Defining the borderline dispute between Free Speech and Hate Speech : An Appraisal with regard to Standup Comedy Shows

By Monalisha Singh, Student, Chanakya National Law University, Patna

Indian Perspective : Hate Speech

We can very well recognize that when the right to freedom of speech and expression was first adopted in the Constituent Assembly, there were demands to curb this freedom that led to the Constitution (First Amendment) Act, 1951 and the Constitution (Sixteenth Amendment) Act, 1963, which incorporated separate reasons for enforcing limitations pursuant to Article 19(2) of the Constitution. The appalling state of affairs is that in any of the country’s legislation, Hate Speech has not been established; only bans are specified for the usage of such types of speeches and expressions. Hate speech is stated in the 267th Report[1] of the Law Commission of India as “an incitement to hatred primarily against a group of individuals defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.” In other words, it means that hate speech is “any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.” Man is treated as a doer of rational things in a democratic society like ours, but when it comes to his expressions, he must be regulated, modulated, supervised and matched with the speech and thoughts of another person who instills similar desires. The idea of autonomy and free expression, which is harmful to every part of society, is not one of the biggest obstacles. In order to encourage a diversity of views, free speech is important if hate speech becomes an exception to Article 19(1) (a). Thus, even though a vehement, caustic, and often unpleasantly sharp speech is shielded from interference by the State. It serves as a palisade against the authority of the states to control speech.[2]

Have we dropped the last nail in the coffin with the arrest of stand-up comedian Munawar Faruqui by the Indore police? We are told that the religious feelings of certain people who objected to Faruqui making fun of Hindu gods were hurt by his “jokes.” Faruqui replied, in his defence, that he still had several jokes about Islam. There is a back story and meaning behind any joke, which is maybe more important than the punchline. To turn an anecdote into a joke, a comedian goes on stage, sometimes exposing her own life experiences. She ties a variety of current events, persons, pictures, organizations or activities and maps a cultural and social trend. Religion is one of them, and a significant one at that, for the bulk of people in the crowd are an intrinsic and unquestioned part of their lives. Taking a comic using a wheelchair, she wishes to show the challenges she encounters that most areas are not available, and she happens to note how Hindu culture depicted disabled figures unfairly as the punchline to bring the point home and highlight the apathy of society. Now, to think she is making fun of Hindu mythology would be crazy. In this case, it is the absence of wheel-chair friendly communities that can make residents upset. A very real issue facing many is illustrated in the comic here. It is missing the point by light years to limit it to damaging religious feelings.[3]

Stand-up humor deals with humans, their acts and practices and never with gods and goddesses. As part of storytelling, India has a rich tradition of using folklore, philosophy, and religious figures. Section 295(A) is often invoked against someone guilty of harming religious feelings. It is an archaic statute that was one of the British’s parting presents. In a free, progressive society, such an antiquated rule has no place.[4] Unabashed state support for Pakistan’s blasphemy law has led to unfair and unconstitutional repression, including minority mob lynching and even the assassination of political leaders, most famously Salman Taseer, who opposed the law and was assassinated by Mumtaz Qadri, his own bodyguard. There’s also a horrible tale about the lynching of Mashal Khan, Khyber Pakhtunkhwa, a student from Mardan. A crowd at his university lynched him over a mere rumour of heresy. The mob is motivated by such rules and granted a warped moral authority to commit murder. No one is protected until a crowd is mobilized. Collective group paranoia contributes to this. By default, a crowd is bloodthirsty, and, after a point, becomes community-agnostic, even going after its own, as is obvious from the Taseer and Khan murders. All of us should be informed about the Indore incident where Munawar Faruqui was first apprehended by a group of men and later handed over to the police. Such blatant activities have no place in a civilized society where the rule of law is the order of the day. If your religious beliefs are offended, you’re entitled to file a criminal report. Any further move is for the police to settle about and take. A self-proclaimed extension of the police, posing as vigilantes and taking people to the police station, should not be a person. If the innocent jokes of comedians like Kenny Sebastian, Agrima Joshua and Aadar Malik are seen in India as offensive remarks, then I hesitate for the famous satirist Ricky Gervais, because if he ever flew to India to do one of his truth-bomb-loaded sets or even jokingly tweeted about India’s present socio-political problem, he will have these same hounds baying for his blood and asking that he be thrown behind the bars of only the most preferred Indian jails. 

The role of the court is basically conceived as the counter majority. The courts are required to protect this right where the executive unjustifiably limits speech. The Supreme Court was faced with two free speech cases in 1950. The first was the challenge against the ban imposed on Cross Roads magazine by the Madras government (Romesh Thappar vs State of Madras)[5]. The second was the challenge against an executive order enforcing previous limits on the organizer (Brij Bhushan vs State of Delhi)[6]. Interestingly, at the very opposite ends of the political spectrum, all petitioners stood.[7] A communist journal owned and edited by Romesh Thappar was Cross Roads. The organizer was the member of Rashtriya Swayamsewak Sangh Sangh (RSS). To make their point, moreover, both relied on the same political value: the right to free expression. This is undoubtedly the virtue of this liberty. In terms of the independent, against the right, it should not discriminate. In all cases, in favour of the freedom of speech of the petitioners, the court ruled against the state. Chief Justice Patanjali Sastri stated in the case of Thappar that only narrow considerations can restrict speech since “freedom of speech and of the press lie at the base of all democratic institutions, because no public education is possible without free political discourse, so necessary for the proper functioning of common government processes.’’

In November 2020, in a case involving an alleged video upload of cooking cow-meat, the Kerala High Court granted bail to Rehana Fathima but barred her from using social media altogether. The Allahabad High Court also barred an individual who was charged with making remarks against Uttar Pradesh Chief Minister Yogi Adityanath from using social media as a bail condition. Apart from its shaky legal basis, such a ban clearly harms speech. Dangerous messages are given from the fact that this censorship comes from the court itself. It has undermined the overall public legitimacy of the judiciary.

Therefore, free expression in India faces numerous assaults from both the executive and the judiciary. A political imperative is liberty. There will surely come a day when the country will look back and praise those who have helped resurrect its independence and the right to freedom of speech. It would thank the competing lawmakers and farmers for asking the executive hard questions, the investigative journalists for challenging state brutality, and the political comedy comedians. However, history would not be generous to an oppressive regime that censors speech and tribunals that do not restore it.[8]

US Perspective: Hate Speech

There may be serious doubt that hate based on the inherent features, racial origin, or religious affiliation of an individual is conveyed. That causes damage. But every freedom of expression theory acknowledges occasions where, considering the damage it does, governments can protect speech. The security of speech is also still an upper limit: any enforced freedom of expression regime discovers a stage where speech has such a powerful nexus of damage that it can be banned. Those three basic boundaries apart, all views as to the right fracturing of equilibrium.  The United States does not, by any description, make hate speech per se unconstitutional, although many other nations do.[9] The American approach vs the European approach is frequently shorthanded for these dueling views, but this is far too simple a generalization. The tale of America’s turn to law-driven hate speech legislation, and then away from it, serves as an efficient example of the contradictions between speech and the damage it does. Multiple attitudes to the collective aim of egalitarianism have contributed to the loss of a protectable interest in one’s integrity in the United States, as James Whitman argues in his comparative analysis of dignity-related legislation in France, Germany, and the United States. But as he states, by defamation law, the associated principle of one’s integrity is secured in America. A man’s right to the protection of his own reputation” is essential to “our fundamental philosophy of every human being’s intrinsic integrity and importance, a concept at the core of every respectable system of organized democracy. ”

The historical high point for this argument was the Beauharnais v. Illinois [10] decision of the United States Supreme Court in 1952, a case concerning an Illinois statute that prohibited the publication of any piece of media that represents depravity, criminality, unchastely, or absence of virtue of a class of individuals, of any race, color, creed or religion, If that class of people are subject to scorn, derision, or obloquy by the publication that is productive of violation of peace or riots.[11] This was portrayed by the Illinois government as a “form of criminal libel”. Freedom of expression is an American ideal that has provided a forum throughout history to marginalized voices. Thanks to the influence of free expression, the Civil Rights Revolution, the second wave of feminism, and the Water is Life Movement have all been able to win ground. Unfortunately, this has caused the conspiracy movement, white nationalism, and antisemitism to rise as well. Although censorship can lead to an uncomfortable feeling in a society, censorship is not one that is fearful and scared, silencing voices that propagate hatred. It’s not about communism. It’s exactly the best thing to do. 

The concern with freedom of expression in America is that a protestor from Black Lives Matter is seen at the same degree as a Neo-Nazi, one is actually viewed differently than the other. As unarmed demonstrators and innocent African Americans are, domestic terrorists aren’t gunned down. This is when Americans are starting to see that freedom of speech has been created, and it is to this day that careless, privileged, and close-minded people have the freedom to use their voice over others. Neo-Nazis should not be able to protest, so why is that such a radical concept? The “movement” of Blue Lives Matter is an injustice to a survivor of police brutality, to the children of Jacob Blake who saw their father get shot 7 times in the back. It is disrespectful to compare a work to human life. To law enforcement around America, it would have been insulting to see Trump backers who said they “protect their boys in blue,” crush, beat, and torture capitol police officers.[12] That moment must have been a wake-up call for law enforcement everywhere, and I think they understood at that moment that Blue Lives Matter never had much to do with them, it was always a way to silence the ongoing institutional injustice. Ironically, the right to freedom of speech silences voices while uplifting others. With freedom of speech, between what is right and what is wrong, there is no justification. This nation must realize at the end of the day that a group of people who have been fighting for their lives for generations should not be regarded as a group of people who have been extinguishing lives for generations at the same level. 

No hate speech, nor hateful conduct, should be included in the right to free speech. No one is entitled to wear a shirt that says “Camp Auschwitz.” On a conspiracy site or social media, nobody has the right to spread lies about a fair and equal election. Inside the US capital building, no one has the right to wave the Confederate flag. Under the first amendment of the Constitution of the United States, these actions and words cannot be accepted because they will lead to carnage.[13]

Although all views are necessary in order for a democracy to prosper, hate is not an opinion. Opinions require education, compassion, and awareness. Hate is a prejudice that leads to violence, and something worth hearing should therefore not be regarded. The time has come for America to decide whether it’s worth losing our democracy to continue to protect generational hate.

Disclaimer : All rights reserved to Lexstructor Legal News and Publication. Views are personal to the author.


[1] S Jyotiranjan, India needs stringent law to curb hate speech. The Pioneer,

[2] All You Need to Know about Stand-Up Comic Munawar Faruqui and Why He Was Arrested, The Outlook,

[3] Jayant Shriram, Should restriction on free speech be reviewed?, The Hindu.

[4]  Ibid

[5] Romesh Thappar v. State of Madras, AIR 1950 SC 124.

[6] Brij Bhushan vs State of Delhi , AIR 1954 SC 50. 

[7] Prathibha Mogha, The Battle between Hate Speech and Freedom of Speech

[8] Devika Agarwal, Hate speech in India: Media’s rabble-rousing doesn’t help cause, proves counter-productive to free speech, Firstpost,

[9] Rick Plasterer, The threat of hate speech doctrine coming in America

[10] Beauharnais v. Illinois, 343 U.S. 250 (1952)

[11] Ibid

[12] Talia Klein Perez, Should the first amendment cover racism and hate speech? 

[13] Conor Friedersdorf, America’s many divides over free speech,

Disclaimer : All rights reserved to Lexstructor Legal News and Publication. Views are personal to the author.

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