Dear Editor, I disagree: Not all speech is free

Indian Express

a day ago

The constitutional right to free speech — a fundamental democratic principle — is often misinterpreted. The editorial ('Whose free speech?', IE, June 3) circumvents the context, intent and impact of free speech by defending Sharmistha Panoli's inflammatory social media post, targeting Islam and the Prophet, as a legitimate exercise of free expression.
An important disclaimer: My disagreement with the editorial is not a defence or endorsement of the carceral state. Rather, beyond the over-simplistic binaries, the focus here is on recognising hate speech as a form of violence. While the editorial rightly criticises the overzealous police action in arresting the 22-year-old law student — she was later released on bail — it ignores the context that enabled Panoli's remarks and fails to acknowledge the target of her outburst. Panoli's words are far from being an act of reckless indiscretion; they feed into the volatile environment, increasingly marginalising, vilifying, and disproportionately targeting Muslims.
The editorial, too, acknowledges that Panoli's post echoed 'some of the most hurtful anti-minority tropes in circulation'. However, more than the troubling content of Panoli's post, one should be wary of the political sentiments that consider Muslims to be demographic threats. Condemning arrests for online posts is crucial, but one must differentiate between freedom of expression and provocative speech that perpetuates targeted hatred against marginalised communities.
The editorial failed to realise the essence of Shreya Singhal vs Union of India (2015). The judgment upholds freedom of speech but doesn't legitimise hate speech. On the contrary, the SC has clearly defined the boundaries between protected free expression and punishable hate speech. In Shreya Singhal, the court established a crucial framework by distinguishing three categories of speech: Discussion, advocacy, and incitement. It held that 'mere discussion or even advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a) of the Constitution', and is therefore protected.
However, as the court noted, once such speech crosses the line into incitement — particularly incitement to violence, hatred, or public disorder — Article 19(2) applies, and restrictions become constitutionally valid. By drawing this line, Shreya Singhal underscores a crucial principle: The right to free speech does not encompass a right to incite harm or hatred against others. Many judicial precedents affirm this critical distinction. Notably, in three rulings in 2018 — Tehseen Poonawalla vs Union of India, Kodungallur Film Society vs Union of India, and Shakti Vahini vs Union of India, the SC went a step further, laying down guidelines to prevent and address hate speech and vigilante violence. However, these directives have largely remained on paper, with little to no meaningful implementation.
The antidote to overzealous state action cannot be universal impunity. The editorial rightly points out that young Muslims have often been arrested for social media posts and labelled 'anti-national' or 'pro-Pakistan', often with little evidence of real harm. But to use that injustice to suggest that no one should be held accountable for incendiary speech is a fallacy. The discourse on free speech must be shaped by consistent legal principles, not by selective outrage and the use of legal machinery by those in power. The solution to the wicked problem of protecting free speech lies in equal and principled application of the law, not in abandoning accountability altogether.
In a system that disproportionately targets minority voices while mostly excusing and sometimes even celebrating those who vilify them, the overwhelming defence from all political cadres for free expression is amusing. The double standard is made evident through the ruling party's sudden invocation of the principle of freedom of speech and expression, championing Panoli's right to free speech while silencing dissenting voices from marginalised communities — the latest, the arrest of Ashoka University professor Ali Khan Mahmudabad, is a case in point. Defending insidious speech on the grounds of constitutional liberty risks defending the right to hate, a right not promised by the Constitution.
The writer teaches law at Jamia Hamdard