Not a word more, not a word less

The Constitution of India extends the fundamental right to freedom of speech and expression to its citizens. However, the right to free expression is not absolute, as the Constitution imagines reasonable restrictions that the law may place on this power. Several laws that restrict free expression, such as those that punish sedition, hate speech, or defamation, are authorised by Article 19(2) of the Constitution.

Freedom of expression is crucial to a democracy. But what of freedom of speech in the case of hate speech? For a little more than a decade, many from different segments of society have questioned whether hate speech may be justified under the right to free expression, with differing opinions.

But the issue here is broader; it entails a restriction on the freedom of expression of ministers and public officials. The Constitution Bench, led by Justice S Abdul Nazeer, ruled unanimously that freedom of speech under Article 19(1)(a) of the Indian Constitution may only be curtailed for the reasons specified in Article 19(2). The infringement of other fundamental rights as a result of such speech cannot be used to justify restricting freedom of expression.

This controversy developed as a result of remarks made by Azam Khan, a Samajwadi Party MP. In 2016, he alleged that the claims of gang rape lodged by a 13-year-old girl and her mother against those who approached them on a highway in Uttar Pradesh were part of a “political plot against the UP administration.” The two victims filed a petition with the Supreme Court, arguing that the statement infringed on their right to life and liberty by interfering with the current inquiry into their charges.

The Supreme Court’s Constitution Bench in the matter of Kaushal Kishor vs. State of Uttar Pradesh stated earlier this month that a minister’s speech would be enforceable as a constitutional tort if it causes an act or omission by State agents that causes injury or loss to a person or citizen. (A constitutional tort is a legal mechanism that enables the State to be held vicariously liable for the deeds of its agents. There is a legal endeavour to acquire a legal remedy in the form of damages if any civil rights are violated.)

In its decision, the Supreme Court rightly rejected additional restrictions on ministers’ freedom of expression. They have the same rights to freedom of expression as other citizens under Article 19(1)(a), which are subject to the limitations outlined in Article 19(2). This is sufficient, the court said. The purpose of the court is to preserve fundamental rights constrained by valid limits, not to protect restrictions and render the rights residual privileges.

The majority decision also distinguished between the vicarious liability of the government and the vicarious responsibility of its individual ministers, saying that the stream of collective responsibility flows from the Council of Ministers to the individual ministers and not from the respective ministers to the Council of Ministers. It said that the comments made by a minister outside the Parliament/Legislative Assembly cannot be included in the idea of collective accountability.

In her dissenting opinion, Justice Nagarathna referred to Michael Rosenfeld’s writings in Hate Speech in Constitutional Jurisprudence, which note that speech made by a person of influence, such as a top official or executive functionary, an opposition leader, a political or social figure with a large following, or a credible anchor on a television programme, carries much more weight and impact than a statement made by a common man.

She emphasised the idea that public figures and people of influence have real or apparent authority over and an impact on the public. As a result, they owe it to the general public to be more responsible and restrained in their speech and to understand that their words may have the potential to negatively affect public sentiments and behaviour.

It is for Parliament to enact a code of conduct to guide the executive’s actions and conduct, as mentioned by Justice Nagrathna. She was of the opinion that the actions of ministers can be attributed to the government and make it vicariously liable; unrestricted and unchecked rights encourage communal violence for political gain.

Hate speech by ministers and other ruling party members is essentially political. The issue cannot be resolved by the court setting a new boundary or even by Parliament passing new legislation, as suggested by the minority ruling. There are sufficient legal protections against speech that incites hatred and violence or restricts the liberties of others. Recourse against hate speech is present in Indian statutes but is mostly used to suppress dissent.

(Kartikeya is a legal researcher and Sharma is a final year student of law. They are based in Delhi.)