1. Freedom of speech is an essence to a democratic society, and limitations are subject to scrutiny. The Supreme Court of India in Shreya Singhal v. Union of India97 had differentiated between three forms of speech, discussion, advocacy and incitement. It was held by the Court that a speech can only be limited on grounds of exceptions mentioned in article 19(2) when it reaches the threshold of incitement. All other forms of speech, even if offensive or unpopular have to be protected under article 19(1) (a). Incitement is the key to determining the constitutionality of restriction on free speech.
2. The courts in some countries have refrained from identifying criteria of hate speech. However, through an analysis of the decisions of the different State jurisdictions, certain parameters may be summarised:
(i) The extremity of the speech
3. In order to qualify as hate speech, the speech must be offensive and project the extreme form of emotion.98 Every offensive statement, however, does not amount to hate speech. The expressions advocacy and discussion of sensitive and unpopular issue have been termed ‘low value speech’ unqualified for constitutional protection.99
4. In Shreya Singhal,100 the speech must amount to incitement in order to be restricted. This is an accepted norm to limit speech. The imminent threat to lawless action test laid down by United States Supreme Court also echoes the same reasoning.101 Moreover, incitement to discrimination lies at the heart of hate speech principles. The principles of hate speech have always come into conflict with two concepts, liberty and equality. The free speech proponents believe that equality is integral to this doctrine as it promotes ‘equality in the marketplace of ideas112 However, critics of free speech suggest that this concept of neutrality, where all speeches are accorded similar status, often leads to creation of discriminatory environment especially for the minorities and the marginalised, since they are generally not well placed to make their voices heard. They argue that in light of the ‘great disparities of wealth and power, free speech’s formal equality results in massive substantive discrimination in the marketplace of ideas’’°3.
5. Liberty and equality are complementary and not antithetical to each other. The intent of freedom of speech is not to disregard the weaker sections of the society but to give them equal voice. Similarly, the intent of equality is not to suppress this liberty but to balance it with the necessities of a multicultural and plural world, provided such constraint does not unduly infringe on the freedom of expression. Thus, incitement to not only violence but also to discrimination has been recognized as a ground for interfering with freedom of expression.
(iii) Status of the author of the speech
6. ECtHR has recognized that position of the author of the speech is important in determining the legality of limitation imposed by the State. Thus ‘interferences with the freedom of expression of a politician … calls for the closest scrutiny on the Court’s part’104. The Supreme Court in Pravasi Bhalai Sangathan105 was approached to sanction hate speech on a similar ground. The petitioners sought court’s intervention to declare ??hate speeches?? delivered by elected representatives, political and religious leaders as unconstitutional. The petition was specifically addressed to the people who held power to influence society on a large scale. The Court recognizing the negative impact of hate speech referred the matter to Law Commission for in depth examination.
(iv) Status of victims of the speech
7. The status of the targeted audience is also important in determining whether a speech can be limited. ECtHR in Lingens v. Austria 106distinguished between the status of public and private individuals in this regard and remarked that:
… the limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.
(v) Potentiality of the speech
8. The potential impact of the speech has to be viewed to determine the speaker’s state of mind at the time speech was rendered. In Ramesh v. Union of India,’07 Supreme Court examined the validity of the restriction on the basis of the potential of the movie to impact the audience.
(vi) Context of the Speech
9. Every seemingly hateful speech may not be termed as a hate speech. The context in which the speech was made is essential in determining its permissibility. The context of expression has always been looked into while adjudging the restriction.108
Manner of Regulation – Respecting dissent and non-majoritarian speech
10. Any attempt to regulate hate speech need not shrink the space for criticism and dissent, which are covered by the human right of a person to free speech and expression. As a consequence, not all hate speech can legitimately be made the subject of legal prohibition. 109At the least, the elements of intent and incitement to violence must be included in any formulation of hate speech legislation. Incitement of violence and immediacy of the threat is also considered a relevant factor in determining whether such speech should be prohibited.110
11. Broadly, international human rights law requires that measures which limit or restrain the freedom of speech and expression may do so only where the ‘three-part test1111 is satisfied. This standard requires that the measure by which a human right is being curtailed, must satisfy the following requirements: