The Supreme Court’s Judgment on Freedom of Speech of Ministers – Explained, pointwise

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Introduction

In 2016, a Minister in the then Uttar Pradesh Government had made unsavoury remarks against a victim of sexual assault. In the ensuing litigation (Kaushal Kishore vs State of Uttar Pradesh), the Supreme Court considered the issue of freedom of speech of the Ministers and Legislators. The Supreme Court’s Judgment (regarding Freedom of Rights of Ministers) has now ruled that no further curbs could be imposed on the fundamental right to freedom of speech and expression. The Supreme Court has held that the existing eight “reasonable” restrictions under Article 19(2) of the Constitution are exhaustive. A statement made by a Minister, (including MLAs and MPs), cannot be attributed vicariously to the Government even when applying the principle of collective responsibility.

What is the Fundamental Right to Freedom of Speech?

The Constitution of India guarantees all citizens the right to freedom of speech and expression under the Article 19(1)(a). In the Preamble of the Constitution, there is a solemn resolve made to secure to all of its citizenry liberty of thought and expression.

The right is available only to the citizens of India. Article 19(1)(a) guarantees the right to express one’s opinions on any issue through any medium, including speech, writing, printing, pictures, films and movies.

However, the exercise of this right is not absolute and is subject to reasonable restrictions, as outlined in Article 19(2) of the Constitution of India. These restrictions are: (a) Sovereignty And Integrity of India; (b) Security of the State; (c) Friendly relations with Foreign States; (d) Public Order; (e) Decency and Morality; (f) Contempt of Court; (g) Defamation; (h) Incitement to an offence.

The Legislature (Parliament) can frame laws to impose these reasonable restrictions. Several provisions of the Indian Penal Code (IPC) have such restrictions like Section 124A (Sedition), Section 153A (Promoting enmity between groups), Section 295A (Hurting religious feelings) etc.

What is the Supreme Court’s Judgment regarding Freedom of Speech of Ministers?

The main questions before the Constitution Bench were:

(A) Whether the Court can impose restrictions on the right to freedom of speech and expression beyond the present restrictions provided under Article 19(2) of the Constitution?

(B) Can a Fundamental Right under Article 19 and Article 21 of the Constitution, can be claimed against anyone other than the ‘State’ or its instrumentalities?

(C) Whether the State is under a duty to affirmatively protect the right of the citizens under Article 21 of the Constitution even if it is against a threat to the liberty of the citizen by the acts (or omissions) of another citizen or private agency?

(D) Whether the statement of a Minister, traceable to any affairs of the State, should be attributed vicariously to the Government itself for not keeping in mind the principle of collective responsibility?

Vicarious Liability is a situation in which one party is held partly responsible for the unlawful actions of a third party. The third party also carries their own share of the liability. The word “vicarious” is used to describe the fact that the liability imposed is indirect.

(E) Whether a Statement made by a Minister, which is inconsistent with the Fundamental Rights granted under Part III of the Constitution, constitutes as a violation of such Fundamental Rights and is actionable as ‘Constitutional Tort’ (civil wrong)?

A Constitutional Tort is a violation of a person’s Constitutional rights by an agent of the Government, acting in his/her official capacity. It is a legal tool that allows the State to be held vicariously accountable over the actions of its agents.

Majority Opinion

The majority of the SC Bench (4:1) held that collective responsibility is that of Council of Ministers. Each individual Minister is responsible for the decisions taken collectively by the Council of Ministers. The flow of stream in collective responsibility is from the Council of Ministers to the individual Ministers. The flow is not on the reverse. (i.e., from the individual Ministers to the Council of Ministers).

The Court also elaborated that: (a) The concept of collective responsibility is essentially a political concept; (b) The collective responsibility is that of the Council of Ministers; (c) Such collective responsibility is to the House of the People/Legislative Assembly of the State. Such responsibility is related to decisions taken by the Council of Ministers. It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly.

Thus a statement made by a minister, even if traceable to any affairs of the State or for protecting the Government, cannot be attributed vicariously to the government by invoking the principle of collective responsibility. (Question D).

The Court said that there are no additional restrictions that can be imposed on people’s right to free speech other than those that are listed in Article 19(2) of the Constitution. (Question A).

The SC also held that a fundamental rights under Article 19 and Article 21 can be enforced even against persons other than the State or its instrumentalities. (Question B).

The State is under a duty to affirmatively protect the rights of a person under Article 21 whenever there is a threat to personal liberty even by a private actor. (Question C).

A mere statement made by a Minister, inconsistent with the rights of a citizen, may not constitute a violation of constitutional rights and become actionable as a constitutional tort. However, if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort. (Question E).

Supreme Court's Judgment on Freedom of Speech of Ministers

Source: The Times of India

What is the dissenting view?

Justice BV Nagarathna gave a dissenting Judgment. She had a differing view on the collective responsibility. She opined that it possible for a Minister to make statements in two different capacities: Personal and Official (as a delegate of the Government).

In case of statements made in personal capacity, no vicarious responsibility may be attributed to the Government itself. If such statements are stray opinions of an individual Minister, and are not consistent with the views of the Government, then they shall be attributable personally and not to the Government.

The statements made in official capacity may be traced to any affair of the State or may be made with a view to protect the Government. If such statements are derogatory, and represent not only the personal views of the individual Minister but also embody the views of the Government, then such statements can be attributed vicariously to the Government itself, especially in view of the principle of collective responsibility. Thus the attribution is contingent on the statement made in personal or official capacity.

Justice Nagarathna also held that while Constitutional courts can be approached in Habeas Corpus matters, the remedy for violation of other rights by private citizens would lie with the common law courts. She pointed out that the SC had laid down in the past that the remedy for violation of a common law right by a private person lies under the common law and not under the Constitution.

She also observed that it is for 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. It is also for the respective political parties to regulate and control the actions and speeches of its functionaries and members. This could be through enactment of a code of conduct, which would prescribe the limits of permissible speech by functionaries and members of the respective political parties

Conclusion

Constitutional experts have praised the Supreme Court’s Judgment of Freedom of Speech of Ministers. The Court has done well not to put any additional restrictions on the freedom of speech. However, as observed by Justice Nagarathna, the onus is on the Parliament and the political parties to ensure that the freedom is not violated to indulge in acts of hate speech.

Syllabus: GS II, Indian Constitution: Features, Significant Provisions; GS II, Parliament and State Legislatures: Powers and Privileges and issues arising out of these.

Source: Indian Express, Indian Express, The Times of IndiaThe Times of India

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