NEW DELHI: The five-judge bench of the Supreme Court on Tuesday ruled that no additional restrictions can be imposed on freedom of speech on MPs and MLAs except those mentioned under Article 19(2) of the Constitution of India which lays down reasonable restrictions on the said right.
A constitution bench headed by Justice S Abdul Nazeer said, "Whenever two or more fundamental rights appeared either to be on a collision course or to be seeking preference over one another, this Court has dealt with the same by applying wellestablished legal tools. Therefore, we are of the view that under the guise of invoking other fundamental rights, additional restrictions, over and above those prescribed in Article 19(2), cannot be imposed upon the exercise of one’s fundamental rights."
Reminding the state of its duty to protect personal liberty whenever there is a threat to it even by a private actor, the five-judge bench also ruled that a state is under an affirmative duty to protect the same.
In her separate but concurring opinion, Justice BV Nagarathna added that failure to carry out the duties enjoined upon the State under constitutional and statutory law to protect the rights of a citizen could have the effect of depriving a citizen of his right to life and personal liberty.
"When a citizen is so deprived of his right to life and personal liberty, the state would have breached the negative duty cast upon it under Article 21," she also added.
The contentious constitutional issue had cropped up at the back of a purported statement of then Uttar Pradesh minister Azam Khan over an alleged gang-rape of a mother-daughter duo on a highway near Bulandshahr in July 2016. Khan had termed the offence a "political conspiracy."
The bench, however, dissented on the aspect of whether the government can be held responsible and liable for the statements of an individual minister. The majority comprising Justices S Abdul Nazeer, BR Gavai, AS Bopanna and V Ramasubramanian ruled that the state cannot be held "vicariously" liable under the principle of "collective responsibility" for the minister’s statement even if it is traceable to the government’s affairs.
The bench remarked that it is not possible to extend the concept of collective responsibility to any and every statement orally made by a minister outside the House of the People/Legislative Assembly.
The majority also opined, "We are not suggesting for a moment that any public official including a minister can make a statement which is irresponsible or in bad taste or bordering on hate speech and get away with it. We are only on the question of collective responsibility and the vicarious liability of the government."
On the other hand, Justice BV Nagarathna in her dissenting opinion said if the minister’s statement also represents the government’s view, then the state can be held liable "vicariously." She further ruled that if such a statement is not consistent with the government’s view, then it is attributable to the minister personally.
"If such views are endorsed not only in the statements made by an individual minister but are also reflective of the government’s stance, such statements may be attributed vicariously to the Government. However, 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 to the minister personally and not to the government," Justice Nagarathna ruled.
The bench also dissented with regards to approaching the court against persons other than the state or its instrumentalities for enforcement of fundamental rights under Articles 19 and 21. While the majority ruled that the same can also be enforced against persons, Justice BV Nagarathna observed that the same cannot be enforced against private persons. She however added that the remedy under Article 32 of the Constitution only lies against private persons in cases of a writ of habeas corpus.
"The rights in the realm of common law, which may be similar in their content to the Fundamental Rights under Article 19/21, operate horizontally, However, Fundamental Rights under Articles 19 and 21, do not accept those rights which have also been statutorily recognised. Therefore, a fundamental right under Article 19/21 cannot be enforced against persons other than the State or its instrumentalities. However, they may be the basis for seeking common law remedies. But a remedy in the form of a writ of Habeas Corpus, if sought against a private person on the basis of Article 21 of the Constitution can be before a Constitutional Court ie by way of Article 226 before HC or Article 32 read with Article 142 before the SC," she added in her dissent.
Quoting Tamil Poet Philosopher Tiruvalluvar of the Tamil Sangam who had said that scar left behind by a burn injury may heal, but not the one left behind by an offensive speech, the bench in the 179-page ruling penned by Justice V Ramasubramanian also said, no one can either be taxed or penalised for holding an opinion which is not in conformity with the constitutional values. "It is only when his opinion gets translated into action and such action results in injury or harm or loss that an action in tort will lie," the bench further added.
In her separate ruling, Justice BV Nagarathna said that it is not prudent to treat all cases related to statements made by public functionary which results in harm or loss to a person/citizen, as a constitutional tort. She called upon the Parliament to enact legislation or code to restrain, citizens in general and public functionaries, in particular, from making disparaging or vitriolic remarks against fellow citizens. She further added that respective political parties can regulate and control the actions and speech of their functionaries and members by enacting a code of conduct.
The observations were made by the bench while considering pleas which raised the issue of whether restrictions on the right to freedom of free speech that have been imposed under Article 19(2) are exhaustive or can restrictions on grounds other than those mentioned in Article 19(2) be imposed too.
The bench had to also consider whether it can lay down additional guidelines for imposing restrictions against disparaging and controversial statements made by public functionaries including ministers.