Can Greater Restrictions Be Imposed On Freedom Of Speech Of Ministers,MPs And MLAs? Supreme Court Constitution Bench Reserved Judgement

The Supreme Court on Tuesday reserved its judgment on whether free speech by public functionaries, including inter alia ministers, MLAs, MPs, should have greater restrictions than those imposed by Article 19 (2).The five-judge constitution bench of Justices Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian and B. V. Nagarathna heard the issue. The matter was referred to a larger bench in 2016, on a writ petition filed by father of a rape victim from Bulandshahar, where it was alleged that a minister and prominent political personality of the state (Azam Khan) had termed the entire incident as a "political conspiracy only and nothing else". Later, Azam Khan had tendered apology for calling the gang rape a "political conspiracy", which was accepted by the Court, but the court had proceeded to consider larger issueThe court-room exchange as it transpired on Tuesday is as follows-SG Tushar Mehta: "One individual made a statement which was a horrible statement, nobody questions that. But the questions which are referred for consideration are more of an academic nature- by way of an example, 'whether an individual is amenable to writ jurisdiction on the ground of violation of article 21 of the Constitution'. That can be gone into on a case to case basis. It may perhaps not require your lordships' time in this combination. It can go before the regular bench for two reasons- firstly, in the meanwhile after the reference, there are two judgments- Tehseen Poonawala and Amish Devgan- where the hon'ble Supreme Court has laid down detailed guidelines and issued detailed directions as to what is to be done when such hate speeches are made which are abhorrent to the society. So that law is already occupying the field. So we were just wondering, we are ad idem on that, subject to your lordships' approval, that it may not require your lordships' investing time, considering this being essentially academic without factual foundation. It would not only be difficult but also counter-productive if your lordships lay down one way or the other. There may be a flurry of petitions against individuals, misinterpreting the judgment, interpreting the judgment, which was never the intention of anybody"Bench: "Are you saying that in view of the 2 judgments, for the present, it is unnecessary to go into those issues?"SG: "Yes"AG R. Venkataramani: "I humbly advise the court that these questions framed being too abstract, the court may not be advised to answer them as they are abstract propositions. For instance, question no. 1 speaks of pitting of one fundamental right against another fundamental right, which is a well-known proposition of the Constitution that there is no dispute between two fundamental rights, only balancing. But here it has been propounded in a different way, the court may not want to answer it in a way it has been propounded. That is my very, very humble opinion. For the court to read the questions in the abstract would be problematic. This narrow context can be dealt with by a division bench in its own"Advocate Kaleeswaram Raj, for the petitioner: "I may point out that the Poonawalla and Amish Devgan judgments were delivered exclusively in the context of free speech in general in abstract, whereas the reason for referring this particular matter is that we are rather concerned with free speech or even disparaging speech by public functionaries. This element of public functionaries is an element which is lacking in other cases which was never decided by any bench of this court. Every question before a Constitution bench is to some extent academic. In this case, we are on if a public functionary or an MLA or an MP or a minister makes a speech which is not, in the strict sense, constitutional, to what extent the court can interfere. The last time it came up, Justice Nagarathna was asking a pertinent question- how far the court can go into it because of limitations. We absolutely agree with that proposition, but how to balance? Does it mean that a minister or a member of Parliament can go on with these kinds of disparaging remarks, hateful speech; is it constitutional; is it in tune with the constitutional morality; whether there are constitutional limitations on this free speech? Taking clue from other jurisdictions, especially from Australia and UK, we suggest a voluntary code of conduct for ministers and public functionaries. We also suggest the constitution of a special ombudsman sort of institution to tackle this"Bench: "How can you frame code of conduct for public functionaries? That would be transgressing of powers, encroaching upon the legislative and executive wings"Mr. Raj: "We were suggesting a voluntary code of conduct to be formulated by the legislature. We have indicated about 20 instances where the members of Parliament, even the Prime Minister, even the President of India have made such remarks. After 2014, there has been a 450% increase in the number of hate speeches, out of which the major...

Can Greater Restrictions Be Imposed On Freedom Of Speech Of Ministers,MPs And MLAs? Supreme Court Constitution Bench Reserved Judgement

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