A Project Report on

Legal essay: Constitutional restrictions on the freedom of

speech and expression. In light of communal hatred, hate

speech in politics and the legal regulatory framework.

Batch 2023 - 24
Submitted to:

Institute of Law, Nirma University, Ahmedabad

In the Partial Fulfilment of B.A., LL.B. (Hons.) / B.Com., LL.B. (Hons.)

Semester – I

BY sanskruti Rajpure

23BBL050
Essay plan

1. Introduction
2. Basic Definitions
3. Existing theories
4. Contextual nature of community hatred leads to debates about cultural sensitivity
 Munawar Faruqui's Case- Misuse Of Section 295A Of Penal Code And An Aggravated Insult On
Free Speech1
 Maqbul Fida Hussein vs. Raj Kumar Pandey
5. Community hatred if kept unmonitored leads to increase in tension, which is challenge in
maintaining public harmony.
 Why Is Communal Violence So Common in India? A Way Forward2
 5 communal violence. A case study.3
6. Hate speech in politics can deepen the division between communities
 UN global perspective human stories
 Hate speech ‘dehumanizes individuals and communities’: Guterres
7. Hate speech in politics affects the voter behavior, which leads to biased election
outcomes
 Influence of hate speech messages on voters’ choice of candidate in Kwara State
2019 gubernatorial election4
 When politicians use hate speech, political violence increases5
8. Though existing legal framework find balance between freedom of expression and
reasonable restrictions, there exists a need to bring reforms to the legal framework in
operation.
 Freedom of Speech and Expression in India: Analyzing Legal Framework and
Judicial Precedents6
 Need for reforms in defamation laws7
9. USA provides with more liberal interpretation of the freedom of expression.
 Emblems and Names (Prevention of Improper Use) Act, 1950

1
(shivkumar, live law, n.d.)
2
(alam, n.d.)
3
(Kumar, n.d.)
4
(Ajani, et al., n.d.)
5
(Piazza, n.d.)
6
(advocate finder, n.d.)
7
(venkataram, n.d.)
  First Amendment, amendment (1791) to the Constitution of the United States
10. Conclusion

Essay

This essay revolves around the concept of freedom to speech and expression which is a
fundamental right under article 19(1)(a) of the constitution. The topics of community hatred, hate
speech in politics and the legal framework are discussed too. Existing theories are mentioned, the
essay mainly focusses on the contemporary issues regarding these topics.
Basic definitions:
“Those who won our independence believed that courage is the secret of liberty and liberty is
the secret of happiness. These people believed that freedom to think, freedom to speak and
freedom to assemble wilfully for discussion is futile and of no use. But the public discussion is a
political duty and it should be the fundamental principle of the government of America. By
Justice Louis Brandies.8
Article 19(1) in the Constitution of India 1949
(1) All citizens shall have the right
(a) To freedom of speech and expression;
“In today’s free world freedom of the press is the heart of social and
politic intercourse. Press has rightly been described as the fourth pillar
of democracy.”(Express Newspapers (Bombay) (P) Ltd. v. Union of India).

“Hatred means a strong feeling of dislike” Cambridge dictionary Community hatred

is hatred towards any particular community or communities.
According to the economists hatred is willingness to pay to inflict pain or
suffering to others
“any kind of communication in speech, writing or behavior, that attacks or
uses pejorative or discriminatory language with reference to a person or a group on the basis
of who they are, in other words, based on their religion, ethnicity, nationality, race, color, descent,
gender or other identity factor.” United Nations.

8
(whiteny vs California)
Public speech that expresses hate or encourages violence towards a person or group based on
something such as race, religion, sex, or sexual orientation (= the fact of being gay, etc.),
Cambridge dictionary.

Theories on freedom of speech and expression

Absolutist Theory, argues for almost absolute freedom of speech. It contends that all
speech, no matter how offensive or harmful, should be protected. Restrictions on speech
should be minimal and only when it directly incites violence or poses a clear and present
danger.
Libertarian Theory closely aligns with the idea of minimal government intervention in
free speech. It suggests that individuals have a fundamental right to express themselves
without interference. Restrictions on speech should be limited to direct harm, such as
incitement to violence or false information that causes immediate and demonstrable
harm.

Communal hatred

Social Identity Theory posits that individuals tend to categorize themselves into various
social groups and derive a sense of identity and self-esteem from their group
membership.
Realistic Conflict Theory: communal hatred is often rooted in competition for limited
resources, be it economic, political, or social. When different communities perceive that
their interests and access to resources are under threat due to the presence of other
groups, it can lead to hostility and hatred.

Hate speech

Harm Principle argues that restrictions on speech should be based on the principle that
individuals have the right to express themselves unless their speech directly causes
harm to others.
Incitement Theory: Hate speech may be restricted when it incites or directly
encourages violence or illegal actions. This theory is often used as a basis for legal
restrictions on speech that poses a clear and imminent danger of causing harm.
Contextual nature of community hatred often leads to debates about cultural sensitivity.

In case of Munawar Faruqui, the comedian had used certain community reference in his
comedy set as part of humor without trying to hurt community sentiments or make
political statements. But the perseverance of his set was misunderstood by public for
which he was charged with Section 295A Of Penal Code. The court then held that the
speech was reasonable and is protected by the freedom of speech and expression.
Similarly in case of Maqbul Fida Hussein, depiction of bharat mata was said to
immodest, but court again held that it was the artistic piece and does not violate any law.
Contextual nature of community hatred often leads to debates about cultural sensitivity
what might be morally wrong for you might not be so for someone else.

If expressions of community hatred are kept unmonitored they can increase tensions, which leads
to challenges to maintain public harmony
PM Mr. Narendra Modi once said from Red Fort speech “Be it caste or communal
violence, they stall the growth of the nation. Major reasons for community violence are
political agendas, lack of quality education, spread of misinformation, poverty and
economic divide too result in community hatred (Why Is Communal Violence So
Common in India? A Way Forward9) The impact of communal violence is severe not only
in terms of the loss of life and property but also in terms of the damage it causes to the
social fabric. The response to communal violence springs from all levels of government .
This was found in a case study.

Hate speech in politics can deepen the division between communities.

It promotes racism, xenophobia and misogyny; it dehumanizes individuals and
communities; and it has a serious impact on our efforts to promote peace and security,
human rights, and sustainable development,” underscored Secretary-General António
Guterres. Hate speech and incitement to discrimination, hostility or violence and it has
been spread by political party figures, community leaders Hateful messages heighten the
risk of violence, including atrocity crimes targeting specific groups of people [and]
should be roundly condemned by the highest national authorities and curbed.”

Hate speech in politics affects the voter behavior, which leads to biased election outcomes
A study found, use of hate speech undermines political candidates with 72% also use of
hate speech during elections influence voters encouraging the votes against the
opposition party. Countries where politicians “never” or “rarely” use hate speech,
9
(alam, n.d.)
 experienced 12.5 incidents of domestic terrorism where politicians used hate speech
“often” or “extremely often.” experienced an average of 107.9 domestic terrorist attacks
during that period.

Though existing legal framework find balance between freedom of expression and reasonable
restrictions, there exists a need to bring reforms to the legal framework in operation.
Currently freedom of speech and expression in India is facing new challenges, due to
start of digital age. Online censorship, internet shutdowns, and the regulation of social
media platforms are posing several questions, this questions revolve around the scope of
these rights. the ability to criticize isn’t protected, important issues will stay veiled by the
rich and powerful. And without the information being equally distributed, nation could be
compromised while citizens are in the dark.

USA provides with more liberal interpretation of the freedom of expression.

Chilling effect on freedom of speech in India due to particular laws such as PMLA or
defamation these laws might seems innocent prima faci but they do give authorities
power which can result in restrictions whereas us is more liberal towards its interpretation
main reason is its 1st amendment. It’s says that the congress can’t make any law to restrict
the freedom of expression and speech. In India our national symbols are protected under
the law but in us you can use them as a way to expression. They have restrictions on the
same under the patriot act but its use is rare.

This essay delves into the contemporary issues around community hatred, legal
framework, and hate speech. The importance of public discourse and media is keeping
democratic values upright. The contextual nature of the community hatred is explained
through the cases of Munawar Faruqui and Maqbul Hussein. The essay also proves the
impact of community hatred on social harmony. It also influences the voter behavior. We
can also observe the effect of community hatred on the social balance and effective
governance, the government is adding more restrictions to deal with the modern time
issues. There is a gross violation of the constitutional restrictions on freedom of speech
and also there is misuse of the same. The laws try to balance them but are only partially
successful in doing the same.