The Thin Line Between Expression And Incitement - Hate Speech And The Freedom Of Speech
Author: LawSphereX
Category: General Law
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THE THIN LINE BETWEEN EXPRESSION AND
INCITEMENT: HATE SPEECH AND THE FREEDOM OF SPEECH
Chirag Tripathi, Mahatma Gandhi Kashi Vidyapith
ABSTRACT
Freedom of speech and expression under Article 19(1)(a) of the Indian Constitution is a cornerstone of democratic governance. However, this freedom is not absolute and is subject to reasonable restrictions under Article 19(2), particularly when speech assumes the form of hate speech or incitement. The present research article examines the constitutional tension between the protection of free expression and the necessity to regulate hate speech in the interest of public order, morality, and communal harmony. Through an analysis of constitutional provisions, statutory laws, and landmark judicial pronouncements, the study seeks to identify the thin line that separates permissible expression from punishable incitement. The article also adopts a comparative approach by referring to international human rights instruments and foreign jurisprudence.
It critically evaluates whether the existing legal framework in India adequately balances individual liberty with societal interests and concludes by suggesting the need for clearer standards and effective regulatory mechanisms to address hate speech without undermining democratic freedoms. Keywords: Freedom of Speech, Hate Speech, Article 19(1)(a), Article 19(2), Reasonable Restrictions, Incitement, Constitutional Law.
OBJECTIVE :
TO ANALYSE THE CONSTITUIONAL LIMITS OF FREEDOM OF SPEECH UNDER
ARTICLE 19(2)
TO EXAMINE JUDICIAL INTERPRETATION OF HATE SPEECH IN INDIA
FREEDOM OF SPEECH : The right to free speech is protected by both international and regional laws, thus emphasizing the importance of this freedom. According to Euripides1, an ancient Greek poet, "A slave is he who cannot speak his thoughts". Thus, in a democratic government, where governance is seen as a reflection of the people's will, the right of the masses to form opinions, hold grievances, express their train of thoughts must be established, protected, and respected. John Stuart Mill2, a foremost philosopher of free expression and influential advocate of free speech stated that there should be absolute freedom of opinion and sentiments on all subjects, practical or speculative, scientific, moral, political or theological, however immoral the opinion or sentiment may be.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR)3 guarantees everyone the right to hold opinions without interference and the freedom to seek, receive, and impart information and ideas through any media, regardless of frontiers. This vital right includes artistic expression but comes with "special duties and responsibilities," allowing for legal restrictions necessary to protect others' rights, national security, public order, or health. Article 19 of the Universal Declaration of Human Rights (UDHR)4 guarantees everyone the fundamental right to freedom of opinion and expression, which includes holding opinions without interference, and the freedom to seek, receive, and impart information and ideas through any media, across borders, and in any form (oral, written, art, etc. ), recognizing it as essential for democracy and individual participation.
This right comes with responsibilities and can be restricted by law when necessary for specific reasons, but the core principle is open
1 EURIPIDES ,
2 JOHN STUART MILL
3 Article 19 of the International Covenant on Civil and Political Rights (ICCPR)
4 Article 19 of the Universal Declaration of Human Rights (UDHR)
expression. Freedom of Speech in India is a fundamental right under Article 19(1)(a) Of The Indian Constitution5, guaranteeing citizens the right to express views freely through any medium (speech, writing, print, pictures). However, the freedom of speech and expression under the Indian Constitution, though fundamental, is not absolute. Article 19(1)(a) of the Constitution of India guarantees to all citizens the right to freedom of speech and expression, forming the cornerstone of democratic functioning and political participation in the country. This right enables citizens to express opinions, criticize the government, disseminate ideas, and participate meaningfully in public discourse.
Nevertheless, recognizing that unrestricted speech may sometimes conflict with collective societal interests, the Constitution expressly subjects this freedom to reasonable restrictions under Article 19(2). Article 19(2)6 permits the State to impose reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence. These grounds reflect a constitutional balance between individual liberty and societal order, ensuring that free expression does not undermine national security, public peace, or the rights and reputation of others. The scope and limits of these restrictions were first judicially examined in Ramesh Thappar v.
State of Madras, AIR 1950 SC 1247. In this case, the Supreme Court struck down an order banning the circulation of a political journal under the Madras Maintenance of Public Order Act, 1949. The Court held that freedom of speech and expression lies at the foundation of all democratic organizations and that restrictions on this right must strictly fall within the grounds enumerated in Article 19(2). At the time, “public order” was not expressly included as a ground under Article 19(2), and therefore the restriction was declared unconstitutional. This judgment underscored the primacy of free speech and led to the First Constitutional Amendment, 1951,
5 Article 19(1)(a)
6 Article 19(2)
7 Ramesh Thappar v. State of Madras, AIR 1950 SC 124
which expanded the scope of Article 19(2). Similarly, in State of Madras v. V. G. Row, AIR 1952 SC 1968, the Supreme Court laid down authoritative principles for determining the reasonableness of restrictions under Article 19(2). The Court held that the reasonableness of a restriction must be judged in an objective manner, taking into account the nature of the right infringed, the purpose of the restriction, the extent and urgency of the evil sought to be remedied, and the proportionality between the restriction and the objective sought to be achieved. This decision established that while the State has the power to restrict free speech, such power is subject to strict judicial scrutiny to prevent arbitrary or excessive limitations. HATE SPEECH: There is no clear statutory and comprehensive legal definition of the concept of hate speech.
Various laws address aspects of it, but none provide a cohesive standard. This ambiguity leads to selective enforcement and potential misuse. The philosopher Jeremy Waldron 9argues that, while purely offensive speech may not justify restrictions, there is a class of injury, amounting to more than hurt sentiments but to less than harm, in the sense of physical injury, that demands restriction in democratic frameworks; hate speech falls within such class of injury. The Council of Europe defines hate speech as: "Covering all forms of expression which spread, incite, promote or justify forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin".
The 267th Report of the Law Commission (2017)10 recommended defining hate speech to include expressions that incite hatred against groups based on race, religion, caste, or sexual orientation. IPC, 1860 11declares it an offense to provoke enmity among various sections of society either by words or by the depiction or otherwise as provided by Section 153A(now corresponding to Section 196 under the Bharatiya Nyaya Sanhita, 2023)12; or spreading any rumor or source
8 State of Madras v. V.G. Row, AIR 1952 SC 196
9 Jeremy Waldron
10 The 267th Report of the Law Commission (2017)
11 IPC, 1860
12 Section 153A(now corresponding to Section 196 under the Bharatiya Nyaya Sanhita, 2023)
rebellion or stoppage of obligation by a constituent of military, to create panic to segment of society thereby inducing people to commit crime against the government or public tranquility or to provoke any section of society to commit any crime against other section of society (Section-505) (now corresponding to Section 353 under the Bharatiya Nyaya Sanhita, 2023)13 to speak words or to make noticeable representations with an aim to injure the spiritual sentiments or faith of people or of any section of society(Section-295A and Section-298) (now corresponding to Section 299&302 under the Bharatiya Nyaya Sanhita, 2023).
14 Police Act, 1922 Section-315: of the Act declares it crime to commit any action "which causes or is likely to cause disaffection towards the Government established by law in India amongst the members of a police force or induces or attempts to induce any member of a police force to withhold his services or to commit a breach of discipline". Representation of the People Act, 195116: Hate speeches refers to any appeal, speech, or action during elections that promotes enmity or seeks votes on grounds of religion, caste, race, community, or language, and is treated as a corrupt electoral practice and, in certain cases, a criminal offence (Sections 123(3), 123(3A), and 125 RPA)17. In Pravasi Bhalai Sangathan v.
Union of India, (2014) 11 SCC 47718: The Court observed that hate speech is expression which “has the effect of creating or promoting hatred, discrimination, or violence against a group of persons”, and that such speech falls outside constitutional protection under Article 19(1)(a) due to the reasonable restrictions permitted under Article 19(2). ALL THE PENAL PROVISIONS RELATED TO HATE SPEECH IN INDIA: In India, there is no single, consolidated statute that exclusively defines or governs “hate speech”. Instead, hate speech is regulated through multiple Acts and constitutional
13 (Section-505) (now corresponding to Section 353 under the Bharatiya Nyaya Sanhita, 2023)
14 (Section-295A and Section-298) (now corresponding to Section 299&302 under the Bharatiya Nyaya
Sanhita, 2023).
15 Police Act, 1922 Section-3
16 Representation of the People Act, 1951
17 (Sections 123(3), 123(3A), and 125 RPA)
18 Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477
provisions, which indirectly define and punish it based on its impact on public order, morality, religion, and social harmony Provisions of the Bharitya Nyay Sanhita , 2023
1. Section 152 BNS19 – Acts endangering sovereignty, unity and integrity of India o
Hate speech incidents may cause public disorder; obstructing officials during enforcement is punishable.
2. Section 196 BNS20 – Promoting enmity / Sanction for prosecution
o Punishes speech or acts that promote hatred, division, or enmity between groups.
3. Section 197 BNS21 – Protection of public servants
o Ensures officials can take action against hate speech without fear of prosecution.
4. Section 298 BNS22 – Wounding religious feelings
o Covers speech or actions that intentionally insult religion or hurt religious sentiments.
5. Section 302 BNS23 – Uttering - words, performing gestures, or acts intended to wound
the religious feelings of any person.
6. Section 353 BNS24 – Statements conducing to public mischief
o Targets false statements, rumours, or messages that incite hatred, fear, or conflict between groups. Provisions of the Information Technology Act, 200025 Section 69A26
19 Section 152 BNS
20 Section 196 BNS
21 Section 197 BNS
22 Section 298 BNS
23 Section 302BNS
24 Section 358 BNS
25 Provisions of the Information Technology Act, 2000
26 Section 69A
Power to block online content • In the interest of public order & sovereignty • Used for online hate speech Section 7927 • Intermediary liability • Due diligence to remove hate content
3) Provisions of the Representation of the People Act, 195128
Section 123(3)29 • Appeal to vote on religion, caste, community • Considered corrupt electoral practice Section 12530 • Promoting enmity during elections
4) Provisions of the Protection of Civil Rights Act, 195531
Penalizes hate speech promoting untouchability
5) Provisions of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act,
Section 3(1)(r) & (s) • Intentional insult or intimidation • With intent to humiliate SC/ST members
6) Provisions of the Religious Institutions (Prevention of Misuse) Act, 198833
27 Section 79
28 Provisions of the Representation of the People Act, 1951
29 Section 123(3)
30 Section 125
31 Provisions of the Protection of Civil Rights Act, 1955
32 Provisions of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989
33 Provisions of the Religious Institutions (Prevention of Misuse) Act, 1988
Prevents religious places from being used for hate propaganda
7) Provisions of the Cable Television Networks (Regulation) Act, 199534
Prohibits broadcast of content: o Promoting hatred o Attacking religions or communities
IMPACT OF HATE SPEECH ON COMMUNAL HARMONY AND PUBLIC ORDER :
1 Overall Hate Speech Incidents (India)
2023 → 2024: Big Increase
•
2023 documented hate speech events: 668 incidents.
•
2024 documented hate speech events: 1,165 incidents.
Percentage increase: 74.4% rise in 2024 compared to 2023. This surge shows a significant escalation in hate speech activity across the country
2 Target Distribution (2024 Data)
Of the 1,165 hate speech events in 2024: • 1,147 (98.5%) targeted Muslims (either explicitly or along with Christians).
115 (9.9%) targeted Christians (either explicitly or along with Muslims).
3 Geographic Spread
In 2024: •
20 states + 2 union territories + Delhi NCR recorded hate speech events.
79.9% of hate speech incidents occurred in BJP-ruled/NDA-ruled regions.
34 Provisions of the Cable Television Networks (Regulation) Act, 1995
Top three states with highest events: o Uttar Pradesh: 242 events (~20.8% of total) o Maharashtra: 210 events o Madhya Pradesh: 98 events These three states alone accounted for about 47% of all identified hate speech events in 2024.
4 Political / Temporal Patterns (2024)
May 2024 (the month of major national elections): 269 hate speech incidents — the peak month. • Most hate speech spikes coincided with election campaigns or political rallies.
5 Victims and Types (APCR Report – Early 2024 Snapshot)
According to a tracker of hate crime + hate speech incidents (Jan 2024): •
56 incidents recorded in January 2024 o 39 hate crimes (69.6%)
o
17 hate speech episodes (30.4%).
Victim profile: o 95.5% of victims were Muslims o 4.5% were Christians • Types of hate crime combined with hate speech: o Mob/communal violence: 39.3% o Property attacks: 23% o Physical assaults: 21.3% o Intimidation/harassment: 9.8% o Sexual violence: 4.9%
o Death resulting from hate violence: 1.6% This shows hate speech often co-occurs with physical communal violence and crimes.
6 Social Media Amplification
•
995 out of 1,165 incidents (=85%) were first shared or live-streamed on social
media platforms. • Most common platforms: o Facebook: 495 events o YouTube and Instagram: Ranked next with significant shares. • Far-right narratives such as “love jihad,” “population jihad,” and others were referenced in nearly 49.9% of events.
7. Temporal Trends
On average, about 3 hate speech events occurred per day in 2024. •
269 incidents (=23% of total) were recorded in May 2024, during the peak of
the national elections, showing a spike around political campaigning. LANDMARK JUDGEMENTS :.
ROMESH THAPPAR v. STATE OF MADRAS (1950)35 The Supreme Court recognised freedom of speech and expression under Article 19(1)(a) as the cornerstone of a democratic society. It held that restrictions on speech must strictly fall within the grounds mentioned in Article 19(2). At the time, “public order” was not a ground for restriction, thereby giving wide protection to free speech and laying the foundation for strict judicial scrutiny of speech-restrictive laws.
35 ROMESH THAPPAR v. STATE OF MADRAS (1950)
RAM JI LAL MODI v. STATE OF U. P. (1957)36 The Court upheld the constitutional validity of Section 295A of the IPC, observing that only deliberate and malicious acts intended to outrage religious feelings are punishable. The judgment clarified that accidental or unintentional expressions do not attract liability. This case forms the legal basis for penalising religious hate speech under Article 19(2). RAM MANOHAR LOHIA v. STATE OF BIHAR (1960)37 The Supreme Court introduced the doctrine of proximity, holding that restrictions on speech are valid only when there is a clear, direct, and proximate connection between the speech and disturbance of public order. Remote or hypothetical threats cannot justify curtailment of free expression, which is crucial in determining whether hate speech warrants restriction. K. A. ABBAS v.
UNION OF INDIA (1970)38 The Court held that films fall within the ambit of freedom of speech and expression but recognised that pre-censorship is permissible in the interest of public order, decency, and morality. The judgment acknowledged that certain forms of expression have a stronger impact on society and may therefore require stricter regulation, including content that could incite communal disharmony. SHREYA SINGHAL v. UNION OF INDIA (2015)39 The Supreme Court struck down Section 66A of the Information Technology Act for being vague and overbroad. It clearly distinguished between discussion, advocacy, and incitement, holding that only speech amounting to incitement to violence or public disorder can be restricted under Article 19(2). This judgment is central to modern hate speech jurisprudence, especially in the digital context.
36 RAM JI LAL MODI v. STATE OF U.P. (1957)
37 RAM MANOHAR LOHIA v. STATE OF BIHAR (1960)
38 K.A. ABBAS v. UNION OF INDIA (1970)
39 SHREYA SINGHAL v. UNION OF INDIA (2015)
PRAVASI BHALAI SANGATHAN v. UNION OF INDIA (2014) 40 The Court acknowledged hate speech as a serious threat to constitutional values such as fraternity, secularism, and unity. While refraining from issuing detailed guidelines, the Court emphasised the need for legislative action to effectively curb hate speech, particularly by influential political and religious leaders. TEHSEEN S. POONAWALLA v. UNION OF INDIA (2018)41 The Supreme Court directly linked hate speech with mob violence and lynching, recognising hate speech as a precursor to mass violence. It issued preventive, remedial, and punitive directions to the States, thereby imposing a constitutional duty on authorities to act against hate speech that threatens public order and communal harmony. AMISH DEVGAN v.
UNION OF INDIA (2021)42 : The Court held that hate speech attacking the dignity of a community is not protected under Article 19(1)(a). It emphasised the constitutional value of fraternity and ruled that vilification of communities undermines national unity. The judgment reinforced that freedom of speech does not extend to speech that spreads hatred and intolerance.
CONCLUSION
Freedom of speech and expression under Article 19(1)(a) of the Indian Constitution is essential to the country’s democracy. It allows for open debate, dissent, and involvement in governance. However, this research shows that this freedom is not absolute. It must exist alongside the requirement to maintain public order, communal harmony, and individual dignity. Hate speech poses a significant challenge to this balance. It goes beyond simple expression and often sparks discrimination, hostility, and violence against specific groups. Through an examination of constitutional provisions, statutory frameworks, judicial pronouncements, and empirical data, this study highlights the evolving judicial approach towards distinguishing protected expression from punishable incitement. Landmark judgments
40 PRAVASI BHALAI SANGATHAN v. UNION OF INDIA (2014)
41 TEHSEEN S. POONAWALLA v. UNION OF INDIA (2018)
42 AMISH DEVGAN v. UNION OF INDIA (2021)
such as Romesh Thappar, Ram Manohar Lohia, Shreya Singhal, and Amish Devgan collectively establish that only speech which has a proximate and direct tendency to incite violence, public disorder, or hatred can be lawfully restricted under Article 19(2). At the same time, the alarming rise in hate speech incidents, particularly in politically sensitive periods and through digital platforms, underscores the inadequacy of existing enforcement mechanisms. The absence of a comprehensive statutory definition of hate speech in India continues to result in inconsistent application of the law and selective prosecution. While recent legislative developments under the Bharatiya Nyaya Sanhita, 2023 attempt to modernize penal provisions, there remains an urgent need for clearer legal standards, uniform enforcement, and institutional accountability.
Ultimately, the constitutional challenge lies in ensuring that regulation of hate speech does not become a tool for suppressing dissent, while simultaneously safeguarding fraternity, equality, and public order. A principled, data-driven, and rights-oriented approach is essential to preserve both democratic freedoms and social harmony in India.
REFRENCES :
1. The Constitution of India, Articles 19(1)(a) and 19(2).
2. International Covenant on Civil and Political Rights, 1966, Article 19.
3. Universal Declaration of Human Rights, 1948, Article 19.
4. Indian Penal Code, 1860, Sections 153A, 295A, 298, 505.
5. Bharatiya Nyaya Sanhita, 2023, Sections 152, 196, 197, 299, 302, 353.
6. Information Technology Act, 2000, Sections 69A and 79.
7. Representation of the People Act, 1951, Sections 123(3), 123(3A), 125.
8. Protection of Civil Rights Act, 1955.
9. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(r)
and (s).
10. Religious Institutions (Prevention of Misuse) Act, 1988.
11. Cable Television Networks (Regulation) Act, 1995.
12. Police Act, 1922, Section 3.
13. Law Commission of India, 267th Report on Hate Speech (2017).
14. Romesh Thappar v. State of Madras, AIR 1950 SC 124.
15. State of Madras v. V.G. Row, AIR 1952 SC 196.
16. Ram Ji Lal Modi v. State of U.P., AIR 1957 SC 620.
17. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.
18. K.A. Abbas v. Union of India, (1970) 2 SCC 780.
19. Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477.
20. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
21. Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501.
22. Amish Devgan v. Union of India, (2021) 1 SCC 1.
23. John Stuart Mill, On Liberty (1859).
24. Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, 2012).
25. India Hate Lab, Hate Speech Events in India – Annual Report 2023 & 2024.
26. Association for Protection of Civil Rights (APCR), Hate Crime & Hate Speech Tracker,
January 2024.