There is an Unwritten Constitutional Duty on Public Functionaries To Not Speak Anything Disparaging: Supreme Court
Gursimran Kaur Bakshi (The Leaflet) 16 November 2022
A Constitution bench of the Supreme Court comprising Justices S. Abdul Nazeer, B.R Gavai, A.S Bopanna, V. Ramasubramanian and B.V Nagarathna heard a petition relating to the issues of hate speech made by public functionaries, whether the reasonable restriction grounds in Article 19(2) are exhaustive, and free speech can be restricted by invoking Article 21 of the Constitution.
 
Solicitor General of India, Tushar Mehta told the court that he agrees that an individual had made a horrible statement. However, the questions relating to hate speech that have been referred to in the petition are of academic nature, he averred; such questions could go to a regular bench. After the reference of this matter to a Constitution bench, there had been two judgments – Tehseen S. Poonawalla versus Union of India & Anr. (2018) and Amish Devgan versus Union of India & Anr. (2020) – in which the Supreme Court has given detailed guidelines on hate speeches or disparaging speeches.
 
Mehta told the court that since the issues have already been dealt with, the court’s hearing of the petition may turn out to be counterproductive as there may then be petitions filed misinterpreting the judgment.
 
Attorney General of India, R. Venkataramani told the court that the specific part of the speech made is non-condonable. However, using that context to deal with abstract questions of hate speech may turn out to be problematic for the court.
 
Referring to the first question of the petition, relating to whether Article 19(2) restrictions are also against Article 21, Venkataramani told the court that there is a settled position that one fundamental right cannot be pitted against another.
 
“There is no hostility between two sets of fundamental rights. There is only a balancing of fundamental rights. The balancing has now been propounded in a different way and the court may not want to answer that,” he argued.
 
Advocate Kaleeswaram Raj, for the petitioner, told the bench that the cases referred to by the Solicitor General deal with hate speech cases in general. But this matter deals with hate speech by public functionaries, and this aspect has never been decided by this court.
 
We want this court to deal with the recourse to be taken when hate speech is made by public functionaries and to what extent this court can interfere in it, he submitted.
 
Raj then informed the court that he had already suggested that the court can take inspiration from other jurisdictions such as the United Kingdom, where there is a voluntary code of conduct for ministers and public functionaries.
 
We also suggested the constitution on an Ombudsman to tackle such cases, he said.
 
On this point, Justice Gavai interfered and asked, “How can we form a code of conduct for public functionaries?” Raj clarified that the code of conduct must be formed by the legislature.
 
He then pointed out that he has provided data to the court which suggests that there has been an increase of 450 per cent in hate speech, of which the major burden is borne by public functionaries such as Ministers and Members of Parliament.
 
The bench at this juncture asked if this can be dealt with within the Indian Penal Code. Raj referred to Amish Devgan, and answered the bench that not all hate speech may fall within the criminal code. But it nevertheless goes against the dignity of a person.
 
That is why we are suggesting the institution of an Ombudsman to overlook the public conduct of the public functionaries, Raj said. This is the root cause of the reference and it cannot be undone by simply suggesting that the issues pertained to are academic, Raj informed the bench.
 
Venkataramani intervened and told the bench that these issues are in the domain of positive law and the Parliament should answer them.
 
To pick up a statement made by a Minister as a liability principle for the State is going to be an unmanageable proposition, he suggested.
 
Justice Nagarathna asked: “…Irrespective of what Article 19(2) may say, is there no constitutional culture where is an inherent limitation or restriction which is imposed by persons holding responsible positions? 
 
“It is inherent. There is no need for this court to give a code of conduct on that.” 
 
For any person holding a public office or as a public servant, there is an unwritten rule and it is a part of the constitutional culture that we impose a self-restriction when we hold offices of responsibility and do not blabber anything which is disparaging and insulting other countrymen; this must be inculcated in our political society and our civic lives, Justice Nagarathna told the counsels.
 
The court has reserved its order.
 
Background 
 
On July 29, 2016, a young girl and her mother were allegedly raped on National Highway 91. When the victims lodged a complaint, then-Uttar Pradesh Minister and Samajwadi Party leader Azam Khan claimed that the incident is a political conspiracy to defame the Uttar Pradesh government ahead of the Vidhan Sabha elections. The victims then approached the Supreme Court seeking action against the outrageous comments.
 
However, the victims feared the absence of a fair investigation and the case was transferred to Delhi from Uttar Pradesh. The Supreme Court appointed jurist Fali S. Nariman to it as amicus curiae and ordered a stay on the investigation. The court then ordered Khan to render an unconditional apology. But it referred the matter on the larger issue of whether the right to speech and expression is restricted by only Article 19(2) or is also restricted by other fundamental rights, specifically Article 21, to a Constitution bench.
 
(Gursimran Kaur Bakshi is a staff writer at The Leaflet)
 
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