RIGHT TO FREEDOM OF SPEECH AND EXPRESSION AND COUNTERING HATE SPEECH IN

INDIA

- Ponnam Mamatha

(1/3 L.L.B)

ABSTARCT
Freedom of speech and expression is a natural right which a human being acquires on birth. It is therefore a basic
right. The nucleus of free society is the right to freedom of speech and it must be safeguarded at all time. The first
principle of a free society is an untrammelled flow of words in an open forum. 1 The makers of the Indian
Constitution makers attached immense importance to freedom of speech and expression. However, there is also dire
need to bring light on hate speech, speech that is insulting, derogatory, discriminatory, provocative or even such that
it incites and encourages use of violence or results in violent backlashes. This study highlights different aspects of
freedom of speech and expression also deals with the regulation of hate speech, which has proven to be a
challenging endeavour in light of its obvious harm.

INTRODUCTION

Political thinker and author J.S Mill’s book On Liberty, is a classic elucidation of the liberal argument for freedom
of speech. The argument purports the consequences of unregulated expression, whereas its subject can be read as
grounded in the character ideal of the inquisitive, open-minded person, an ideal that might justify a policy of
toleration independent of any empirical calculation of collective consequences.

During the India’s Freedom struggle, also in the debates made by constituent assembly during the framing of the
constitution, there was a persistent demand for a written Bill of Rights for the people of India which included
guarantee of free speech. The rippling experience of repressive measures during British rule prompted them of the
value of this right in the sovereign democratic republic which India was under its constitution. The constitution
framers believed that freedom of expression is indispensable to the operation of a democratic system. They knew
that when avenues of expression are closed, government by consent of the governed will soon be foreclosed. 2

The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred and
important position in the hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of
all other liberties. Freedom of speech and expression means the right to express one’s own convictions and opinions
freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s
ideas through any communicable medium or visible representation, such as, gesture, sighs and the like. 3

DEMOCRACY AND FREE SPEECH

“Freedom of Speech and Expression‟ as a Fundamental Right in India and the Test of
1

Constitutional Regulations: The Constitutional Perspective - Aqa Raza

2
Soli. J. Sorabjee, “Freedom of Expression in India”, Law and Justice, 47 (1996), p. 3.

3
Lowell v. Griffin, (1939) 303 US 444.
Freedom of speech and expression is guaranteed as a fundamental right by Article 19(1) (a) of the Constitution.
Freedom of expression, like other fundamental rights guaranteed by the Indian Constitution, is not absolute. The
freedom of speech and expression includes liberty to propagate not one’s views only. It also includes the right to

propagate or publish the views of other people,4 otherwise this freedom would not include the freedom of the press.

Freedom of expression has four broad special purposes to serve:

1.It helps an individual, to attain self-fulfilment;

2.It assists in the discovery of truth;
3. It strengthens the capacity of and individual in participating in decision making; and
4.It provides a mechanism by which it would be possible to establish a reasonable balance between stability and
social change. All members of society should be able to form their own belief and communicate them freely to
others.5

Freedom of speech and expression is bulwark of a healthy democracy and free society. It is basic yet an
indispensable quality of a democratic polity. In Romesh Thappar v. State of Madras, 6 Chief Justice Patanjali Shastri
observed that: The “freedom and of the Press lay at the foundation of all democratic organizations, for without free
political discussion, no public education, so essential for the proper functioning of the processes of popular
government, is possible”. The United States First Amendment protections for free speech is deeply associated with
democracy.

In July 2016, the Madras High Court delivered a decision in defense of the author and of free speech in general.
Chief Justice Sanjay Kaul wrote in the court’s decision: "One of the most cherished rights under our Constitution is
to speak one’s mind and write what one thinks." He told the book’s detractors: "If you do not like the book, throw it
away." It was a stinging rebuke to self-appointed censors of the Hindu right. 7 In India, however the right to freedom
of speech and expression is not absolute. The constitution allows the government to limit freedom of expression on
grounds of restriction mentioned in the cl. 2 of Art 19.

SCOPE OF FREEDOM OF SPEECH AND EXPRESSION

Justice Chelameswar “It is important to protect the right to freedom of speech, and once it is demolished, nothing
much will remain of the fundamental rights under the Indian constitution” 8.Supreme court in many cases reiterated
the need to protect the fundamental right of freedom of speech and expression. Since Romesh Thappar case 9 there
have been many cases involving the right to speech. With the advent of new technologies, increased use of social

4
Srinivas v. State of Madras, AIR 1931 Mad 70.

5
J. N. Pandey, The Constitutional Law of India, Central Law Agency, 58th edn., 2021, p. 210

6
AIR 1950 SC 124.

7
Central & South Asia Education, Society & Culture APRIL 23, 2018: Mira Kamdar.

8
Chelameswar’s online discussion,” judicial criticism, Contempt and Democracy” at Tata Institute of social
sciences.

9
Romesh thappar v state of madras AIR 1950 SC 124.
media ,electronic media has become popular and hyperactive. Digital press and electronic journals have become
channel for ‘expression’ in the electronic age. The pandemic has opened a new school of online court proceedings, it
also caters to speedy disposal of cases and there is more room for transparency. The ‘expression’ on social platforms
whether they truly represent the sentiments of people or whether they are only mouthpieces of few interest groups,
remains tantalizing.

Indian jurist Nani Palkhivala while addressing the Newspaper Society about two decades ago observed “Freedom is
to the Press what oxygen is to the human being; it is the essential condition of its survival. To talk of a democracy
without a free press is a contradiction in terms. A free press is not an optional extra in a democracy.” 10 . Though the
expression ‘freedom of press’ has not been mentioned explicitly in Article 19, it has been included in one of the
guarantees in Article 19(1) (a). The judiciary has given a wider interpretation to it as freedom of press is an integral
part of the democratic form of government.

In Indian Express Newspapers Pvt. Ltd v. Union of India 11,the supreme court observed that the term expression
means freedom inferred with the limits of interference. There cannot be any interference with that freedom in the
name of public interest. The purpose of press is to advance the public interest by publishing facts and opinions
without which a democratic electorate cannot make responsible judgements.

In Prabhu Dutt v. Union of India,12 the Supreme Court has held that the right to know news and information
regarding administration of the government is included in the freedom of press. However this right is not absolute
and restrictions can be imposed in the interest of society and the individual from which the press obtains the
information.

The Supreme court in Bennet Coleman and Co. v. Union of India13 observed that freedom of press is a cherished
right of a democratic country. Media’s primary function is to educate the masses and create awareness about events
and developments, which will best be served if the press acts impartially, accurately, objectively, and without bias.

In the case of National Anthem, 14 three students were expelled from the school for refusal to sing the national
anthem. However the children stood up in respect when the national anthem was playing. The Supreme Court held
that the three students were not guilty of disrespect to the National Anthem just because they refused to sing it.

In National Legal Services Authority v. Union of India & Others, 15 The Supreme Court held that “Expression of
one’s gender identity is facet of freedom of expression and state cannot prohibit or restrict transgender’s expression
of such personality.” Court further said “Freedom of expression guaranteed under Article 19(1)(a) includes the
freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech,

10
Nani. A. Phalkhivala, We The Nation- The Lost Decade, 1994 edn., p. 291. From the speech he delivered at The
Golden Jubilee Valedictory Function of the Indian Newspaper Society, Delhi, September 29, 1989.

11
AIR 1986 SC 515 at p. 527.

12
AIR 1982 SC 6, 1982 SCR (1) 1184.

13
AIR 1973 SC 106.

14
Bijoe Emmanuel v. state of kerala (1986) 3 SCC 615.

15
AIR 2014 SC 1863.
mannerism, clothing etc. Gender identity, therefore, lies at the core of one’s personal identity, gender expression and
presentation, and therefore it will have to be protected under Article 19(1)(a) of the Constitution. State cannot
prohibit, restrict or interfere with a trans-gender’s expression of such personality, which reflects that inherent
personality.”

The landmark case of Shreya Singhal v Union of India 16 plays an important role in the Indian legal system. The
petitioner challenged the constitutional validity of Section 66A of Information Technology Act 2000,which
prescribes punishment for sending offensive messages through communication services. Section 66A was struck
down in its entirety as it was violative of Article 19(1)(a).

GROUNDS OF RESTRICTION

The constitution tethered itself by conferring upon the state power to impose law by reasonable restrictions.
Freedom of speech and expression is guaranteed as a fundamental right by Article 19(1) (a) of the Constitution.
Freedom of expression, like other fundamental rights guaranteed by the Indian Constitution, is not absolute. It can
be restricted provided three distinct and independent prerequisites are satisfied.

(i) The restriction must have authority of law to support it. Freedom of expression cannot be curtailed by
executive orders or administrative actions which lack the sanction of law.

(ii) The law must fall squarely within one or more heads of restrictions specified in Article 19(2). Restriction
on freedom of expression cannot be imposed on such omnibus grounds as “in the interest of the general public”
which is permissible in the case of fundamental rights like freedom of trade and business.

(iii) The restriction must be reasonable. It must not be excessive or disproportionate. The procedure and the
manner of imposition of the restriction also must be just, fair and reasonable.17

The eight grounds of restriction which are mentioned in clause (2) of Article 19 are:

a. Security of the State.

b. Friendly Relations with Foreign State.
c. Public Order.
d. Decency or Morality.
e. Contempt of Court.
f. Defamation.
g. Incitement of an offence.
h. Sovereignty and integrity of India.

The restriction which may be imposed under Article 19(2) must be reasonable restrictions. In the original
st
Constitution the word ‘reasonable’ was absent from clause (2). The Constitution (1 Amendment) Act, 1951
inserted the word ‘reasonable’before the word ‘restriction’in clause (2). Hence, a law restricting the exercise of right
guaranteed by Article 19(1)(a) to by constitutionally valid, must satisfy two conditions, namely-

I. The restriction must be reasonable, and

16
AIR 2015 SC 1523.

17
Chintamani Rao v. State of Madhya Pradesh, AIR 1951 SC 118.
 II. The restriction must be for the particular purpose mentioned in the clause permitting the imposition of the
restriction on that particular right.

The value of freedom of speech and expression is determined by the extent to which the citizens are able to enjoy
such freedom. Thus, Freedom of speech and expression is a fundamental human right.

HATE SPEECH

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. –John
Milton.

As per Indian constitution Right to freedom of speech and expression means the right to express one’s own
convictions and opinions freely. Freedom of expression is essential to the functioning of our pluralist society. Hate
speech has affected freedom of speech and expression widely in recent times. Hate speeches give rise to social
unrest and public disturbance. The anti-hate speech law is contested because of its clash with the freedom of speech
and expression of an individual. In practice, the law is always treading the treacherously thin line between regulation
and complete restriction. But despite adopting strict laws, cases of hate speech are still on the rise. In the spate of
recent events of harm that hate speech causes it is time to go beyond the current framework and look for best
practices that can be adopted to address the problem of hate speech in addition to the legal framework.

The term ‘hate speech’ eludes a universal definition. It derives its significance from the particular context it operates
in formed through the influence of peculiar sensibilities, “identities” and “assessments” in particular contexts. 18
Black’s Law Dictionary identifies hate speech as the “speech that carries no meaning other than expression of
hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to
provoke violence” 19. The term “hate speech” does has no mention anywhere, though there are certain provisions in
the Indian Penal Code [IPC], and also in special statutes, such as the Representation of the People Act,1951 or
the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, dealing with certain instances
which are styled as offences, which might include instances of hate speech as well.

“Hate speech, even when it doesn’t fall within the ambit of penal offences, is equally dangerous to democracy, to a
plural society, to a society based on Constitutionalism, especially a Constitution having in its Preamble notions
such as equality, dignity, fraternity and liberty.”20

Most importantly and primarily the Indian Penal Code under Sections 153A, 153B, 295A, 298, 505(1) and 505(2)
21
declares that word, spoken or written, or employing signs or any kind of visual representation that ‘promotes
disharmony, enmity, hatred or ill-will’ or ‘offends’ or ‘insults’ on basis of religion, ethnicity, culture, language,

18
Marcello Maneri (ed.), “#Silence Hate : Study on hate Speech Online in Belgium, Czech Republic, Germany and
Italy”, BRICKS Building Respect on the Internet by Combating Hate Speech Project
available at : https://www.bricks-project.eu/wp/wp-content/uploads/2016/10/relazione_bricks_eng2-1.pdf (last
visited on January 25,2019).

19 th
Black's Law Dictionary, 9 edition, 2009.

20
The Leaflet : Hate speech and hate crimes: Law and politics, Interview with Kaleeswaram Raj, lawyer and
Author, May 17, 2022.

21
The Indian Penal Code, 1860 (Act 45 of 1860).
region, caste, community, race etc., is a punishable offence. The hate speech laws in India only had limited success
in regulating hate speech though the aim was to prevent hate speech altogether.

Alternate Dispute Resolution proposes a paradigm shift in the way the legal system administers justice.
It shifts the
focus from court-centred formal legal proceedings to the settlement of the dispute between parties by way of
negotiation, mediation, arbitration and/or conciliation. The importance of this approach for redressal of disputes
cannot be overemphasised in light of the fact that it works in a time bound manner focused at arriving at settlement
between parties as opposed to pursing the matter in a court of law which are already overburdened with the load of

cases pending for years, bound by procedural formalities.22

CONCLUSION

Hate speech becomes a particularly heinous type of hate crime causing direct physical and psychological harm to the
victims of hate crime. It affects its victims in intangible ways leading to chilling effect on the victims right to free
speech and expression, resulting in exclusion from participation in the democratic process and public discourse. 23

“As judge of the Constitutional Court, I have a constitutional duty to protect human dignity, which is as important as
our duty to protect free speech. We respect the right of freedom of speech but we are absolutely concerned about
these kinds of attacks against a community.” 24 By resorting to alternate means of settlement in case of hate speech,
it would provide both the parties a space for discussion and possible settlement outside of the formal rigours of the
legal system. The characteristic of any new regulation of hate speech must be that they do not impinge on freedom
of speech and expression of an individual and also cannot act as a restriction on free flow of views in the
“marketplace of ideas”25in that are to be upheld as sacrosanct in today’s liberal democracies.

22 th
Law Commission of India, 245 Report On Arrears And Backlog: Creating Additional Judicial (Wo)Manpower
(July, 2014).

23
Parliamentary Assembly, Council of Europe, Recommendation 1805” Blasphemy, religious insults and hate
speech against persons on grounds of their religion “(2007).

24
Justice D Y Chandrachud , for hearing of Sudarshan tv case, Sep 2020.

25
Justice Oliver Wendell Holmes of the United States Supreme Court famously used these words in the case of
Abrams v. United States 250 U.S. 616 (1919) stating that for the attainment of ultimate good, an idea needs to be put
out into the market exposed to market forces. In the competitive environment of the market, if that idea is accepted
after much debate and deliberation, then it is the best version of truth that there is. This doctrine forms the
underlying principle for freedom of speech and expression in modern liberal democracies.