Report No. 267
Chapter - IV
Impact of Hate Speech on Freedom of Expression
4.1 Right to freedom of speech and expression is one of the most essential liberties recognized by the democratic States.30 The concept of liberty has been primarily influenced by the principle of individual autonomy. The liberal theory of free speech views speech as an intrinsic aspect of autonomous individual, hence any restriction on exercise of this liberty is always subject to judicial scrutiny. The objective of free speech in a democracy is to promote plurality of opinions. The importance of allowing expression, howsoever, unpopular has been stressed by J.S. Mill in the following words, in his work 'On Liberty':
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. 31
4.2 The importance of allowing diversity of opinion has guided the principles of free speech. Thus, even a speech that is 'vehement, caustic, and sometimes unpleasantly sharp'32 is protected from State intervention.
4.3 Hate speech is an expression which is likely to cause distress or offend other individuals on the basis of their association with a particular group or incite hostility towards them. There is no general legal definition of hate speech, perhaps for the apprehension that setting a standard for determining unwarranted speech may lead to suppression of this liberty.
4.4 The philosopher Jeremy Waldron argues that, while purely offensive speech may not justify restrictions, there is a class of injury, amounting to more than hurt sentiments but to less than harm, in the sense of physical injury, that demands restriction in democratic frameworks. Where speech injures dignity, it will do more harm than simply offend its target. It would undermine the "implicit assurance" that citizens of a democracy, particularly minorities or vulnerable groups are placed on the same footing as the majority.33 While the right to criticise any group should continue to exist, speech that negates the right of a vulnerable group should be regulated.
4.5 Free speech has always been considered to be the quintessence of every democracy. The doctrine of free speech has evolved as a bulwark against state's power to regulate speech. The liberal doctrine was a measure against the undemocratic power of the state. The freedom of expression was one of the core freedoms that were incorporated in the Bill of Human Rights.34 The greater value accorded to the expression, in the scheme of rights, explains the reluctance of the law makers and judiciary in creating exceptions that may curtail the spirit of this freedom. Perhaps, this is the reason behind the reluctance in defining hate speech.