Freedom of speech and expression- A fundamental right
It is stated in the article 19(1)(a) of the Indian constitution that "all
citizens should have the right to freedom of speech and expression" . The
principle underlying this article may be found in the Constitution's Preamble,
where a solemn resolution is made to guarantee liberty of thought and expression
to all of the country's citizens. However, under Article 19(2) of the Indian
Constitution, the exercise of this right is limited to "reasonable restrictions"
for specified purposes.
Elements of right to freedom of speech and expression:
- This right is only applicable to the citizen of India and not for
citizens outside the country.
- Article 19(1) (a) of the Constitution gives the right to express one's
thoughts and opinions on any topic by any medium, including words, writing,
printing, pictures, films, and movies.
- However this right is not absolute and the government can oppose it and
reasonable restrictions can be demonstrated in the field of "sovereignty and
integrity of India, security of the state, friendly relations with foreign
states, public order, decency and morality and contempt of court, defamation
and incitement to an offence".
- This restriction on a citizen's freedom of speech can be established by
the state's activity as well as its inactivity. Thus, if the state fails to
provide all of its citizens with the fundamental right to freedom of speech
and expression, it will be in violation of Article 19(1). (a).
In a renowned case of Romesh thapper v. The state of Madras
, the petitioner used
to publish and distribute a newspaper called "cross roads" that reviewed and criticised the Madras government's plans and actions. The Madras government
imposed a limit on the entrance and marketing of this newspaper in the state,
citing public safety concerns.
The Supreme Court upheld in this case that the right to circulate a newspaper
belongs completely to the establishment, i.e. the newspaper's corporation, and
that the state of Madras cannot interfere. Because the ground of public safety
under Article 19(2) is not
a reasonable restriction, the state of Madras cannot impose a ban on entry and
circulation of the publication (2).
It was concluded that banning the newspaper gave the state a huge power to
restrict the freedom of speech. The order of the government wherein the
newspaper was banned was also quashed by the court.
"J.Fazal concluded that the maintenance of peace and tranquility was a part of
maintaining security of the State. Therefore, he disagreed with the majority
opinion and asserted that the Act imposed reasonable restrictions on freedom of
expression and must be upheld as valid".
In Indian Express v. Union of India
, the Supreme Court of India decided that
the press plays a significant role in the democratic process. The courts have a
responsibility to protect freedom of press by declaring all laws and
administrative measures that restrict it unconstitutional. Freedom of the press
include freedom of expression, freedom Against pre-censorship, freedom of
Limitations of freedom of speech and expression
The constitution of India has imposed some restrictions in the freedom of speech
and expression under Article 19(2).
The grounds for the same are mentioned below:
- Security of the state:
the government can anytime invalidate the freedom of
speech and expression in order to protect the state's security. Moreover the
threats should be of serious manner such as rebellion, war against the state.
- Integrity of India:
The citizens of India are restricted to make any
statement that in any manner lays a finger on integrity of India. This ground
was added in "the sixteenth amendment of the constitution act"
- To maintain the foreign affairs:
if the freedom of speech and expression of
any Indian nationalist jeopardize the country's reputation or cause any harm to
international relations, it may get restricted by the government of India.
- Morals of society:
If ones freedom of speech and expression at anytime goes
against the morality of the society restrictions may be imposed in such cases.
Section 292 to 294 of the Indian penal code deals with obscene content.
- Contempt of court:
restriction on freedom of speech may be imposed on an
individual or group of individual that tries to spoil the sanctity of courts.
This may be punishable under Article 129 and Article 215 of the Indian
The right to freedom of speech may be curbed if a person tries to
hinder the reputation of another citizen by defamation which is a criminal
offence under section 499 of IPC.
What is hate speech?
"Hate speech' does not refer to offensive, or foul-mouthed speech directed at a
people. It is speech that can cause actual material harm through the social,
economic and political marginalization of a community".
Hate speech is a term that has no universal definition. Its significance is
derived from the particular context in which it operates, which is formed by the
influence of peculiar sensibilities, "identities," and "assessments" in that
The black's law dictionary defines hate speech as "speech that carries no
meaning other than expression of hatred for some group, such as a particular
race, especially in circumstances in which the communication is likely to
Race, religion and class are one of the few main grounds of hate speech in the
country. India presents an unusual case for regulation of hate speech keeping in
notice its rich diversity of language caste and beliefs. Both spoken or written
or any kind of visual representation amounts to speech. If any such speech
degrades or humiliates any religious, ethnic or cultural value by knowing the
capacity of it spreading hatred anywhere in the country can be called as hate
Not only hate speech encompasses speech that is discriminatory or insulting but
the Victims to hate speech are getting affected in intangible ways that causes
harm to the victim's right to speech and expression and they are excluded from
democratic process and public discourse.
Hate speech as treated by Indian Law
Hate speech is banned in India on the basis of religion ethnicity, culture or
race. The term hate speech does not have any concise definition in Indian law
seeing that it may be different for different group but the different forms of
hate speech are identified in the laws, hate speech is mentioned in which Most
importantly, section 153A, 153B, 295A, 298, 505(1), 505(2)25.
"Declares the word
spoken or written or employing signs to any kind of visual representation that
promotes disharmony, enmity hatred or ill-will' or 'offends' or 'insults' on
basis of religion, ethnicity, culture, language, region, caste, community, race
etc" ., is a punishable offence. Following this there are various other laws for
say, The representation of people act , Information technology act , unlawful
activities prevention act1967
These group of legal provisions deals with different forms of hate speech, and
since it is so tangled up it makes it nearly impossible to comprehend what
exactly hate speech is and what type of hate speech is banned by the government
Broadly speaking, it is defined in terms of one, "concentrated expression of
sectarian-communal ideology" and second as "based on politics of exclusion"
Therefore hate speech in India is defined as something that causes harm to
community at a large scale instead of the one that focuses on individuals right
to freedom of expression such laws are also given constitutional protection by
the constitution of India by way of "reasonable restriction" under article 19(2)
of the Indian constitution on a fundamental right of a citizen to freedom of
speech and expression.
Hate speech and related hate crimes, on the other hand, have been steadily
increasing. Though hate speech laws are intended to prevent hate speech from
occurring in the first place, they have proven to be ineffective in this regard,
with only limited success with hate speech in the country is being regulated.
This necessarily requires an examination of our laws and their working
conditions, and whether the wide variety of laws has actually resulted in a
situation of overcriminalisation of hate speech itself in the first place
Impact of hate speech on freedom of expression
The right to freedom of speech and expression is one of the most important
liberties granted to citizens of the country. The primary principle of liberty
was to have a wide range of viewpoints on any new topic. The right to freedom of
speech and expression is primarily influenced by the diversity of people's
opinions; therefore a speech that is unpleasant or harmful is also protected by
the state. Though there is an application that outlines the norm of hate speech,
hate speech is not a property defined anywhere.
Free speech has always been regarded as a necessary component of any democracy.
The doctrine of free speech is opposed to the use of government power to limit
speech. According to an overview of the international legal regime on hate
speech, the exercise of freedom of expression is frequently equated with the
freedom to discriminate against and offend members of a society.
"If all mankind minus one were of one opinion and only one person was of
contrary opinion mankind would be no more justified in silencing that one person
then he if he had the power would be justified in silencing mankind".
The ideals of free speech have been informed by the importance of allowing for a
range of viewpoints. As a result, even a speech that is "vehement, caustic, and
often unpleasantly sharp is safe from state involvement.
Hate speech is an expression that is likely to distress or offend others because
of their affiliation with a particular group, or to encourage enmity toward that
group. There is no general legal definition of hate speech, maybe due to a fear
that establishing a criteria for determining improper speech will lead to its
suppression of liberty
Lastly, I would like to conclude that "silence of hate speech is dangerous as
hate speech itself". . Regulating one's hate speech is a challenging endeavor.
The above article shows that what a challenge hate speech have been, both inside
and outside of the legal framework. Despite adopting strict laws the cases of
hate speech are still on a rise, this will result in over criminalisation of
speech related offences.
Moreover, after looking at every aspect of hate speech and freedom of speech,
there is no need to strengthen the laws on hate speech that already exists, the
constitution has already adopted a plethora of laws and yet the numbers of cases
are increasing. The fault does not lie in the constitution; the fault is in our
Award Winning Article Is Written By: Mr.Sarthak Bhatia
Authentication No: MA214486849808-24-0522