Balancing Social Duty and Fundamental Liberty

By Maliha Fayaz Khan

THE relationship between speech and action is one of the most complex in the law of communications. Speech plays a pivotal role in the communication of ideas, beliefs, doctrines, and schemes of action. Verbal and symbolic messages are instrumental in the transmission of social mores and dogmas. Those tenets then influence persons to act on the expressed views. Free speech is quintessential for maintaining democracy because it facilitates the exchange of diverse opinions. In a representative democracy, dialogue facilitates the testing of competing claims and obtaining of diverse input into political decision making. Free speech is also essential to the enjoyment of personal autonomy.

Embodied in the Universal Declaration of Human Rights is the evocative proposition that, “everyone has the right to freedom of opinion and expression”. But beneath that level of abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. Hate speech that has now become a fashion and a short cut to get publicity, poses vexing and complex problems for contemporary constitutional rights to freedom of expression.

When the government takes big decisions for the people of the country, the opinion of the experts and the common citizen should be taken to evaluate its pros and cons without just forcing them upon the people. A country which is democratic in nature should exercise freedom of the people in truest sense otherwise it will turn into a fascist country.


Hate speech is speech perceived to disparage a person or group of people based on their social or ethnic group such as race, gender, age, ethnicity, nationality, religion, sexual orientation, gender identity, disability, language ability, ideology, social class, occupation, appearance (height, weight, skin colour, etc.), mental capacity, and any other distinction that might be considered by some as a liability. The term covers written as well as oral communication and some forms of behaviour in a public setting. The regulation of hate speech is largely a post-World War II phenomenon. Prompted by the obvious links between racist propaganda and the Holocaust, various international covenants as well as individual countries such as Germany and even, in the decade immediately following the War, the United States excluded hate speech from the scope of constitutionally protected expression.

Tsesis equates “hate speech” with three other phrases: “hate propaganda”, “destructive messages”, and “biased speech”. He defines “hate speech” as “antisocial oratory that is intended to incite persecution against people because of their race, color, religion, ethnic group, or nationality, and has a substantial likelihood of causing such harm”. He then goes on to say that “this definition does not include verbal attacks against individuals who incidentally happen to be members of an out-group”.

Hate speech commonly relies on stereotypes about insular groups in order to influence hostile behavior towards them. Supremacist and outright menacing statements deny that targeted groups have a legitimate right to equal civil treatment and advocate against their equal participation in a democracy. Destructive messages are particularly dangerous when they rely on historically established symbolism, such as burning crosses or swastikas, in order to kindle widely shared prejudices.

Messages that are meant to hurt individuals because of their race, ethnicity, national origin, or sexual orientation have a greater social impact than those that attempt to draw out individuals into pugilistic conflicts. Establishing a broad consensus for large-scale harmful actions, such as those carried out by supremacist movements, relies on a form of self-expression that seeks the diminished deliberative participation of groups of the population. Speech extols injustices, devalues human worth, glamorizes crimes, and seeks out recruits for anti-democratic organizations.

Thus, what amounts to hate speech has been constrained to an extent that the citizen is not free to make any statement for the welfare of the state. Any individual who makes a public speech against the government is booked under the sedition laws and the freedom of speech being a fundamental right is limited. The right to express is not accepted though it is a basic feature of a democratic country. Every citizen of a country is at liberty to criticize the political parties and the government if they are at fault. The policies and the laws made is subjected to public scrutiny and their opinion should be taken into considerations and not held as a hate speech. The representatives of different political parties often are involved in communal speech which instigates the mind of the people so there should be a check on them as they should be neutral to every sections of the society.

  • The author is a student at IUST

Follow this link to join our WhatsApp group: Join Now

Be Part of Quality Journalism

Quality journalism takes a lot of time, money and hard work to produce and despite all the hardships we still do it. Our reporters and editors are working overtime in Kashmir and beyond to cover what you care about, break big stories, and expose injustices that can change lives. Today more people are reading Kashmir Observer than ever, but only a handful are paying while advertising revenues are falling fast.



Leave a Reply

Your email address will not be published.