it is necessary to know; ∙ What is speech?

What is freedom of speech in terms of the world and India?

Its legal Concepts and precedents.

The Philosophical Lens:

The roots of the speech has come from SPEECH ACT THEORY, which isn’t considered  merely as words but as a form of act as well. This theory has first came from Austin which then  later developed by John Searle. As per this theory everything and whatever we speak always  creates a social, legal, philosophical actions or consequences. There are actions, which mainly  got classified into 3 categories.

Locutionary Act – What is Said³

This act refers to the words spoken which are actual in sense where there is no change in the  structure of the sense mostly used in the basic level of communication.

Illocutionary Acts – What is actually meant⁴

In this act there is the important role of Intent here as it spotlight the part or area about what  the speaker is actually trying to do through the words. Does it warn? Insult? Appreciate?  Order? Therefore it focuses on the purpose. 

Perlocutionary Acts- the consequences that is the effect on listener.⁵

This is all about how the individual felt and how it made the scenario. This is especially  important when we are dealing with the real-world consequences. 

Importance of Place

It’s is very important to firstly know where a statement or the conversation is made. A joke  can be made in a comedy show, but if the same is getting used in the court or an office it  leads to a different situation or consequences. 

Let’s say a politician saying the valid and right thing but a little rudeness towards the  opposition at the campaign may leads to his success. But the very moment he claims that you  are not my people towards the opposition party’s crowd will drastically change the scenario. 

What is Freedom of speech?

A way to expression one’s right, idea and expression without any restraint or penalty. This  right is generally enshrined globally, in international human rights and declarations like the  universal declaration of human rights. In India, this is guaranteed through the means of  fundamental right by article 19(1) (A) of the constitution⁶. Though this is fundamental right  but it is not absolute right in nature as it has some reasonable restrictions to maintain public  order, morality and national security. 

International Perspective:

In 1948, UN adopted Universal Declaration of Human rights (UDHR) ⁷which includes the  freedom, of opinion and expression as the fundamental human right. This right also includes  the freedom to share opinions without any interference and to gain the information and ideas  through media.

Indian Lens:

Article 19 (1) (a)⁸states about the right to freedom of speech and expression to all the citizens. There are various means in this article like speech, writing, printing, pictures,  etc…Though freedom is there but it is not absolute as it is under reasonable restrictions like  public order, morality, national security and other related factors. Along with that there are  also provisions in Indian Penal Code (IPC) such as section 123A (Sedition) and defamation  laws.

Hate speech

Any speech made publicly which is offensive and explicitly clear of being towards a group or  an individual is seen as hate speech. 

We must confront bigotry by working to tackle the hate that sparks  like wildfire across the internet.

ANTONIO GUETERRES, UNITED NATIONS SECRETARY GENERAL 2023 

Hate speech is complex and it has its various dimensions in nature. This phenomena has an  unimaginable consequences for the rights of the humans and the democratic society’s rule of  law. There is not just a single form of hate speech as this has a persistent and severe impact  which is documented by the council of Europe and international agencies. 

This is not just something that affects the dignity and human rights but also the individuals or  groups who are getting targeted directly. Also this affects the society in large by creating  divisions and affects the participation and the inclusion of the targeted and has the possibility  to threated the democracy as well as it has the potent to even conduct a protest or war. 

There are instances from the history where the hate speech has been intentionally made to  mobilize and shift specific groups and societies against each one of them to fuel a violent  genocide, war, hate crime or escalating the situation.

The core questions and its answers:

1. Is it really someone’s right to say whatever they want?

Not entirely, no. In many democracies, including India, the right to free speech is a  fundamental one, but it is not unrestricted. Although freedom of speech is guaranteed in  India by Article 19(1) (a), Article 19(2) permits reasonable restrictions in the following  areas:

• Law and order
• Morality or decency
• State security
• cordial ties with other nations
• Disrespect for the law
• Defamation
• Motivating someone to commit a crime

Therefore, even though people have the freedom to express themselves that freedom ends  where harm occurs, particularly when it comes to inciting hatred or violence.

2. Where does the boundary between social responsibility and freedom of expression lie ?

When expression starts to hurt other people or society as a whole, a line is drawn.   This comprises:

• Violence incitement
• Spreading bigotry 
• Hatred slandering people or groups
• Causing chaos in the public

Although freedom of expression allows you to voice your opinions, criticize the  government, or protest injustices, it does not grant you the right to incite violence,  promote discrimination, or dehumanize other people. The law and social responsibility  come into play in this situation.

3. Might such unchecked speech cause conflict between individuals or groups? Yes, definitely. Unchecked or hate speech can:

• Disperse disinformation
• Fuel religious, caste, ethnic, or political tensions
• Cause communal riots or hate crimes
• Weaken peace and harmony in a democracy

This has been demonstrated throughout history in numerous environments, including the  Rwandan genocide, Nazi propaganda, and Indian communal riots, all of which preceded hate  speech.

4. Will it libel someone or propagate misinformation?

Yes. Unbridled speech can conveniently descend into defamation or dissemination of false  facts, particularly via social media. Defamation is not enticed under freedom of speech and  can result in:

• Legal repercussions under civil and criminal law (Sections 499 & 500 IPC in  India)
• Unrepairable damage to one’s dignity, professional life, or mental well-being
• Additionally, misinformation and half-truths can jeopardize public trust and  fragment the social fabric.

5. Would that not violate the dignity and rights of others?

Yes, and this is the major ethical and legal issue with hate speech. Another person’s  “freedom” to speak hate might offend another person’s:

• Right to lead a life with dignity (Article 21, Indian Constitution)
• Right to equality and non-discrimination (Article 14 & 15)
• Right to be safe and included in society

In that sense, hate speech isn’t expression—it becomes oppression.

6. And then, is it freedom any longer—or personal bias or violation of other people’s freedom?

• By then, it is no longer freedom but an abuse of liberty.
• Mutual respect must accompany freedom of speech.
• Prejudicial or revengeful words may be an expression of personal bias, but  when uttered publicly and with ill intent, it is a danger to societal harmony and  constitutional ideals.
• The society and law should realize when “freedom of expression” becomes an  instrument of harm—and act to stop it from happening.

Precedents:

International Precedents

1. Handyside v. United Kingdom (1976, European Court of Human Rights)¹⁰

The European Court ruled that freedom of expression extends to information that can offend,  shock, or disturb. At the same time, it recognized that states could have restrictions on  grounds of protecting morals and public order.

Principle: Freedom is not absolute; reasonable restrictions are permissible in a democratic  society.

2. Brandenburg v. Ohio (1969, United States)¹¹

The US Supreme Court held that speech that encourages violence or illegal activities is  protected except when it leads to imminent lawless action.

Concept: The “imminent lawless action” test shields vigorous debate but permits restrictions  on incitement.

3. Jersild v. Denmark (1994, European Court of Human Rights)¹²

A journalist was found guilty for airing a racist interview. The court upheld that the media is  free to report, even on offending opinion, provided intent is not to preach hatred but to expose  it.

Principle: Freedom of journalism is safeguarded unless it directly promotes hatred. 

4. UN Human Rights Committee – General Comment No. 34 (2011)¹³

Clarifies that freedom of speech is a fundamental right, but hate speech, war propaganda, and  incitement to discrimination can be limited.

Principle: Hate speech is not entitled to protection under international human rights law.

Indian Precedents

1. Shreya Singhal v. Union of India (2015)¹⁴

Struck down Section 66A of the IT Act, which criminalized online speech. The court held it  was ambiguous and unconstitutional, but made it clear that only incitement of violence can be  prohibited.

Principle: Free speech is safeguarded except when it incites violence or public disturbance.

2. Pravasi Bhalai Sangathan v. Union of India (2014)¹⁵

The court emphasized the necessity of special legislation on hate speech but declined to enact  them judicially. It sent the issue to the Law Commission.

Critical Principle: There’s a lacuna in India’s law on hate speech—needs legislative  clarification.

3. Ramji Lal Modi v. State of Uttar Pradesh (1957)¹⁶

Confirmed Section 295A IPC (willful acts to insult religious beliefs) as a reasonable  restriction under Article 19(2).

Major Principle: Restrictions on speech are justifiable if they safeguard public order and  religious harmony.

4. S. Rangarajan v. P. Jagjivan Ram (1989)¹⁷

Censorship of a movie was challenged. The Supreme Court held that freedom of expression  cannot be restricted except when there is a “clear and present danger” to public order. Major Principle: The threat must be actual, not hypothetical. Free speech cannot be curtailed  lightly.

5. Subramanian Swamy v. Union of India (2016)

Confirmed constitutional validity of criminal defamation. The Court held that reputation is  included in the right to life under Article 21, and therefore, defamation is a reasonable  restriction on speech.

Key Principle: Right to reputation can justify limits on free expression.

Way Forward:With India becoming ever more a digital and pluralistic democracy, responding to the  challenge of balancing free speech and social harmony will have to be met on various fronts. The following are some of the most significant steps ahead:

1. Clear Legal Definition of Hate Speech

Currently, Indian law does not define hate speech explicitly, and consequently, enforcement  is random or whimsical. There needs to be a lawfully defined hate speech consistent with  international human rights standards to inform courts and the police as to how fair and even  application of law may be ensured.

2. Educational Reforms & Digital Literacy

Curricula of schools and universities must educate constitutional values, tolerance, and digital  ethics in young citizens so they can be educated on the difference between hate and  disagreement. Digital literacy can educate individuals on how to identify misinformation and  do not share toxic content. 

3. Increasing Platform Responsibility

Social media and online platforms must be brought under responsibility for content  amplification. Tougher content moderation policies and openness to takedown processes  should be enforced—especially for violence- or hate-glorying content.

4. Facilitating Counter-Speech

Rather than restricting speech by bans or censorship, governments and civil society must  facilitate counter-speech: rational, diverse, and empathetic speech that responds to hate  without violating rights.

5. Judicial Sensitivity to Context and Impact

Courts have to judge speech acts based on intent, platform, and likely consequences, and not  just content. This will shield genuine dissents while punishing ill-intentioned incitements.

6. Periodic Review of Free Speech Laws

Free speech legislation has to be reviewed by the Law Commission and Parliamentary  Committees from time to time so that free speech laws remain modern, inclusive, and just.  Laws have to be reviewed periodically as fast-evolving technologies and social practices  necessitate.

Conclusion:

In as plural a society as India, freedom of speech is both a right and responsibility. Though it  is the cornerstone of democracy, allowing for ideas to take root and power to be challenged, it  must never be employed to tear asunder, to injure, or to incite. The thin line between hate  speech and free speech generally depends on intent behind words and actual effects.

As legal minds, legislators, and citizens, we must maintain this line—maybe not just by way  of legislation but social conscience, sensitivity, and education. Authentic freedom of speech  enriches societies. 

It challenges, criticizes, and offends sometimes—but never demolishes the dignity of other  people. The objective must not be silencing voices, but rather fostering a culture where voices  speak with courage, compassion, and responsibility.

Reference(S):

¹ TOLKAPPIYAM, Tolkappiyar, Poruladhikaram (c. 2nd century B.C.E.).

²J.L. AUSTIN, HOW TO DO THINGS WITH WORDS (Oxford Univ. Press 2d ed. 1975); JOHN R. SEARLE,  SPEECH ACTS: AN ESSAY IN THE PHILOSOPHY OF LANGUAGE (Cambridge Univ. Press 1969).

³J.L. AUSTIN, HOW TO DO THINGS WITH WORDS 94–108 (J.O. Urmson & Marina Sbisà eds., 2d ed. 1975).

⁴J.L. AUSTIN, HOW TO DO THINGS WITH WORDS 98–110 (J.O. Urmson & Marina Sbisà eds., 2d ed.  1975).

⁵J.L. AUSTIN, HOW TO DO THINGS WITH WORDS 101–120 (J.O. Urmson & Marina Sbisà eds., 2d ed. 1975).

⁶INDIA CONST. art. 19, cl. 1(a).

⁷ Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 10,  1948).

⁸INDIA CONST. art. 19, cl. 1(a)

⁹ António Guterres, U.N. Sec’y-Gen.,We Must Confront Bigotry by Tackling the Hate That Sparks Like Wildfire  Across the Internet (2023).

¹⁰ Handyside v. United Kingdom, 1 Eur. Ct. H.R. (ser. A) (1976).

¹¹ Brandenburg v. Ohio (1969, United States)

¹² Jersild v. Denmark, App. No. 15890/89, 19 Eur. H.R. Rep. 1 (1994).

¹³ U.N. Human Rights Comm., General Comment No. 34, Article 19: Freedoms of Opinion and Expression,  U.N. Doc. CCPR/C/GC/34 (Sept. 12, 2011).

¹⁴ Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India).

¹⁵ Pravasi Bhalai Sangathan v. Union of India, (2014) 11 S.C.C. 477 (India).

¹⁶ Ramji Lal Modi v. State of Uttar Pradesh (1957)

¹⁷ S. Rangarajan v. P. Jagjivan Ram, (1989) 2 S.C.C. 574 (India).

¹⁸ Subramanian Swamy v. Union of India, (2016) 7 S.C.C. 221 (India).