Judgment Pronouncement: Restrictions on Public Official’s Freedom of Speech

In a unanimous decision, the Constitution Bench led by Justice Abdul Nazeer held that the Freedom of Speech under Article 19(1)(a) of the Constitution of India can only be restricted on the grounds mentioned in Article 19(2). The violation of other fundamental rights through such speech cannot be invoked as a reason to restrict Freedom of Speech. 

This case arose out of statements made by Samajwadi Party Member of Parliament, Azam Khan. In 2016, he claimed that the allegations of gang rape levied by a 13-year-old girl and her mother against individuals who accosted them on a highway in Uttar Pradesh were part of a ‘political conspiracy against the U.P. government’. The two victims approached the Supreme Court claiming that the statement violated their Right to Life and Liberty by interfering with the ongoing investigation of their allegations. 

Justice V. Ramasubramanian wrote the main opinion for himself and Justices Nazeer, Gavai and Bopanna. Justice B.V. Nagarathna delivered a separate opinion, agreeing with the reasoning of the Bench on certain issues and offering a ‘different perspective’ on others. Both Judges structured their decisions around the five central questions that arose in this case. 

1. Can other grounds besides those specified in Article 19(2) be invoked to restrict Freedom of Speech and Expression?
2. Can citizens claim their fundamental rights were violated by non-State entities such as private persons?
3. Does the State have a duty to protect citizen’s Right to Life and Liberty even against the actions of non-State entities?
4. Can statements made by public officials be attributed to the government they serve, if it is linked to State affairs or is made with the intention to protect the government?
5. Can the government be held accountable for statements made by public officials which violate fundamental rights? 

Question 1: Can Other Restrictions be Imposed on the Freedom of Speech and Expression?

The Bench held that the restrictions on Freedom of Speech contained in Article 19(2) are ‘exhaustive’, and Freedom of Speech cannot be restricted on any other grounds. 

Justice Nagarathna, in her separate opinion, explained that certain kinds of speech like hate speech directly strike at the principles of equality and fraternity that are enshrined in the preamble of the Constitution. Further, she explained that all citizens owe certain fundamental duties under Article 51A of the Constitution. These include duties to promote harmony and common brotherhood among all people, and renounce practices that are derogatory to women. 

As public officials have increased reach and impact through their speech and actions, she held that they owe a duty to be more responsible and restrained.

Question 2: Can Non-State Entities Violate Fundamental Rights?

The Bench held that fundamental rights can be enforced against non-State entities such as private persons and private agencies. Justice Nagarathna expanded on the situations where this would be allowed. 

Using the Right to Life and Liberty under Article 21 as an example, she explained that fundamental rights can be enforced against non-State entities if they are also recognised by a statute or as a common law right. Common law rights are those which are recognised as universal rights by the Courts in past cases. Common law and certain statutes like the Indian Penal Code, 1860 recognise the Right to Life and Liberty, and citizens can approach the Court against other non-State entities under these laws. 

Question 3: Does the State have an Obligation to Protect Citizen’s Right to Life and Liberty Against Non-State Entities?

The Bench held that the State has a duty to protect the rights of citizens even when the right is threatened by someone other than the State itself. 

Justice Nagarathna clarified that this is limited to situations where State inaction would lead to a hostile situation or failure to fulfill obligations under a scheme or a policy. The State does not have an obligation to take action of its own accord to protect citizens’ fundamental rights. 

Question 4: Can Statements Made by Public Officials Which Violate Fundamental Rights be Attributed to the Government?

While Justice Ramasubramanian simply held that statements made by public officials could not be attributed to the government, Justice Nagarathna gave a more expansive view. She drew the distinction between statements made in a ‘personal’ capacity and statements made in an ‘official capacity’. Statements made in an official capacity, she held, can be attributed to the government if they also represent the views of the government the official represents. 

Question 5: Can Governments be Held Responsible for Statements Made by Public Officials Which Violate Fundamental Rights?

The Bench held that the government cannot be held responsible for the statements made by public officials. However, the government can be held responsible for the actions and consequences arising from that statement if a citizen is harmed or incurs a loss as a result.

Justice Nagarathna was even more specific in her concurring opinion. The government may claim that they are performing a ‘sovereign function’ and, as a result, may avoid facing punishment for the actions of public officials. However, Justice Nagarathna held that the State could not use this defence if there is a violation of the Right to Life and Liberty. 

Justice Nagarathna Suggests Further Measures To Restrict the Conduct of Public Officials

To close her concurring opinion, Justice Nagarathna made three suggestions to control the speech and conduct of public officials in the future:

1. Parliament should enact a legislation that restricts public officials from making ‘disparaging remarks’ against other citizens. Justice Nagarathna is expected to clarify the meaning of this phrase in the Judgment. 
2. Political parties should implement a code of conduct to control the actions and speech of public officials. 
3. Citizens should approach the court under civil and criminal statutes in hate-speech cases and in cases where they have been harmed or have incurred a loss because of any speech made against them.