India with it's population of 13 billion people with different views, opinions, backgrounds, social status and economic standing has witnessed horrendous hate crimes such as communal riots, series of violent clashes between religious communities arising out of provocative speech which makes us question the entire ambit of freedom of speech provided under article 19 of our Indian constitution and also makes us question the restrictions imposed herein under that article.

There is a thin line between hate speech and freedom of speech and in this paper we are going to discuss whether or not they can overlap each other and whether the criminalization of hate speech goes against the ambit of freedom of speech given under the Indian constitution. Should individuals be given absolute power to express all their views even if they are lined with hatred for certain groups?

Let's start by answering what is hate speech- Any form of speech that offends the religious, ethnic, cultural, racial groups by vilification and is capable of spreading 'hatred' among the heterogeneous populace, we classify it as 'hate speech'.

The Supreme Court in the case of Pravasi Bhalai Sangathan vs UOI (2014) has analysed the issue and stated that Hate Speech marginalises individuals based on their identity and that Hate Speech lays the foundation for attacks on the vulnerable people including violent ones.

Spreading racial hatred is illegal under the Criminal Code (S 153A), and the Illegal Activities (Prevention) Act of 1967 was revised to include a clause that allows any organization that disobeys S 153A from operating. Promoting hatred between groups "on grounds of religion, race, place of birth, domicile, language, caste, or community, or any other cause whatsoever" is illegal, according to S 153A of the Criminal Code. Imputed disloyalty to the Constitution or the country on any of these grounds is illegal, according to Section 153B.

Arguments Why Do We Need To Regulate Hate Speech

Everyone has a basic right to express their opinion on any matters of public concern, according to the S. Rangarajan v. P. Jagjivan Ram case. Honest criticism of governmental operations and policies is not a justification for limiting freedom of expression.

India was witnessed various hate crimes and restrcting it becomes necessary because the harm in hate speech is so widespread that it travels beyond the obvious and pervades the human psyche to leave behind permanent damage which outlasts the physical.

Political philosopher Jeremy Waldron in his book The Harm in Hate Speech argues that hate speech should be regulated for two reasons- that is, it harms the public good of inclusivity and dignity. He also stated that targeting a person's "immutable characteristics, ethnic background or religious identity causes harm". Thus, to protect individual liberty, freedom and to ensure dignity it is essential that speech that targets a person's identity, based on ethnicity, race, religion etc., be not allowed to be unlimited.

As victims of hate speech, such individuals "feel fear, may be nervous to enter public spaces or participate in discourse and may change their behavior or appearance in an attempt to avoid hate speech." In this way, hate speech constructs its targets as those who are not only "discriminated against but are also seen by others as undesirable target and legitimate objects of hostility."The most destructive and damaging to a person's sense of security and right to live with dignity are such intangible effects of hate speech.

Arguments Relating To Why Not To Regulate Hate Speech

The best argument against regulating hate speech is that it does more harm than good. It is completely inconsistent with individuality, liberty, equality, and indeed democracy itself. Freedom of speech is essential to our democratic self government where we the people have the sovereign power, we cannot exercise that responsively or meaningfully unless we have access to information about our government and the opportunities to communicate with those we elect to represent us and we cannot hold them accountable if we are not able to exercise robust freedom of speech, including the freedom to strongly criticise the government officials and government policies.

Restricting hate speech has also started giving rise to cooked up cases where they attribute something to a speaker that he or she has never said or in some cases general criticism over government policies and ministers is termed as hate speech where the speaker's fundamental rights get infringed.

The effect of such speech in silencing vulnerable sections of the society has often been used as a justification for outlawing it, as has the issue of preeminence of the right to life and liberty of the targeted communities over free speech rights of individuals.

On the other hand, some people are treated as criminals for innocent jokes or harmless tweets or mere expression of opinion Take for example, the judicial treatment meted out to Umar Khalid for organizing protest against the controversial Citizenship Amendment Act,2019 (CAA) by a lower court in Delhi, and to those who organized a counter-protest/mobilization against Khalid's protest by the Delhi High Court.

Prohibition of hate speech may result in an infringement of freedom of expression, which could have an adverse effect on: (1) political awareness and expression; (2) legitimate criticisms and scholarly analysis of religion; and (3) humour and artistic expression. For instance, despite strong opposition, the bad customs of sati and dowry were harshly condemned in India, leading to the passage of laws prohibiting them. They claim that if constructive criticism of other religions and civilizations had been prohibited and punished, such societal transformations would never have taken place.

Freedom Of Speech And Hate Speech In US

Both Indian and American citizens have strong rights to free speech and expression, but the former also has additional safeguards against violation by other individuals. The COI permits the government to impose restrictions on hate speech, in contrast to the US Constitution, particularly when it comes to speech that purposefully insults religious beliefs. For instance, anyone who insults or attempts to offend the religious beliefs of a group of persons is subject to a fine and a sentence of up to three years in prison under Section 295A of the Indian Criminal Code.

When politician Kamlesh Tiwari was prosecuted for defaming the Prophet Muhammad during a political debate, it served as a significant illustration of how hate speech laws are enforced. Tiwari was given a one-year prison term in accordance with the National Security Act. In addition, Tiwari was accused of breaking Section 295A because he "deliberately and maliciously" insulted Muslims. His comments sparked nationwide protests, some of which turned violent.

This situation is a great illustration of how the COI allowed the government to censor speech that might threaten public order. Legal repercussions for those who disparage a religion or group of people deter people from enforcing their own laws. Despite the terrible conclusion of Tiwari's story, India's speech code forbids similar occurrences as often as they otherwise might.

Nevertheless, the US lacks the authority to penalise offensive speech in the same manner. Although it is a very diverse country, it lacks India's level of religious variety, thus there hasn't been a need to control speech or conduct that would fuel internal conflict. It is obvious that the Indian government should have the authority to reduce religious tensions by shielding its residents from religious insults, despite the fact that India is a country with a majority Hindu population and the third-highest number of Muslim citizens in the entire globe.

My Analysis:
I believe freedom of speech is an essential part of our democratic country and everyone is entitled to their own views, expressions and beliefs but if their beliefs are homophobic, casteist and are laced with hatred for certain groups of our country then these views should not be given constitutional protection and the restrictions we have on freedom of speech are valid.

But who will determine what is hate speech and what is not? One person's hate speech might be another person's criticism. It is very hard to make the distinction between constructive criticism and hate speech keeping in mind that everyone has different understanding of words and are entitled to different opinions.

People might start to argue that touching others physically or violence can be a freedom of speech and expression and that is how they express themselves and that is the only way they know how to express themselves so if you allow total upliftment of curbs and bans then it can take a very radical change and there will be many extremists groups who will use it for their advantage. There is no stopping to it as any time you draw a line people will say it is curbing our freedom so as soon as it hits the markof affecting other people and not just you, reasonable restrictions have to come in.

While deciding any case, consistency, uniformity, and objectivity are essential. The judge must, however, exercise special caution when applying the law consistently in cases involving hate speech and hate crimes because these crimes have negative effects on society as well as the victim. And by doing this, hate speech and hate crimes would only be deterred.

Award Winning Article Is Written By: Ms.Aastha Jain

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