To frame general guidelines in “thin air” to restrict Government Ministers, MPs, MLA or public leaders, including political party presidents, from making unguarded, derogatory and hurtful statements in public may prove “difficult”, a Constitution Bench prima facie said on Wednesday.
The oral observation came from a Constitution Bench led by Justice S. Abdul Nazeer while hearing a reference on the question whether the right to free speech and expression of high public functionaries require “greater restrictions”.
“Can we lay down some central guidelines without examining the factual background? We cannot decide this question in thin air. We need to decide this on a case-to-case basis,” Justice Nazeer said.
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Justice B.V. Nagarathna said “reasonable restrictions” on the right to free speech under Article 19(1)(a) were already there under Article 19(2) of the Constitution. The judge asked whether it was right on the part of the court to impose a further law on free speech over and above the restrictions already imposed under Article 19(2). There are other remedies already available like civil/criminal injunctions, torts, general laws, etc.
“Right to freedom of speech and expression is essentially against the state. Article 19(2) imposes reasonable restrictions. Now if a particular person has made a speech which is not liked by somebody, the latter can always take action under other laws. When Article 19(2) is already there, there cannot be some other restriction over and above it. The Constitution does not recognise that,” Justice Nagarathna noted.
Advocate Kaleeswaram Raj, for petitioner Joseph Shine who has moved against comments made by Kerala minister M.M. Mani, agreed that such a judicially-imposed restriction over and above Article 19(2) may not be impermissible.
“But when there are horizontal and repeated violations by a public functionary what can be done?” he asked. Mr. Raj said foreign jurisdictions practice “self-regulation” guidelines for public functionaries, conscious of the fact that their words have a far greater impact than that of an ordinary person. India could borrow that model and set guidelines on how “a public functionary should behave publicly”, he suggested.
Solicitor General Tushar Mehta accepted that a public functionary should be more guarded in speech than an ordinary person. “But judicially demarcating the threshold may likely prove difficult,” the law officer said.
Justice B.R. Gavai, on the Bench, agreed, saying that such restrictions should be considered only 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 sprouted from a petition filed by the family members of the Bulandshahr rape case victim against a former Minister’s public statements that the rape case was part of a political conspiracy against the then Akhilesh Yadav Government.
The Minister subsequently apologised unconditionally in the apex court. But the court had decided to examine the question of imposing curbs on the free speech of public functionaries in sensitive matters.
Attorney General K.K. Venugopal had at the time flagged issues which the Constitution Bench ought to consider, including whether reasonable restrictions under Article19(2) should be expanded or not.
The Attorney General had said the Bench should further answer whether private persons and corporations could be held liable for violating Article 21.
The case had initially been taken up by another Constitution Bench, but the hearing was left incomplete. Justice Arun Mishra (now retired), who had led the earlier Constitution Bench, had, in a hearing in 2019, said both free speech and right to life were equally important.
"So, the question is can free speech be restricted by invoking Article 21? Can a person's right to free speech be curbed on the ground it affects another's right to lead a dignified life under Article 21?" Justice Mishra had wondered.
