Restrictions on Public Official’s Freedom of Speech: Judgement SummaryAzam Khan – Freedom of Speech and Expression
On January 3rd, 2023, a 5-Judge Constitution Bench held that the grounds to restrict Freedom of Speech under Article 19(2) are limited. Further, the State is obligated to protect fundamental rights if they are under threat by non-State actors or private individuals. Lastly, the Government is not accountable for all views and opinions expressed by a Minister in their agencies.
On 29th July 2016, a young girl and her mother were allegedly gang-raped on National Highway 91. When the victim filed an FIR, Uttar Pradesh Minister and Samajwadi Party leader Azam Khan made a statement terming the victim’s FIR as a ‘political conspiracy against the Uttar Pradesh Government.
In August 2016, the victims approached the Supreme Court, seeking action against the minister for making such remarks about the incident. They argued that Mr. Khan’s statements interfered with fair investigation of their allegations, and requested the Court to transfer the case to another State. The Court engaged Mr. Fali S Nariman to assist the Court as Amicus Curiae and ordered a stay on the investigation. Mr. Nariman pointed out that the Court is constitutionally obliged to evolve new tools to enhance the cause of justice by instilling public confidence in the fairness of trial, clarifying principles of law on interference with police investigation, and clarifying what is to be done if comments are made on the investigation or on the victim by a public personality or a public servant.
On 17th November 2016, the Court ordered Mr Azam Khan to offer an unconditional apology for his comments.
However, the Court identified some core issues that needed to be addressed. They were about the right to freedom of speech and expression of public officials under Article 19(1)(a), and the possible restrictions under Article 19(2). It would also look into whether other Fundamental rights, such as the Right to Life under Article 21 could be a restriction on another’s free speech.
On 20th April 2017, the Court referred the matter to a 5-Judge Constitution Bench.
Issues in Focus
- Can the Freedom of Speech and Expression be restricted on grounds outside of those contained in Article 19(2) of the Constitution? Can the exercise of one's fundamental right place additional restrictions on the right to speech and expression of another?
- Can a person claim the right to life and liberty violations under Article 21 of the Constitution against non-State actors like other private individuals?
- Does the State have an obligation to protect citizens from violations of their Right to Life and Personal Liberty from other non-State actors?
- Can statements made by public officials be attributed to the government if it is linked to state affairs?
- Can statements made by public officials be actionable as a ‘constitutional tort’, if it affects a person's constitutional rights? (A ‘Constitutional tort’ is a remedy where a State is held liable for acts committed by its entities.)
Grounds under Article 19(2) are exhaustive
The Bench held that the restrictions under Article 19(2) protect individuals and sections of society, prevent contempt of Court, and protect the security of the country. As these restrictions cover all necessary aspects, any restrictions beyond these are unconstitutional. They referred to some notable cases to reach this conclusion:
- Express Newspapers (Private) Ltd. v The Union of India (1958) – Any restriction outside Article 19(2) would be struck down.
- Secretary, Ministry of Information & Broadcasting, Govt. of India v Cricket Association of Bengal (1995) – Restrictions on free speech can only be imposed on the basis of Article 19(2).
- Ramila Maidan Incident v Home Secretary, Union of India (2012) – Restriction on fundamental rights should be reasonable and must be related to Article 19(2).
The Bench further examined whether the exercise of one’s fundamental right to liberty can impose additional restrictions on another’s right to speech and expression.
They referred to Life Insurance Corporation of India v Prof. Manubhai D. Shah (1992) where it was held—“A citizen who exercises this right must remain conscious that his fellow citizen too has a similar right. Therefore, the right must be so exercised as not to come in direct conflict with the right of another citizen.” In R. Rajagopal v State of Tamil Nadu (1994) the Court favoured the right to privacy (a facet of the right to liberty) over the right to freedom of expression of another person. This means that one cannot exceed their right to speech to such an extent that one’s privacy or liberty is violated. There is a need for balance and ‘mutual respect’ between the fundamental rights of individuals.
However, this Constitution bench ultimately concluded that one cannot invoke other fundamental rights or impose additional restrictions other than Article 19(2) on the right to speech of another.
Fundamental Rights are Enforceable Against Non-state Actors
The Bench held that the Constitution has fundamental rights that deal with relationships between private individuals—Article 21 is one such fundamental right. In MC Mehta v Kamal Nath (2000) a private company had to pay compensation for environmental damage, which was found to have violated Article 21. In Vishaka v State of Rajasthan (1997), the SC imposed obligations on private employers to safeguard the fundamental rights of working women. On this basis, the Bench concluded that the fundamental right to liberty can be enforced against non-state actors or private individuals.
Justice B.V. Nagarathna in her separate opinion offered a different view. She held that Fundamental Rights against non-State actors can be exercised if they are recognised by a statute or as a common law right. She stated that statutes such as the Indian Penal Code, 1860 have incorporated the right to liberty and allow a person to take action against non-State actors. A person cannot directly enforce their fundamental rights against a non-State actor unless it is backed by a statute. She specifically pointed out that only in the instances of ‘illegal detention’ a Writ of Habeas Corpus can be directly filed against a non-State actor.
State must Protect Fundamental Rights of Persons against Non-State Actors
The Bench referred to the hierarchy of rights and held that the right to liberty holds supreme importance over all other rights. Thus, it is the duty of the State to ensure that a person’s liberty is not deprived by a non-State actor. They relied on K.S. Puttaswamy v Union of India (2017) which said that the right to privacy should not be interfered with by both State and non-State actors. They cited National Human Rights Commission v State of Arunachal Pradesh & Anr. (1996) where the Court held that State is bound to protect the life and liberty of every human being, even from private individuals.
Justice Nagarathna had a similar point of view. She stated that Article 21 casts a duty on the State to protect the life and liberty of a person from non-State actors. This means that the State has an obligation to involve itself when acts of private individuals threaten to deprive these rights.
Government not Liable for Personal Statements Made by Ministers
The Bench discussed ‘collective responsibility’ which holds the Government responsible for all statements made by ministers inside the Houses of the Parliament or in the State legislative assemblies. They stated that ‘collective responsibility’ does not extend to every statement made by a minister, especially when it is outside the Houses or State assemblies.
Justice Nagarathna gave a more elaborate explanation. She held that a statement of a minister can be attributed to the Government if it was made in an ‘official capacity’. These statements must be consistent with the views of the Government. A statement is said to be in ‘personal capacity’ if it is contrary or inconsistent with the Government’s view. When the statement is made in the personal capacity of the minister, the Government shall not be held liable.
‘Irresponsible’ Speech by Ministers does not form a ‘Constitutional Tort’
The Bench ruled that public officials cannot be liable for every statement or opinion they express. While such statements may arise from a lack of adherence to constitutional morality, it does not warrant the need for a ‘Constitutional Tort’. However, the Court clarified that the remedy will be available if a statement results in an action that causes injury, harm, or loss to individuals or groups.
Justice Nagarathna suggested the need for a proper framework to decide on acts that would require the need of a ‘Constitutional tort’, as every statement is not actionable.