Can Greater Restrictions Be Imposed On Freedom Of Speech Of Ministers,MPs And MLAs? Supreme Court Constitution Bench Reserved Judgement

Bench: "Are you saying that in view of the 2 judgments, for the present, it is unnecessary to go into those issues?"

SG: "Yes"

AG R. Venkataramani: "I humbly advise the court that these questions framed being too abstract, the court may not be advised to answer them as they are abstract propositions. For instance, question no. 1 speaks of pitting of one fundamental right against another fundamental right, which is a well-known proposition of the Constitution that there is no dispute between two fundamental rights, only balancing. But here it has been propounded in a different way, the court may not want to answer it in a way it has been propounded. That is my very, very humble opinion. For the court to read the questions in the abstract would be problematic. This narrow context can be dealt with by a division bench in its own"

Advocate Kaleeswaram Raj, for the petitioner: "I may point out that the Poonawalla and Amish Devgan judgments were delivered exclusively in the context of free speech in general in abstract, whereas the reason for referring this particular matter is that we are rather concerned with free speech or even disparaging speech by public functionaries. This element of public functionaries is an element which is lacking in other cases which was never decided by any bench of this court. Every question before a Constitution bench is to some extent academic. In this case, we are on if a public functionary or an MLA or an MP or a minister makes a speech which is not, in the strict sense, constitutional, to what extent the court can interfere. The last time it came up, Justice Nagarathna was asking a pertinent question- how far the court can go into it because of limitations. We absolutely agree with that proposition, but how to balance? Does it mean that a minister or a member of Parliament can go on with these kinds of disparaging remarks, hateful speech; is it constitutional; is it in tune with the constitutional morality; whether there are constitutional limitations on this free speech? Taking clue from other jurisdictions, especially from Australia and UK, we suggest a voluntary code of conduct for ministers and public functionaries. We also suggest the constitution of a special ombudsman sort of institution to tackle this"

Bench: "How can you frame code of conduct for public functionaries? That would be transgressing of powers, encroaching upon the legislative and executive wings"

Mr. Raj: "We were suggesting a voluntary code of conduct to be formulated by the legislature. We have indicated about 20 instances where the members of Parliament, even the Prime Minister, even the President of India have made such remarks. After 2014, there has been a 450% increase in the number of hate speeches, out of which the major portion is said by public functionaries, ministers and members of Parliament. This was never decided"

AG: "The Parliament can address this matter. Vicarious liability on the government, on the State, for a statement made by a minister will be an unmanageable proposition. It will be in the fitness of things that the Parliament may address it. The government will look into it"

Amicus Curiae: "Irrespective of what 19(2) says, there is a constitutional culture in our country where there is an inherent limitation which is imposed by persons holding responsible posts. It is inherent. There is no need for the court to give a code of conduct on that. For any person holding a public office or as a public servant, there is an unwritten rule, and it is part of constitutional culture, that we impose self restriction when we hold offices of responsibility and not blabber things which are very disparaging or insulting to our other countrymen. There is something like a constitutional restriction or limitation inherent in such persons, so this must be inculcated in our political society and our civil conduct"

Mr. Raj: "That is why we never prayed to formulate a guideline. We said there is a requirement to indicate the need for a voluntary code of conduct"

Bench to the AG: "What you are suggesting is that it is for the Parliament because there is already a provision in the IPC, so if they want to add something to it, they should be able to do it?"

AG: "That's right. Assisting the court is not a problem, but it may be like spending a few days' time and reaching the same conclusion"

Justice Nagarathna: "There may be no right against the State if an individual makes a statement, but on account of that, if a section of the population or an individual is affected, there is always a civil remedy available. So it cannot be said there is no remedy. Remedy under defamation, civil tort may also be availed by a person who claims that he or she is affected. It may not be against the State, but it may be against a particular person making a statement"

AG: "There are disparate principles available in various legislations. There may be a need for codification but today the court is not called upon to answer the question of these disparate principles in different legislations"

Justice Nagarathna: "But under the individual regime, the remedy may be sought out by an individual if he or she is hurt"

Bench to the AG: "You are saying legislative interference may be required. There are already provisions, so if any addition is required, that is for the legislature to do?"

AG: "If there is a need for addition to IPC or a complete codification to do, all those are matters for the Parliament. Even across the world, these issues have come before the apex court, but to bind liability of the government for individual issues would be a very serious issue"

Justice Nagarathna: "The reason why there is no legislation all this while is that there has always been a self-imposed restriction by persons holding responsible positions. Now the impression being given is that those kind of restrictions are being slowly relaxed and as a result, persons are speaking in such a way which is offending other persons and nobody is checking it. That seems to be the thrust of this whole thing, the purpose of going into the nitty-gritty of article 19(1)(a) and 19(2) etc. The concern is this. Nobody seems to be checking them and anybody can get away with saying something which is disparaging against somebody else, especially persons holding high offices, public functionaries, public servants. That is the object of this case"

AG: "The reason why this has come before this court, the concerns are well-taken, I am not even disputing it. As the highest officer of the State, I am not saying it should be simply wished away. But how do you address these questions, that is the most important aspect of the matter- How far we can foresee all those limitations and the inherent intrinsic difficulties when the court is called upon later to apply its own law. In my understanding, it is better that there is a Parliamentary debate on the question and the Parliament can look into it. Maybe there is a need for a law, I am not even disputing it.

Justice Nagarathna: "Yes, there is a need for a law"

AG: "There are a large number of people who know what to speak, what not to speak. Your lordships are looking at those people where aberrations have happened. So those aberrations need to be taken care of. There is no excessive protection to public functionaries. There is section 197 of the Cr. P. C. which says it should be in the discharge of official duty. If it is not, then you face the music of the law"

Mr. Raj: "We are not even saying that the court should impose additional restrictions on free speech of the public functionaries. We only say that when they are public functionaries, there is an added responsibility on them to maintain the constitutional culture in the public conduct, in the public domain. This has to be addressed. Article 19(1) or 19(2), as it stands, unlike article 25, does not permit it. Secondly, we say that even if free speech is applicable to public functionaries, subject to other constitutional limitations, nevertheless free speech has to be distinguished from hate speech. Hate speech made by a minister of the state or centre sometimes may not amount to offence, but some public check will have to be there even if it does not amount to an offence. I have suggested two methods which are that it is understandable the government or legislator is motivated to do that but they may not even think of promulgating a code of conduct, this remains unchecked for the last decade. So long as it has not happened, any minister or MLA or MP can say anything. This is something unprecedented. Even when it does not amount to an offence, even when a poor victim or a lady or a labourer or a minority community person may not be inclined or facilitated to set the law in motion, but there has to be a mechanism in a country like India for an ombudsman"

Bench: "Can we do that? Or is it for the Parliament to set up a mechanism?"

Mr. Raj: "Your Lordships are right. But your lordships may be needed to clarify the gravity of the situation and suggest it. That is the plain concern. I don't even say a judicial legislation is required, I only say that let us have the optimism that the Parliament will promulgate a law in the future- I am not that optimistic, for the sake of argument I am saying- and till then, invoking section 2(d) of the human rights act. There are national human rights commission and state human rights commissions, the definition of human rights involve a right to dignity"

Amicus Curiae: "Constitutional tort is laid down in Nilabati Behera's case as a civil remedy. If a statement made by a Minister in his official capacity violates the fundamental right of the citizen, this court under Nilabati Behera and the Common Cause case will act against the minister"

Bench: "The contention being we don't have sufficient statutory provisions as of now..."

Amicus Curiae: "As far as the ministers are concerned, there is a code of conduct. But your lordships have said that code of conduct is only for guidance, it is not enforceable in the court of law. We are talking of free speech of a minister. The situation of collective responsibility does not arise. If in his individual capacity, he makes a statement which interferes with investigation, that is a violation of fundamental rights and can be covered under constitutional tort. In a case of the state of Maharashtra, where the Chief Minister had interfered in investigation, your Lordships had imposed a cost on the state because the minister is a functionary of the state. That is how your lordships dealt with individual situations. But when the court is asked to lay down general guidelines, the problem is that one stray observation of the court can affect many of the rights under 19(1). It is my apprehension. It is not my case that the petitioner does not have a remedy. If the petitioner proves that the statement of the minister has violated his fundamental right, that law is already settled in Nilabati Behera. As far as non-State actors are concerned, that issue does not arise here because we are talking of the statement of a minister. My submission is that these issues have already been answered"