The Supreme Court on Tuesday ruled that ministers, Members of Parliament (MPs) and Members of Legislative Assembly (MLAs) enjoy freedom of speech in equal measure as other citizens under Article 19(1)(a) of the Constitution and greater/ additional restrictions cannot be imposed on the fundamental right of free speech of such public functionaries [Kaushal Kishore vs State of Uttar Pradesh and ors].

A Constitution Bench of Justices S Abdul Nazeer, AS Bopanna, BR Gavai, V Ramasubramanian and BV Nagarathna held that the restrictions on freedom of speech of public functionaries cannot go beyond what is prescribed under Article 19(2) of the Constitution which are exhaustive and applicable to all citizens.

"Additional restrictions not found under Article 19(2) cannot be imposed on the exercise of article 19(1)(a)...Grounds mentioned in Article 19(2) for restricting free speech are exhaustive. Additional restrictions not found in Article 19(2) cannot be imposed on the exercise of right under 19(1)(a)," the Court held.

The judgment was delivered in a batch of pleas relating to the scope of freedom of speech of public functionaries, and whether greater restrictions can be imposed on their right in the greater interest of citizens and their right to life and personal liberty.

The Court further held that "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 the Constitutional scheme for the Court, is to be a gate­keeper (and a conscience keeper) to check strictly 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 top court said.

The Court also held that statement made by minister related to government or its affairs cannot be vicariously attributed to the government.

"A mere statement by a minister inconsistent with the rights of citizen does not form to be a constitutional tort but if it leads to omission or commission of offence by a public official then it is a constitutional tort," the Constitution bench ruled.

Importantly, the Court held that the right to freedom of speech lies not only against the State but also against non-State actors.

"The right can be exercised even against other instrumentalities other than the State. State is under a duty to affirmatively protect fundamental right of a citizen even if the violation is by a non-state actor," the Court held

Justice BV Nagarathna in a separate judgment held that the Court cannot impose any greater/ additional restrictions on the fundamental right of free speech of such public functionaries.

It is for the parliament in its wisdom to enact a law to restrain public functionaries from making disparaging remarks against fellow citizens bearing in mind 19(1)(a) and 19(2), she ruled.

Justice Nagarathna, however, said that while freedom of speech and expression is a much needed right so that citizens are well informed and educated on governance, it cannot turn into hate speech.

"Hate speech in the sense strikes at the foundational values by making the society unequal ands also attacks citizens from diverse backgrounds especially in a country like us that is Bharat. It shall be the duty of every Indian to uphold the dignity of every individual irrespective of religion, caste etc and also uphold the dignity of women," she held.

Pertinently, she said that public functionaries and celebrities having regard to the reach and impact their statements can have on public have to be more responsible and should exercise more restraint on speech since its impacts the citizens at large.

"One should speak only when it is like pearls strung on a thread and when Lord hears it and says 'yes yes it is true'," her judgment said.

On the question of whether the right to free speech can be exercised against non-State actors, she dissented from the majority and held that the remedy for the same cannot be through writ jurisdiction.

"If right under article 19(1)(a) and 19(2) operate horizontally then a person can file a writ for their violation to right to dignity. Common law remedies such as injunction etc is there for damage to reputation or dignity. Thus, when common law remedy is there, courts will be reluctant to entertain a writ under Article 226 or 32," she held.

On the question of statement by minister being attributable to the government, Justice Nagarathna held that if a minister makes statement in his personal capacity, no vicarious liability can be attributed to the government.

However, if the statements are in his official capacity and the statements are disparaging and also embody the affairs of government, such statements can be attributable to the State having regard to principle of collective responsibility, she held.

But if they are stray remarks not consistent with stand of government, then it would be treated as personal remark, the judge added.

"It is for the party to control the speeches made by their ministers which can be done by forming a code of conduct. Any citizen who feels attacked by such speeches made or hate speech by public functionary etc can approach court for civil remedies," the judge said.

The reference to a five-judge bench had arisen following Samajwadi Party leader Azam Khan's remarks on a 2016 gang-rape of a minor and her mother in Uttar Pradesh.

Khan had called the incident a political conspiracy and a publicity hunt, and criticised the complainant for saying that she was not getting justice.

The father of the survivor then filed a plea seeking a Central Bureau of Investigation (CBI) probe, and asked that the trial be held outside the State.

It was contended that Khan’s statements had adversely affected the reputations of the two survivors as well as the prospect of a fair trial. The veteran politician soon offered an unconditional apology.

The bench hearing the case went on to refer the following five questions to a larger bench:

1. Whether the Court can impose restrictions on the right to freedom of speech and expression beyond the present restrictions provided under Article 19(2) of the Constitution?

2. Can a Fundamental Right under Article 19 and Article 21 (that is right to life and personal liberty) of the Constitution, can be claimed against anyone other than the ‘State’ or its instrumentalities?

3. Whether the State is under a duty to affirmatively protect the right of the citizens under Article 21 of the Constitution even if it is against a threat to the liberty of the citizen by the acts or omissions of another citizen or private agency?

4. Whether the statement of a minister, traceable to any affairs of the State, should be attributed vicariously to the government itself for not keeping in mind the principle of collective responsibility?

5. Whether a statement made by a minister, which is inconsistent with the rights granted to the citizen under Part III of the Constitution, constitutes as a violation of such Fundamental Rights and is actionable as ‘Constitutional Tort’ (civil wrong)?

Solicitor General Tushar Mehta had said that Khan's statement was a horrible one, but the current exercise was academic, given the top court's rulings on hate speech in the Tehseen Poonawala and Amish Devgan cases.

Attorney General R Venkataramani had argued that the questions have been framed in an abstract and problematic manner, and that the top court need not rule differently from the existing legal positions since then.

Advocate Kaleeswaram Raj, appearing for the petitioners, had pointed out that the Poonawala and Devgan cases did not deal with hate speech by public functionaries, and asked for a code of conduct to be framed.

[Read Judgment]