UPSC Essentials | Issue at a glance: SC’s ruling on Article 19
SC's recent order on Freedom of speech has once again brought Article 19 in headlines. Let's know all you need for UPSC-CSE. We shall go beyond the issue to answer why the Supreme Court is right to not curb ministers’ free speech.
The court took this view while ruling that the right of free speech and expression guaranteed under the Article 19(1)(a) cannot be curbed by any additional grounds other than those already laid down in Article 19(2). (The UPSC Essentials Indian Express is now on Telegram. Click here to join our channel and stay updated with the latest updates.
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Supreme Court expanded Article 19 ambit by highlighting that not just state but even private citizens can face challenge. The court, extending free speech against private citizens, opens up a range of possibilities in Constitutional law. In Beyond the issue: Free speech of public functionaries and Why the Supreme Court is right to not curb ministers’ free speech?
Relevance: For Prelims, Mains (GS II: Polity) and Personality test of UPSC-CSE. Moreover, issues around Fundamental Rights are essential, in general, for all citizens.
Why in news?
By ruling that a citizen can seek enforcement of the fundamental rights to freedom of speech not just against the state, the Supreme Court has, effectively, extended the ground for seeking these rights against other citizens.
What are the key highlights of Supreme Court’s order and its interpretation?
Apurva Vishwanath writes:
“A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities,” said the 4-1 majority ruling by the Constitution Bench Tuesday.
The court took this view while ruling that the right of free speech and expression guaranteed under the Article 19(1)(a) cannot be curbed by any additional grounds other than those already laid down in Article 19(2).
— One of the questions before the court was whether “a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?”
— The court, extending free speech against private citizens, opens up a range of possibilities in Constitutional law.
— This interpretation could also bring an obligation on the state to ensure private entities also abide by Constitutional norms. These questions could hypothetically range from seeking enforcement of privacy rights against a private doctor to seeking the right to free speech against a private social media entity.
“The original thinking of this court that these rights can be enforced only against the State, changed over a period of time. The transformation was from ‘State’ to ‘Authorities’ to ‘instrumentalities of State’ to ‘agency of the Government’ to ‘impregnation with Governmental character’ to ‘enjoyment of monopoly status conferred by State’ to “deep and pervasive control” to the “nature of the duties/functions performed,” the majority view by Justice V Ramasubramanian stated.
— The Court relied on the 2017 verdict in Puttaswamy where a nine-judge bench unanimously upheld privacy as a fundamental right. One of the key arguments by the government was that privacy is a right enforceable against other citizens and, therefore, cannot be elevated to the status of a fundamental right against the state.
— The Court also referred to several foreign jurisdictions, contrasting the American approach with the European Courts. Referring to the landmark New York Times vs. Sullivan, in which the US Supreme Court found that defamation law, as applied by the state against The New York Times, was inconsistent with the Constitutional guarantee of the freedom of speech and expression, the SC noted a shift in US law from a “purely vertical approach” to a “horizontal approach.”
“No jurisdiction in the world appears to be adopting, at least as on date, a purely vertical approach or a wholly horizontal approach. A vertical approach provides weightage to individual autonomy, choice and privacy, while the horizontal approach seeks to imbibe
— Constitutional values in all individuals. These approaches which appear to be bipolar opposites, raise the age-old question of ‘individual vs. society’,” the Court said.
What are vertical and horizontal application of rights?
— A vertical application of rights would mean it can be enforced only against the state while a horizontal approach would mean it is enforceable against other citizens. For example, a horizontal application of the right to life would enable a citizen to bring a case against a private entity for causing pollution, which would be a violation of the right to a clean environment.
(Source: Supreme Court expands Article 19 ambit: Not just state, even pvt citizens can face challenge by Apurva Vishwanath )
What is Article 19?
— Article 19 is a part of the Fundamental Rights (Part III) of the Indian Constitution.
— Article 19 which guarantees freedom of speech and expression is a right invoked against the state. Some fundamental rights such as those prohibiting untouchability, trafficking and bonded labour are explicitly against both the state and other individuals.
— It is available only to citizens and not to foreigners.
Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
Note: Originally, Article 19 (1) (f) and article 31 contained the right to property, i.e. to acquire, hold and dispose of property subject to the right of State to compulsory acquisition for public purposes by authority of law.
However, right to property ceased to be a fundamental right when the Constitution (44th Amendment) Act, 1978 omitted sub-clause(f) of Article 19 (1) and Article 31 from the Constitution.
Clause (2) of Article 19 of the Indian constitution imposes certain restrictions on free speech under following heads:
Security Of The State,
Friendly Relations With Foreign States
Public Order,
Decency And Morality,
Contempt Of Court,
Defamation,
Incitement To An Offence, And
Sovereignty And Integrity Of India.
According to the Constitution:
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise
Beyond the issue
Free speech of public functionaries
— A statement made by a minister, including MLAs and MPs, cannot be attributed vicariously to the government even when applying the principle of collective responsibility, the Supreme Court said on Tuesday (January 3).
— 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
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