New Delhi: A hate speech denies human beings the right to dignity, Supreme Court Judge Justice B V Nagarathna said on Tuesday.
In India, she said, human dignity is not only a value but a right that is enforceable and, in a human dignity-based democracy, freedom of speech and expression must be exercised in a manner that would protect and promote the rights of fellow-citizens. Justice Nagrathna was on the five-judge Constitution bench which ruled on Tuesday that additional restrictions cannot be imposed on the fundamental right of freedom of speech and expression of high public functionaries as exhaustive grounds already exist under the Constitution to curb that right.
The judge, who wrote a separate judgement even while concurring on the larger issue of additional restrictions on high public functionaries, differed on various legal questions including the one related to whether the government can be held vicariously liable for the disparaging utterances of its ministers.
Referring to the contention of the petitioners that disparaging and vitriolic speechs made at various levels of political authority have exacerbated a climate bordering on intolerance and tension in the society, she said it may be appropriate to “sound a strong word of warning” about it.
“…hate speech, whatever its content may be, denies human beings the right to dignity,” she said.
“A statement made by a Minister if traceable to any affairs of the State or for protecting the Government, can be attributed vicariously to the Government by invoking the principle of collective responsibility, so long as such statement represents the view of the Government also. If such a statement is not consistent with the view of the Government, then it is attributable to the Minister personally,” she wrote in her separate 121-page verdict. She said democracy being one of the basic features of the Indian Constitution, it is implicit that in a rule by majority there would be a sense of security and inclusiveness. Justice Nagarathna added that the term ‘hate speech’ does not find a specific place in Article 19(2) (Equality before law) of the Constitution and it appears that it does not constitute a specific exception to the freedom of speech and expression under Article 19(1)(a). “Possibly the framers of the Constitution did not find the same to be of relevance in the Indian social mosaic considering that the other cherished values of our Constitution such as fraternity and dignity of the individual would be strong factors which would negate any form of hate speech to be uttered in our Country.
“This may be having regard to our social and cultural values. However, with the passage of time, a wide range of Indian statutes have been enacted with a view to control hate speech,” she said.
Justice Nagarathna added, “Further, the Preamble of the Constitution which envisages, inter alia, fraternity, assures that the dignity of individuals cannot be dented by means of unwarranted speech being made by fellow citizens, including public functionaries.” She said the internet represents a communication revolution and has enabled us to communicate with millions of people worldwide, with no more difficulty than communicating with a single person, at a click or by touch on a screen. “Ironically, the very qualities of the internet that have revolutionised communication are amenable to misuse. The internet, through various social media platforms has accelerated the pace as well as the reach of messages, comments and posts to such an extent that the difference between a celebrity and a common man, has been practically negated, in so far as the reach of their speech is concerned,” she added.
Justice Nagarathna said although the questions for consideration before the Constitution bench were with specific regard to the possible restraints on unwarranted and disparaging speech by public functionaries but the observations made in the verdict will apply with equal force to public functionaries, celebrities/influencers as well as all citizens of India, more so because technology is being used as a medium of communication which has a wide spectrum of impact across the globe. “Any kind of speech which undermines the values for which our Constitution stands would cause a dent on our social and political values,” she said.
The judge said human dignity being a primary element under the protective umbrella of Article 21 (Protection of life and personal liberty), cannot be negatively altered on account of derogatory speech, which marks out persons as unequal and vilifies them leading to indignity.