This case deals with the Fundamental Right to Free Speech and Expression. As the case progresses we would came to know how intricate the simple looking Fundamental Rights are and how difficult it is to interpret them in today’s complex and ever changing social and political structure.
Facts:
In this case the 5 Judge Constitution Bench of the Supreme Court conjoined a Writ Petition (2016) and a Special Petition Leave (2016).
The Writ Petition is filed against the then Minister of Urban Affairs of the State of Uttar Pradesh. This Criminal Writ Petition was filed against the Minister on the pretext that the Minister had made derogatory remarks in his statement against a woman and her minor daughter who were victims of gang rape.
The petitioner while travelling with his family on NH 91 had been ambushed by a gang. The petitioner reported that all their money and jewelleries were snatched and the wife and minor daughter of the petitioner were raped. When this incident got in the limelight the then Minister of Urban Affairs of the Government of Uttar Pradesh called for a press conference in which he stated this incident as a “political conspiracy”.
The petitioner fearing that this may such a comment may lead to an improper investigation and also felling insulted by such negligent act on part of the Minister filed a Criminal Writ Petition against the Minister.
The Special Leave Petition arise out of two Writ Petitions that were made in Public Interest against the then Minister of Electricity in the State of Kerala.
The Minister allegedly made statements against women in a speech. One of the Petition was made praying for the establishment of a Code of Conduct that every Minister who has taken the oath of office as prescribed by the Constitution of India, will be needed to follow. Any act that will be in violation of the Code of Conduct will be punished by the Chief Minister. Another Writ that was filed called for punishment of the Minister for the utterance of such derogatory remarks by the Minister.
The High Court of Kerala found that it didn’t have the power to direct the Chief Minister to create a Code of Conduct for his Cabinet and on the pretext that the political party had already published a public censor on the event the High Court dismissed both the Writ Petitions this led to the genesis of the Special Leave Petition.
The Supreme Court finding that both the Petitions were dealing with the same problems in essence the restrictions on the Freedom of Speech and Expression conjoined the two and formed a 5 Judge Constitution Bench to give judgement on the same.
Issues Raised:
The Supreme Court had rightfully formulated 5 questions which essential to give judgement to for the Petition.
- Whether the provisions relating the to restriction of Free Speech and Expression under Article 19(2) of the Constitution is exhaustible or can Fundamental Rights not mentioned under Article 19(2) can also be invoked to restrict the Right of Free Speech and Expression?
- If a Fundamental Right laid down under Article 19 and Article 20 of the Constitution be claimed against non-state actors?
- Is the State under a duty to protect the Fundamental Rights of the citizen even when it is infringed by the act or omissions of another non-state actor?
- If a statement made by a Minister which is related to the affairs of the State or for the purpose of protecting the Government be attributed to vicarious liability specially in the context of Collective Responsibility?
- Whether a statement made by a Minister that is inconsistent with the provisions laid down in the Fundamental Rights constitutes a violation of such Right and should it be considered as a “Constitutional Tort”?
Contention:
Let us first understand the opinions given by the amicus curiae regarding the questions mentioned above.
First question:
R. Venkatramani (AGI) opined that the provisions restricting the Freedom of Speech and Expression are already present under Art 19 sub-clause (2) and (6) which are exhaustive therefore restrictions from other provisions cannot be invoked for the restriction of Free Speech and Expression. Adding or altering the restrictions would result in altering the Constitution itself which is not in the domain of the Judiciary.
Ms. Aparajita Singh opined that new restrictions cannot be added to the Right to Free Speech and Expression as the provisions mentioned in Art 19 (2) are exhaustible. She further stated that when there is a conflict between two Fundamental Rights the court has always tried to strike a balance between the two.
Second question:
Mr Venkatramani stated that the Constitution already has provisions for claims of Fundamental Rights against the State as well as has provisions for claiming Fundamental Rights against private individuals. Therefore if a new provision is made that would result in a Constitutional change which again is not in the domain of the Judiciary to make.
Ms. Singh stated that there are separate provisions under which both the State and non-State actors can be punished for the violation of Fundamental Rights.
She added that the State if always under an obligation to protect the Fundamental Rights of a citizen even if it is breached by another private entity.
Third question:
According the Mr. Venkatramani there are already sufficient Constitutional and legal remedies for the protection of Fundamental Rights and there need not be any further duty on the part of the State to ensure the non-violation of the Fundamental Rights.
According to Ms. Singh Fundamental Rights should not only be regarded as negative Rights against the State but also positive obligations of the State to protect those Rights from being violated.
Fourth question:
Mr Venkatramani opined that if the Conduct of a Minister, that is traceable to the discharge of public duty or duties of the office, is in violation of the law then such misconduct can be linked with the principles of Collective Responsibility. But a Minister’s act on his personal capacity cannot be attributed to Collective Responsibility.
Ms. Singh has also the same opinion. She in her statement has widened the scope of what duties of the office is but stating certain questions that needs to he asked regarding if the act done or omission made was in the personal capacity of the Minister or it was a public duty.
Fifth question:
R. Venkatramani is of the opinions that the legal frame work in respect to what a “Constitutional Tort” is, is still unclear. Therefore there need to be a proper legal framework for understanding “Constitutional Tort” first to avoid confusions.
Ms. Singh is of the opinion that State acts through it’s functionaries and that any act violating the Fundamental Rights would be considered as a Constitutional Tort on the part of the State. She further states that sovereign immunity that the State has against tortious acts has been held inapplicable when such act violates the Fundamental Rights.
Now let’s comprehend what the advocate for the SLP petitioner Mr Kaleeswaram Raj has submitted to the court. The key takeaways from his written submission are as follows:
The learned counsel states that the stating of an incident as a political conspiracy doesn’t violate the provisions mentioned in Art 21.
Mr Kaleeswaram Raj mentions the vertical (Rights are claimed only against the State) and horizontal (Rights can be claimed against both State as well as non-State actors) approach with regards to these provisions. According to him since the role of the State is ever expanding therefore there needs to be a shift from the vertical application of these Rights to a horizontal application.
He remarks that when there is a conflict between Rights, it us important keep in mind that Constitutional Rights are different than Constitutional values. Rights are to be respected whereas values are to be promoted.
The counsel stated that even though it is important for Ministers to have their Freedom of Speech and Expression a Code of Conduct to regulate the speech and actions of the Ministers is Constitutionally justifiable.
Rationale
The Constitution Bench consisting of Adbul Nazeer J, B.R. Gavai J, A.S. Bopanna J, V Ramasubramanian J, and B.V. Nagarathna J gave the following judgement:
The restrictions in regards to the Freedom of Speech and Expression as mentioned under Art 19(2) was held to be exhaustible. The Bench also stated that even when two Rights compete additional restrictions cannot be imposed upon the rights.
Article 19 and 21 are subject to the horizontal approach. Meaning that these two Rights can be claimed against both the State and non-state actors.
The bench stated that the state is under the duty to protect the rights of a person as stated under Article 21 of the Constitution even if the infringement has been made by a non-state actor.
A statement made by a Minister that is traceable to the State affairs or the protection of government cannot be attributed to Collective Responsibility.
Any statement made by a Minister that is not in accordance with the Fundamental Rights of the citizens may not constitute as Constitutional Tort, unless it is proved that due to such a statement there has been a harm or loss to the person.
Defects of Law:
The court has cited that whenever two Rights compete with each other the court has “legal tools” to deal with it. This legal tool in this context refers to the balancing of the two Rights so that no one’s right is violated. But the court also states that the provisions under Art 19(2) are exhaustible and no additional restrictions cannot be imposed. Thus the two statements made by the court in this case are contradictory to each other. It can be either that Art 19(2) is exhaustive or that additional restrictions can be imposed from other Fundamental Rights, both cannot be true.
J. Nagarathna rightly points out a mistake in the majority judgement of the Bench that if Fundamental Rights are made amenable to horizontal approach then there was no point of the jurisprudence of “State” as mentioned in Art 12. For dealing with disputes between private individuals there are Civil courts which deal with the intricate problems as to what the facts of such disputes are. Writs should not be issued to resolve disputes between private individuals.
Another problem with the aspect of balancing the two Rights is that one cannot balance two vertical Rights. Since the vertical Rights hold the State liable for the violation of Rights therefor that do not compete. Thus there is no question of balancing Art 19(2) and Art 21.
Inference:
The judgement made in this case contradicts the previous judgements made and doesn’t give any proper justification as to why this judgement is superior. Thus it is going to create a huge amount of arguments and debates regarding what actually is the better jurisprudence.
The judgement also fails to impose proper restrictions against the misuse of the Freedom of Speech. As stated by J. Nagarathna that this is not an issue of balancing the Rights under Art 19 and Art 21 but simply a case of misuse of the Right of Free Speech and Expression by two Ministers.
Debjit Khan
Department of Law, Calcutta University