UPSC Essentials | Issue at a glance: SC’s ruling on Article 19

— A five-judge Constitution bench, headed by Justice S A Nazeer and comprising Justices B R Gavai, A S Bopanna, V Ramasubramanian and Justice B V Nagarathna, gave the decision. The same bench had upheld the Central government’s decision to demonetise Rs 500 and Rs 1,000 notes a day earlier.

— It said no additional restrictions against free speech can be imposed except those mentioned under Article 19(2) of the Constitution, which follows Article 19.

What was the case about?

— According to LiveLaw, the case, Kaushal Kishor v the State of Uttar Pradesh, relates to the Bulandshahar rape incident of 2016, in which the then Minister of the State of Uttar Pradesh and Samajwadi Party leader Azam Khan termed the incident a ‘political conspiracy and nothing else’.

— The survivors then filed a writ petition before the Apex Court seeking action against Khan. While directing him to submit an unconditional apology, which he did, the Court also noted that the case raises serious concerns regarding state obligation and freedom of speech and expression. Several questions were framed on the matter.

What does the judgment say about free speech restrictions?

— An important question here was “whether restrictions can be imposed on a public functionary’s right to freedom of speech and expression”, reported LiveLaw.

“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 ruled.

— Further, it said while citizens had the right to petition the Court for violations of Article 19 (freedom of expression) and Article 21 (right to life), a statement made by the Minister, inconsistent with the rights of the citizens, may not by itself be actionable. But if it leads to omission or commission of offence by a public official, then remedies can be sought against it.

What does the dissenting opinion say?

— Justice B V Nagarathna wrote a separate judgment and said freedom of speech and expression is a much-needed right so that citizens are well informed and educated on governance. She had also written the dissenting judgment on Monday in the case for deciding whether the central government followed the procedure for introducing demonetisation in 2016.

— In the case regarding restrictions on free speech, she agreed in part with the majority judgment, writing that further restrictions need not be placed on speech. Hate speech strikes at the foundational values by making society unequal and also attacks citizens from diverse backgrounds, especially “in a country like us that is ‘Bharat’”, she said, but noted common law remedies are present to address those issues. Creating another set of guidelines or laws is a matter for Parliament to deliberate, she said.

— However, she dissented on one of the questions framed, on statements made by a Minister which are traceable to affairs of government, and said that such statements are vicariously or by association attributable to the government. If the statements are disparaging, the government is vicariously liable, she wrote in her opinion.

— Attorney-General R. Venkataramani and Solicitor-General Tushar Mehta appeared for the Union. They argued that the issue being considered by the bench was largely academic and very abstract, and the possibility of a law being drafted to deal with areas of hate speech or other kinds of remarks, if needed, would be the responsibility of  Parliament.

(Source: SC verdict on MPs, MLAs’ right to freedom of speech: What the ruling says)

Why the Supreme Court is right to not curb ministers’ free speech?

— Like other citizens, ministers are guaranteed the right to freedom of expression under Article 19(1) (a), governed by the reasonable restrictions laid out in Article 19(2) — and those are enough, it said. Because “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.”

— The majority ruling also made a valid distinction on the government’s vicarious responsibility for ill-judged or hateful remarks made by its individual ministers — “… 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”. It is not possible to extend the concept of collective responsibility, it said, to “any and every statement orally made by a Minister outside the House of the People/Legislative Assembly”.

— Even while agreeing with the majority ruling, however, it is possible to underline the concern articulated in the minority judgment over a hateful public discourse — “hate speech, whatever its content may be, denies human beings the right to dignity”. And to agree with it when it speaks of the special duty of public functionaries and other persons of influence to be more responsible and restrained in their speech, to “understand and measure their words”.

— The problem of hate speech by ministers and others belonging to the party in power is real, but it is primarily political. The solution is not for the court to draw a new line, or even, as the minority judgment proposed, for Parliament to make another law.

— There are enough provisions in the statute book to deal with speech that promotes enmity and violence or results in cramping the freedoms of others. What is missing is the political resolve and will of governments to act on instances of hate speech, especially when they involve one of their own, and there are no legal shortcuts to make up for that absence. In fact, the same legal provisions that are designed to curb hate speech can be twisted and turned and weaponised by governments against citizens who dissent and disagree.

(Source: Why the Supreme Court is right to not curb ministers’ free speech)

Point to ponder: Free speech is a basic right that empowers marginalised lives. Discuss.

MCQ:

What is the position of the Right to Property in India? (2017)

(a) Legal right available to citizens only

(b) Legal right available to any person

(c) Fundamental Right available to citizens only

(d) Neither Fundamental Right nor legal right

Share your views, answers and suggestions in the comment box or at manas.srivastava@indianexpress.com