A Constitution Bench of the Supreme Court on Wednesday began examining whether “greater restrictions” should be imposed on the right to free speech and expression of high public functionaries, including Ministers, to protect the citizen’s fundamental right to lead a dignified life.
The freedom of speech is subject to “reasonable restrictions” to maintain public order under Article 19(2) of the Constitution.
The five-judge Bench led by Justice Arun Mishra is examining whether further restrictions are needed on free speech.
The reference to a Constitution Bench was made in April 2017. It sprouted from a petition filed by the family members of the Bulandshahr rape victim who were enraged by Uttar Pradesh Minister Azam Khan’s public statements that the rape case was part of a political conspiracy against the then Akhilesh Yadav government. Mr. Khan subsequently apologised unconditionally in the Supreme Court, but it decided to examine the question of imposing curbs on the free speech of public functionaries in sensitive matters.
Attorney-General K.K. Venugopal suggested issues which the Bench need to decide on the case.
‘Collective statement’
“The question is whether reasonable restrictions under Article19(2) should be expanded or not. Should there be a greater restriction on Ministers in position of power, especially if there is a possibility that the Minister’s statement could be misunderstood to be a collective statement of the government by the public?” Mr. Venugopal submitted.
He said the Bench should further answer whether private persons and corporations can be held liable for violating Article 21. So far, only the State can be held liable for the violation of the fundamental rights, including Article 21. The top law officer asked the Bench also to decide whether the State could proceed against private individuals for making statements violating the fundamental right of another private individual.
Justice Mishra said free speech and right to life were equally important. “So, the question is can free speech be restricted by invoking Article 21? Can a person’s right to free speech be curbed on the ground it affects another’s right to lead a dignified life under the Article?” Justice Mishra wondered.
Mr. Venugopal said Article 19(2) introducing reasonable restrictions is proof that free speech is not absolute in this country. The exceptions to free speech given in Article 19(2) are defined and exact.
“The question is can we introduce further restrictions without backing it up with any statutory law,” Mr. Venugopal asked the Bench.
But Justice S. Ravindra Bhat expresses doubts about how greater restrictions, if imposed on free speech, can possibly be enforced without a definite statutory law defining the dos and dont’s.
“Do we need new, greater restrictions. There are other remedies already available like civil/criminal injunctions, torts, general laws, etc,” Justice Bhat asked Mr. Venugopal.
Instead of bringing new restrictions, focus should be on remedies like filing pleas under Article 226 — a constitutional provision through which citizens can approach the High Courts against the State for violation of their fundamental rights — to injunct embarrassing statements from especially Ministers, Justice Bhat suggested.
The referral was made on the basis of a petition filed by a man whose wife and daughter were allegedly gang-raped in July last year on a highway near Bulandshahr, seeking transfer of the case to Delhi and lodging of an FIR against Mr. Khan for his controversial statement.
The Constitution Bench is also hearing a separate petition filed by Joseph Shine, represented by advocate Kaleeswaram Raj, against comments made by Kerala Minister M.M. Mani. The Bench asked Mr. Raj to make submissions on October 24 about “whether it is permissible or desirable to have code of conduct for Ministers at the Centre and States following the practice in some other democracies”.
The Supreme Court had in 2017 found that the matter required to be referred for consideration to a larger Bench as important questions of interpretation of Article 19 (freedom of speech and expression) and Article 21 (protection of life and personal liberty) of Constitution was involved in it.
Senior advocates Fali Nariman and Harish Salve were appointed as amicus curiae in the case.
