New Delhi: The Constitution Bench comprised of Justices S Abdul Nazeer, AS Bopanna, BR Gavai, V Ramasubramanian and BV Nagarathna, in the matter of Kaushal Kishor v. State of UP, observed that the restrictions on freedom of speech of public functionaries prescribed under Article 19(2) of the Constitution are exhaustive and applicable to all citizens and hence, further restrictions, not mentioned in Article 19(2), cannot be imposed on the exercise of right to freedom of speech. The decision was reached at by a majority of 4:1, where Justice BV Nagarathna gave a dissenting opinion.
Majority rejected the argument that vicarious liability could be attributed in such a case. Justice Nagarathna differed from the majority opinion saying that in case a public functionary makes insulting remarks in his “official capacity”, only then such remarks or statements can be vicariously ascribed to the government. In case the stand of the government differs from the said statement, then it would be considered as a personal remark, she added.
Earlier in this matter, the Supreme Court had reserved its verdict on November 15, 2022, saying persons holding public offices should exercise self-restraint and not utter words that are disdainful to other citizens. The court had said that such an approach is part of the country’s constitutional culture and there is no distinct requirement for it to frame a code of conduct for public functionaries. It observed that regardless of what Article 19(2) may stipulate, there is an intrinsic restriction on what persons holding public offices speak. The issue goes back to 2016, when Azam Khan, the then Uttar Pradesh Cabinet Minister and Samajwadi Party leader, made a remark on the Bulandshahr Gangrape case, calling the incident “a political conspiracy against the Uttar Pradesh Government and nothing else”. The same year, survivors of the incident approached the Supreme Court and filed a writ petition against him, as they felt that his remark had outraged the modesty of the rape victims.
As per Article 19(2) of the Indian Constitution, the right to free speech and expression is not an absolute right and is subject to reasonable restrictions. Such restrictions can be imposed upon freedom of speech and expression in the interests of 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.
The Court reaffirmed that “the state is under a duty to affirmatively protect the rights of a person under Article 21 whenever there is a threat to personal liberty even by a non-state actor”. The Court further clarified that a mere remark made by a minister non-compliant with the rights of the citizens envisaged under Part III of the Constitution may not be actionable as a constitutional tort. BV Nagarathna suggested that it was for the political parties to monitor and oversee the action and speech of their functionaries.
“This could be through a code of conduct which would prescribe the limits of permissible speech by functionaries and members of the respective political parties”, the judge said. In addition, she noted that public figures, people of power, and celebrities had a responsibility to exercise more restraint and accountability in their speech given their influence in the public at large. “They are required to understand and measure their words having regard to the likely consequences on public sentiment and behaviour and also be aware of the example they are setting on the fellow citizens to follow.” She also cautioned that it was for the political parties to regulate and control the action and speech of their functionaries and members. “This could be through a code of conduct which would prescribe the limits of permissible speech by functionaries and members of the respective political parties,” the judge advised.
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