The Supreme Court has held that there is no reason to impose “additional restrictions” on the right to free speech of Ministers and the government is not vicariously liable for disparaging remarks made by them, even if the comments are traceable to state affairs or meant to protect the government.

Why are we discussing this?

• Many politicians make unwarranted statements and tender an apology in return.
• The PM or the CM does not have disciplinary control over the members of the Council of Ministers.
• In a country like ours, where there is a multi-party system and where coalition Governments are often formed, it is not possible at all times for the whip to control the politician’s behavior.
• A derogatory speech that closely resembles hate speech cannot fall within the ambit of the free speech right.

Do ministers and lawmakers have absolute freedom of speech?

• 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 is the case?

• The proceedings in the case began when the top court took cognisance of a controversial statement made by former UP minister in July 2016.
• He had allegedly termed a gang rape case as part of a “political conspiracy”. While he was let off with an unconditional apology, the Court agreed to examine the larger issue.
• In October 2017, a three-judge bench referred the matter to the constitution bench to decide on various aspects of the matter.

Key issues examined

• Free speech and sensitive issues: The top priority was to examine whether ministers, public functionaries and lawmakers can claim freedom of speech while expressing views on sensitive matters.
• Free speech and state matters: Another key aspect of the matter was whether a statement by a minister in relation to any affairs of the State or for the protection of government can be attributed vicariously to the government itself.

What does Article 19 say?

• Freedom: Article 19(1) (a) guarantees the freedom of speech and expression to all citizens. It is the first condition of liberty and plays an important role in forming public opinion.
• Restrictions: As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:

1. Sovereignty and integrity of India,
2. Security of the state,
3. Friendly relations with foreign states,
4. Public order, decency or morality, or
5. In relation to contempt of court,
6. Defamation, or
7. Incitement to an offense

What does the judgment say about free speech restrictions?

• Citizens had the right to petition the Court for violations of Article 19 (freedom of expression) and Article 21 (right to life).
• A statement made by the Minister, inconsistent with the rights of the citizens, may not by itself be actionable.
• It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly.

Way forward

• Legal framework: A proper legal framework was necessary before taking action as a constitutional tort.
• Political will: Parliament could enact legislation or code to restrain citizens in general and public functionaries in particular from making disparaging or vitriolic remarks against fellow citizens.
• Code of conduct: Likewise, political parties should come up with a code of conduct to regulate and control the actions and speech of their functionaries and members.

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