HATE SPEECH VS. FREE SPEECH: A CONSTITUTIONAL AND LEGAL BALANCING ACT
THE LAWWAY WITH LAWYERS JOURNAL VOLUME:-28 ISSUE NO:- 28 , October 28, 2025 ISSN (ONLINE):- 2584-1106 Website: www.the lawway with lawyers.com Email: thelawwaywithelawyers@gmail.com Authored By :-Sudipta Bhattacharjee Institution: Shyambazar Law College (Affiliated to University of Calcutta) HATE SPEECH VS. FREE SPEECH: A CONSTITUTIONAL AND LEGAL BALANCING ACT Abstract In contemporary legal discourse, the conflict between hate speech and freedom of expression presents a complex challenge, particularly within pluralistic democracies. On one hand, freedom of expression is a bedrock of democratic governance and public discourse; on the other, hate speech threatens the dignity, safety, and equality of vulnerable groups. This article aims to examine the legal framework surrounding hate speech and freedom of expression, both in India and internationally. Through an analysis of constitutional principles, judicial precedents, important and relative statutes and international instruments, the article explores the legal and philosophical tensions at the intersection of these rights, ultimately advocating for a balanced approach grounded in constitutional morality and human dignity. Keywords: Pluralistic Democracy, Chilling effect, UN Strategy, Accountability etc. ● Introduction : There is no universally accepted definition of hate speech. However, common elements across jurisdictions include expressions that incite hatred, discrimination, or violence based on identity markers such as race, religion, ethnicity, gender, or nationality. In general, people have a common viewpoint which may oppose to each other and sometimes the vagueness arises there. In spite of it, in this 21st century, the basic awareness and knowledge from the people are highly demanding and appreciated. Definition : According to the United Nations Strategy and Plan of Action on Hate Speech (2019)(1): – “Hate speech is 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, colour, descent, gender or other identity factor.”(1) Foot note: (1) United Nations Strategy and Plan of Action on Hate Speech, 2019. The lack of a precise definition often leads to over breadth or vagueness, raising concerns about misuse or overregulation. The European Court of Human Rights(2), while upholding certain hate speech laws, insists on the need for narrow and clearly defined legal thresholds(2). ▪ Constitutional Framework in India: Article 19(1)(a)[i] of the Indian Constitution guarantees to all citizens the right to freedom of speech and expression. This right is a cornerstone of individual liberty and democratic engagement. However, this right is not absolute; Article 19(2) allows the State to impose reasonable restrictions on the freedom of speech and expression in the interests of: Sovereignty and integrity of India Security of the State Friendly relations with foreign States Public order Decency or morality Contempt of court Defamation Incitement to an offence Thus, hate speech can be curtailed if it threatens public order or incites an offence. The principle of equality under Article 14 reinforces the argument that hate speech targeting particular communities undermines constitutional morality and must not be permitted to override the dignity and rights of others. Essential Nature of Free Speech: In some precedents the concept was cleared by the honorable Supreme Court of India. Some of them are: Foot Note : (2) Garaudy v. France (2003) European Court of Human Rights App No. 65831/01 [i] Universal’s The Constitution of India (bare act) by Lexis Nexis In S. Rangarajan v. P. Jagjivan Ram(3)[ii], the Court asserted that free expression can only be restricted when it poses a real and imminent danger to public order. In Romesh Thappar v. State of Madras(4), the Supreme Court held: “Freedom of speech and of the press lay at the foundation of all democratic organisations.” This decision drew upon the Brandenburg v. Ohio(5) principle in U.S. law, which protects speech unless it is: “Directed to inciting or producing imminent lawless action and is likely to incite or produce such action. A landmark ruling came in Shreya Singhal v. Union of India(6) [iii], where the Supreme Court Struck down Section 66A of the IT Act for being vague and overbroad. Held that only incitement, and not mere advocacy or discussion, can justify curtailment of speech. ▪ Statutory Framework on Hate Speech in India: Foot Notes : (3) S. Rangarajan v. P. Jagjivan Ram [1989] 2, SCC 574. (4) Romesh Thappar v. State of Madras [1950] AIR 124, SCR 594 (5) Brandenburg v. Ohio [1969] 395, U.S. 444 (6) Shreya Singhal v. Union of India [2015] SC 329 [ii] SCC Online < https://www.scconline.com > accessed on October 24, 2025 [iii] Manupatra < https://mobile.manupatra.in > accessed on October 24, 2025 Although the Indian Constitution does not define hate speech, several provisions of the Indian Penal Code (IPC) penalize hate speech-related offences; those are as following : Section 153A IPC [iv] Criminalizes promotion of enmity between groups on grounds of religion, race, place of birth, etc. Section 153B IPC Targets assertions prejudicial to national integration. Section 295A IPC Punishes deliberate acts intended to outrage religious feelings. Section 505(1) & 505(2) IPC Covers statements that create public mischief and promote enmity. These laws provide a legal basis and eminent or effective viewpoints for curbing hate speech, though they are sometimes criticized for being vaguely worded and prone to misuse. On other hand, in some Landmark Judgements, the Court also obtained several views: Pravasi Bhalai Sangathan v. Union of India(7) : The Court acknowledged the threat of hate speech but deferred to the legislature, stating that new guidelines or definitions should emerge via legislative action, not judicial overreach. Foot notes : [iv] K. Kannan and Anjana Prakash, The Indian Penal Code, 2021 (7) Pravasi Bhalai Sangathan v. Union of India [2014] SC 1591, AIR 2014 Subramanian Swamy v. Union of India(8) The Supreme Court upheld the criminal defamation law and observed that dignity is a constitutional value, thereby validating restrictions on speech that harms reputation. Amish Devgan