ABSTRACT
Freedom of speech is an essence to the democratic society at large. It becomes vulnerable when free speech challenges constitutional morality and the safeguard standards. The judiciary, throughout, played a critical role into building the differences between, free Speech and hate speech, through various judicial precedents. Some of the cases that is mentioned are, Shreya Singhal v. Union Of India AIR 2015 SUPREME COURT 1523, Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477, and Amish Devgan v. Union of India & Ors. (2021)1 SCC , which developed and shaped various aspects of free and hate speech of the nation. There should be a judicial approach, with the need to balance free speech with the need to safeguard constitutional values of equality, dignity and fraternity. It also evaluates the implementation of laws in the digital age and suggests the way forward to ensure constitutional morality remains central to public discourse.
INTRODUCTION
The Indian Constitution envisions a democratic structure of government. In a country like India, people are free to express their opinions, criticize what is wrong to them, and appreciate the correct movements and policies of people and government as well as participating in shaping the national discourse. Article 19(1)(A) of the constitution protects the right to free speech. However, given the diversified nature of India, where nationals are from different ethnicities, culture and carry linguistic barriers and many other such differences, the speech of hatred can at times destabilize the public order of the state and undermine the constitutional validity of fraternity. However, Article 19(2) of the constitution provides the State with the power to put forth reasonable restrictions on free Speech to maintain incitement and maintain harmony.
The judiciary has played a crucial role of a mediator in analyzing when a free speech crosses its line and becomes hate propaganda. The challenge is to uphold democratic openness while preventing speech that marginalizes vulnerable communities and incites violence. The evolution of judicial reasoning in India, reveals a movement from broad censorship tendencies towards a more calibrated, contextual and rights-sensitive approach.
KEYWORDS
Free Speech, Hate Speech, Public Order, Article 19, Constitutional Morality, Dignity, Digital Media, Judiciary.
Constitutional Provisions: Balancing Article 19(1)(a) and 19(2)
Article 19(1)(A) guarantees freedom of right to speech and expression to all of its citizens. The freedom guarantees to express oneself through speech, writing, and pictures and also the freedom to remain silent.
Free Speech enables political participation, cultural expression and intellectual development. However the constitution restricts the freedom of speech that threatens public order, decency or morality, sovereignty of the state, sovereignty and integrity of India under Article 19(2) of the constitution.
These two Articles of the Constitution provides the judiciary at the center to determine whether a speech is reasonable and right or whether it comes under restrictions imposed under Article 19(2).
Early Judicial Approach and the Public Order Doctrine
Initially, the freedom of speech was restricted by the judiciary solely on the ground of public order. Merely, the disturbance of public, was sufficient to restrict the free speech. However, this approach risked permitting state overreach and curbing dissent. Gradually the judiciary recognized that public order cannot be interpreted too broadly as it would dilute free speech. This realization set the stage for developing more sophisticated legal tests.
The Landmark Shift: The Shreya Singhal Case
In the landmark judgement of Shreya Singhal v. Union Of India AIR 2015 SUPREME COURT 1523, the Supreme Court struck down, section 66 A of the IT Act which criminalized online speech to be offensive or annoying. The Court in its judgement cited, “Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A. This being the case, having regard also to the two English precedents cited by the learned Additional Solicitor General, it is clear that Section 66A is unconstitutionally vague.”in para 82. The court in this case also stated that, while Article 19(1)(A) gives right to an individual to advocate unpopular ideas, such expressions or speech remains constitutionally safe until it crosses incitement. Only when such speech, crosses its limits from merely a speech and causing incitement and violence, does Article 19(2) comes into the picture. It is at this point that the state is empowered to regulate speech which is, capable of undermining public order, the sovereignty and integrity of India and state, security of states and friendly relations with foreign nations. Understanding the vital differences between, discussion, advocacy and incitement is important because much of the debate in the Shreya Singhal’s case revolved around the meaning and the scope of public order, and without this conceptual clarity, limits of permissible speech risk being misunderstood.
Recognition of Hate Speech as a Social Harm
In the case of Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477, the apex court acknowledged that, the seriousness and gravity of hate speech, but upheld the concept of separation of power and acknowledged that it cannot take the judiciary’s role in redefining the legislative framework on the issue of hate speech. While recognizing that hate speech do affect constitutional harmony, dignity and fraternity, the court stated that the judiciary cannot by itself create laws to address it. It also observed that, existing legal provisions is not fully equipped and is not capable into addressing hate speech. Hence, to address the issue, the court referred the matter to the law commission, and directed it to ensure proper legislative reforms to protect against hate speech.
Contextual Assessment and Dignity-Centric Reasoning in the case of Amish Devgan
In the case of Amish Devgan v. Union of India & Ors. (2021)1 SCC 1, the apex court took a detailed recognition on Hate Speech in India, and compared it to various countries like USA, UK, Canada. It distinguished the constitutional protection of free speech under 19(1)(A) from that which criminalized hate speech, while nothing that a universal definition of hate speech is not possible given its contextual nature. The judgement uprooted constitutional validity of free speech in the provisions of, equality, dignity and fraternity. The court also stated that free speech does not protect, dehumanizing remarks, racial or religious vilification and speech that perpetuates group based inferiority.
The Digital Era: Challenges in Regulation
The rise of the online platforms, have created a space for people into viewing and creating opinions and sharing them across the world at large. Unlike, the traditional way, of sharing information which took days and sometimes months to spread, in today’s world the large usage of social media, circulates information and speeches within minutes, hence misinformation, false speech and information, defamatory remarks etc spread fast, through various social media channels, such as, facebook, twitter, instagram, whatsapp etc, that creates offline as well as online social conflicts.
A major challenge in today’s world is anonymity. The users spread defamatory or inflammatory remarks without having any accountability, mostly shielding themselves into encrypted messaging, using fake accounts etc. The aggressors may hence, escape, investigation, and other legal consequences because anonymity at times makes it difficult for the officers and administrative officers to find the actual aggressor.
To respond to these consequences, the government has introduced, Information Technology (Intermediary Guidelines and Digital Media Ethics Codes) Rules, 2021. These Rules has provisions for the social media intermediaries to remove unlawful content including, hate speech upon receiving notice. These include, tracing the offender, appointing grievance officer and faster removal of flagged content.
However, this provision is not without concerns, and it may include, over-censorship, political misuse, and insufficient safeguards.
CONCLUSION
The Indian Judiciary balanced a safe and progressive approach into distinguishing between free and hate speech in India, by taking into consideration the constitutional mandates. While earlier legal order for hate speech primarily focused on public order, but now it emphasizes more on constitutional morality and vulnerable groups. The challenge of hate speech continues to evolve, especially on digital platforms, that amplify harmful content.
A holistic response must therefore combine, judicial vigilance, clear legislative reforms, social and educational awareness, responsible media ethics. The speech must respect fraternity and not fracturing the society, and that is how a democratic nation is build.
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WRITTEN BY- SOUMITA CHAKRABORTY
