New Delhi: A Constitution Bench on Wednesday said it would frame general guidelines in “thin air” to ban government ministers, MPs, legislators or public leaders, including political party presidents, from making derogatory, derogatory and hurtful statements in public. difficult” may prove to be.
The oral remarks were made by a constitution bench headed by Justice S Abdul Nazeer while hearing a reference to a question whether “more restrictions” are needed for the right of free speech and expression of high public functionaries.
“Can we set some central guidelines without doing factual background checks? We cannot decide this question in the air. We need to decide this on a case-to-case basis,” Justice Nazeer said.
Justice BV Nagarathna observed that “reasonable restrictions” on the right to freedom of expression under Article 19(1)(a) already existed under Article 19(2) of the Constitution. The judge asked whether it was right on the part of the court to impose another law on freedom of expression over and above the restrictions already imposed under Article 19(2). Other remedies are already available like civil/criminal injunction, torture, common law etc.
“The right to freedom of speech and expression is essentially against the state. Article 19(2) imposes reasonable restrictions. Now if a particular person has given a speech which no one likes, he can always take action under other laws. When Article 19(2) is already there, there cannot be any other restriction on it. The Constitution does not recognize it,” Justice Nagarathna said.
Advocate Kaleeswaram Raj, appearing for the petitioner Joseph Shine, who represented Kerala Minister M.M. Mani agreed that such a restriction imposed judicially over and above Article 19(2) cannot be permissible.
“But what can be done when there is a horizontal and repeated violation by a public functionary?” He asked. Mr Raj said foreign jurisdictions who follow “self-regulation” guidelines for public functionaries are aware of the fact that their words have a far greater impact than those of an ordinary person. He suggested that India could borrow that model and set guidelines on “how a public official should behave in public”.
Solicitor General Tushar Mehta accepted that a public functionary should be more secure in speech than an ordinary person. “But setting the limit judicially may prove difficult,” said the law officer.
Justice B.R. Gavai on the Bench agreed, saying that such restrictions should only be considered on the individual facts of each case.
The court decided to examine the question on November 15.
The reference to a Constitution Bench was made two years ago in April 2017. It was sparked by a petition filed by the family members of the Bulandshahr rape case victim against a former minister’s public statement that the rape case was part of a political conspiracy against the then.
The minister later tendered an unconditional apology in the apex court. But the court had decided to examine the question of restrictions on freedom of expression of public functionaries in sensitive matters.
Attorney General K.K. Venugopal then raised issues that the Constitution Bench should consider, including whether reasonable restrictions under Article 19(2) should be extended or not.
The Attorney General had said that the Bench should further answer whether private individuals and corporations can be held liable for violation of Article 21.
The matter was initially taken up by another Constitution Bench, but the hearing was left incomplete. Justice Arun Mishra (now retired), who headed the earlier Constitution Bench, had said in a hearing in 2019 that both free speech and the right to life are equally important.
“So, the question is whether freedom of expression can be restricted by invoking Article 21? Can a person’s right to free speech be curtailed on the ground that it is a matter of living a dignified life under Article 21? affects the rights of another?” Justice Mishra thought.
