Freedom of speech & expression of public functionaries cannot be curbed by additional restrictions: Supreme Court

The case originates from a statement made by Azam Khan, then Uttar Pradesh minister, about gang rape victims. The Supreme Court ruled on Tuesday that the Constitution’s Article 19(1)(a) guaranteeing the freedom of speech and expression cannot be restricted for any further reasons beyond those previously stated in Article 19 (2).

Khan had claimed that it was a political conspiracy; as a result, a petition was brought before the supreme court challenging his words. The supreme court decided to explore the parameters of free expression available to public servants while handling the case and submitted the subject to a Constitution Bench.

The judgment Which The 5 Judge Constitution Bench Held

A five-judge Constitution Bench with Justice S Abdul Nazeer presiding and Justices B R Gavai, A S Bopanna, V Ramasubramanian, and B V Nagarathna also on the panel rendered a decision on the petition on Tuesday. “Article 19(2) provides a comprehensive list of reasons for curtailing free expression. Additional restrictions not found in Article 19(2) cannot be placed on the exercise of the right conferred by Article 19(1)(a) under the guise of invoking other fundamental rights or under the guise of two fundamental rights asserting competing claims against one another, the five-judge Constitution Bench ruled. 

“A statement made by a minister, even if traceable to any affairs of the state or for protecting the government, cannot be attributed vicariously to the government by invoking the principle of collective responsibility,” Justices Nazeer, Gavai, Bopanna, and Ramasubramanian, four of the five judges on the bench, added.

Minister’s Lone Comment Is Not Always A Violation Of Article III

 A basic right under Article 19, 21 can be enforced even against those who are not the state or its agents, according to the majority ruling. Additionally, it stated that a minister’s lone comment that violates a citizen’s right to due process under Article III of the Constitution is not always a violation of those rights and is not subject to legal recourse.

However, if an officer commits an act of omission or commission because of making such a declaration that causes another person or citizen pain or loss, that act may be considered a constitutional tort.

Dissenting opinion by Justice Nagarthna

However, Justice Nagarthna stated in a different decision that while the government cannot be held vicariously liable for a minister’s remarks, such culpability would exist if the statement also reflected the views of 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 given the principle of collective responsibility… 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,” she added. 

It is not prudent to treat every instance of a public official’s speech causing harm or loss to a person or citizen as a constitutional tort, according to Justice Nagarathna. In each circumstance, caution must be used to consider the type of harm or loss that will ensue. “Respective political parties are also responsible for policing the behaviour and speech of its officials and members. This could be accomplished by passing a code of conduct outlining the speech restrictions for officials and supporters of the various political parties.

The Case Against Freedom Of Speech

The incident began with a speech made by Azam Khan, a minister in Uttar Pradesh at the time, regarding victims of gang rape. The court was considering a request for a transfer of the case to Delhi made by a man whose wife and kid was reportedly gang-raped in July 2016 on a highway close to Bulandshahr. The motion also demanded that a case be filed against Khan about his contentious claim that the gang rape case was a political plot.

The constitution bench observed during the hearing that it is an unwritten rule that those in public service must exercise self-control and make sure they do not utter derogatory words; this must be ingrained in political and civic life.

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