[Answered] What do understand by the concept freedom of speech and expression? Does it cover hate speech also? Critically examine the Supreme Court’s evolving jurisprudence on hate speech.

Introduction

With 1,318 hate speech incidents in 2025 (India Hate Lab Report, 13% rise), Economic Survey 2025-26 stressing social cohesion for Viksit Bharat and Budget 2026-27’s inclusive welfare push, Supreme Court’s jurisprudence on hate speech demands scrutiny.

Conceptual Understanding of Freedom of Speech and Expression

1. Constitutional Foundation: Freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. It includes: freedom to express ideas through speech, writing, press, art and digital media; Freedom of political dissent and public debate and freedom to criticise government policies. The right is not absolute and is subject to reasonable restrictions under Article 19(2) on grounds such as public order, morality, defamation and incitement to offence.
2. Democratic Significance: Freedom of expression is essential for: deliberative democracy and public participation; accountability of political institutions and protection of minority viewpoints. The Supreme Court has repeatedly described free speech as the lifeblood of democracy.
3. Supreme Court: The Supreme Court has expanded its ambit to include freedom of the press and right to know while consistently holding that speech threatening constitutional values falls outside protection.

Does Freedom of Speech Cover Hate Speech?

1. The answer is no; hate speech is a prejudicial discourse that marginalises groups on grounds of religion, caste, race, ethnicity or gender, enjoys no constitutional shield.
2. It undermines dignity (Article 21), equality (Article 14) and fraternity (Preamble). It operates through dog-whistles and subtle exclusion rather than explicit incitement, creating psychosocial harm and reinforcing power hierarchies.
3. The 267th Law Commission Report defined it as speech exposing targeted groups to hatred or violence. In Amish Devgan v. Union of India (2020), the Court clarified that such speech erodes participatory equality and fails constitutional morality.

Evolving Jurisprudence of the Supreme Court

The Court’s approach has progressed in three phases:

1. Incitement-centric Phase (1957-2015): Ramji Lal Modi (1957) case it was upheld restrictions on speech promoting enmity if it had a calculated tendency to disrupt public order. S. Rangarajan (1989) and Shreya Singhal (2015) raised the bar to imminent lawless action, striking down vague provisions like Section 66A IT Act.
2. Dignity-centric Phase (2018-2020): In Tehseen Poonawalla (2018) issued binding guidelines against mob lynching, mandating nodal officers and suo motu FIRs. Amish Devgan (2020) introduced a three-pronged test: content (targeting a group), intent (deliberate malice) and impact (harm to dignity and equality).
3. Enforcement & Restraint Phase (2023-2026): Directions for prompt FIR registration were issued, yet compliance remains poor. In January 2026, the Supreme Court indicated closure of most hate speech PILs pending since 2021, redirecting petitioners to High Courts while preserving remedies. The Gauhati High Court’s February, 2026 notice to Assam CM on alleged communal speeches reflects this delegated approach.

Critical Evaluation of the Supreme Court’s Approach

1. Absence of a Clear Definition: Despite evolving jurisprudence, Indian criminal law still relies on broad provisions relating to promoting enmity, leading to inconsistent enforcement.
2. Enforcement Deficit: Judicial directives are often poorly implemented by law enforcement agencies and regulatory bodies. For instance, directions on suo motu FIR registration have seen uneven compliance across states.
3. Balancing Free Speech and Regulation: Courts must prevent hate speech without chilling legitimate political criticism or dissent. Over-broad laws risk arbitrary application and censorship.
4. Digital Amplification: The rise of social media has transformed hate speech into a networked phenomenon, spreading rapidly and influencing public discourse. Existing legal frameworks struggle to address such digital dynamics.

Way Forward

1. Enact a narrowly tailored central law on hate speech incorporating the Amish Devgan test and 267th Law Commission recommendations.
2. Establish an independent monitoring mechanism with periodic state compliance reports.
3. Mandate platform accountability under IT Rules for proactive removal of verified hate content.
4. Provide regular training to police, Election Commission officials and judiciary on context-sensitive adjudication.
5. Promote counter-speech campaigns and digital literacy to build societal resilience.

Conclusion

The Supreme Court has successfully moved the needle from viewing hate speech as a mere law and order problem to a threat to the Constitutional idea of Fraternity. However, for this jurisprudence to be effective, it requires a clear legislative anchor and a shift from judicial monitoring to consistent executive enforcement.