January 4, 2023
NEW DELHI – The Supreme Court on Tuesday declared that no additional restrictions on free speech, other than those prescribed under Article 19(2) can be imposed on the Ministers and the lawmakers – MPs and MLAs – and the statements made by a Minister cannot be vicariously attributed to the government.
Ruling that statements made by a minister cannot be vicariously attributed to the government, a five judge-constitution bench comprising Justice S. Abdul Nazeer, Justice B.R. Gavai, Justice A.S. Bopanna, Justice V. Ramasubramanian and Justice B.V. Nagarathna said that the minister is himself liable for the statements offending the rights of the people.
The majority judgment authored by Justice Ramasubramanian while holding that restriction already enumerated under Article 19(2) are exhaustive, said, “Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found under Article 19(2), cannot be imposed on the exercise of the rights conferred by Article 19(1)(a) upon any individual.”
Speaking for Justice Nazeer, Justice Gavai and Justice Bopanna, Justice Ramasubramanian said that a mere statement made by a Minister, inconsistent with fundamental rights of a citizen may not constitute a violation of the constitutional right s and become actionable as constitutional tort.
However, the majority view said that if as a consequence of such a statement, any act of omission and commission is done by the officer resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort.
Justice Nagarathna in a separate judgment expressing dissenting views on some of the issues said that a distinction has to be made whether a statement attributed to a Minister was made in his/her capacity as a Minister or as an individual.
If a person is prejudiced by the utterances/speech/expression including hate speech, by a public functionary or otherwise, Justice Nagarathna said that such a person may take recourse to criminal and civil laws for appropriate remedies
Refraining from issuing any guidelines, Justice Nagarathna said, “It is for the Parliament in its wisdom to enact a legislation or code to restrain, citizens in general and public functionaries, in particular, from making disparaging or vitriolic remarks against fellow citizens, having regard to the strict parameters of Article 19(2) and bearing in mind the freedom under Article 19(1) (a) of the Constitution of India.”
“Hence, I am not inclined to issue any guideline in this regard, but the observations made hereinabove may be borne in mind”, said Justice Nagarathna.
Further dwelling on the issue, Justice Nagarathna said that it is also for the political parties to regulate and control the actions and speech of its functionaries and members.
“This could be through enactment of a Code of Conduct which would prescribe 121 the limits of permissible speech by functionaries and members of the respective political parties”, said the judgment pronounced by her.
Underlining that in a country like ours, freedom of speech and expression is a much needed right so that citizens are well informed and educated on the governance, Justice Nagarathna said that the hate speech in the sense strikes at the foundational values by making the society unequal and also attacks citizens from diverse backgrounds especially in a country like ours that is Bharat.
The top court ruling came while adjudicating five questions referred to it by an earlier five-judge constitution bench comprising Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice
Justice Nagarathna in separate judgment looking at the issues from a different perspective and differing from the majority on some of the issues said that the public functionaries and celebrities having regard to their reach and impact they have on public have to be more responsible and be more restraint on speech since its impacts the citizens at large,” she said in a separate judgement.
The issue adjudicated by the top court is rooted in the then Uttar Pradesh Minister Azam Khan’s remarks alleging conspiracy to run down the then Akhilesh Yadav’s government in the alleged gang rape of a minor girl and her mother on the national highway near Bulandshahr while they were on their way to their ancestral village on July 29, 2016.
Azam Khan had on December 15, 2016 offered an unconditional apology to the victims of the crime which was accepted by the bench comprising Justice Dipak Misra (who later went on to be the Chief Justice of India) and Justice Amitava Roy (both since retired).