No further restrictions on proper to free speech by MPs, MLAs: Supreme Court

Express News Service

NEW DELHI: The five-judge bench of the Supreme Court on Tuesday dominated that no further restrictions may be imposed on freedom of speech on MPs and MLAs besides these talked about underneath Article 19(2) of the Constitution of India which lays down affordable restrictions on the mentioned proper. 

A structure bench headed by Justice S Abdul Nazeer mentioned, “Whenever two or more fundamental rights appeared either to be on a collision course or to be seeking preference over one another, this Court has dealt with the same by applying well­established legal tools. Therefore, we are of the view that under the guise of invoking other fundamental rights, additional restrictions, over and above those prescribed in Article 19(2), cannot be imposed upon the exercise of one’s fundamental rights.”

Reminding the state of its obligation to guard private liberty at any time when there’s a risk to it even by a personal actor, the five-judge bench additionally dominated {that a} state is underneath an affirmative obligation to guard the identical.

In her separate however concurring opinion, Justice BV Nagarathna added that failure to hold out the duties enjoined upon the State underneath constitutional and statutory legislation to guard the rights of a citizen might have the impact of depriving a citizen of his proper to life and private liberty.

“When a citizen is so deprived of his right to life and personal liberty, the state would have breached the negative duty cast upon it under Article 21,” she additionally added. 

The contentious constitutional situation had cropped up in the back of a purported assertion of then Uttar Pradesh minister Azam Khan over an alleged gang-rape of a mother-daughter duo on a freeway close to Bulandshahr in July 2016. Khan had termed the offence a “political conspiracy.”

The bench, nevertheless, dissented on the facet of whether or not the federal government may be held accountable and answerable for the statements of a person minister. The majority comprising Justices S Abdul Nazeer, BR Gavai, AS Bopanna and V Ramasubramanian dominated that the state can’t be held “vicariously” liable underneath the precept of “collective responsibility” for the minister’s assertion even whether it is traceable to the federal government’s affairs.

The bench remarked that it isn’t doable to increase the idea of collective duty to any and each assertion orally made by a minister exterior the House of the People/Legislative Assembly.

The majority additionally opined, “We are not suggesting for a moment that any public official including a minister can make a statement which is irresponsible or in bad taste or bordering on hate speech and get away with it. We are only on the question of collective responsibility and the vicarious liability of the government.”

On the opposite hand, Justice BV Nagarathna in her dissenting opinion mentioned if the minister’s assertion additionally represents the federal government’s view, then the state may be held liable “vicariously.” She additional dominated that if such a press release is just not in keeping with the federal government’s view, then it’s attributable to the minister personally. 

“If such views are endorsed not only in the statements made by an individual minister but are also reflective of the government’s stance, such statements may be attributed vicariously to the Government. 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 to the minister personally and not to the government,” Justice Nagarathna dominated.

The bench additionally dissented as regards to approaching the courtroom towards individuals aside from the state or its instrumentalities for enforcement of basic rights underneath Articles 19 and 21. While the bulk dominated that the identical will also be enforced towards individuals, Justice BV Nagarathna noticed that the identical can’t be enforced towards personal individuals. She nevertheless added that the treatment underneath Article 32 of the Constitution solely lies towards personal individuals in circumstances of a writ of habeas corpus. 

“The rights in the realm of common law, which may be similar in their content to the Fundamental Rights under Article 19/21, operate horizontally, However, Fundamental Rights under Articles 19 and 21, do not accept those rights which have also been statutorily recognised. Therefore, a fundamental right under Article 19/21 cannot be enforced against persons other than the State or its instrumentalities. However, they may be the basis for seeking common law remedies. But a remedy in the form of a writ of Habeas Corpus, if sought against a private person on the basis of Article 21 of the Constitution can be before a Constitutional Court ie by way of Article 226 before HC or Article 32 read with Article 142 before the SC,” she added in her dissent. 

Quoting Tamil Poet Philosopher Tiruvalluvar of the Tamil Sangam who had mentioned that scar left behind by a burn damage might heal, however not the one left behind by an offensive speech, the bench within the 179-page ruling penned by Justice V Ramasubramanian additionally mentioned, nobody can both be taxed or penalised for holding an opinion which isn’t in conformity with the constitutional values. “It is only when his opinion gets translated into action and such action results in injury or harm or loss that an action in tort will lie,” the bench additional added. 

In her separate ruling, Justice BV Nagarathna mentioned that it isn’t prudent to deal with all circumstances associated to statements made by public functionary which ends up in hurt or loss to an individual/citizen, as a constitutional tort. She referred to as upon the Parliament to enact laws or code to restrain, residents normally and public functionaries, specifically, from making disparaging or vitriolic remarks towards fellow residents. She additional added that respective political events can regulate and management the actions and speech of their functionaries and members by enacting a code of conduct. 

The observations had been made by the bench whereas contemplating pleas which raised the difficulty of whether or not restrictions on the best to freedom of free speech which have been imposed underneath Article 19(2) are exhaustive or can restrictions on grounds aside from these talked about in Article 19(2) be imposed too.

The bench needed to additionally take into account whether or not it could lay down further pointers for imposing restrictions towards disparaging and controversial statements made by public functionaries together with ministers.

NEW DELHI: The five-judge bench of the Supreme Court on Tuesday dominated that no further restrictions may be imposed on freedom of speech on MPs and MLAs besides these talked about underneath Article 19(2) of the Constitution of India which lays down affordable restrictions on the mentioned proper. 

A structure bench headed by Justice S Abdul Nazeer mentioned, “Whenever two or more fundamental rights appeared either to be on a collision course or to be seeking preference over one another, this Court has dealt with the same by applying well­established legal tools. Therefore, we are of the view that under the guise of invoking other fundamental rights, additional restrictions, over and above those prescribed in Article 19(2), cannot be imposed upon the exercise of one’s fundamental rights.”

Reminding the state of its obligation to guard private liberty at any time when there’s a risk to it even by a personal actor, the five-judge bench additionally dominated {that a} state is underneath an affirmative obligation to guard the identical.

In her separate however concurring opinion, Justice BV Nagarathna added that failure to hold out the duties enjoined upon the State underneath constitutional and statutory legislation to guard the rights of a citizen might have the impact of depriving a citizen of his proper to life and private liberty.

“When a citizen is so deprived of his right to life and personal liberty, the state would have breached the negative duty cast upon it under Article 21,” she additionally added. 

The contentious constitutional situation had cropped up in the back of a purported assertion of then Uttar Pradesh minister Azam Khan over an alleged gang-rape of a mother-daughter duo on a freeway close to Bulandshahr in July 2016. Khan had termed the offence a “political conspiracy.”

The bench, nevertheless, dissented on the facet of whether or not the federal government may be held accountable and answerable for the statements of a person minister. The majority comprising Justices S Abdul Nazeer, BR Gavai, AS Bopanna and V Ramasubramanian dominated that the state can’t be held “vicariously” liable underneath the precept of “collective responsibility” for the minister’s assertion even whether it is traceable to the federal government’s affairs.

The bench remarked that it isn’t doable to increase the idea of collective duty to any and each assertion orally made by a minister exterior the House of the People/Legislative Assembly.

The majority additionally opined, “We are not suggesting for a moment that any public official including a minister can make a statement which is irresponsible or in bad taste or bordering on hate speech and get away with it. We are only on the question of collective responsibility and the vicarious liability of the government.”

On the opposite hand, Justice BV Nagarathna in her dissenting opinion mentioned if the minister’s assertion additionally represents the federal government’s view, then the state may be held liable “vicariously.” She additional dominated that if such a press release is just not in keeping with the federal government’s view, then it’s attributable to the minister personally. 

“If such views are endorsed not only in the statements made by an individual minister but are also reflective of the government’s stance, such statements may be attributed vicariously to the Government. 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 to the minister personally and not to the government,” Justice Nagarathna dominated.

The bench additionally dissented as regards to approaching the courtroom towards individuals aside from the state or its instrumentalities for enforcement of basic rights underneath Articles 19 and 21. While the bulk dominated that the identical will also be enforced towards individuals, Justice BV Nagarathna noticed that the identical can’t be enforced towards personal individuals. She nevertheless added that the treatment underneath Article 32 of the Constitution solely lies towards personal individuals in circumstances of a writ of habeas corpus. 

“The rights in the realm of common law, which may be similar in their content to the Fundamental Rights under Article 19/21, operate horizontally, However, Fundamental Rights under Articles 19 and 21, do not accept those rights which have also been statutorily recognised. Therefore, a fundamental right under Article 19/21 cannot be enforced against persons other than the State or its instrumentalities. However, they may be the basis for seeking common law remedies. But a remedy in the form of a writ of Habeas Corpus, if sought against a private person on the basis of Article 21 of the Constitution can be before a Constitutional Court ie by way of Article 226 before HC or Article 32 read with Article 142 before the SC,” she added in her dissent. 

Quoting Tamil Poet Philosopher Tiruvalluvar of the Tamil Sangam who had mentioned that scar left behind by a burn damage might heal, however not the one left behind by an offensive speech, the bench within the 179-page ruling penned by Justice V Ramasubramanian additionally mentioned, nobody can both be taxed or penalised for holding an opinion which isn’t in conformity with the constitutional values. “It is only when his opinion gets translated into action and such action results in injury or harm or loss that an action in tort will lie,” the bench additional added. 

In her separate ruling, Justice BV Nagarathna mentioned that it isn’t prudent to deal with all circumstances associated to statements made by public functionary which ends up in hurt or loss to an individual/citizen, as a constitutional tort. She referred to as upon the Parliament to enact laws or code to restrain, residents normally and public functionaries, specifically, from making disparaging or vitriolic remarks towards fellow residents. She additional added that respective political events can regulate and management the actions and speech of their functionaries and members by enacting a code of conduct. 

The observations had been made by the bench whereas contemplating pleas which raised the difficulty of whether or not restrictions on the best to freedom of free speech which have been imposed underneath Article 19(2) are exhaustive or can restrictions on grounds aside from these talked about in Article 19(2) be imposed too.

The bench needed to additionally take into account whether or not it could lay down further pointers for imposing restrictions towards disparaging and controversial statements made by public functionaries together with ministers.