The Supreme Court Constitution Bench comprising Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna has held that additional restrictions, not found in Article 19(2), cannot be imposed on the exercise of right to free speech under Article 19(1)(a) of Ministers, MPs and MLAs.
The Court by 4:1 majority added that statements made by Minister, even if traceable to any affairs of state or protecting the govt, cannot be attributed vicariously to the govt even applying the principle of collective responsibility.
Justice B.V. Nagarathna in her descending opinion agreed that greater restriction cannot be imposed on free speech, in addition to grounds under Article 19(2). However, she observed that in case a Minister makes disparaging statements in his “official capacity”, then such statements can be vicariously attributed to the govt. However, if the statements of the Ministers are stray remarks not consistent with stand of govt then it would be treated as personal remark she clarified.
The case excuded from the Bulandshahar rape incident wherein the then Minister of the State of Uttar Pradesh and Samajwadi Party leader, Azam Khan had trivialised the act by dismissing the incident as a ‘political conspiracy and nothing else’. Thereafter the survivors had filed a writ petition before the Apex Court seeking action against Khan. In view of the same, the Court had directed Khan to submit an unconditional apology. While doing so, it had noted that the case raises serious concerns regarding state obligation and freedom of speech and expression and a reference was made to a Constitution Bench in 2017, based on certain questions framed by Senior Advocates Fali S Nariman and Harish Salve, who were appointed as amici curiae.
Arguments of Union Government
Attorney-General R. Venkataramani and Solicitor-General Tushar Mehta appeared for the Union. The main thrusts of their argument were that the issue being considered by the bench was largely academic and very abstract and that the issue of codifying the discrete principles already available in various legislations and adding to the existing provisions of the Indian Penal Code and other statutory enactments would be the responsibility of the Parliament. Venkataramani said, “In my understanding, it is better that there is a Parliamentary debate on the question. Maybe there is a need for a law, I am not even disputing it… It will be in the fitness of things that the Parliament may address it. The government will look into it.”
The Attorney-General also asserted that vicarious liability on the state for a statement made by a minister, in their individual capacity, would be an ‘unmanageable proposition’.
The AG argued that the Court cannot impose additional restrictions on free speech other than those envisaged under Article 19(2). The SG submitted that the issues are already covered by the judgments in Amish Devgan and Tehseen Poonawalla cases.
Submittion of amicus curiae
The amicus curiae, Senior Advocate Aparjitha Singh submitted before the bench that the constitution in the country imposed an essential restrictions on the freedom of speech of public officials. Singhsaid, “It is inherent. There is no need for the court to give a code of conduct on that. For any person holding a public office or as a public servant, there is an unwritten rule, and it is part of constitutional culture, that we impose self-restriction when we hold offices of responsibility and not say things which are very disparaging or insulting to our other countrymen.”
The senior counsel also refused the contention that a ‘situation of collective responsibility’ could be envisaged in such cases. If a public functionary, in their individual capacity, made a statement that interfered with the criminal justice machinery and the impartial functioning of the court, such an act would amount to a violation of fundamental rights and be covered under constitutional tort, she explained.
Advocate Kaleeswaram Raj, appearing for a petitioner cited the rising instances of hate speeches uttered by high public functionaries to argue that the Court should issue directions.
“We are not even saying that the court should impose additional restrictions on free speech of the public functionaries. We only say that when they are public functionaries, there is an added responsibility on them to maintain the constitutional culture in the public conduct, in the public domain. This has to be addressed. Article 19(1) or 19(2), as it stands, unlike article 25, does not permit it. Secondly, we say that even if free speech is applicable to public functionaries, subject to other constitutional limitations, nevertheless free speech has to be distinguished from hate speech. Hate speech made by a minister of the state or centre sometimes may not amount to offence, but some public check will have to be there even if it does not amount to an offence”, Raj had argued.
Case Title: KAUSHAL KISHOR v. THE STATE OF UTTAR PRADESH
Written by: Kashish Gupta, BBALLB- 3rd Sem, Shriram Swaroop Memorial University, Barabanki.
