No additional restriction to be imposed on freedom of speech: SC

Justice BV Nagarathna dissented and held that statements made by a minister are vicariously attributable to it

The Supreme Court on Tuesday declared that no additional curb can be imposed on the right to free speech of citizens as the reasonable restrictions prescribed under Article 19(2) of the Constitution are exhaustive.

A Constitution bench of Justices S A Nazeer, B R Gavai, A S Bopanna, V Ramasubramanian, and B V Nagarathna said under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) (freedom of speech and expression) upon any individual.

As per Article 19(2), the State can impose reasonable restrictions on the exercise of the right of free speech in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.

Answering a reference made on a statement made by then Uttar Pradesh Minister Azam Khan against Bulandshahr rape victims, the bench said a statement made by a Minister even if traceable to any affairs of the State or for protecting the government, cannot be attributed vicariously to the government by invoking the principle of collective responsibility.

"A mere statement made by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, may not constitute a violation of the constitutional rights and become actionable as Constitutional tort," Justice Ramasubramanian wrote on behalf of the bench.

"But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort," he said in 179-page judgement.

The bench also said fundamental right under Article 19/21 (freedom of speech and expression/right to life and liberty) can be enforced even against persons other than the State or its instrumentalities.

The court rejected a suggestion that the Prime Minister or the Chief Minister should be allowed to take action against the erring minister for his speech.

"The Prime Minister or the Chief Minister does not have disciplinary control over the members of the Council of Ministers. It is true that in practice, a strong Prime Minister or Chief Minister will be able to drop any Minister out of the Cabinet. But in a country like ours where there is a multi¬party system and where coalition governments are often formed, it is not possible at all times for a Prime Minister/Chief Minister to take the whip, whenever a statement is made by someone in the Council of Ministers," the bench said.

Justice Nagarathna, for her part, delivered a separate judgement.

On October 5, 2017, a three-judge bench referred the matter to the Constitution bench to decide whether a public functionary or a minister can claim freedom of speech while expressing views in sensitive matters which are under investigation.

A man, whose wife and daughter were allegedly gang-raped in July 2016 on a highway near Bulandshahr, sought transfer of the case to Delhi and lodging of an FIR against Azam Khan for his controversial statement. He subsequently apologised.