HATE SPEECH AND FREEDOM OF EXPRESSION AND SPEECH

Submitted by Ananya Jain, III year, BALLB (hons)

Tamil Nadu National Law University

The bond between speech and action is one of the most intricate in the law of communications.
In a democracy, free speech is quintessential. The freedom of expression is one of the liberties
that are embodied in the Bill of Human Rights.1 The objective of free speech is to encourage
plurality of opinions. The right of every individual to express opinion and to share thoughts
indicates for the democratic capacity. Concepts of citizenship and pluralism cannot be
accomplished without the right of free speech and expression. Also, acceptance of opposing
views and opinions provides for co-existence in modern multicultural societies.

However, the freedom of speech and expression is abused in various circumstances and
therefore give birth to a completely opposite phenomenon. The act of “public incitement to
violence or hatred directed to groups and individuals on the basis of race, colour, ethnicity,
gender, religious belief and the like.”2 These acts are broadly classified as hate speech.

Hate speech is recognised as an exception to freedom of speech by the Law Commission Report
and through various Supreme Court judgments. The Supreme Court in Shreya Singhal v Union
of India held that the freedom of speech can be restricted under Art 19(2) of the Constitution
of India but only when it incites anyone to commit an illegal act or poses a threat to public
safety or tranquillity.

Currently, hate speech has become a fashion and an easy way out to get publicity. It somewhere
impacts the freedom of expression. The 2007 Hate Speech Case, a petition was filed in the
aftermath of a hate speech given by Yogi Adityanath (was a BJP Parliamentarian from
Gorakhpur) which led to riots in Gorakhpur. Also, the JNU case, over which Finance Minister
Arun Jaitley rightly pointed out that whether sedition and dividing the country can be a part of
free speech. This incident clearly impacts the freedom of expression and an apt example of hate
speech given by JNU leaders and students.

1
William A. Schabas, The Universal Declaration of Human Rights: The Travaux Préparatoires (Volume I)
(Cambridge University Press, New York, 2013).
2
The 267th Report of the Law Commission of India, “Hate Speech”
In India, the provisions of Indian Penal Code which challenge hate speech are Section 153A,
Sections 295A and 298. Also, the Law Commission report no. 267 titled ‘Hate Speech’
recommended addition of two more provisions in IPC and CrPC. As a result Criminal law
(Amendment) Act, 2018 was passed by making a few changes in CrPC.

Further, Sections 123(3), 123(3A) and 125 of the Representation of people Act, 1951 makes
hate speech against any religion or group a degenerate offense. However, we see the party
representatives make derogatory remarks against the opposite party. The leaders to fetch vote
also divide people on communal lines poses a threat on unity and integrity of India. But,
apparently the Supreme Court dismissed PIL seeking to restrain politicians from ‘indulging in
hate speeches’ by saying that it is their fundamental right to free speech. In the recent speech
by BJP MLA Sanjay Patil, he attempts to polarise by saying that “battle for Karnataka is Hindu
vs Muslim”. These words pose an indirect threat to peace and tranquillity which would amount
to hate speech.

On the other hand, there are possible abuses of the law of hate speech. One such example is
M.F. Husain’s case, he was subjected to certain allegations of ‘hate speech’ owing to his
depictions of Hindu religious figures. His nude painting of bharat mata attracted a huge
controversy. People commented that a Muslim artist can never preserve the sanctity of Hindu
goddess. A complaint was filed against Husain for offences under s153A of IPC. However, the
High Court of Delhi decided in Husain’s favour by saying that the intentions of artist are
necessary to be considered and here no deliberate intention of the artist to hurt any religious
sentiments is seen. Another with regard to hate speech is cancellation of Salman Rushdie’s
appearance at the Jaipur Literary Festival. As people were accusing Rushdie of blasphemy with
respect to his novel, the Satanic Verses, a book inspired by the life of Muhammad. Muslim
protestors vehemently opposed his appearance in the festival by alleging him of hate speech.

These instances show us that abuse of hate speech laws under IPC and other acts is also
possible. It affects both a particular individual and a group. However, the courts provide a
threefold criterion to determine whether a speech is a hate speech or not, an analysis should be
done to examine the legitimacy of such interference, whether the interference is proportionate
to the legitimate aim pursued and how far the interference is necessary.3 These tests
appropriately determines whether speech can be amounted to hate speech or not.

3
Ibid
In the age of faster mode of communication and social networking hate speech can now
instantaneously spread throughout the nation, and the abuse of hate speech laws is also
possible, so there arises an urgent need for regulation. The state should involve with active
struggle against hate speech. The aggressive mode of expression which would cause disruption,
spread violence and hatred cannot be propagated.

In a democratic society, expression of contradictory opinion and sharing information is

embraced but not on the cost of peace and harmony of the country. Therefore, the Government
must protect free expression with an apt curtailment on the fundamental right to free speech
and expression.