Can Greater Restrictions Be Imposed On Freedom Of Speech Of Ministers? Supreme Court Constitution Bench To Hear On Nov 15

The Supreme Court, on Monday, decided to commence with the hearing of pleas pertaining to the limits of right to freedom of speech and expression for public functionaries, on 15th November, 2022.

While briefly hearing the substratum of the matter, a 5-Judge Bench comprising Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna indicated that restrictions on the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India, 1950, is to be determined on a case to case basis.

The case emanates 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. The four pertinent questions of law as framed by The Attorney General, Mr. K.K. Venugopal are as under -

1. Whether any restrictions can be imposed on the Right to Freedom of Speech and Expression under Article 19(1)(a), excluding restrictions already enumerated under Article 19(2)? If yes, then to what extent?
2. Whether greater restrictions on Article 19(1)(a) can be imposed, if it concerns persons holding high office?
3. Whether Article 21 can be enforced against individuals and private corporations not encompassed under the definition of 'State' as per Article 12?
4. Whether the State can proceed against individuals under statutory provisions?

On Monday, appearing before the Constitution Bench Solicitor General, Mr. Tushar Mehta submitted that the issues are covered by judgments of the Apex Court subsequent to the reference.

Justice Nazeer said that upon perusal of the record, it is evident that the Minister who had made remarks about the incident of rape had apologized. He enquired, if in that respect the discussion on the issue in the petition has become academic.

Advocate, Mr. Kaleeswaram Raj appearing in a connected matter submitted that his case stems from certain statements made by the then Minister in Kerala, which contained disparaging remarks against women, certain employees, labourers etc. Therein the question that arose for consideration was 'what is the limit of freedom for public functionaries?'. He argued that recurrence of such incidents across the country is indicative of the fact that the issue is of importance and has not yet become academic.

The Amicus Curiae appearing in the main matter supported the submission of the Solicitor General to the extent that, there cannot be blanket guidelines on restrictions and it has to be developed on a case to case basis, considering facts of each case.

In this regard, Mr. Tushar Mehta added -

"Whether A. 19(1)(a) and restrictions under 19(2) should apply differently for public functionaries. It might not be possible for your lordships to lay down a straight jacket line of distinction."

Justice Nagarathna noted that the Constitution does not permit stipulation of restrictions to the right to freedom of speech and expression beyond those mentioned in Article 19(2).

"Right to freedom of speech and expression is essentially against the state and A.19(2) are the reasonable restrictions. If a speech is made and somebody does not like it they can take action. Now. A.19(2) is also there. There cannot be some other restrictions over and above A.19(2) that can be imposed because the constitution does not permit that. So, the question is if somebody is affected by another person's speech what action can be taken."

Mr. Raj apprised the Bench that on an earlier occasion, in his petition suggestion was made regarding how constitutional restrictions can be made without impinging upon the constitutional values. There were also suggestions of self regulation for public functionaries.

Justice Nazeer was apprehensive that the Bench might not be able to set out general guidelines in this regard, with any concrete facts.

"But it requires some factual background. Can we lay down some general guidelines?"

Mr. Mehta conceded that the threshold of restriction to freedom of speech and expression for the public functions would be much higher than the common person, but he expressed concern that it might not be fit to judicially define the contours of such restrictions beyond those provided in Article 19(2) of the Constitution.

[Case Status: Kaushal Kishor v. State of UP WP(Crl) No. 113/2016]