Right to free speech of public functionaries: Supreme Court Constitution Bench to deliver verdict tomorrow

The Supreme Court will on Tuesday deliver its verdict on the issue relating to freedom of speech of public functionaries and whether the right to life and personal liberty of citizens impedes the same. (Kaushal Kishore v. State of Uttar Pradesh and ors).A Constitution Bench led by Justice S Abdul Nazeer and comprising Justices AS Bopanna, BR Gavai, V Ramasubramanian and BV Nagarathna had reserved its judgment in the matter on November 15, 2022..The reference to a five-judge Bench arose following SP leader Azam Khan's remarks on a 2016 gang-rape of a minor and her mother in Uttar Pradesh.Khan had called the incident a political conspiracy and a publicity hunt, and criticised the prosecutrix for saying that they were not getting justice.The father of the survivor then filed a plea seeking a Central Bureau of Investigation (CBI) probe, and asked that the trial be held outside the State..It was contended that Khan’s statements had adversely affected the reputations of the two survivors as well as the prospect of a fair trial. The veteran politician soon offered an unconditional apology. The bench hearing the case went on to refer the following five questions to a larger bench: Whether the Court can impose restrictions on the right to freedom of speech and expression beyond the present restrictions provided under Article 19(2) of the Constitution? Can a Fundamental Right under Article 19 and Article 21 (that is right to life and Personal Liberty) of the Constitution, can be claimed against anyone other than the ‘State’ or its instrumentalities? Whether the State is under a duty to affirmatively protect the right of the citizens under Article 21 of the Constitution even if it is against a threat to the liberty of the citizen by the acts or omissions of another citizen or private agency? Whether the statement of a minister, traceable to any affairs of the State, should be attributed vicariously to the government itself for not keeping in mind the principle of collective responsibility? Whether a statement made by a minister, which is inconsistent with the rights granted to the citizen under Part III of the Constitution, constitutes as a violation of such Fundamental Rights and is actionable as ‘Constitutional Tort’ (civil wrong)?.Arguments made.Solicitor General Tushar Mehta had said that Khan's statement was a horrible one, but the current exercise was academic, given the top court's rulings on hate speech in the Tehseen Poonawala and Amish Devgan cases. Attorney General R Venkataramani had argued that the questions have been framed in an abstract and problematic manner, and that the top court need not rule differently from the existing legal positions since then. Advocate Kaleeswaram Raj, appearing for the petitioners, had pointed out that the Poonawala and Devgan cases did not deal with hate speech by public functionaries, and asked for a code of conduct to be framed..What the Bench observed.Justice Gavai had observed during the hearings that he prima facie agreed with the proposition that the issue was something for lawmakers to decide.Justice Nagarathna then remarked that those occupying high offices, including public servants, have an inherent code to curb such speech. "Reason why no law has been there all this while is because there has always been an inherent self-imposed code on those in public life. Now the impression is such restrictions are being relaxed, leading to hurtful speeches being made and no checks being made, allowing them to get away." Further, she had said, "Is there no constitutional culture in our country that is inherently applicable on those in public office? There is [one], [it is] an unwritten rule that we impose a self-restriction on making disparaging remarks when we hold such posts. This must be inculcated in our political and civic life."