Constitutional Restrictions on Freedom of Speech & Expression

Article by - Shriyans Bansal, Institute of Law, Nirma University

Democratic societies are built on the fundamental right to free speech and expression, which allows people to express their views and beliefs without worrying about censorship or retaliation from the government. This essential right, which is preserved in Article 19(1)(a) of the Indian Constitution, represents the country's commitment to protecting the freedom of speech and ideas for all of its residents. The aforementioned freedom is not unqualified, though, as Article 19(2) permits the application of "reasonable restrictions" when it comes to safeguarding India's integrity and sovereignty, preserving friendly relations with other countries, maintaining public order, upholding morality and decency, or handling situations involving defamation, contempt of court, or inciting criminal activity. Constitutional limitations are based on a fine balance between protecting the fundamental right to free speech and the need to protect larger society interests. Maintaining individual rights, safeguarding national security, and sustaining public order all depend on this complex interplay. The debate over constitutional restrictions on the right to free speech and expression has paramount importance in this environment.

This essay takes an extensive look at the restrictions placed on the right to free speech and expression by the constitution, especially as they relate to the fight against hate speech and community hostility in Indian politics. It explores the complex legal system and rulings that define the line separating the enjoyment of this basic right from the need to protect people and the community from damage. Re-examining and improving these limitations is essential to ensuring that they continue to be fair and relevant in our evolving democratic environment as societies struggle with new issues brought about by the digital age, such as the spread of hate speech and false information online.

A controversial topic in legal and philosophical discourse, hate speech is defined as any verbal, written, or symbolic communication that targets, disparages, or encourages violence or prejudice against individuals or groups on the basis of characteristics like race, religion, ethnicity, nationality, gender, or other characteristics. It is a verbal weapon that has the power to do great pain and maintain discrimination. Different definitions and viewpoints on hate speech have been offered by philosophers and legal scholars. Proponents of the damage principle like J.S Mill argued that speech limitations are only appropriate in cases where they directly injure other people, including inciting violence or making false comments that result in physical harm. In many jurisdictions, this principle has affected legal reasoning.

The US case Chaplinsky v. New Hampshire (1942) is a seminal example of how the harm principle is applied in law. The Supreme Court affirmed Walter Chaplinsky's conviction in this case for uttering "fighting words" that could incite violence or disrupt public order. A limited range of unprotected speech was created by this ruling. Whereas permitting some limitations to uphold public order and safeguard individual rights, the European perspective, as demonstrated in Handyside v. United Kingdom (1976), emphasizes the importance of free speech for a democratic society. The ruling gave Council of Europe members a wide leeway in assessing whether speech limitations were necessary. Furthermore, free expression is protected in India under the law, subject to reasonable constraints, as demonstrated by the Kedar Nath Singh v. State of Bihar (1962) case. This decision upheld the rule that accusations of sedition may only be brought in response to speech that specifically calls for violence or rioting.

When examining limitations on freedom of speech, Indian jurisprudence primarily considers the relevance of the Balancing Test Theory. This approach acknowledges the need to balance freedom of speech with other societal interests. Courts weigh whether the government's restriction on speech is justified based on careful evaluation of factors like the content, context, and potential harm of the speech. By considering the speech's substance, context, and possible harm, courts determine whether the government's restriction is warranted. An example of this technique is provided by the case of Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740. Free speech must be weighed against the necessity to uphold public order, the Supreme Court ruled. In order to avoid inciting violence or public disturbance, limits may be put in place.

Hate speech and hate crimes inside communities are linked in a complicated and sometimes hazardous way. One way to consider the concept of hate speech is as a kind of spark that leads up to the expression of hate in society. It creates a sense of vulnerability and resentment when people or groups hear disparaging or aggressive rhetoric directed at their community. Such an adversarial atmosphere may intensify into increased social unrest, which may result in violent crimes. The connection between hate speech and the mobilization of support against particular communities is apparent in Indian politics when it comes to hate speech. Sadly, this has led to high levels of intercommunal conflict in a number of the nation's areas. Such provocations have far-reaching repercussions that impact the nation's unity and fabric of society.

A number of tools are included in India's legal system to combat hate speech and promote social harmony. One of the main ones among them is the Indian Penal Code (IPC). Regarding acts that incite hatred amongst various groups on the basis of religion, race, place of birth, domicile, language, and other characteristics, Sections 153A, 153B, and 295A of the Indian Penal Code are essential. In the fight against hate speech and its ability to sow division within society, these rules are essential weaponry.

Acts that incite hatred between various racial, religious, linguistic, or regional groups are explicitly targeted by Section 153A, which also stipulates consequences for offenders. Acts that threaten the peaceful coexistence of India's varied communities have been significantly reduced thanks in large part to this clause. In the case of Balwant Singh v. State of Punjab (1995), the Supreme Court ruled that the purpose of Section 153A is to punish acts that have a possibility to cause public disorder or a reasonable fear of it. This endeavour is reinforced by Section 153B, which addresses acts involving claims, imputations, or representations that incite hatred or discord between various groups on similar grounds. It is an essential legal tool that keeps hate speech from spreading and from possibly intensifying conflicts among communities. The Supreme Court upheld the constitutionality of Section 153B and 295A and stressed the significance of preserving intercommunal harmony in Ramji Lal Modi v. State of U.P. (1957). Seeing the technological progress, Information Technology Act plays a really crucial role. Although this was the original intent of Section 66A, the Supreme Court invalidated it in the key ruling of Shreya Singhal v. Union of India (2015) on the grounds that it was unreasonably broad and ambiguous. But the same act's Section 69A gives the government the authority to order limits of internet content that, among other things, endangers India's integrity and sovereignty.

The effects on society that result from hate speech and community enmity are significant. They go well beyond words, touching on issues of violence, inequality, and a tangible upheaval of social stability. Unchecked hate speech can lead to violence by fostering an atmosphere in which doing harm becomes a way to express hatred or react to imagined threats. This is an unsafe trajectory that not only puts the security of the community in danger but also threatens the fundamentals of a peaceful society. There is a fundamental dilemma in striking a balance between the need to stop hate speech and the protection of freedom of speech. The latter is a basic democratic right, whereas the former is necessary for society's safety and well-being. The conflict between shielding people from danger and preserving their rights highlights how complicated the situation is. There is a genuine worry that overzealous efforts to suppress hate speech could unintentionally result in censorship and hinder respectful dialogue. Achieving this harmonious equilibrium is a continuous task that calls for careful thought, subtle strategies, and a steadfast dedication to protecting the principles of free expression and a diverse, inclusive community.

Worries about possible overstepping of boundaries endure, even though countries frequently implement restrictions for reasons of national security. The rise of online hate speech and falsehood in the digital age has made it necessary for governments to negotiate the difficult task of controlling online conversation while preserving the values of free speech. The fundamental right to freedom of speech and expression permits people to express their thoughts and opinions without worrying about retaliation or censorship in a democratic society. The Indian Constitution's Article 19(1)(a) guarantees this essential right, which emphasizes the country's commitment to protecting the right to free expression for all of its citizens. This liberty is not unqualified, though, as Article 19(2) allows for the use of "reasonable restrictions" to protect public order, India's integrity, and the well-being of the community. India is conservative when it comes to hate speech, trying to protect its different populations from harm while maintaining the fundamentals of a democratic society. Establishing this point necessitates constant watchfulness, thoughtful reflection, and a steadfast dedication to preserving the values of free speech and mutual respect. The legal frameworks that support nations' democratic ideals must also advance in order for them to stay relevant and equitable in a world that is always changing.

"The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

• Justice Louis Brandeis