BACKGROUND OF THE CASE

"Hate Speech vs Free Speech" Recently, Sharmistha Panoli, a 22-year-old influencer and a fourth-year law student has made headlines in the news. The influencer made a 15-second Instagram reel in which she criticised Bollywood celebrities for not speaking about ‘Operation Sindoor’. 

The video contained remarks that hurt the religious sentiments, and thereafter, an FIR was filed against her in Kolkata by a man named Wajahat Khan Qadri on May 15, 2025. The FIR was charged under the Bhartiya Nyaya Sanhita (BNS) (Section 196, promoting enmity) for promoting enmity and hurting religious sentiments. 

On May 31, 2025, the Kolkata police travelled to Gurugram, Haryana to arrest the 22-year-old, from where she was sent on a 14-day judicial remand. The trial court denied her bail plea and on June 3, 2025, the Calcutta High Court denied her interim bail. On June 5, 2025, the Calcutta High Court granted her interim bail on the condition that she could not leave the country and directed her to furnish bail bonds worth 10,000 rupees. Sharmistha Panoli has deleted the video and has given an unconditional apology. 

The case takes a turn when Wajahat Khan Qadri, the man who filed the FIR against Sharmistha Panoli, started facing multiple FIRs in Kolkata and Mumbai for making offensive remarks against Hindu gods and Deities. He has reportedly been missing since June 1, 2025. 

The case has led to debates on free speech, hate speech, and religious sentiments at large. This blog analyses the legal framework behind the FIRs against Sharmistha Panoli and Wajahat Khan Qadri. It also explores the development and the current scope of hate-speech laws in India. 

LEGAL PROVISIONS INVOLVED IN THE CASE

This case is tied to the balance between fundamental rights given in the constitution (particularly, Article 19 (1) a which is freedom of speech) and reasonable restrictions on the same under Article 19(2). 

Article 19(1) and 19(2)

Article 19 (1) a of the Indian Constitution says, “All citizens have the right- to freedom of speech and expression.” Whereas, Article 19(2) says, “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests ofthe sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

The Supreme Court has emphasised that restrictions should be reasonable and proportionate and should have a ‘reasonable nexus’ to their legitimate objective. 

Section 196, Bhartiya Nyaya Sanhita (BNS)

Article 196(1) of BNS states that, “Whoever—   (a) by words, either spoken or written, or by signs or by visible representations or through electronic communication or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities; or  
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity; or

(c) organises any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,  
shall be punished with imprisonment which may extend to three years, or with fine, or with both.” 

This Section relates to ‘hate speech’, which was previously 153A in the Indian Penal Code, 1860. The Supreme Court has emphasised that hate speech is not protected by Article 19(1) a. 

Article 302 (BNS)

Article 302 of BNS says, “Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” 

APPLICATION IN SHARMISTHA PANOLI’S CASE

The FIR filed against Sharmistha Panoli invokes BNS Section 196 and 302. The police defended her arrest by saying that she had tried to evade the legal notice served to her. The Calcutta High Court, while hearing her bail, said that no one is entitled to ‘hurt sentiments’. Police, too, have repeatedly argued that her comments targeted a particular community. 

Ms. Panoli’s legal team argued that her video was a pure political commentary and not hate speech. They argued that clear cases of hate speech are when it calls for violence, but Panoli’s remarks did not intend nor result in the same. They also highlighted her unconditional apology issued on social media. 

Many critics also said that her speech had not led to violent acts and thus, the case against her is not justified. The case brings to light the subjective nature of ‘hate speech’ in India. This case highlights the need for a strict legal definition of hate speech. While the court ultimately granted bail, the whole ordeal shows how laws can be weaponised against dissenters. 

MORE CASES SURROUNDING FREE SPEECH VS HATE SPEECH

In 2021, Munawar Faruqui, a comedian, was arrested and taken into custody because he was accused of hurting religious sentiments through his stand-up comedy performance. He was held in jail for over a month. He was arrested pre-emptively for jokes about Hindu deities. The court granted bail and said that the speech has to be an actual incitement to violence to pass for hate speech. 

In 2025, Ranveer Allahbadia, also known as BeerBiceps, too faced FIRs filed against him across India for a remark he had made in a show. He was booked for obscene comments in a comedy video but he was not arrested. 

These precedents highlight that the debate of hate speech vs. free speech in India is not new but rather something that has come up again and again. Police book or arrest the person based on complaints while the courts later grant bail.

BALANCING FREE SPEECH AND HATE SPEECH

The case highlights the need for balancing free speech while keeping a check on hateful speech. Perhaps, India can see the framework of other countries to bring out reform. 

The United States of America follows the Brandenbug test, which requires incitement to violence to restrict free speech. The United Kingdom also criminalised those speeches that may lead to hatred based on race, religion, etc, but a proof of intent is required to be proven. 

India needs to develop its own test and objective criteria for distinguishing free speech from hate speech; only then true balance between the two can be achieved. 

CONCLUSION FREE SPEECH AND HATE SPEECH

The case of Sharmishta Panoli has highlighted some open cracks in the legal system, particularly in the identification and regulation of hate speech. This threatens ideals of democracy in India. There is an urgent need to bring clarity in the definition of Hate Speech. An effort should be made to curb arbitrary arrests in India. 

India needs to ensure that its democracy ideals remained secured without compromising on public harmony. 

AUTHOR: SARGUN SINGH

REFERENCES

STATUES

1. India Constitution; Article 19(1) and 19(2)
2. Bhartiya Nyaya Sanhita; Section 196 and 302. 

LINKS

1. Livemint, Sharmistha Panoli arrest: Calcutta HC grants interim bail to influencer in offensive video case, June 5, 2025. (Available at: https://www.livemint.com/news/sharmistha-panoli-arrest-calcutta-hc-grants-bail-to-influencer-in-op-sindoor-post-case-11749114460224.html) 
2. TOI city desk, Communal post case: Influencer Sharmistha Panoli walks out of jail; was arrested over controversial video, Time of India, June 6, 2025. (Available at: https://timesofindia.indiatimes.com/city/delhi/communal-post-case-influencer-sharmistha-panoli-walks-out-of-jail-arrested-over-controversial-video/articleshow/121672966.cms) 
3. Mukut Das & Dwaipayam Ghosh, Sharmishta Panoli row: Wazahat Khan Qadri, who filed plaint against Instagram influencer ‘untraceable’; FIR registered for insulting posts on Hindu dieties, Times of India, June 4, 2025. (Available at: https://timesofindia.indiatimes.com/city/kolkata/insta-row-kol-assam-cops-slap-fir-on-man-who-filed-plaint-cases-also-in-delhi/articleshow/121602241.cms) 
4. Prashant Kanha, Section 196 BNS – Bhartiya Nyaya Sanhita, 2023 & equivalent IPC Section, June 19, 2024. (Available at: https://www.prashantkanha.com/section-196-of-bhartiya-nyaya-sanhita-2023-bns-equivalent-ipc-section/) 
5. Devgan.in, BNS Section 302. (Available at: https://devgan.in/bns/section/302/#:~:text=Whoever%2C%20with%20the%20deliberate%20intention%20of%20wounding%20the,one%20year%2C%20or%20with%20fine%2C%20or%20with%20both.) 
6. Sneha Kumari, Who is Sharmishta Panoli? Social media influencer detained for her controversial remarks linked to 'Operation Sindoor', India Times, May 31, 2025. (Available at: https://www.indiatimes.com/trending/who-is-sharmishta-panoli-social-media-influencer-detained-for-her-controversial-remarks-linked-to-operation-sindoor-660037.html) 
7. Kumar Kartikeya, The real question is not whether we agree with what Sharmistha Panoli said, Indian Express, June 3, 2025. (Available at: https://indianexpress.com/article/opinion/columns/free-speech-the-real-question-is-not-whether-we-agree-with-what-sharmistha-panoli-said-10045307/) 
8. Alishan Jafri and Apoorvanand, The Arrest of Sharmistha Panoli and the Illusion of Equality Before Law, The Wire, June 2, 2025. (Available at: https://thewire.in/law/hindutva-offence-blasphemy-free-speech-religion) 
9. Srijoy Das, Calcutta High Court Denies Interim Relief To Sharmistha Panoli In Offensive Video Case, Directs State To File Case Diary At Next Hearing. Live Law, June 3, 2025. (Available at: https://www.livelaw.in/high-court/calcutta-high-court/calcutta-high-court-denies-interim-relief-to-sharmistha-panoli-in-offensive-video-case-directs-state-to-file-case-diary-at-next-hearing-294136)