New Delhi: The Supreme Court Wednesday ruled with a 4:1 majority that statements made by a minister, even if these statements are traceable to any affairs of the State or for protecting the government, cannot be attributed vicariously to the government. This means that the government cannot be held vicariously liable for statements made by a minister.
In doing so, a bench comprising Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna also ruled that restrictions under Article 19(2) of the Constitution are exhaustive and no additional restrictions can be incorporated into this list. Article 19(2) lists down eight grounds on which the right to freedom of speech and expression can be reasonably restricted — interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.
What this means is that additional restrictions, over and above what are already placed on the freedom of speech and expression under Article 19(2), cannot be imposed on the freedom of speech of public functionaries, ministers, members of Parliament and legislative assemblies, but the government cannot be held liable for statements made by a minister.
The majority opinion was authored by Justice Ramasubramaninan, while Justice Nagarathna wrote the dissenting judgment.
While Justice Nagarathna agreed that free speech cannot be restricted on grounds other than those mentioned in Article 19 (2) of the Constitution, she opined that in case a minister makes disparaging statements in his “official capacity”, traceable to any affairs of the state or may be made to protect the government, then such statements can be vicariously attributed to the government. However, she clarified that if the statements of the ministers are stray remarks inconsistent with the stand of the government, then they would be treated as a personal remark.
Notably, the majority opinion also ruled that a fundamental right under Articles 19 and 21 can be enforced against people other than the State or its instrumentalities. This means that these rights can be enforced even against private individuals and entities, and therefore, petitions could be filed in court in such cases.
However, the court ruled that a civil action, like monetary compensation, can be brought against the government in cases in which a statement made by a minister, inconsistent with the fundamental rights of a citizen, results in any act of omission or commission by the officers resulting in harm or loss to any person.
While Article 19(1)(a) of the Constitution guarantees freedom of speech and expression to all citizens, Article 19(2) mentions grounds on which such freedom can be restricted. Article 21 guarantees the right to life and personal liberty to all.
Also read: SC orders cops & state govts to take ‘suo motu’ action against hate speech, or face contempt
Petitions on speeches made by ministers in UP, Kerala
The case before the court arose out of petitions on speeches made by ministers of Uttar Pradesh and Kerala. The first petition had arisen out of a statement made in 2016 by Azam Khan, then Minister for Urban Development with the UP government, with regard to the alleged gangrape of a mother-daughter duo on a highway near Bulandshahr in July 2016. Khan had called the incident a “political conspiracy”. The survivors had then filed a petition before the Supreme Court seeking action against Khan. While directing Khan to submit an unconditional apology in 2016, the court had said that the case raises serious constitutional questions regarding the freedom of speech and expression, and probable impact of statements of those holding high offices on free and fair probe in heinous cases.
The Kerala case concerned certain controversial remarks made by senior CPI(M) leader M.M. Mani against a female principal of a local polytechnic college in Kerala, as well as women laborers in a tea plantation.
The matter was referred to a Constitution bench on 5 October, 2017. The Constitution bench formulated five questions to be decided by the court on 24 October, 2019.
The majority judgment began with quotes by a Tamil poet and philosopher Thiruvalluvar, a Sanskrit verse, and the Book of Proverbs of the Bible, emphasising the importance of “sweet speech”.
It then looked at the judicial history of the evolution of Article 19(2), as well as the grounds under which it allows reasonable restrictions to be placed on free speech. The court explained that these eight grounds restrict free speech to protect individuals, groups of persons, sections of society, classes of citizens, the court, the State, and the country.
“The restrictions under clause (2) of Article 19 are comprehensive enough to cover all possible attacks on the individual, groups/classes of people, the society, the court, the country and the State,” the court pointed out, noting that courts have repeatedly held that any restriction which does not fall within the four corners of Article 19(2) will be unconstitutional. It, therefore, held these grounds to be exhaustive.
When rights violated by private persons
The court opined that there are certain Articles in Part III of the Constitution which are inherent in people.
For instance, it referred to the right under Article 15(2)(a) and 15(2)(b), which say that “no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and palaces of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public”.
It explained that the owner of a shop, public restaurant, hotel or place of entertainment, though a non-State actor, cannot deny access to a citizen of India on grounds only of religion or caste or race.
The court, therefore, concluded that fundamental rights under Articles 19 and 21 can be enforced even against people other than the State or its instrumentalities. This means that any violation of these rights, even by private persons, can be taken to court.
Duty to protect rights under Article 21
With regard to the State’s duty to protect a person’s rights under Article 21 of the Constitution, even when it is being threatened not just by the government, but by private persons, the court explained that Article 21 does not say “the State shall not deprive a person of his life and liberty”, but says that “no person shall be deprived of his life or personal liberty”.
It also pointed out that when the word “life” was understood to mean only physical existence, the deprivation of this life was conceived to be possible only by the State. But the moment the right to life under article 21 was developed into a bouquet of rights and science and technology intruded into all spheres of life, the deprivation of the right by non-State actors also became possible, it added. These bouquet of rights includes the right to privacy, along with right to food, water, decent environment, medical care and shelter.
It further noted that in the past three-four decades, several functions of the government have either been outsourced to non-State actors or been entrusted to public-private partnerships.
It, therefore, ruled that “the State is under a duty to affirmatively protect the rights of a person under Article 21, whenever there is a threat to personal liberty, even by a non-State actor.” This includes threats to personal liberty by another citizen or a private agency.
Can bring civil action if harm or loss caused
The court also ruled that a mere statement made by a minister, which is inconsistent with the fundamental rights of a citizen, may not constitute violation of the constitutional rights and become actionable as a ‘Constitutional tort’ — which is a legal tool that allows the State to be held vicariously accountable over the actions of its agents.
A constitutional tort is a violation of a person’s constitutional rights, particularly fundamental rights, by an agent of the government, acting in his/her official capacity. In other words, it introduces remedies for those whose Constitutional rights are violated by a government employee.
However, the court clarified that if such a statement results in any act of omission or commission by the officers resulting in harm or loss to any person, then it can be actionable as a Constitutional tort. Therefore, a civil action, like demand for compensation, can be brought against the government in such cases.
(Edited by Poulomi Banerjee)
Also read: Justice Nagarathna’s dissent in ministers’ speech case: ‘Hate speech denies right to dignity’