AUTHOR- Ridhi Goel, Geeta Institute of Law, Delhi-NCR 

ABSTRACT 

Freedom of speech and expression are indeed the mainspring of a free and democratic society. It supports other fundamental rights, such as peaceful assembly, participating in public affairs, or freedom of religion as well. However, there are historical precedents showing that hate speech accompanies free speech and becomes a precursor to atrocity crimes. Hate speech is malicious and massively destructive in nature. Therefore, legislative efforts to regulate free expression unsurprisingly raise concerns that attempts to curb hate speech may silence dissent and opposition. 

This article explores the nuances of free speech and hate speech, highlighting their differences, interplay, and the importance of striking a balance, while also examining existing legal frameworks.

INTRODUCTION 

As democracy evolved, it was observed that giving a right of free speech is necessary because it empowers people to use their words to change the society for their betterment. “Free speech” is when a person is fearless to speak anything he wants. Such a speech is apart from all the censorship and gives a person a chance to express his opinion in public.

But as and when this freedom was granted, people started misusing it by keeping it under the veil of free speech. They began making derogatory statements against each other, using their rights as a shield for their delinquencies. This gave way to the concept of “hate speech”. Though there is no legal or exact definition for hate speech, it can be understood as using such words in a speech that are discriminatory or pejorative towards any group or individual and harm their emotional well-being, public image, or human dignity.  

IMPORTANCE AND DAWN OF FREE SPEECH

Freedom of expression is the cornerstone and the warrant of modern democracy. A country is not even believed to be democratic if it does not permit its people to engage in open dialogue, exchange ideas, or challenge the authority. It thus ensures democracy, accountability, informed decisions, individual autonomy, and many other elements contributing to the advancement of knowledge and social progress. It has a long and thought-provoking history before being granted as a right by the legislatures.  

The rays of free speech were first visible in the Greek Athenian democracy in the late 6^th or early 5^th century BCE when all the adult males were given a chance to participate in the political process and they were welcomed to express themselves freely and openly. It was from this instance that a few intelligent philosophers and thinkers recognized the importance of free speech and took it to greater heights of consideration. Sooner or later, the Parliament of UK turned this brilliant idea into a right for the parliamentarians to speak without fear of legal repercussions by enacting “The Bill of Rights (1689)”. In 1766, Sweden also rendered legal protection to its press, followed by Denmark in 1770. 

But nations were granting this liberty only to a particular or highlighted sector of their countries. In this phase, figures like Voltaire and John Milton advocated for the importance of free expression for normal people, linking it as an essential impression for human progress and the pursuit of truth. Considering this, States began to provide freedom of speech and expression to all citizens to foster their democracies. “Universal Declaration of Human Rights (1948)” became a landmark document by enshrining freedom of speech as a fundamental human right, recognizing its role in promoting democracy and individual liberty. However, giving a right of free speech is still a topic of debate because it gives a freedom to question the government.  

HARM RESULTING IN ORIGIN OF HATE SPEECH

There is no doubt that the right of free speech is a basic, natural, and important requirement of a democratic and progressing society, but when people realized that now they are free to express themselves, they started driving this wonderful concept in the wrong direction. It flamed the use of slurs and derogatory language by people against each other with an aim to insult or let down another individual or targeted group. Just like free speech, the history of hate speech is also complex and spans across various cultures and time periods.

Now when the concept of hate speech is in discussion, it would be a grave omission to not mention the Nazi regime. It is remembered as one of the most pivotal and disturbing examples in the history of hate speech. The Nazi regime in Germany (1933-1945) extensively used hate speech as a tool to promote their ideology and justify atrocities. The Nazi party, led by Adolf Hitler, employed propaganda to spread hate speech against perceived enemies, including Jews and other minority groups like Romani people, disabled individuals, LGBTQ+ individuals, and others who were targeted with dehumanizing language and stereotypes. Various media, including newspapers, radio, and film, were used to disseminate hate speech and create a climate of fear and hostility. The consequences were so serious that millions of Jews and others lost their lives because of a systematic genocide. Targeted groups faced discrimination, violence, and forced labor. It led to the enforcement of strict laws in Germany, including the Volksverhetzung law, which prohibits inciting hatred against segments of the population. Hate speech on the basis of sexual orientation and gender identity is also banned in Germany.

Not only Germany, but all other States were also dealing with the same issue because both free speech and hate speech accompany each other. Hence, strict laws were forming in all countries to counter this challenge. Many international proposals like the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Prevention and Punishment of the Crime of Genocide, and the Universal Declaration of Human Rights also came into effect.

NEED TO BALANCE FREE SPEECH AND HATE SPEECH

Though free speech and hate speech appear to be the inseparable twins of the same mother, they are urgently required to be segregated because neither the importance of free speech, nor the harm of hate speech can be overlooked. This is not as easy as it appears to be. 

While free speech is promoted to draw a positive impact on the society. Hate speech, on the other hand, lays down a negative impact on the emotional and mental well-being of a person. Criminal intention is always searched to find the motive behind chosen words and to put it under the head of free speech or hate speech. 

“Addressing hate speech does not mean limiting or prohibiting freedom of speech.

It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”

                                             — United Nations Secretary-General António Guterres, May 2019

The UN Secretary-General has well understood this concept along with need of addressing hate speech. People have to realize that their rights include not only the freedom of expression but also the right to protect others’ dignity. Even in the worst situations, they must not forget their limitations. If free speech and hate speech will not be balanced, unfortunately, States will be compelled to take away the freedom of speech because the stigmatization, discrimination, and large-scale violence caused by hate speech are indeed unaffordable by any State.  

Balancing freedom of speech and combating hate speech requires a multifaceted approach, including legal protections, community vigilance, responsible media and tech company practices, and education fostering respect and understanding. 

LEGAL PERSPECTIVES

While there are many factors like bringing awareness, fostering education, or monitoring and reporting cases for eliminating hate speech, legal provisions turn out to be the most effective ones to counter it. If people are not understanding it as their moral duty to not hurt others, lawful sanctions can be better imposed upon them to tackle the issue seriously. 

It has become even more important these days because now we are with something new in our technologically advancing modern world. Yes! It’s none other than our favorite social media. The use of social media and other digital platforms to spread hatred is shaping the ongoing trend. 

The national laws to prevent hate speech are required to be in sync with the internationally formed conventions. “The Indian Constitution, 1950” itself includes a provision in Article 19(1)(a) guaranteeing freedom of speech and expression to every citizen. But clause (2) of the same article imposes some ‘reasonable restrictions’ too to prevent hate speech. In this way, our Grundnorm constructively strikes a balance between both. Moreover, since India is a culturally diverse country, it becomes very important to keep every religious group with utmost domesticity. Thus, “Bhartiya Nyaya Sanhita, 2023” (or the erstwhile IPC, 1860) includes Section 196, which addresses hate speech by prohibiting acts that promote enmity or hatred between different groups based on religion, race, place of birth, residence, language, caste, or community. Upon violation, a punishment of 3 years of imprisonment or a fine or both can be given to the disruptor. If such an offence is committed at a religious place, the punishment can extend up to 5 years. Additionally, Section 197 prohibits making or publishing any imputation that members of any group cannot bear true faith to the Constitution or uphold India’s sovereignty. Provisions are also made for circulation of content that may cause ill will or hatred between different groups. Other relevant laws like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Protection of Civil Rights Act, 1955, prevent hate speech targeting SC/STs and penalize incitement and encouragement of untouchability, respectively. To curb the digital proliferation of hatred, a multifaceted approach is adopted that includes platform policies, public awareness campaigns, education on digital citizenship, and legal frameworks. These efforts aim to prevent the dissemination of hate speech online while also encouraging a culture of tolerance and understanding.  

In 2023 a PIL demanded the government to frame guidelines for hate speech. However, the petition was rejected by the Honourable High Court of Karnataka, stating that there were already effective remedies in the criminal law. 

CONCLUSION

Though there are legal enforcements on using hate speech, success is still not achieved in fully eradicating it from its roots. Instances of hate speech continue to surface even in modern times. 

“Over the past 75 years, hate speech has been a precursor to atrocity crimes, including genocide, from Rwanda to Bosnia to Cambodia.”

                                               ~ United Nations Secretary-General António Guterres, June 2019

Instead, it is becoming more challenging day-by-day with social media as an emerging threat. Hate speech is the biggest obstacle in granting the right of free speech. If a stricter solution is not found for its prevention, it can cause mass-level destruction, as it had caused in Germany years ago.