Facts
The present case was presented before the Supreme Court of India. A special leave petition and a writ petition were clubbed together. The case brings into picture two fundamental rights, the right to freedom of speech and expression and the right to dignity. In this case, two state ministers passed demeaning statements in Uttar Pradesh and Kerala respectively. Although the events were unrelated, they posed an important question about the conflict between the rights before the court of law.
In the first instance, a minister in the Uttar Pradesh (Mr. Azham Khan) government made indecent remarks targeting two victims of sexual assault. He stated that sexual harassment of the woman and her child was a “political controversy” against the government. The court ordered him to apologise for the remarks given by him. Later, the matter was referred to a five-judge bench to determine the questions of law. In the other case also, the minister made a public comment that was detrimental to a woman’s dignity. The Kerala High Court stated that it lacked the proper authority to issue an order against a minister who made indecent remarks. Also, it is not within its jurisdiction to frame a code of conduct for the cabinet ministers. The petitioners claimed that the right to dignity which is protected under Article 21 of the Indian Constitution was violated by these bureaucrats and matter was discussed in the Supreme Court.
Issues Raised
The most important issues raised in this case are as follows:
- Whether the grounds mentioned in Article 19(2) of the constitution is exhaustive in nature?
- Should certain restrictions be put on the right to freedom of speech and expression mentioned in Article 19(1)(a) to preserve the right to dignity under Article 21 of the Constitution?
- Whether it is the responsibility of the state to safeguard the rights under Article 21 from non-state actors as well?
- Whether a minister’s statement that harms a citizen’s right given in Part III of the Constitution subject to legal action?
- Whether the government can be held vicariously liable for any minister’s remarks related to any state affairs or that are meant to protect the government?
Contentions
Petitioner
- The counsel appearing on behalf of the petitioners argued that there should be a voluntary code of conduct that would prevent the misuse of freedom of speech and expression. The need to frame guidelines for ministers and public officials was seen to be necessary by the petitioners. This would increase accountability and transparency.
- The petitioner argued that the minister’s speech is not actionable in a court of law for infringing fundamental rights. This is because there is no restriction imposed on that. They should not be let out of the ambit of the justice system. They are the ones who are entrusted with the responsibility to protect the basic human rights of the citizens. Hence, they should be more conscious about their conduct and opinions.
- The petitioner brought up Article 75(3) of the Constitution of India to determine the collective responsibility of the government. The main argument here related to the fact that a minister’s speech can affect the opinion of public at large. This government should be made accountable for the atrocious remarks made in the public by their ministers. The counsel took the support of the common cause 12 ruling to clarify the definition of ‘collective responsibility’.
Respondent
- The learned counsel on behalf of the respondent contended that the case at hand did not deal with conflict between the two fundamental rights. The principal question at hand is whether the ministers or public officials are subjected to speech restrictions as per the provisions of Article 19 of the Constitution.
- The counsel stated that it is important for the court to respect the rights given in Part III of the Constitution. Article 19 (2) provides for an exhaustive list of restrictions to be imposed and any further changes must be brought in through legislative actions.
- The respondent stated that demeaning remarks given by the minister cannot be linked to the collective responsibility of the government. If the statements made in the public is not targeted at state of affairs and public duty, then the question of collective responsibility does not arise.
- The counsel further contended that the State does not have to protect these rights in order to defend Article 218. Adequate legal remedies are given in Article 329 and 226 of the constitution when it comes to the violation of Article 21.
Rationale
A five-judge constitutional bench heard this case and gave appropriate reasons in direction of their decisions. The bench stated that even if there is a conflict between two fundamental rights further restrictions cannot be allowed in Article 19 (2) of the Constitution. This case made the court choose between horizontal and vertical application when it came to the enforcement of fundamental rights. The court upheld that freedom of speech and expression could not be restricted in cases where the dignity of an individual has been affected. The concept of constitutional tort for violation of a citizen’s fundamental rights did not hold relevancy in the present case.
The court understood that the non-state actors would also affect the right to life and personal liberty under Article 21 due to advancements and constant changes. The court held the State in-charge of protecting the rights of citizens from private individuals as well. However, Justice B.V. Nagarathna had a varying opinion on this matter. He argued that a remedy with respect to the violation of Article 21 already exists in the law. The affected party can follow the route of filing a habeas corpus writ petition. There is no need to make the non-state entities subject to Article 19 and 21 as they do not follow under the purview of Article 12 of the Constitution.
Defects of Law
The court realized that where there is an issue of violation of freedom of speech and expression, the content of the speech and the medium through which the opinions are presented matters.
It is relevant to state that penalty should not be inflicted on anyone for holding an opinion The Constitution does not give anyone the right to take undue advantage of the right granted under Article 19. However, there are no proper guidelines or sub-legislations directly related to this article that specify the actions that are prohibited. Unequal access to justice is no option for a developing country like India. It is on the parliament to design a legal framework where citizens and public officials do not degrade the modesty of their fellow citizens. The political parties are an integral part of the democracy. It is their responsibility to keep a strict eye on the conduct of their members.
The constitution and other judicial pronouncements have time and again focused on ‘reasonable restrictions’ on the exercise of the fundamental rights. However, it is not clearly defined anywhere as to what constitutes as reasonable restriction. This leads to subjective interpretation of this concept. It is not just the conflict between Article 19 and 21 of the constitution. It is possible to have cases in the future where the limitations under Article 19 might conflict with other fundamental rights (for example: right to equality given under Article 14). This will result in inconsistency and to strike a balance between these rights is going to be a challenge for the Judiciary and the Legislature. The legislative and the executive should ensure that there is no potential abuse by the authorities of the rights guaranteed under Article 19. The debates and criticisms revolving around the freedom of speech and expression are never-ending, not all of these are relevant, and it is the task of the lawmakers to pay attention to the rational ones only.
Inference
Civil liberty is a delicate subject and imposing new restrictions on the right that guarantees freedom to the citizens to express their opinions freely has to be dealt with carefully. The grounds explained in Article 19 (2) has been imposed after careful consideration and is broad enough to include the required provisions to prevent the misuse of the rights guaranteed in Article 19 (1) of the constitution.
In the age of technology, it is important to recognize the concept of hate speech and figure out the right solution to this issue. The social media platforms have increased the flow of communication among people. Any topic from any sphere is discussed openly on all the platforms and people’s opinions are more prominent than ever. The lawmakers should describe a clear distinguishing line between hate speech and free speech. The purpose of the former is to only ignite tension among communities or individuals. Hence, hate speeches should not be encouraged and strict actions should be taken for the same On the other side, the fact that Article 21 has a wide scope cannot be neglected and its horizon will most likely expand in the future. The Judiciary must be prepared in advance. It is important to note that no decision is final and soon, there will be changes in the law to suit the needs of people. However, it should be kept in mind that the foundation of the constitution should not be disturbed.
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Name – Mimansa Roy
College- Symbiosis Law School, Hyderabad