The seeming delay in taking criminal action against the perpetrators of hate speeches in Haridwar and Delhi is despite the Supreme Court’s judgments that hate speech is an attack on dignity in the “matter of thought, expression, belief, faith and worship” and threatens the unity of the nation as a whole.

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“The unity and integrity of the nation cannot be overlooked and slighted, as the acts that promote or are likely to promote divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law,” the Supreme Court observed in its December 7, 2020 judgment in the Amish Devgan case.

Intent of Preamble

The court reminded the government that the Preamble to the Constitution consciously puts together fraternity, assuring dignity of the individual, and the unity and integrity of the nation.

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It said the dignity of the individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individuals’ obligation to others to ensure unity and integrity of the nation.

Hate speech not only “insidiously weaken virtue and superiority of diversity, but cuts back and lead to demands, depending on the context and occasion, for suppression of freedom to express and speak on the ground of reasonableness”. By issuing threats upon the liberty and freedom of others, the Supreme Court said, orators of hate challenge the unity and integrity of the nation.

Loss of dignity

In the Sabarimala judgment, Justice D.Y. Chandrachud noted that “religious beliefs and faiths ensure wider acceptance of human dignity and liberty, but when conflict arises between the two, the quest for human dignity, liberty and equality must prevail”.

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Justice Sanjiv Khanna, in the Amish Devgan case, defines “dignity” as the “basic entitlement as a member of a society in good standing, his status as a social equal and as bearer of human rights and constitutional entitlements”.

Participatory equality in inter-personal relationships among citizens, and between the State and the citizens fosters “self worth”.

“Loss of dignity and self-worth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It affects an individual as a member of a group,” Justice Khanna wrote.

Dignity is a part of the individual rights that form the fundamental fulcrum of collective harmony and interest of a society, the court said in its judgment in the Charu Khurana case.

Canadian priciples

The court in Pravasi Bhalai Sangathan versus Union of India takes a leaf from the Canadian Supreme Court’s judgment which lays down three tests to determine a hate speech: First, the courts must apply the hate speech prohibition objectively. The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred.

Second, the legislative term “hatred or “hatred or contempt” must be interpreted as being restricted to those extreme manifestations of emotion described by the words “detestation” and “vilification”.

Third, the courts must focus their analysis on the effect of the expression in question, namely, whether it is likely to expose the targeted person or group to hatred by others.