Context

• A Constitution Bench of the Supreme Court on Tuesday unanimously and rightly ruled out any additional curbs on free speech by ministers. It said, like other citizens, they are guaranteed the right to freedom of expression under Article 19(1) (a), governed by the reasonable restrictions laid out in Article 19(2) and those are enough.

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What is the issue of freedom of speech to Ministers?

• Scope: Ministers and lawmakers enjoy the freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech.
• Restrictions: A five-judge Constitution bench held that curbs on free speech cannot extend beyond what is prescribed under Article 19(2) of the Constitution imposes reasonable restrictions and applies equally on all citizens.

What the court said?

• Rights are not residual privileges: Court said that the role of the court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges.
• Distinction on government’s responsibility and remarks by individual minister: The ruling also made a valid distinction on the government’s vicarious responsibility for ill-judged or hateful remarks made by its individual ministers, the flow of stream in collective responsibility is from the Council of Ministers to the individual ministers. The flow is not on the reverse, namely from the individual ministers to the Council of Ministers.
• Clarification on the concept of collective responsibility: It is not possible to extend the concept of collective responsibility, it said, to “any and every statement orally made by a Minister outside the House of the People/Legislative Assembly”.
• Public functionaries should be more responsible while they speak: Even while agreeing with the majority ruling, however, it is possible to underline the concern articulated in the minority judgment over a hateful public discourse “hate speech, whatever its content may be, denies human beings the right to dignity”. And to agree with it when it speaks of the special duty of public functionaries and other persons of influence to be more responsible and restrained in their speech, to “understand and measure their words”.

What is ‘Hate Speech’?

• There is no specific legal definition of ‘hate speech’.
• The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.
• Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.
• In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity

Brief Analysis: Hate speech by Ministers

• Problem is real but primarily political: The problem of hate speech by ministers and others belonging to the party in power is real, but it is primarily political.
• Solution is not in new law as, there are enough provisions to deal with it: The solution is not for the court to draw a new line, or even, as the minority judgment proposed, for Parliament to make another law. There are enough provisions in the statute book to deal with speech that promotes enmity and violence or results in cramping the freedoms of others.
• Legal provisions can be weaponised so what is needed is a political resolve: What is missing is the political resolve and will of governments to act on instances of hate speech, especially when they involve one of their own, and there are no legal shortcuts to make up for that absence. In fact, the same legal provisions that are designed to curb hate speech can be twisted and turned and weaponised by governments against citizens who dissent and disagree.

Conclusion

• The problem of hate speech by ministers and others associated with the party in power is real, but it is primarily political. The solution lies not in making new laws, but in individual responsibility and collective political resolve.

Mains question

Q. How do you understand hate speech? Do ministers and MLAs have freedom of speech? Discuss the recent court ruling on free speech restrictions on ministers.

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