quality’ and ‘fraternity’:

The Preambular goals of ‘equality’ and ‘fraternity’: 26. Equality, liberty and fraternity are the foundational values embedded in the Preamble of our Constitution. ‘Hate speech’, in the sense discussed hereinabove, strikes at each of these foundational values, by marking out a society as being unequal. It also violates fraternity of citizens from diverse backgrounds, the sine-qua-non of a cohesive society based on plurality and multi-culturalism such as in India that is, Bharat. 27. Fraternity is based on the idea that citizens have reciprocal responsibilities towards one another. The term takes within its sweep, inter-alia, the ideals of tolerance, co-operation, and mutual aid. 27.1. The meaning of the term fraternity, in the context of criminal defamation and restraints on the freedom of speech and 64 expression has been examined by this Court in Subramanian Swamy vs. Union of India, (2016) 7 SCC 221 (“Subramanian Swamy”) wherein it was observed that fraternity under the Constitution expects every citizen to respect the dignity of the other. Mutual respect is the fulcrum of fraternity that assures dignity. This Court qualified its observations with the caveat that ‘fraternity’ does not mean that there cannot be dissent or difference, more so because all citizens have the right to freedom of speech and expression. However, it was unequivocally declared that a constitutional value which is embedded in the idea of fraternity is dignity of the individual, which is required to be respected by fellow citizens. That the Preamble consciously chooses to assure the dignity of the individual, in the context of fraternity and therefore, rights enshrined in Part III have to be exercised by individuals against the backdrop of the ideal of fraternity. This Court observed that the fraternal ideal also finds resonance in Part IVA of the Constitution. In upholding the permissibility of the law on criminal defamation, on the touchstone of the concept of constitutional fraternity, this Court speaking through Dipak Misra, J. (as his Lordship then was) observed in paragraphs 155 and 163, as follows:

“155. It is a constitutional value which is to be cultivated by the people themselves as a part of their social behavior. There are two schools of thought; one canvassing individual liberalization and the other advocating for protection of an individual as 65 a member of the collective. The individual should have all the rights under the Constitution but simultaneously he has the responsibility to live upto the constitutional values like essential brotherhoodthe fraternity-that strengthens the societal interest. Fraternity means brotherhood and common interest. Right to censure and criticize does not conflict with the constitutional objective to promote fraternity. Brotherliness does not abrogate and rescind the concept of criticism. In fact, brothers can and should be critical. Fault finding and disagreement is required even when it leads to an individual disquiet or group disquietude. Enemies Enigmas Oneginese on the part of some does not create a dent in the idea of fraternity but, a significant one, liberty to have a discordant note does not confer a right to defame the others.”

“163. We have referred to two concepts, namely, constitutional fraternity and the fundamental duty, as they constitute core constitutional values. Respect for the dignity of another is a constitutional norm. It would not amount to an overstatement if it is said that constitutional fraternity and the intrinsic value inhered in fundamental duty proclaim the constitutional assurance of mutual respect and concern for each other's dignity. The individual interest of each individual serves the collective interest and correspondingly the collective interest enhances the individual excellence. Action against the State is different than an action taken by one citizen against the other. The constitutional value helps in structuring the individual as well as the community interest. Individual interest is strongly established when constitutional values are respected. The Preamble balances different and divergent rights. Keeping in view the constitutional value, the legislature has not repealed Section 499 and kept the same alive as a criminal offence. The studied analysis from various spectrums, it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression. As a prescription, it neither invites the frown of any of the Articles of the Constitution nor its very existence can be regarded as an unreasonable restriction.” (Emphasis by me)

66 27.2. The decision of this Court in Subramanian Swamy establishes precedent of justifying a restraint on free speech, on the ground of promotion of fraternity. It has been recognized that the constitutional value of fraternity imputes an obligation on all citizens to subserve collective interest and respect the dignity and equality of fellow citizen. Restraints on free speech prescribed to secure these ends, have been held to be justified, as being aimed at preserving the Preambular ideal of fraternity. It is also to be noted that this Court in the said case recognized that fraternity as a value is to be cultivated by citizens themselves as a part of their social behavior by refraining from uttering defamatory statements. This chord of the said judgment, acknowledges the idea of self-restraint or inherent restraints as being read into the right to freedom of speech and expression.

27.3. Democracy, being one of the basic features of our Constitution, it is implicit that in a rule by majority there would be a sense of security and inclusiveness. 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. Thus, the Preamble of the Constitution and the values thereof assuring the people of India not only justice, 67 liberty, equality but also fraternity and unity and integrity of the nation, must remind every citizen of this Country irrespective of the office or position or power that is held, of the sublime ideals of the Constitution and to respect them in their true letter and spirit. There is an inbuilt constitutional check to ensure that the values of the Constitution are not in any way undermined or violated. It is high time that we, as a society in general and as individuals in particular, re-dedicate ourselves to the sacred values of the Constitution and promote them not only at our individual level but at the macro level. Any kind of speech which undermines the values for which our Constitution stands would cause a dent on our social and political values.