Constitutional Law

Hate Speech v. Freedom of Speech: Analysis of Laws Related to Hate Speech

Author: Shaista Waseem, Student at Unity P.G. and Law college affiliated with Lucknow University

This research paper aims to evaluate laws related to hate speech and whether Article 19(1)(a) of the constitution which indoctrinates the principle of “freedom of speech and of expression” enshrines fundamental freedom to spread hate speech. This article also throws light upon different legal aspects which prescribe penalizing the spreading of hate speech. In order to eradicate hate speech, it is important to change the framework of the current system and start addressing hate speech according to the legal framework. Legality and framework and where we lack are discussed herein. Considering the recent controversy related to Nupur Sharma’s comment on the religious group which led to boycotts of Indian products in various countries and sixteen countries including Iraq, Iran, Kuwait, Qatar, Saudi Arabia, Oman, Malaysia, UAE, Jordan, Afghanistan, etc. issued a statement against Indian demanding the Indian government to apologize. Moreover, it leads to protests across India, and in some places, protests even become violent and resulted in the death of two people. As such it is important to draw a line between hate speech and freedom of speech.

In a democracy like India freeflow of opinion to preserve the base of democracy which is the “government of the people, by the people, and for the people” as such our constitution provides for “freedom of speech and expression” as a fundamental right under Article 19(1)(a). In the case of Romesh Thappar vs State of Madras J. Patanjali Shastri observed:
“Freedom of speech and of the press lays at the foundation of all democratic organization, for without free flow of political discussion, no public education so essential for the proper functioning of the process of government is possible.”
But freedom of speech and expression is not an absolute right; there are certain reasonable restrictions imposed on it which are given under article 19(2). Certain times this fundamental freedom lead to violation of others’ right as these days there are vase variety of platform available such as media which spread a lot of information and it is proven that most of the time these media reports are counterfeit to gain publicity. Moreover, social media also plays an important in manipulating public opinions and this leads to violation of public law and order. This manipulated public opinion is caused by hate speech. Hate is an emotion of dislike toward a group, thing, or individual. The expression of the emotion of hate by words written, spoken, or published constitutes hate speech.

1. Freedom of speech and of expression
Article 19(1) (a) of the Constitution of India states that all citizens shall have the right to freedom of speech and expression. The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restrictions, or repression by the Government. The philosophy behind this Article lies in the Preamble of the Constitution, where a solemn resolve is made to secure to all its citizens, liberty of thought and expression. The exercise of this right is, however, subject to “reasonable restrictions” for certain purposes being imposed under Article 19(2) of the Constitution of India. Article 19 (2) states that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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 offense.

Article19 (2) deals with the restrictions that are imposed on the freedom of speech and expression which are as follows:
Security of the state: Liberty to express one’s view is prohibited in cases where a question is raised on the security of the state.
Friendly relation between foreign countries: In case one’s speech or expression or words violates the relation between India and other foreign countries, it will be treated as a crime and it is prohibited under Article 19(2).
Public order: Public order is different from the security of the state. It is important to safeguard the public order and maintain its authenticity in cases where the order is put under question.
Contempt of court: Any words that contempt the decorum of the court are prohibited under freedom of speech and expression.
Incitement of an offense: Any statements in any sense which incite the population to commit an offense are prohibited.
Sovereignty and integrity of India: Any person is prohibited to make statements through which the sovereignty and integrity of India are put at stake.
Defamation: Any statement given by an individual at any level through any medium, which defames another individual or society in any way is prohibited unless it is made for the public good.

2. Hate Speech

There is no exact legal definition of hate speech in criminal law. However, it encompasses the words, writings, actions, signs, and manifestations that incite violence or create disharmony between communities and groups. As per a report from the Bureau of Police Research and Development have speech can be defined as language that is intended to denigrate (criticize unfairly), insult, threaten, or target an individual because of their identity or other characteristics. In its 267th report, the Law Commission of India states that hate speech is the “incitement of hatred against a group of people based on their race, ethnicity, gender, sexual orientation, or religion.” Black’s Law Dictionary identifies hate. speech as the “speech that carries no meaning other an expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to. provoke violence”. In a nutshell, hate speech refers to words, signs, or other visual representations used to incite fear or alarm or incite violence in or around a person.

Here is the list of laws that deals with hate speech in India:
Indian Penal Code
Some crucial provisions in the Indian Penal Code deal with inflammatory statements and expressions that seek to punish hate speech.
Under section 153A of the IPC, an offense punishable with three years of imprisonment for promoting enmity among different groups of people based on religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintaining harmony between them. It is punishable by a five-year jail term if committed in a place of worship or an assembly engaged in religious worship or religious ceremonies.
As per section 295A of IPC, those who incite religious hatred against any group of people or religion by insulting their religion or beliefs are punishable
As per section 124A of the IPC, any word that promotes hatred or national disaffection against the government is punishable as sedition.
According to section 505 of the IPC, it is an offense to make “statements conducive to public mischief.”
Further, section 505(1) of the IPC applies to publications, reports, or rumors that incite mutiny of military personnel, or cause such fear of alarm that people commit offenses against the state or public order, or should provoke or encourage an offense against a different class or community. This attracts imprisonment of up to three years.
Section 505(2) of the IPC penalizes statements that foster enmity, hatred, or ill-will between mutiny of military personnel, or cause such fear of alarm that people commit offenses against the state or public order, or should provoke or encourage an offense against a different class or community. This attracts imprisonment of up to three years.
Section 505(2) of the IPC penalizes statements that foster enmity, hatred, or ill-will between classes.
Section 505(3) of the IPC says if someone commits the same offence in a place of worship or any other assembly that engages in religious worship or religious ceremonies, it will attract a sentence of up to five years in imprisonment.
Representation of the People Act, 1951
The Representation of the People Act, 1951 deals with the qualification, disqualification and conduct of MP or MLA. Here are its sections related to hate speech:
Section 8 of the Representation of the People Act, 1951 disqualifies a person from contesting an election if he gets convicted of using freedom of speech or expression illegitimately.
According to sections 123(3A) and 125 of the Representation of the People Act, 1951, promoting enmity based on religion, race, caste, community, or language during elections is an unconstitutional corruption of the electoral process.
The Protection of Civil Rights Act, 1955
As per The Protection of Civil Rights Act, 1955 Inciting and encouraging untouchability by words, signs, or visuals is punishable under section 7 of the Protection of Civil Rights Act.

2.2 Judicial Pronouncements: Identifying hate speech from freedom of speech and expression under A/19(1)(a)
Hate speech is not a part of freedom of speech and expression as the state has be given the monopoly under the constitution to impose reasonable restrictions on this fundamental freedom. In Shreya Singhal versus Union of India, differentiation between the forms of hate speech as speech, discussion and advocacy and incitement was concluded. The court held that any speech can only be limited on the grounds mentioned in article 19(2). All the speeches weather offensive or not will be covered under article 19(1).the criteria was set to identify hate speech:
The extremity of the speech: Any speech to qualify as hate speech, must be offensive in the extreme form. Though every offensive statement cannot be considered hate speech, the expressions and discussion of any sensitive and unpopular issue are unprotected by the constitution.
Incitement: In Shreya Singhal’s case, it was said that the speech must be proved incited to be restricted. The United State Supreme Court also says that the imminent threat to lawless action must be restricted. Hate speech often crosses the path of two concepts liberty and equality, though both of them are complementary and aim to provide liberty to the weaker section of the society to step forward and present their ideas and point of view regarding any new policy or any new agenda.
The status of the author of the speech: The position of the author of the speech plays a vital role in determining the legality of the speech. That is why the interference with the freedom of expression of a politician is called the closed scrutiny by the court.
Status of the victim of the speech: Determine whether the speech is hate speech or not. It is very important to see the point of view of the victims to determine the extent of the damage.
Potentiality of the speech: The speaker’s state of mind can be judged by the impact of the speech on society, and the damage caused to the society. It is when the actual motive of the speaker is known.
context of the speech: The context of the speech is very important when it comes to deciding whether the speech is a hateful speech or not; every hateful speech cannot be considered as hate speech hence the context in which the statement is made is essential to determine the permissibility of it thus the context of the statement plays a very vital role in determining whether the speech is to be considered as a hate speech or not.

3. Evaluation of the Laws

This essentiality of banning hate speech on the bases of race, ethnicity, gender, sexual orientation, or religion creates a tangled web of legal provisions dealing with one or the other form of hate speech which makes it nearly impossible to comprehend exactly why is hate speech banned within the Indian jurisdiction. Broadly speaking, it is in terms of one, “concentrated expression of sectarian-communal ideology” and second as “based on politics of exclusion”. Thus, hate speech is defined in India in terms of the harm to the community at large rather than one which is focused on the violation of an individual’s right to freedom of speech and expression and the harm done to her as a result of hate speech.
On the other hand, the incidents of hate speech and related hate crimes have only been on the rise. Though the aim of hate speech laws is to ideally prevent hate speech altogether, they have not been very effective in this aspect and only limited success has been achieved in regulating hate speech in the country. This begs the introspection of our laws and their working and whether the plethora of laws has actually led to a situation of over-criminalization of hate speech itself in the first place.


Hate speech is a topic for debate because of its intellectual nature. Since hate speech is considered a part of Article 19 freedom of speech and expression it becomes very difficult to differentiate it from healthy speech. Hate speech can be manipulated in different ways, so it becomes difficult to criminalize it under the provisions in IPC due to which prosecution of the hate speech charges becomes difficult when it comes to the court.
After studying every aspect of hate speech and freedom of speech and expression it can be said that there is a need to revise and strengthen the pre-existing laws and revise the punishments for it. Hate speech has become a universal problem nowadays because the internet is available to every single person at an immense level; it is reachable to every part of society.
To make sure that it does not affect society and does not damage or defame any person’s reputation and beliefs, there is a huge need of having a transparent system. Speech that spreads violence and discrimination based on several aspects could be penalized. To fight against hate speech we require a wider platform where everything can be discussed in a transparent manner and results could be drawn out of it, as it is a fight that cannot be fought alone.

K.D Kaur The Indian penal code by Central law publication
Ratanlal & Dhirajlal The Indian Penal Code – English 2020 Edition Ratanlal Dhirajlal
M.P. Jain Indian Constitution law…pdf
29Ram Puniyani, “Why Hate Speech?” Tehelka, March 27, 2009. available at:, (last visited on January 25, 2019)
29Ram Puniyani, “Why Hate Speech?” Tehelka, March 27, 2009. available at : , (last visited on January 25, 2019)

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Sameena Zubair
Sameena Zubair
1 month ago

Great article! The way you describe all the things is amazing.

Mubashara Fatima
1 month ago


1 month ago