Civil courts should take up suit against hate speech, says former SC Judge Rohinton Fali Nariman

“If we are actually going to live by the cardinal principle of fraternity... then it must be given some teeth,” said Justice Nariman.

November 12, 2022 07:00 am | Updated 10:17 am IST - NEW DELHI

Justice Rohinton Fali Nariman.

Justice Rohinton Fali Nariman. | Photo Credit: Emmanual Yogini

Describing the Fundamental Duty of fraternity as the only Constitutional method of assuring the dignity of every citizen and the unity and integrity of the nation, former Supreme Court Judge Rohinton Fali Nariman on Friday said civil suits against hate speech leading to the award of punitive damages should be taken up by courts.

“The moment a citizen petitions a court against hate speech, the court cannot only issue a declaration and an injunction, because of the fundamental duty, it can also award punitive damages... it would go a long way towards preserving and protecting fraternity. Nothing hurts more than that which hurts the purse,” he said while delivering the 13th V.M. Tarkunde Memorial Lecture.

Justice Nariman said the cardinal principle of fraternity prescribed that every citizen honored the other citizen in the spirit of brotherhood, transcending religious, sectarian, and other fissiparous tendencies. The other great precepts were the Fundamental Duty of abjuring violence, looking up to and respecting the country’s composite culture, which is crucial as far as India is concerned, “particularly at this time”.

Stating that the criminal law was sometimes put in motion selectively, he suggested the remedy of civil suits. He said given that the Fundamental Duties chapter of the Constitution, unlike both the Fundamental Rights and the Directive Principles, was silent on what the court’s role was, “you can fill it in”.

“If we are actually going to live by the cardinal principle of fraternity... then it must be given some teeth,” he said.

Justice Nariman noted that a recent Supreme Court order went out of its way to say that every authority must act the moment there was hate speech and if they did not, there would be contempt of court.

Quoting Justice Jackson’s words in The Jehovah’s Witnesses’ Cases judgment (1943), in which he had upheld the right to refuse to salute the American flag on the grounds of serious and conscientious objection, Justice Nariman said they applied all the more in the case of India due to its massive diversity unlike America.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” Justice Jackson had said.

Justice Nariman said: “If only when no official is allowed to interfere, that diversity becomes unity, not otherwise”. He also quoted the words of Justice Chinnappa Reddy, from the Bijoe Emmanuel & Ors vs State Of Kerala & Ors (1986) judgment related to National Anthem, saying: “our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it”.

He said in order for the citizens to adhere to the Constitution, it was essential for them to know what was there in it. He, therefore, suggested that the government should distribute copies of the Constitution in every possible language. “It is important that these moral precepts actually come down to everyone,” he said, adding that the citizens should also be made aware of the struggles that the freedom fighters had gone through.

Justice Nariman also highlighted various aspects and evolution of provisions pertaining to the Fundamental Rights and the Directive Principles of State Policy, citing the relevant landmark judgments.

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