“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”
— United Nations Secretary-General António Guterres, May 2019
In our world, each of us holds unique thoughts and beliefs. We all have something important to say, and the freedom to express ourselves is a precious right. Whether we’re sharing our views on politics, culture, or everyday life, our voices are our way of connecting with others and shaping the world around us. Everyone is entitled to their opinion, to speak their mind and to be heard.
Sharing our thoughts, beliefs, and feelings openly is a fundamental part of who we are. This freedom allows each of us to express ourselves freely, to stand up for what we believe in and to contribute our voice in shaping our society. Our voice gives us the power to inspire, to unite, to educate and to bring change. At the same time our voice has the power to hurt, to discriminate, to divide and to incite violence. Also, the growth of social media has connected us like never before, allowing us to share ideas instantly and globally. However, the ability to remain anonymous online has also led to an increase in hate speech. People can easily spread harmful messages without accountability, affecting individuals and communities. So, where do we draw the line between expressing our thoughts freely and spreading hate through our speech?
In India, the right to express our thoughts freely is fundamental right enshrined in Art.19(1)(a) of the Indian constitution. First let’s understand the term “Freedom of Speech and Expression”
Understanding Article 19(1)(a): Freedom of Speech and Expression
Article 19(1)(a) of the Indian Constitution guarantees every citizen the right to freedom of speech and expression. This right is fundamental to a democratic society because it allows individuals to share ideas, debate, criticize, and advocate for change. It is the cornerstone of a democracy as diverse opinions can be heard and respected.
Benefits of Freedom of Speech
- Empowerment: Enables individuals to express their thoughts and ideas freely, empowering them to participate actively in society. It allows marginalized and underrepresented communities to voice their concerns and seek justice. It empowers individuals to challenge societal norms and advocate for progressive changes.
- Innovation and Progress: Fosters creativity and innovation by allowing free exchange of ideas and opinions. Open discourse leads to the sharing of diverse perspectives, which can inspire new solutions and advancements. It encourages a culture of questioning and critical thinking, driving intellectual and technological progress.
- Accountability: Holds those in power accountable through criticism and public discourse. Media and public scrutiny are vital in preventing abuse of power and corruption. It ensures transparency and keeps the government and other institutions answerable to the people.
- Social Change: Drives social change by highlighting injustices and advocating for reforms. Historical movements for civil rights, gender equality, and other social issues have relied on freedom of speech. It allows activists and reformers to mobilize support and push for legislative and societal changes.
- Democratic Function: Freedom of speech is essential for the functioning of a democracy. It allows citizens to participate in public affairs, engage in discussions, and make informed choices.
- Individual Autonomy: This freedom is really important because it reflects our personal autonomy and dignity as individuals. It lets us grow and shape our personalities by sharing what we think and believe.
So, what is hate speech?
Defining hate speech is a real puzzle because Indian laws don’t give it a specific definition. The interpretation of the term “Hate Speech” is shaped by social norms, legal precedents, and evolving cultural sensitivities.
Hate speech generally refers any communication that belittles or discriminates against individuals or groups based on attributes such as race, religion, ethnicity, gender, or sexual orientation. It can incite violence, discrimination, and hostility which can be threatening to public order and social harmony. Hate speech is a drawback that arises from the misuse of freedom of speech. It not only
undermines the core values of free expression but also poses serious threats to social harmony and individual well-being. It can lead to:
- Violence: Hate speech can incite violence and hostility, leading to social unrest and harm to individuals or groups. It can provoke violent actions against targeted communities, resulting in physical harm, communal war and loss of lives. Instances, such as genocides and riots, have often been fueled by hate speech.
- Discrimination: Spreads prejudice and discrimination, undermining social harmony and equality. It reinforces stereotypes and perpetuates systemic discrimination against marginalized groups. It makes it difficult for diverse communities to coexist peacefully.
- Psychological Harm: Causes psychological harm to targeted individuals or groups, affecting their mental well-being and sense of security. Victims of hate speech often experience anxiety, depression, and a sense of alienation, which can lead to suicide. It can have long-lasting impacts on their mental health and quality of life.
- Erosion of Social Fabric: Weakens the social fabric by fostering divisions and conflicts among different communities. Hate speech erodes trust and mutual respect, which are essential for a cohesive society. It polarizes communities, making it challenging to build inclusive and harmonious relationships.
Drawing the line between Freedom of speech and Hate speech
To draw the line between expressing our thoughts freely and spreading hate through our speech, the Constitution has put reasonable restrictions under Article 19(2). These restrictions aim to balance the right to free speech with the need to protect individuals and society from the harms of hate speech.
Grounds for Restrictions under Article 19(2):
- Security of the State: Speech that could endanger the state’s security, such as incitement to violence or rebellion, can be restricted.
- Friendly Relations with Foreign States: Statements that could harm India’s relations with other countries can be limited.
- Public Order: Speech that could incite violence, riots, or disturb public peace can be restricted. This is particularly relevant for hate speech, which often disrupts social harmony. 4. Decency and Morality: Obscene and indecent expressions can be restricted to maintain public decency and morality.
- Contempt of Court: Speech that disrespects the judiciary or obstructs justice can be limited.
- Defamation: False statements that harm individuals’ reputations can be restricted. 7. Incitement to an Offence: Any speech that incites crime can be restricted. 8. Sovereignty and Integrity of India: Speech that threatens India’s sovereignty and integrity can be limited to maintain national unity.
The Indian legal framework seeks to strike a balance between protecting freedom of speech and preventing harm caused by hate speech. While Indian Constitution, which guarantees freedom of speech (Article 19(1)(a)) with certain limits (Article 19(2)), the Bharatiya Nyaya Sanhita, 2023, provides more specific rules about hate speech and its consequences. Some of them includes:
Section 196 -Promoting Enmity between different groups: Hate speech aimed at inciting enmity based on religion, race, or community is a serious concern. Whoever commits any act or communication that promotes hatred or enmity between different groups is punishable under this section. This includes speeches, writings, and digital content.
Section 197- Assertions prejudicial to national integration: It aims to prevent speech that threatens communal harmony or national security.This includes spreading false claims or misinformation that undermines national integration
Section 352. Intentional insult with intent to provoke breach of peace. This section penalizes anyone who intentionally insults another with the intent to disturb peace. Section 353. Statements conducing to public mischief:
Statements or information which are false or misleading, spread through any means, including electronic, with the intent to incite fear, disrupt public order, or provoke hostility among different groups based on religion, race, or other factors are punishable under this section. However, if
someone genuinely believes the information to be true and shares it in good faith, they are not held liable.
Section 356. Defamation.
Defamation includes any words spoken, written, or symbolic expression that harms someone’s reputation. This can apply to individuals, companies, and even the deceased if it hurts their family’s feelings. It covers direct accusations, ironic remarks, and any statement that lowers someone’s character or credit in the eyes of others. This section ensures that speech doesn’t unjustly tarnish reputations.
Global Perspectives
Freedom of Speech and Hate Speech in the United States:
Compared to India, the United States offers more extensive protections for freedom of speech. The U.S. is known for its strong protection of free speech under the First Amendment. The First Amendment to the United States Constitution guarantees freedom of speech and expression. Unlike India, the U.S. places a high value on protecting free speech including to some extent hate speech. However, there are a few narrow exceptions to this protection like direct incitement to violence, etc. Despite these exceptions, many expressions considered hate speech elsewhere are legally protected in the U.S. This stance highlights how the U.S. prioritizes free speech as essential for healthy democracy. Currently, even in the U.S there are ongoing debates regarding whether hate speech laws should be expanded or if existing protections are sufficient.
Freedom of Speech and Hate Speech in Europe:
The European Convention on Human Rights (ECHR) under Article 10 guarantees freedom of expression but allows restrictions for protecting national security, public safety, and the rights of others.
Scotland: Similarly, Scotland recognizes freedom of speech as a under European Convention on Human Rights (ECHR).
Scotland recently passed the Hate Crime and Public Order (Scotland), which updates and consolidates existing hate crime legislation. This law extends protections to groups based on
characteristics such as religion, sexual orientation, and transgender identity. This law also covers threatening or abusive speech that is likely to stir up hatred. It sets a high threshold for criminality, requiring the intent of stirring up hatred and the behaviour to be threatening or abusive. The Act explicitly states that it does not restrict freedom of expression, allowing for controversial, challenging, or offensive views as long as they do not reach the threshold of stirring up hatred. It aims to protect marginalized groups without unduly restricting free speech. Scotland has a stricter stance on hate speech and aims to create a balance between protecting vulnerable groups from hate speech while safeguarding the right to free expression.
Germany: Freedom of speech is protected under Article 5 of the German Basic Law. While it guarantees freedom of speech, Germany has more stringent approach to hate speech, particularly the Holocaust has led to a more restrictive approach towards hate speech. Section 130 of the German criminal code criminalizes certain types of hate speech. It also places strict rules on how social media companies must moderate and report hate speech and threats.
So, why such Legal Boundaries matters on Freedom of Speech?
Because it establishes clear boundaries that safeguard against speech intended to incite violence, promote enmity, or spread false information which could destabilize society. It holds individuals accountable for their words, reminding us that our freedom of expression carries a significant responsibility. By setting boundaries and consequences for hate speech, these laws promote a culture of respect, tolerance, and inclusivity in our diverse society.
While one of the significant challenges lies in determining what constitutes hate speech. Without any definition, interpretations may vary, making enforcement and prosecution complex. Legal framework acts as guidelines in interpretation of hate speech which helps to mitigate this ambiguity. But this also means they might not always be applied fairly. Sometimes, these laws could be used to silence important conversations instead of genuinely protecting people. That’s why it’s crucial for those enforcing these laws to be careful and fair, so that freedom of speech isn’t unfairly restricted in the name of maintaining order.
Conclusion
Understanding these laws helps us see that while we can speak freely, we also have to be careful not to harm others or the country’s peace. Our voices are powerful tools that can inspire change, foster understanding, and bring communities together. As citizens, we must strive to use our words to build bridges, not walls; to heal, not hurt; and to unite, not divide.
Author’s Name– Himali S Jain (Adv. Balasaheb Apte College of Law, Mumbai)
References
- Hate speech versus freedom of speech | United Nations
- Balancing Hate Speech and Freedom of Expression: A Complex Dilemma | by William K. Kirima | Medium
- Freedom of Speech vs. Hate Speech: A Legal Perspective | The Law Communicants • Hate Speech – ClearIAS
- Article 19 of the Indian Constitution – iPleaders
- India Code: Section Details
- Is Hate Speech Legal? | The Foundation for Individual Rights and Expression (thefire.org) • Tackling hate crime – gov.scot (www.gov.scot)
- Hate Crime and Public Order (Scotland) Act: factsheet – gov.scot (www.gov.scot) • Germany’s Laws on Antisemitic Hate Speech and Holocaust Denial (pbs.org) • Hate Speech In India: Legal Provisions & Case Laws (lawyersclubindia.com)
