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No need for any additional restriction on freedom of expression or speech of public representatives: Supreme Court

Regarding the freedom of speech, the Constitution Bench has given an important decision and said that no additional restrictions can be imposed on the freedom of expression and speech of state or central government ministers, MPs / MLAs and persons holding high positions. There is already a comprehensive provision in Article 19 of the Constitution. In criminal cases, the statement made by the government or the minister related to its affairs cannot be considered as the statement of the government. It is the duty of the government to positively protect the fundamental rights of a citizen. Even if the violation is committed by a non-state actor.

The decision has been heard by the constitution bench of Justice S Abdul Nazeer, Justice Bhushan R Gavai, Justice AS Bopanna, Justice V Rama Subramaniam and Justice BV Nagaratna. Justice Ramasubramanian pronounced this decision of the majority. However, Justice BV Nagaratna, who was included in the bench, gave his own separate verdict. Justice Nagaratna made it clear that apart from the reasonable restrictions given in Article 19(2), additional restrictions cannot be imposed on public representatives. He had a different view on whether the minister’s statement should be considered as the government’s statement or not. He says that ministers can give statements in both personal and official capacity. If the minister is giving a statement in his personal capacity, then it will be considered as his personal statement. But if he is giving a statement related to the work of the government, then his statement can be considered as a collective statement of the government.

He also disagreed with the majority’s decision on the question that rights under freedom of speech and to life cannot be claimed before constitutional courts against private individuals and non-state actors except in habeas corpus cases. He said that Parliament has to make laws to prohibit citizens and government officials from making derogatory remarks, especially on fellow citizens. Political parties should control the speech of their members which can be done by code of conduct.

Justice Nagaratna said that the access of public functionaries and other influential persons and celebrities has more influence on the public or a certain section. In such a situation, one should be responsible and restrained in his speech.

They need to understand and measure their words with regard to the possible consequences on public sentiment and behaviour. It should also be known that they are setting examples for fellow citizens to follow. Fraternity was based on the idea that citizens have mutual responsibilities to each other and, inter alia, tolerance, co-operation and mutual aid Let’s take the ideals of.

It is the fundamental duty of every citizen of India to maintain and protect the sovereignty, unity and integrity of the country. To promote harmony and the spirit of common brotherhood among all the people of India irrespective of religious, linguistic, regional and sectional diversities. It is the constitutional obligation of every citizen to renounce practices derogatory to the dignity of women and to strive towards excellence in all spheres of individual and collective activity. So that the nation may continually rise to higher levels of endeavor and achievement. The fundamental duties of citizens also constitute the core constitutional values ​​for good citizenship in our democracy.

All citizens were enjoined with the obligation to promote fraternity, harmony, unity and collective welfare.” It is for political parties to regulate and control the actions and speech of their office-bearers and members. This is done through a code of conduct. which shall determine the limits of acceptable speech by the office-bearers and members of the political parties concerned.

In fact, on 15 November 2022, the court had reserved the verdict. The bench had on September 28 said that it is necessary to frame “general guidelines in thin air” to prevent public leaders including government ministers, MPs, MLAs or political party presidents from making indecent, defamatory and hurtful statements in public. may prove difficult.

The bench was of the opinion that it was difficult to lay down central guidelines without examining the factual background and could only decide on a case-to-case basis. The constitution bench of Justice S Abdul Nazeer, Justice Bhushan R Gavai, Justice AS Bopanna, Justice V Rama Subramaniam and Justice BV Nagaratna said during the hearing that when and to what extent the fundamental right of expression has to be curbed. No general order can be given in this regard.
It depends on each case.

Justice Nagaratna said that when there is already a provision for restriction along with rights and duties in the constitution, then there is no meaning of separate prohibition. In fact, the then Attorney General KK Venugopal had said to keep the hearing on only four questions.

▪️The first issue is whether the freedom of expression and speech can be curbed? If yes, to what extent and how?

▪️The second issue is that if someone posted on a high post in the administrative or government misuses his freedom, then how would it be possible to curb it?

▪️According to Article 12, if any person, private corporation or other institution encroach on it, then how will they come under the purview of the ban, despite the shield of fundamental rights under Article 21 of the Constitution?

▪️The fourth and last issue is whether the government has the right to do this under the statutory provision?

The constitution bench of the Supreme Court had to decide whether in the name of freedom of expression, in any criminal case, government ministers or people’s representatives can make any statement contrary to the law? In 2017, a three-member bench of the Chief Justice in the Supreme Court recommended sending the matter to a constitution bench.

In fact, the Supreme Court was hearing the controversial statement of Azam Khan in the Bulandshahr gang rape case. Azam had termed this incident as just a political conspiracy. Although Khan had unconditionally apologized to the court. The court had also accepted the apology. Then the court had also said that in the name of freedom of speech, is it appropriate for a government minister or public representative to make statements contrary to policy matters and law in criminal cases?

During the hearing, amicus curiae Harish Salve had said that the minister is responsible for the constitution and he cannot make statements against the policy and policy of the government.

Significantly, in the Bulandshahr gang rape case, former UP minister Azam Khan had given a controversial statement, later Azam Khan had unconditionally apologized for his statement, which was accepted by the court. After this, the Supreme Court raised several constitutional questions which had to be tested. This petition was also filed in 2016 in the name of Kaushal Kishore vs. State of Uttar Pradesh.