Ministers' Statements In Official Capacity Cannot Be Vicariously Attributed To Govt : Supreme Court; Justice Nagarathna Dissents

A Constitution Bench of the Supreme Court has ruled by 4:1 majority that the statements made by a minister in official capacity are not vicariously attributable to the government.

One among the questions considered by the bench was this :  Can a statement made by minister traceable to any affairs of the state or for the protection of the government be attributed vicariously to the government itself, especially in view of the principle of collective responsibility?

Answering the question, the majority comprising Justices S Abdul Nazeer, BR Gavai, AS Bopanna and V Ramasubramanian, held :

"A statement made by a minister even if traceable to any affairs of the state or for protection of the government cannot be attributed vicariously to the government by invoking the principle of collective responsibility".

The majority judgment written by Justice Ramasubramanian stated :

"Generally collective responsibility of the Council of Ministers either to the House of the People or to the Assembly should be understood to correlate to the decisions and actions of the Council of Ministers and not to every statement made by every individual Minister".

Collective responsibility a political concept

The majority judgment stated that (i)the concept of collective responsibility is essentially a political concept; (ii) that the collective responsibility is that of the Council of Ministers; and (iii) that such collective responsibility is to the House of the People/Legislative Assembly of the State. Generally, such responsibility correlates to (i) the decisions taken; and (ii) the acts of omission and commission done.

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.

Prime Minister possesses no disciplinary control over Ministers

The majority judgment rejected the suggestion made by the counsel for the petitioner Advocate Kaleeswaram Raj that the Prime Minister, in the case of a Minister of the Union of India and the Chief Minister, in the case of a Minister of the State should be allowed to take appropriate action, against the erring Minister. The Court termed this suggestion as "just fanciful".

"The Prime Minister or the Chief Minister does not have disciplinary control over the members of the Council of Ministers", the judgment stated.

"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", the judgment clarified.

Justice Nagarathna's dissent

However, Justice BV Nagarthana struck a dissenting note to hold that the statements made by a Minister in official capacity are vicariously attributable to the Government. 

"A Minister may make a statement in two capacities. First in his personal capacity. Second in his official capacity and as a delegate of the Government. It is a no-brainer that that in respect of the former category of statements, no vicarious liability may be attributable to the government itself. The latter category of statements may be traceable to any affairs of the State or may be made with a view to protect the government. If such statements are disparaging or derogatory, and represents not only the personal views of the individual minister making them 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. In other words, if such statements are endorsed not only in the statements made by the individual minister but also reflective of the government stance, such statement 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".

“A statement made by a Minister if traceable to any affairs of the State or for protecting the Government, can be attributed vicariously to the Government by invoking the principle of collective responsibility, so long as such statement represents the view of the Government also. If such a statement is not consistent with the view of the Government, then it is attributable to the Minister personally.”

The Constitution Bench was answering a reference on issues relating to restrictions on the right to free speech of ministers and persons holding high offices.

Also read other reports on the judgment : Additional Restrictions Not Found In Article 19(2) Cannot Be Imposed On Right To Free Speech : Supreme Court

Hate Speech Strikes At Foundational Values Of Constitution; Political Parties Must Control Speeches Of Members: Justice BV Nagarathna

Case Title: KAUSHAL KISHOR v. THE STATE OF UTTAR PRADESH GOVT  WP(c) 113/2016

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