BY KRISHNADAS RAJAGOPAL
The Supreme Court on January 3, 2023 held 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.
“A statement by a Minister, even if traceable to any affairs of the state or for protecting the government, cannot be attributed vicariously to the government by invoking the principle of collective responsibility,” Justice V. Ramasubramanian held in the main judgment of the Constitution Bench. The judgment was endorsed by Justices S. Abdul Nazeer, B.R. Gavai and A.S. Bopanna on the Bench.
“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… The Prime Minister or the Chief Minister 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 a Prime Minister/Chief Minister to take the whip whenever a statement is made by someone in the Council of Ministers,” Justice Ramasubramanian observed.
In a separate opinion, Justice Nagarathna differed with the leading judgment on the point, saying a Minister’s statement, if traceable to any affairs of the State or for protecting the government, can be attributed vicariously to the government by invoking the principle of collective responsibility, “so long as such statement represented the view of the government too”.
“If such a statement is not consistent with the view of the government, then it is attributable to the Minister personally,” Justice Nagarathna drew the distinction.
Justice Ramasubramanian said the “reasonable restrictions” on free speech for citizens, including Ministers and public functionaries, were “exhaustive”. Besides, the state has an affirmative duty to protect when there is a threat to personal liberty, even by a non-State actor. The fundamental right to free speech and right to dignity could be enforced against private parties. There was no need to bring in further shackles on free speech in the guise of protecting the “competing” fundamental right to life and dignity under Article 21 of persons at the receiving end of a Minister’s comments, the judgment said.
But Justice Nagarathna said a derogatory speech which closely resembled hate speech did not fall within the ambit of the free speech right.
“Public functionaries and other persons of influence and celebrities, having regard to their reach, real or apparent authority and the impact they wield on the public… owe a duty to the citizenry at large to be more responsible and restrained in their speech. They are required to understand and measure their words… Therefore, when such speech has the effect of infringing the fundamental right under Article 21 of another individual, it would not constitute a case which requires balancing of conflicting rights,” Justice Nagarathna observed.
Justice Nagarathna said hate speech struck at the foundational values and violated the fraternity of citizens from diverse backgrounds.
“The Preamble of the Constitution which envisages, inter alia, fraternity, assures that the dignity of individuals cannot be dented by means of unwarranted speech being made by fellow citizens, including public functionaries,” she noted.
Justice Ramasubramanian further held that a statement made by a Minister inconsistent with the rights of a citizen may not constitute a violation of constitutional rights of the latter and become actionable as a “constitutional tort”.
“No one can either be taxed or penalised for holding an opinion which is not in conformity with the constitutional values. It is only when his opinion gets translated into action and such action results in injury or harm or loss that an action in tort will lie,” Justice Ramasubramanian explained.
A ‘constitutional tort’ is a violation of one’s constitutional rights, particularly fundamental rights, by an agent of the government, acting in his/her official capacity. A court of law can award monetary compensation to the victim in such a case.
Justice Nagarathna said a “proper legal framework” was necessary before taking action as a constitutional tort. She said the Parliament could enact a legislation or code to restrain citizens in general and public functionaries in particular from making disparaging or vitriolic remarks against fellow citizens. Likewise, political parties could come up with a code of conduct to regulate and control the actions and speech of their functionaries and members.