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Constitutional Bench Reserves Order – Discussed the Possibility of Further Limitation Being Imposed on the Speech of Public Functionaries

On November 15, the Constitutional bench headed by Justice S. Abdul Nazeer and comprised of Justice B.R. Gavai, Justice A.S. Bopanna, Justice V. Ramasubramanian, and Justice B.V. Nagarathna, on hearing the arguments of Attorney General R. Venkataramani, Solicitor General Tushar Mehta and other lawyers representing the parties involved, reserved an order regarding the issue arising out of the titular case – Kaushal Kishore v State of Uttar Pradesh, Government of U.P., Home Secretary.

The aforementioned case refers to a petition filed by the family of a rape victim of Bulandshehr against the political personality of one Azam Khan, who had stated that the rape case was nothing but a political conspiracy created against Akhilesh Yadav’s Government. Though an apology was filed, the court had already begun consideration of the wider concern the occurrence raised – Whether restrictions, beyond what is given in Article 19(2) need to be imposed on the freedom of speech of public functionaries.

The issue was referred to a constitutional bench headed by the now-retired Justice Mishra, who said that both free speech and the right to life are equally important but wondered whether one can be curbed to allow another, i.e., “Can a person’s right to free speech to be curbed on the ground that it affects another’s right to a dignified life under Article 21?”

The discussion in court focus on certain plains of thought –

Justice B.R. Gavai stated that the concerned issue would depend on the facts of the case wherever it arises, and Justice Venkataramani further articulated that the question before the court regarding disputing fundamental rights was propounded in a way that the court must not answer, and hence, based on the facts of the cases, discretion must be given to the division judges.

Justice Nagarathna referred that Article 19(2) of the constitution already curtailed the right to free speech and expression, and so does the existent civil, criminal and tort law – remedies to any person whose right has been infringed are assured, and public functionaries are given no special protection. The Amicus Curiae also reminded the court of the Nilabati Behera case, i.e., the precedent providing for action against a minister whose speech violated individual rights. It was considered that the constitution may not permit anything further limitations to a fundamental right, and even if it does, how far could it go?

Solicitor General Tushar Mehta, though, preferred that a Public Functionary owes more care in his speech than an ordinary person, for their speech may have a more widespread impact – the judicial demarcation required to provide such limitations would be difficult, and any guidelines that the court lays down could become counter-productive based on how they are interpreted and misinterpreted.

As a possible path to further curbing free speech in functionaries – Advocate Kaleeswaram Raj suggested the Self-Regulation Model, emulating ones in England or Australia or a kind of special Ombudsmen institution. To this, the Amicus Curiae countered, stating that a constitutional culture exists in India which involves unwritten rules regarding the deportment of Public functionaries and hence, no code of conduct from the court was needed. But Raj insisted that these controls were all self-imposed and hence had no checks in place to ensure them.

Though, it was reiterated and recognized that a statute was required based on statistics that since 2014, there has been a 450% rise in hate speech and 20 instances of it being done by ministers were listed before the court.

The Attorney General, though, clarified that if it is a matter of insufficient statute, it is to be discussed on the floor of the Parliament, and binding action by the court could amount to a transgression against the principle of Separation of Power.

By Vidisha Mathur

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