No additional curbs on free speech by ministers: Supreme Court

Writing for the majority, Justice Ramasubramaian said “collective responsibility is that of the Council of Ministers. Each individual Minister is responsible for the decisions taken collectively by the Council of Ministers. In other words, the flow of stream in collective responsibility is from the Council of Ministers to the individual Ministers. The flow is not on the reverse, namely, from the individual Ministers to the Council of Ministers”.

The court, which went into previous case laws, said what follows is “(i) that 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 the decisions taken; and 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”.

In a separate judgement, Justice B V Nagarathna, the fifth judge on the bench, said that while the government cannot be held vicariously responsible for personal remarks by a minister, such liability would exist if the statement also embodies the views of the government.

“A minister may make statements in two capacities – first, in his personal capacity and second, in his official capacity as a delegate of the government. In respect of the former, no vicarious responsibility may be attributed to the government itself. The latter category of statements may be traced to any affair of the state or may be made with a view to protect the government. If such statements are disparaging or derogatory, and represent 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,” she said.

“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 personally and not to the government,” Justice Nagarathna said.

The court said this while answering a reference made to it regarding the extent of right of free speech available to public functionaries in the context of remarks by former Uttar Pradesh minister Azam Khan regarding the 2016 Bulanshahar rape case and alleged anti-women statements by Kerala CPM leader and then minister M M Mani in 2016 and 2017.

All five judges, however, agreed that the right of free speech and expression guaranteed under Article 19 (1) (a) cannot be curbed by any additional grounds other than those already laid down in Article 19 (2).

“Grounds in Article 19 (2) for restricting free speech are exhaustive. Under the guise of invoking other fundamental rights, or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19 (2) cannot be imposed on the exercise of right conferred by Article 19 (1) (a),” the bench said.

The court said “in any event, the law imposing any restriction in terms of clause (2) of Article 19 can only be made by the State and not by the Court. The role envisaged in

Constitutional scheme for the Court, is to be a gatekeeper (and a conscience keeper) to strictly check the entry of restrictions into the temple of fundamental rights. The role of the Court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges. Clause (2) of Article 19 saves (i) the operation of any existing law; and (ii) the making of any law by the State. Therefore, it is not for us to add one or more restrictions than what is already found”.

The majority ruling also held that “a fundamental right under Article 19, 21 can be enforced even against persons other than the state or its instrumentalities”.

Justice Nagarathna, however, was of the view that while constitutional courts can be approached in Habeas Corpus matters, the remedy for violation of other rights by private citizens would lie with the common law courts.

She pointed out that the court had laid down in the past that the remedy for violation of a common law right by a private person lies under the common law and not under the Constitution.

“Rights in the realm of common law which may be similar or identical in their content to the fundamental rights under Articles 19 or 21 operate horizontally. However, the fundamental rights under Article 19 and 21 may not be justiciable before the constitutional courts except those rights which have been statutorily recognised in accordance with the applicable law. However, they may be the basis for seeking common law remedies. But the remedy in the form of 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, that is by way of Article 226 before the High Court or Article 32 read with Article 142 before the Supreme Court,” she said.

The majority ruling said “a mere statement made by a minister, inconsistent with the rights of a citizen under Part III of the Constitution, may not constitute a violation of the constitutional rights and become actionable as constitutional tort. But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person or citizen, then the same may be actionable as constitutional tort”.

Justice Nagarathna’s judgement said “it is not prudent to treat all cases where a statement made by a public functionary resulting in harm or loss to a person or citizen as a constitutional tort. Rigour must be had in every case to the nature of resultant harm or loss”.