The Fundamental Rights Chapter (Part IV–A of the Constitution) consists of moral precepts and presides civic duties of citizens. The first fundamental duty is to abide by the Constitution, its institutions, the National Anthem and the National Flag.
I ask myself this question how would I abide by the Constitution unless I know what the Constitution is to start with.
So isn’t some duty cast on the government of the day to spread the Constitution of India all around in every single possible language so that the citizen is made aware as to what the Constitution is and what his rights are? It is important that these moral precepts are communicated to everybody and the manner of such communication should be that the government of the day should distribute, free of cost, copies of the Constitution of India in the twenty two prescribed regional languages so that every citizen knows what this basic document is and what his rights and duties are.
The Constitution tells us that one must, for example, uphold the sovereignty and unity of the Nation. This requires the knowledge of the struggle that our freedom fighters had and an appreciation of what they did. Again how do you appreciate what they did unless you know what they did? The same thing that goes for spreading the awareness of the Constitution, goes for this as well.
Then of course you have the fourth Fundamental Duty prescribed in Article 51A: when you are called upon to defend the nation, you must do so. And the fifth fundamental duty is of vital – and of crucial - importance – to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; and to renounce practices derogatory to the dignity of women; this fundamental duty explains the cardinal value of FRATERNITY – which has been stated upfront in the PREAMBLE to the Constitution; you don’t find this either in the Fundamental Rights Chapter (in Part-III) or in the Directive Principles of State Policy (in Part-IV).
Now, if you remember, Sir Charles Napier, one of the English generals in vintage British times, once sent a message back home saying, “Peccavi” (which in Latin means: “I have sinned”) – that was when he conquered the province of SIND! It was the same old general that asked a procession of people going along a road: “what are you doing to this poor woman? Why are you trussing her up like this?” The answer given to him was that there was then a custom that when the husband dies, the wife accompanies her husband to his heavenly abode, and that can only be by forcibly throwing her on the funeral pyre. So the General said: “oh, is that so? Very good, you carry out your custom. But we have another custom. Our custom is that persons who abet or murder innocent women will be hanged. So you carry out your custom and we will carry out ours”! It was this admonition that stopped the practice of Sati!
Now apart from these great precepts we also have a fundamental duty – in abjuring violence. We have a great fundamental duty in respecting our ‘composite culture’ – extremely important. According to me, FRATERNITY is something very important so far as our nation is concerned, particularly at this time, when we are witness to the criminal law – being put into motion selectively.
But I am going to suggest a civil remedy: and the remedy is this: that civil courts should take up a suit filed by any citizen against say Hate Speech.
What is hate speech?
It is something that disrupts harmony and it disrupts brotherhood. So the moment a citizen files a Civil Suit (always maintainable under Section 9 of the Civil Procedure Code) in respect of Hate Speech, the Court can issue a declaration and injunction because of the fundamental duty of fraternity; it can (I believe and I do maintain) also award punitive damages. Nothing hurts more than that which hurts the purse. So, if a Court were now to take cognisance of civil suits in which these three things are done, it would go a long way towards preserving and protecting FRATERNITY.
I must say – fortunately for us – a recent Supreme Court order went out of its way to say that every authority must act the moment there is hate speech; and if the authorities don’t act there will be contempt of Court – a good step in the right direction. But I feel that a very important step is a civil suit to enforce this fundamental duty. And given also the fact that the Chapter on Fundamental Duties (Chapter–IV–A) unlike the Chapter on Fundamental Rights (Part-III) and of Directive Principles of State Policy (Part-IV) are silent on what is the Court’s role. You can fill it in because a civil suit encompasses any civil right. This is not a mere civil right; it is a constitutional right conferred on citizens who are affected by hate speech. It is something higher than any statute; it is a part of the Constitution.
So, if we are actually going to live by the cardinal principle of FRATERNITY – that the Preamble to the Constitution enjoins – which I repeat is the only constitutional method, there is no other method of ensuring the dignity of every individual citizen of this country, and of assuring the unity and integrity of the nation. But then it must be given some teeth. And I can only quote from Justice Jackson’s great judgment in West Virginia Board of Education vs. Barnette – which was a Jehovah’s Witness case of the vintage year 1943, where a group of Jehohah’s Witnesses refused to salute the US Flag, and Justice Jackson upheld their right not to salute the flag only because they had a serious conscientious religious objection to it!
And so far as our great country is concerned these words apply all the more because of the huge diversity that this country has, unlike America. Justice Jackson had said “if there is any fixed star in our constitutional constellation it is that no official, high or petty, will be allowed to prescribe what is orthodox in politics, nationalism, religion or any other matter of opinion”. Beautiful words – it is only when no official is allowed to interfere that diversity becomes unity. Not otherwise.
And I only end this talk now with another Jehovah’s Witness case – this time from India, from our Supreme court – Justice Chinnappa Reddy’s eloquent words, where he ends his judgment in the case of Bijoy Emmanuel (1986) – which was another case where the Children of Jehovah's Witnesses stood up for the National Anthem, but did not sing the national anthem: purely on religious grounds.
And Chinnappa Reddy J. put it beautifully when he wrote at the end of his judgment: “our tradition teaches tolerance, our philosophy preaches tolerance, our Constitution practices tolerance. Let us not dilute it”.
Excerpts from the Justice VM Tarkunde Annual Lecture of 2022 delivered by Justice Rohinton F Nariman, Retitred Judge, Supreme Court of India.
To hear the full speech, watch this video: