New Delhi, Jan 3.
Juts like ordinary persons, individual ministers are liable to face tort action if their public speeches cause any injury or loss to a citizen, the Supreme Court said on Tuesday, in its most powerful warning yet against hateful, irresponsible speeches.
But such individual statements cannot be vicariously be attributed to the cabinet, nor can there be extra curbs on the right of elected representatives to free speech, the court said.
The top court was dealing with multiple pleas to rein in elected leaders from speaking out on pending criminal cases et al where an individual’s valuable right to a free and fair trial may be compromised.
The court debated if any additional accountability and legal obligations can be cast upon public functionaries regarding permissible free speech and decided against it.
“We are not suggesting for a moment that any public official including a minister can make a statement which is irresponsible or in bad taste or bordering on hate speech and get away with it,” a majority of four in a constitution bench said.
No one can either be taxed or penalised for holding an opinion not in conformity with 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, the bench said.
ONLY STATEMENTS OF MINISTERS WHICH COMPROMISE RIGHTS OF CITIZENS ARE ACTIONABLE
A mere statement made by a minister, inconsistent with the rights of a citizen, may not constitute a violation of constitutional rights and become actionable as a tort, it said.
But if as a consequence, any act of omission or commission is done by officers resulting in harm or loss to a citizen, it may be actionable as a constitutional tort, the court said.
Collective responsibility is that of the Council of Ministers, they said. Each individual minister is responsible for the decisions taken collectively by the Council of Ministers.
In other words, the flow of stream in collective responsibility is from the Council to individual ministers, not in the reverse. This view was espoused by Justices S. Abdul Nazeer and B.R. Gavai. A.S. Bopanna and V. Ramasubramanian.
HATE SPEECH BY POLITICAL FIGURES, CITIZENS ALIKE AGAINST RIGHT TO DIGNITY: DISSENT
In her dissent, Justice B.V. Nagarathna said, a statement made by a minister traceable to any affairs of the state or for protecting the government, can be attributed vicariously by invoking the principle of collective responsibility so long as such statement represents the government’s view.
If such a statement is not consistent with the government’s view, it is attributable to the minister personally. If as a consequence, any act of omission or commission is done by the officers resulting in harm or loss to a person, it may be actionable as a tort or remedied on the basis of precedent.
She said that ‘hate speech’ or ‘disparaging speech’ not only by public functionaries, but also ordinary citizens, especially on social media, must be tackled. In India, human dignity is not only a value but a right that is enforceable.
In a human-dignity-based democracy, freedom of speech and expression must be exercised in a manner that would protect and promote the rights of fellow-citizens. But hate speech, whatever its content may be, denies human beings the right to dignity.
Therefore, when such speech has the effect of infringing the fundamental right of another individual, it would not constitute a case which requires balancing of conflicting rights, but one wherein abuse of the right to freedom of speech by a person has attacked the fundamental rights of another.
CALLS UPON CITIZENS TO RESPECT PREAMBULAR VALUES OF FRATERNITY AND UNITY
While there are no infallible rules can be formulated to define the precise threshold of acceptable speech, every citizen must consciously attempt to abide by constitutional values, and to preserve in letter and spirit the culture contemplated under the Constitution.
This will significantly contribute in eliminating instances of societal discord, friction and disharmony, on account of disparaging, vitriolic and derogatory speech, particularly when made by public functionaries and/or public figures, she said.
This does not in any way imply that ordinary citizens who form the great mass of the citizenry of this country can shun responsibility for vitriolic, unnecessarily critical, diabolical speech either against public functionaries/figures or against other citizens in general or against particular individuals.
Every citizen of India must consciously be restrained in speech, and exercise the right to freedom of speech and expression only in the sense it was intended by the framers of the Constitution.
This is the true content of Article 19(1)(a) which does not vest with citizens unbridled liberty to utter statements which are vitriolic, derogatory, unwarranted, have no redeeming purpose and which, in no way amount to a communication of ideas.
Article 19(1)(a) vests a multi-faceted right, which protects several species of speech and expression from interference by the state. However, it is a no brainer that the right to freedom speech and expression, in a human-rights based democracy does not protect statements made by a citizen, which strike at the dignity of a fellow citizen.
Fraternity and equality which lie at the very base of our constitutional culture and upon which the superstructure of rights is built, do not permit such rights to be employed in a manner so as to attack the rights of another.
SUGGESTS PARLIAMENT MAKE A LAW AGAINST HATE SPEECH, PARTIES REIN IN MEMBERS
It was for Parliament in its wisdom to enact a legislation or code to restrain, citizens in general and public functionaries, in particular, from making disparaging or vitriolic remarks against fellow citizens, she said.
It is also for political parties to regulate and control the actions and speech of its functionaries and members. This could be through a code of conduct prescribing the limits of permissible speech.
CITIZENS PREJUDICED BY SUCH HATE SPEECHES MOVE COURT FOR RELIEF
Any citizen, prejudiced by any form of attack, as a result of speech/expression through any medium, targeted against her/him or by speech which constitutes ‘hate speech’, whether such attack or speech is by a public functionary or otherwise, may approach the court and seek appropriate remedies. Whenever permissible, civil remedies in the nature of declaratory remedies, injunctions and pecuniary damages may be awarded, she said.
