Day 2 CB Arguments

Azam Khan – Freedom of Speech and Expression

October 24th 2019


This case pertains to the contours of the fundamental right to freedom of speech and expression of Ministers. In particular, the Supreme Court is examining whether (a) it can be curtailed by the fundamental right to life and personal liberty under Article 21, and (b) it is horizontally applicable, i.e., are violations enforceable against private citizens, not just the State?


The Bench comprises Justices Arun MishraIndira BanerjeeVineet SaranM.R. Shah and S Ravindra Bhat. Today, it finished framing the issues to adjudicate upon, after hearing Attorney General (AG) K.K. Venugopal and Sr. Adv. Harish Salve, who is serving as an Amicus Curiae.


Justice Mishra began today by observing that some of the issues that AG K.K. Venugopal had proposed yesterday may require modification.  In particular, he remarked that issue 3, regarding whether fundamental rights can be enforced horizontally, may be too wide in scope. A fundamental right is horizontally enforceable when it is enforceable not only against the State, but even against private entities. Justice Mishra expressed concern that the issue would result in a judgment that may be misused and lead to an increase in Supreme Court pendency.


In response, the AG submitted that he had reconsidered his proposed issues in the following way:

  1. Can a fundamental right under Article 19 or 21 of the Constitution be claimed other than against the ‘State’ or its instrumentalities?
  2. Are the grounds specified in Article 19(2) exhaustive? Or, can restrictions on the right to free speech be imposed by invoking other fundamental rights? Article 19(2) allows the State to frame laws that pose reasonable restrictions on rights guaranteed under Article 19(1).
  3. Can a statement by a Minister in relation to any affairs of the State or for the protection of Government, be attributed vicariously to the Government itself?


Sr. Adv. Harish Salve submitted the following issues:

  1. Whether a statement made by a Minister, in relation to a matter of government business, is attributable to the government on account of the principle of ‘collective responsibility’? The principle is inherent to the Westminster system of democracy and expressly recognized in Article 75(2) and Article 164(2) of the Constitution.
  2. Whether a statement by a Minister that is inconsistent with the fundamental rights guaranteed under Part III of the Constitution constitutes a violation of such constitutional rights and is actionable?
  3. Whether the statement by a Minister, in relation to government business, which is violative of the constitutional rights of a citizen can constitute a ‘constitutional tort’ as being an action which is an ‘improper abuse of public power’ and thereby actionable in damages?
  4. Whether the limitations on speech arising out of holding a constitutional office constitute a violation of the right to free speech under Article 19(1)(a) of the Constitution?
  5. Whether the rights under Article 21 are available against private persons?
  6. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution, even against a threat to the liberty of this citizen by the acts or omissions of another citizen or private agency?


The Bench engaged in a brief discussion of some of the proposed issues. Justice Mishra emphasised that the Bench was not concerned with the facts of any particular case and only the relevant questions of law.


On the AG’s proposed issues

Reflecting on the AG’s issue 1, Justice Mishra said it should be confined to Ministers rather than non-state actors. He observed that otherwise the judgment will get misused.


Mr. Salve however urged the Bench to retain the issue as it stood. He submitted that non-state entities can exercise vast power. As an example, he submitted that WhatsApp was readings its users’ messages and defending itself by saying it was a non-state actor.


In response, Justice Bhat remarked that the applicability of fundamental rights to non-state actors did not directly arise out of the original case.


Mr. Salve submitted that he (in issue 6) had limited this issue to the responsibility of the State to regulate private entities. He asserted that this was distinct from negatively framing the issue as enforceable against non-state actors.


On Sr. Adv. Salve’s proposed issues

The Bench remarked that Sr. Adv. Salve’s issues 2 and 3 should be merged, as the latter flows from the former. Further, Justice Bhat suggested the issues should be narrowed to instances when a Minister makes a statement on an ongoing criminal investigation.


Turning to issue 4, Sr. Adv. Salve emphasised that restrictions on speech are not necessarily violations of the right to free speech and expression. He said that certain constitutional posts require restricted speech. He gave the example of judges, who are not allowed to freely dispose their personal opinions on certain issues.


Listed for 6 November

After discussing the proposed issues, the Bench framed the following issues:

  • AG: issues 1,2,3
  • Sr. Adv. Salve: issues 2 and 3 (merged together), issue 6


With this, the Bench listed the matter for 6 November 2019. Both the AG and Sr. Adv. Salve expressed doubt over whether they would be available on that date. Sr. Adv. Salve proposed that another lawyer could be appointed as a co-Amicus Curiae.


Justice Mishra took note of these remarks and directed the counsels to file written submissions and compilations of judgments prior to the next hearing.