OPINION | Regulating Hate Speech: Navigating the constitutional boundaries of free expression

Thus, the question is not merely about enacting a new penal provision, but about locating such regulation within the delicate constitutional balance between protecting free expression and safeguarding social order and harmony. It is this legal and constitutional framework that warrants closer examination.

It is important to note that the First Constitutional Amendment, enacted barely a year after the Constitution came into force, has remained one of the most contested. Among the changes it introduced, the most controversial were those relating to the limitations imposed on the constitutional guarantee of freedom of speech and expression. It was through this amendment that public order was inserted as a ground of restriction under 19(2).

Constitutional Assembly on free speech

Abhinav Chandrachud, in his book Republic of Rhetoric: Free Speech and the Constitution of India, writes that the members of the Constituent Assembly were primarily concerned with three broad themes relating to the right to free speech and expression: Firstly, to whom should the right be given to, only citizens or non-citizens as well? Secondly, should the right to a free press be specifically recognised? Thirdly, and perhaps most importantly, what restrictions ought to be imposed on it?

Chandrachud writes that the third question occupied much time in the Constituent Assembly.

He writes: “The primary debate within the Assembly and its committees took place over three questions. The first of these related to hate speech, i.e. whether the right to free speech could be used to promote hatred among members of different religious communities, chiefly Hindus and Muslims, in the light of the large-scale partition-related rioting which was taking place in India at the time the Constitution was being drafted. Broadly, three kinds of suggestions were made regarding excluding hate speech from the right to free speech: firstly, that the right to free speech ought to be subjected to a broad restriction relating to ‘public order’, secondly, that a specific restriction relating to preventing the spread of communal hatred ought to be created, thirdly, that the right to free speech must be suspended during a period of ‘emergency’ declared by the government.”

No specific legal framework for regulating hate speech. 

Hate speech has not been defined in any law in India. In the absence of a specific statutory provision defining and regulating hate speech as a distinct offence, law enforcement agencies have relied on certain provisions of the erstwhile Indian Penal Code (IPC) that were primarily designed to maintain public order.

These sections were not originally crafted to address hate speech per se, but were invoked to prosecute speech that was seen as promoting enmity, outraging religious feelings, or disturbing communal harmony. This approach, centred on preserving public order rather than directly penalising hate speech as a separate category, has substantially continued under the Bharatiya Nyaya Sanhita.

The most frequently invoked provision is Section 196, which is the successor to Section 153A of the Indian Penal Code. It penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony.”

The other BNS provision often used to deal with hate speech is Section 299, which penalises “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” It is similar to Section 295A of the IPC.

Similarly, the Representation of the People Act, 1951, Section 8 disqualifies a person from contesting an election if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression.

Apart from the penal law, several other laws also had provisions impacting free speech and seeking to regulate hate speech. These ranged from the Protection of Civil Rights Act, 1955, to the Cable Television Networks (Regulation) Act, 1995, reflecting a broader legislative framework aimed at preventing discrimination, maintaining public order, and curbing the dissemination of hateful content.

Supreme Court’s interpretation of hate speech 

There have been several instances when the Supreme Court had to examine and rule on matters concerning hate speech.

In Pravasi Bhalai Sangathan v. Union of India, the Supreme Court considered a plea seeking strict action against those making hate speeches. The Court declined to expand the scope of existing laws, observing that doing so would amount to judicial overreach, and held that effective implementation of the current legal framework could substantially address the problem.

In Brij Bhushan v. State of Delhi, the Supreme Court held that public order was closely allied to public safety and virtually equivalent to the security of the State, an interpretation later affirmed by the First Constitutional Amendment when “public order” was expressly inserted as a ground of restriction under Article 19(2). However, in Ram Manohar Lohia v. State of Bihar, the Court clarified the distinction between “law and order,” “public order,” and “security of the State,” explaining that they operate as three concentric circles: law and order being the widest, within which lies public order, and at the core, security of the State. Thus, an act may disturb law and order without affecting public order, and may affect public order without threatening the security of the State.

The apex court in Shreya Singhal v. Union of India had differentiated between three forms of speech: discussion, advocacy and incitement. It was held by the Court that a speech can only be limited on grounds of exceptions mentioned in article 19(2) when it reaches the threshold of incitement. All other forms of speech, even if offensive or unpopular, have to be protected under Article 19(1)(a). Incitement is the key to determining the constitutionality of restrictions on free speech.

Law Commission 

The Law Commission in its 267 Report on ‘Hate Speech’ defines hate speech as an expression which is likely to cause distress or offend other individuals based on their association with a particular group or incite hostility towards them. To strengthen the legal framework, it proposed the introduction of specific provisions in IPC.

(Views are personal, and do not represent the stance of this publication.)