SCO Daily: Can Public Officials’ Freedom of Speech be Curbed?

The SC ruled that the Freedom of Speech of public officials cannot be restricted on grounds outside of Article 19(2) of the Constitution.


On 3rd January, 5-Judge Constitution Bench led by Justice Abdul Nazeer held that the Freedom of Speech under Article 19(1)(a) of the Constitution of India can only be restricted on the grounds mentioned in Article 19(2). The Bench was hearing arguments on whether comments of a public official can be attributed to the government they represent, and if their comments can be restricted if it violated a fundamental right of another person. 

This case arose out of statements  made by Samajwadi Party MP, Azam Khan in 2016 where he called the allegations of the victims of a gang rape in Uttarpradesh, a ‘political conspiracy against the U.P. government’. A 13-year-old girl and her mother had filed a complaint against individuals who accosted them on a highway in Bulandshahr, UP. At the time, the Samajwadi Party led by Chief Minister Akhilesh Yadav was in power in the state. The two victims approached the Supreme Court claiming that the statement, made by a person in power, interfered with the ongoing investigation in the case. Taking away the possibility of a fair investigation violated her right to life and dignity.

In 2017, the Court Ordered Mr. Khan to issue an unconditional apology. However, the Bench indentified that the case invoked larger issues. Can the right to freedom of speech and expression under Article 19(1)(a) be restricted by only Article 19(2), or is it also restricted by other fundamental rights, specifically Article 21? The issue was referred to a 5-Judge Bench

This Constitution Bench heard the case for a single day on November 15th, 2022 before reserving Judgment. The petitioners requested the Court to deliver guidelines that would serve as a code of conduct for public officials until Parliament enacted a law on the subject. However, the Union cautioned the Court against this, stating that any code of conduct that would restrict free speech would have to come from Parliament.

Justice V. Ramasubramanian wrote the main opinion for himself and Justices Nazeer, Gavai and Bopanna. Justice B.V. Nagarathna delivered a separate concurring opinion, agreeing with the reasoning on the Bench but offering what she described as a ‘different perspective’. They held that Freedom of Speech can only be restricted by the grounds mentioned in Article 19(2) of the Constitution of India. These grounds include national security, public order, decency, and morality. However, citizens can claim fundamental rights violations against entities other than the State itself, and that the State has an obligation to protect fundamental rights even when they are at threat from someone other than the State. 

Justice Nagarathna made three suggestions to control the speech and conduct of public officials in the future:

  1. Parliament should enact a legislation that restricts public officials from making ‘disparaging remarks’ against other citizens. 
  2. Political parties should implement a code of conduct to control the actions and speech of public officials. 
  3. Citizens should approach the court under civil and criminal statutes in hate-speech cases and in cases where they have been harmed or have incurred a loss because of any speech made against them.

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