Democracy needs free marketplace of ideas, society today intolerant: Justice AK Jayasankaran Nambiar

Kerala High Court judge, Justice AK Jayasankaran Nambiar recently emphasised that democracies must allow spaces for diverse viewpoints and flagged concerns that today's society is marked by intolerance to such differences.

Justice Nambiar was speaking at an event organised on March 12 by the  Kerala High Court Advocates' Association (KHCAA) and Samatha Law Society as part of a Continuing Legal Education initiative.

The session also featured Dr Venkat Iyer, a barrister-at-law based in Northern Ireland, who delivered the keynote address.

The talks at the event centered around the theme, "Legal Regulation of Hate Speech: Is it Possible? Is it Desirable?"

In his address, Justice Nambiar highlighted the importance of debate and discussion in a country like India.

Referring to Nobel laureate Amartya Sen's book, 'The Argumentative Indian,' the judge remarked that India had historically been a civilisation that thrived on discussions and disagreements. He said that the ability to engage with different viewpoints played a significant role in the country's development.

However, he expressed his concern regarding contemporary society, stating that it appeared to be increasingly intolerant.

"If you look around you today, what you find in society is complete intolerance. Intolerance is nothing but a lack of understanding of the other perspective in society," Justice Nambiar remarked.

He noted that although the concept of hate speech is widely discussed, the Indian Constitution does not explicitly define it. Instead, the Constitution strongly protected freedom of speech and expression, while allowing limited restrictions in the interest of the sovereignty and integrity of India, public order, morality, defamation, and incitement offences.

He emphasised that the constitutional framework strongly favoured free speech and that the restrictions on expression must be interpreted narrowly.

"In any democracy, you need to have a free marketplace of ideas. A society is known as a place where you have a marketplace of ideas. You may perceive something as a bad idea, but you are obliged at least to listen to it," Justice Nambiar added.

Justice Nambiar went on to note that debate on hate speech cannot be separated from the broader constitutional relationship between rights and duties. India's ancient legal traditions were rooted in the concept of Dharma, which broadly translates to duty, he observed. Constitutional freedom must be exercised alongside responsibilities toward fellow citizens, he underscored.

"The time has now come for us to realise that you can't think of a fundamental right divorced from your fundamental duties," the judge said.

As he concluded his remarks, Justice Nambiar suggested that the answer to how hate speech should be tackled lay not only in legal frameworks, but also in self-regulation and the internalisation of constitutional values by citizens.

In his keynote address, Dr Venkat Iyer noted that debates on hate speech were intensifying worldwide with growing calls for strict legal intervention.

However, he cautioned that some of these demands on restricting speech may be misplaced or even dangerous, as laws introduced with good intentions can sometimes produce unintended consequences for free speech.

He expressed his concern over the rise of 'cancel culture', describing it as a tendency to silence individuals whose voices or views are considered offensive, instead of engaging with such individuals in healthy debates.

He emphasised the need for ethical responsibility along with legal regulations, suggesting that social disapproval and public debate might sometimes be more effective than sweeping legislative measures.

Dr Iyer also highlighted the importance of free and responsible media and an independent judiciary in maintaining democratic values.

"Without free and fair media, you can kiss goodbye to freedom and democracy. Media should be allowed, for example, to report a speech that may be uncomfortable to many people, on grounds of hate or whatever. But, of course, the media have to be responsible as well ... If you don't have a competent, well-resourced, non-corrupt judiciary, again, you can kiss goodbye to any concept of democracy or rule of law, etc. You can have a wonderful Constitution, but if the judiciary doesn't deliver, as I said, there is no hope at all," Dr Iyer said.

The programme also featured an address by KHCAA President Peeyus A Kottam and a welcome address by advocate Vinay V, Vice President of KHCAA.

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