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The Supreme Court Constitution Bench has held by way of a majority that statements made by a Minister, even if traceable to any affairs of state, cannot be attributed vicariously to the government. Justice Nagarathna, who was also a part of the constitution bench, though held that greater restriction cannot be imposed on free speech, she has added that in case a Minister makes disparaging statements in his "official capacity", then such statements can be vicariously attributed to the government
While observing that in a human-dignity-based democracy, freedom of speech and expression must be exercised in a manner that would protect and promote the rights of fellow-citizens, Justice BV Nagarathan has held that hate speech, whatever its content may be, denies human beings the right to dignity.
In India, human dignity is not only a value but a right that is enforceable, the Supreme Court judge has added while penning down her separate views in the Supreme Court's recent decision wherein it held that no additional restrictions, other than those prescribed under Article 19(2) of the Constitution, can be imposed on the freedom of speech of MPs and MLAs and other public functionaries.
Noting that the term ‘hate speech’ does not find a specific place in Article 19(2) of the Constitution and it does not constitute a specific exception to the freedom of speech and expression under Article 19(1)(a), Justice Nagarathna has observed,
"Possibly the framers of the Constitution did not find the same to be of relevance in the Indian social mosaic considering that the other cherished values of our Constitution such as fraternity and dignity of the individual would be strong factors which would negate any form of hate speech to be uttered in our Country."
Justice Nagarathna has further opined that public functionaries and other persons of influence and celebrities, having regard to their reach, real or apparent authority and the impact they wield on the public or on a certain section thereof, owe a duty to the citizenry at large to be more responsible and restrained in their speech.
"They are required to understand and measure their words, having regard to the likely consequences thereof on public sentiment and behaviour, and also be aware of the example they are setting for fellow citizens to follow....While there are no infallible rules that can be formulated by the Court to define the precise threshold of acceptable speech, every citizen’s conscious attempt to abide by the Constitutional values, and to preserve in letter and spirit the culture contemplated under the Constitution will significantly contribute in eliminating instances of 71 societal discord, friction and disharmony, on account of disparaging, vitriolic and derogatory speech, particularly when made by public functionaries and/or public figures....", it has been added.
In reference to the concept of tortious liability of the government when disparaging remarks are made by Ministers, the judge has held that if fundamental rights have been violated, and if the court is satisfied that the grievance of the petitioner is well founded, it may grant the relief by enforcing a person’s fundamental right. Such relief may be in the form of monetary compensation/damages.
Justice Nagarathna has further added that the Parliament in its wisdom must enact a legislation or code to restrain, citizens in general and public functionaries, in particular, from making disparaging or vitriolic remarks against fellow citizens, having regard to the strict parameters of Article 19(2) and bearing in mind the freedom under Article 19(1) (a) of the Constitution of India.
She has added that respective political parties should regulate and control the actions and speech of its functionaries and members. This could be through enactment of a Code of Conduct which would prescribe 121 the limits of permissible speech by functionaries and members of the respective political parties, she has said.
"Any citizen, who is prejudiced by any form of attack, as a result of speech/expression through any medium, targeted against her/him or by speech which constitutes ‘hate speech’ or any species thereof, whether such attack or speech is by a public functionary or otherwise, may approach the Court of Law under Criminal and Civil statutes and seek appropriate remedies. Whenever permissible, civil remedies in the nature of declaratory remedies, injunctions as well as pecuniary damages may be awarded as prescribed under the relevant statutes....", the judgment adds.
Case Title: Kaushal Kishore vs. State of UP
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