• In a recent verdict, the Supreme Court has shown sound restraint while examining the issue of misuse of free speech, especially by political functionaries holding public office.
• The Supreme Court has ruled that additional restrictions cannot be imposed on the fundamental right of freedom of speech and expression of high public functionaries as exhaustive grounds already exist under the Constitution to curb that right.

The case

• 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 case involved whether a minister can claim the right to ''freedom of speech and expression'' to speak contrary to the Central government''s statute and policy and “whether restrictions can be imposed on a public functionary’s right to freedom of speech and expression”.

Article 19 of the Indian Constitution

• Article 19(1) guarantees to all citizens the six rights. These are
• Right to freedom of speech and expression.
• Right to assemble peaceably and without arms.
• Right to form associations or unions or co-operative societies.
• Right to move freely throughout the territory of India.
• Right to reside and settle in any part of the territory of India.
• Right to practice any profession or to carry on any occupation, trade or business.
• Article 19(2) relates to the powers of the State to make laws imposing reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest of sovereignty and integrity of the country, public order, decency, morality, etc.

Supreme Court For Not Curbing 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 exhaustive in themselves.
• 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.

Issue of Inconsistency between Free speech of public functionary and rights of citizens:

• On the issue of whether a statement by a minister inconsistent with the rights of a citizen constitutes a violation and is actionable, the Court argued that no one can either be taxed or penalised for holding an opinion which is not in conformity with the constitutional values.
• However, if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort.
• Thus, the restrictions to free speech while expressing views on sensitive matters apply to the MPs, MLAs and other public officials equally with all other citizens. In this context, the onus falls on the voters to force political parties concerned to have a code of conduct in place.

Ruling on the Collective Responsibility for Hateful Remarks Made by Individual Ministers:

• The majority ruling made a valid distinction on the government’s vicarious responsibility for ill-judged or hateful remarks made by its individual ministers.
• The court ruled that it is not possible to extend the concept of collective responsibility to “any and every statement orally made by a Minister outside the House of the People/Legislative Assembly”.
• 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 Constitution to deal with speech that promotes enmity and violence or results in cramping the freedoms of others.

Expansion of Ambit of Article 19:

• Observing that the State is under a duty to affirmatively protect the rights of a person under Article 21 (Protection of life and personal liberty) even by a non-State actor, the apex court held that a fundamental right under Article 19 and 21 can be enforced even against persons other than the State or its instrumentalities.
• This interpretation could also bring an obligation on the state to ensure private entities also abide by Constitutional norms.
• This largely settles the question of whether these rights are only ‘vertical’, that is, enforceable only against the state, or ‘horizontal’ too, that is enforceable by one person against another.

Dissenting Opinions Against the Judgement:

• The possible restraints on an unwarranted and disparaging speech by public functionaries, will apply with equal force to public functionaries, celebrities/influencers as well as all citizens of India, more so because technology is being used as a medium of communication which has a wide spectrum of impact across the globe.
• Public functionaries and other persons of influence and celebrities, having regard to their reach, real or apparent authority, and the impact they wield on the public or on a certain section thereof, owe a duty to the citizenry at large to be more responsible and restrained in their speech.
• While there can be little argument against the verdict upholding the principle of equality, it leaves room for debate on the subject of freedom of expression acquiring the potential to cause harm or incitement to discrimination, hostility, and violence. For, no law condones such acts.
• These times of social media, especially in a country as diverse as India, have given rise to increasing instances that trigger the dilemma of what constitutes freedom of speech and what is a derogatory and vitriolic remark or work of art.
• Consequently, the blurred line between the two leads to misuse of the provisions of the law, biased behaviour, and shielding of erring people who wield power.

Summing up

• Equality, liberty and fraternity are the foundational values embedded in the Preamble of our Constitution, and hate speech strikes at each of these foundational values, by marking out a society as being unequal.
• Freedom of speech and expression is a much needed right so that citizens are well informed and educated on governance.
• Thus, there should be a proper legal framework to define acts and omissions that amount to ‘constitutional tort’.
• The court’s overall view that fundamental rights are enforceable even against private actors is indeed a welcome one.