Between free speech and hate speech

#GS2 #Constitution 



  • Sudarshan TV case will have several implication for the regulation of free speech.
  • In principle, Indian law allows prior restraint on broadcasting. This prior restraint should be used sparingly and must meet a high constitutional bar.
  • Indian law also allows regulation for hate speech.


Maintaining the equilibrium

  • The government feared that if it did not have the power to regulate speech, it will threaten the stability of society.
  • The hate and violence got the state to betray its own liberal commitments
  • Liberals never acquired the confidence of people to let go of  state regulation in the name of defending the republic.
  • The spread of hate speech and its political consequences are now infinitely greater.
  • The situation, where communication mediums are used to target communities, are not outside the realm of possibility.
  •  It is for this reason we still have so many restraints on speech.


Challenges in regulation of speech

  • Almost every regulation of speech, no matter how well intentioned, increases the power of the state.
  • But now, in the current context, empowering the state is a frightening prospect as well.
  • The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
  • An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.


3 lessons to learn

1)  The more the state regulates, the more it politicizes the regulation of speech, and ultimately legitimate dissent will be the victim.

2) There is a whole bunch of laws and regulation already on the books for regulation, these have been ineffective because of institutional dysfunction.

3) Social media operates on a set of monetizing incentives. But broadcast media is also based on political economy.

  • The granting of licenses has always been a political affair; the pricing structures set by the TRAI have perverse consequences for quality and competition.
  • Our current media landscape is neither a market nor a state. The more the underlying political economy of media is broken, the less likely it is that free speech will stand a chance.


Way forward

  • Not post facto content regulation, but a market structure that can help provide more checks and balances.
  • Not let bad media drive out good.
  • The Court suo motu setting up a regulatory framework does not inspire confidence. It is not its jurisdiction to begin with. This is something for Parliament to think about.



  • The government must walk the tight rope of regulation and safeguarding the rights of all.
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