Introduction 

• This Judgment analyses the right to freedom of speech and expression under Article 19 (1)(a) of Constitution of India, 1950 (COI) and the restrictions under Article 19 (2) of COI.  
• The judgment was delivered by a 4:1 majority. Dissenting opinion was delivered by Justice BV Nagarathna.    

Facts 

• There were several writ petitions that resulted in the consideration of these issues before the Supreme Court: 
  • Writ Petitions were filed by the petitioners against the then Minister for Urban Development of the Government of Uttar Pradesh as he made statements that were outrageous to the modesty of the victims. 
  • There were two writ petitions filed in Kerela High Court because the then Minister of Electricity in the State of Kerela issued derogatory statements. 
    • Both the writ petitions were dismissed by the Division Bench of Kerela High Court on the ground that they were in the realm of moral values and not in the domain of Court to decide. 
    • The petitioner here filed a Special Leave Appeal to the Supreme Court 
• Since the questions in both the petitions overlapped, they were clubbed and taken up by a Constitution Bench of the Supreme Court. 

Issues Involved

• Whether reasonable restrictions specified under Article 19 (2) of the COI are exhaustive? 
• Whether a fundamental right under Article 19 or Article 21 be claimed against anyone other than the State or its instrumentalities? 
• Whether the State is under the duty to protect the rights of citizens under Article 21 of COI even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? 
• Can a statement made by a Minister, traceable to any affairs of the State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility? 
• Whether a statement by a Minister, inconsistent with the rights of the citizens under Part III of COI constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort’?   

Observations 

• Majority Opinion (Justice V. Ramasubramaniam, Justice S. Abdul Nazeer, Justice BR Gavai, Justice AS Bopanna): 
  • With Respect to Issue(i): 
    • The Court held that the restrictions provided for under Article 19 (2) of COI are exhaustive and cover all possible attacks on the individual, group/classes of people, society, the Court, the country and the State. 
    • Thus, the Courts have held that any restriction that does not fall under Article 19(2) of COI will be unconstitutional. 
    • Also, the Court answered the question as to whether Freedom under Article 19 (1) (a) can be restricted on any grounds not mentioned in Article 19 (2) by invoking other fundamental rights. 
    • The Court held that under the guise of invoking other fundamental rights any additional restriction cannot be placed on the exercise of the right conferred by Article 19 (1)(a). 
  • With Respect to Issue (ii): 
    • The question thus answered here was whether Part III of the Constitution has a “vertical” or “horizontal” effect. 
    • The rights conferred by Articles 15 (2) (a) and (b), 17, 20(2),21,23,24,29(2) of COI are enforceable against non-state actors also. 
    • The Court observed that the original thinking that the fundamental rights can be enforceable only against States has changed over time. 
    • Thus, a fundamental right under Article 19 and 21 can be enforced even against persons other than the State or its instruments. 
  • With Respect to Issue (iii): 
    • The Court held that the State has two basic obligations: 
      • Not to deprive a person of his life and liberty except according to procedure established by law 
      • to ensure that the life and liberty of a person is not deprived even otherwise 
    • The Court observed that at the time of inception of the Constitution it was not imagined or conceived that anyone other than State is capable of depriving a person of his life and personal liberty, except by committing a punishable offence. 
    • Also, in the past years the Government has outsourced several of it’s activities to non State actors. 
    • In the landmark judgment of Justice KS Puttaswamy v. Union of India (2018), the Court held that “it is a right which protects the inner sphere of the individuals from interference by both State and non State actors.”  
    • Therefore, the Court held taht the State is under a duty to protect the rights of a person under Article 21 whenever there is a threat to personal liberty even by a non State actor. 
  • With Respect to Issue (iv): 
    • The Court laid down the following principles: 
      • The concept of collective responsibility is a political concept. 
      • Collective responsibility is that of Council of Ministers. 
      • Such collective responsibility is to the House of People/Legislative Assembly of the State and such responsibility correlates to: 
        • The decisions taken 
        • The acts of omission or commission done 
        • It cannot extend to every statement orally made by a Minister outside the House of People/Legislative Assembly. 
    • Thus, the Court concluded that statement made 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. 
  • With Respect to Issue (v): 
    • A mere statement made which is inconsistent with rights of a citizen under Part III of COI may not constitute a violation of constitutional rights and become actionable.    
    • But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen then the same may be actionable as a constitutional tort. 
• Minority Opinion (Justice BV Nagarathna): 
  • The Hon’ble judge held that it is for the Parliament to enact any law to restrain citizens in general and public functionaries in particular from making disparaging remarks against fellow citizens having regard to right under Article 19 (1)(a) and Article 19 (2) of COI. 
  • It is for the political parties to regulate and control the actions and speech of its functionaries and members. 
  • Any citizen who is attacked by a speech which constitutes ‘hate speech’ whether such speech is by public functionary or otherwise may approach the Court and seek appropriate remedies.  
  • Civil remedies in the form of declaratory remedies, injunctions as well as pecuniary damages may be awarded under relevant statutes. 

Conclusion

This is a landmark judgment passed by the Supreme Court regarding freedom of speech and expression under Article 19 (1)(a) of the COI. It reinforces the importance of fundamental right of speech and expression in our democracy. Also, this judgment by a majority of 4:1 has held that our Constitution also envisages horizontal enforcement of Fundamental Rights under Part III of the COI.   

[Original Judgment]