Any Minister’s hate speech not the vicarious liability of the govt says SC, Justice Nagarathna dissents

The Supreme Court’s Constitution Bench delivered a substantial judgment on January 3 on the issue of vicarious liability of the government when a view is expressed by one of its Ministers and whether freedom of speech (hate speech) requires any more reasonable restrictions. The bench, in a 4:1 majority, held that the grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive.

The bench of Justices S Abdul Nazeer, BR Gavai, As Bopanna and V. Ramasubramanian held in consensus that it is the State’s affirmative duty to protect rights under Article 21 (Right to life) and if a statement made by a Minister even if traceable to any affairs of the State cannot be attributed vicariously to the Government.

In her dissenting judgement, Justice BV Nagarathna concurred with the majority on the first aspect that the restrictions on freedom of speech and expression under Article 19(2) are exhaustive. She however, had some diverse and interesting views on the other four questions of law, while also separately harping in the issue of hate speech and threw some light on fundamental duties as well.

The questions considered by the Constitution Bench:

1) Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?

2) Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?

3) Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?

4) Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility?

5) Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”? …”

Background of the case

In Writ Petition (Criminal) No.113 of 2016 monitoring of the investigation in a POCSO case was sought. Reliefs were also sought for registering a complaint against the then Minister for Urban Development of the Government of U.P. for making statements outrageous to the modesty of the victims; the incident was termed as a political conspiracy.

The Special Leave Petition (Diary) No.34629 of 2017 was filed against Kerala High Court order dismissing two writ petitions filed against statements made by the then Minister for Electricity in the State of Kerala which were derogatory towards women. Therefore, the petitioner in one writ petition prayed among other things for a direction to the Chief Minister to frame a Code of Conduct for the Ministers with a further direction to the Chief Minister to take suitable action if any of the Ministers failed to live up to the oath.

Attorney General’s opinion

With regards to the questions raised, AG R. Venkataramani, opined that the restrictions already enumerated in clauses (2) and (6) of Article 19 have to be taken to be exhaustive. With regards to question 3, he said that “Beyond the Constitutional and legal remedy and protection available, there may not be any other additional duty to affirmatively protect the right of a citizen under Article 21.”

With regards to the fourth question he said, “Conduct of public servants like a Minister, if it is traceable to the discharge of public duty or the duties of the office, is subject to scrutiny of the law…statements that may be made by a Minister cannot be linked to the principles of collective responsibility. The concept of vicarious liability is incapable of being applied to situations and no government can ever be vicariously liable for malfeasance or misconduct of Minister not traceable to statutory duty or statutory violations for the purpose of legal remedies.”

Amicus Curiae’s opinion

The Amicus Curiae, Ms. Aparajita Singh, opined that “The right to free speech under Article 19(1)(a) is subject to clearly defined restrictions under Article 19(2). Therefore, any law seeking to limit the right under Article 19(1)(a) has to necessarily fall within the limitations provided under Article 19(2).”

She further stated that Fundamental rights of citizens enshrined in the Constitution are not only negative rights against the State but also constitute a positive obligation on the State to protect those rights.

About vicariously liability, she said, “The Minister being a functionary of the State, represents the State when acting in his official capacity. Therefore, any violation of the fundamental rights of the citizens by the Minister in his official capacity, would be attributable to the State.” She further said, “The State acts through its functionaries. Therefore, the official act of a Minister which violates the fundamental rights of the citizens, would make the State liable under constitutional tort.”

The court’s opinion

In its majority verdict, the court held that the restrictions under clause (2) of Article 19 are comprehensive enough to cover all possible attacks on the individual, groups/classes of people, the society, the court, the country and the State. (Para28). The court further held that “under the guise of invoking other fundamental rights, additional restrictions, over and above those prescribed in Article 19(2), cannot be imposed upon the exercise of one’s fundamental rights.(para 44)

While considering the second question as to whether a fundamental right under Article 19 or 21 can be claimed against anyone other than the State or its instrumentalities, the court held that “wherever Constitutional rights impact even the relations between private individuals, they are said to have “a horizontal effect”. (Para 47) the court finally held that “A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities” (Para 78).

Dissenting view: In the dissenting judgement, Justice Nagarathna held that “rights in the realm of common law, which may be similar in their content to the Fundamental Rights under Article 19/21, operate horizontally”. However the Article 19 and 21 by themselves cannot be enforced against persons other than the State or its instrumentalities, even though they can be basis for seeking common law remedies.

“But a remedy in the form of writ of Habeas Corpus, if sought against a private person on the basis of Article 21 of the Constitution can be before a Constitutional Court i.e., by way of Article 226 before the High Court or Article 32 read with Article 142 before the Supreme Court,” she added

With regards to the third question “Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?”, the court held that the word citizen needs to be replaced with the word ‘person’ since Article 21 is available to all persons. The court held that “State is under a duty to affirmatively protect the rights of a person under Article 21, whenever there is a threat to personal liberty, even by a non-State actor” (Para 103).

Dissenting view: Justice Nagarathna differed on this point as well and held while the duty cast upon the state under Article 21 is “a negative duty not to deprive a person of his life and personal liberty except in accordance with law”, the state has an affirmative duty to carry out obligations cast upon it under constitutional and statutory law.

She further held that “failure to carry out the duties enjoined upon the State under constitutional and statutory law to protect the rights of a citizen, could have the effect of depriving a citizen of his right to life and personal liberty. When a citizen is so deprived of his right to life and personal liberty, the State would have breached the negative duty cast upon it under Article 21.”

Regarding the question four which was about vicarious liability of a government to any statement made by its Minister, the court held that “collective responsibility of the Council of Ministers either to the House of the People or to the Assembly should be understood to correlate to the decisions and actions of the Council of Ministers and not to every statement made by every individual Minister” (Para 112).

The court further said that “in a country like ours where there is a multiparty system and where coalition Governments are often formed, it is not possible at all times for a Prime Minister/Chief Minister to take the whip, whenever a statement is made by someone in the Council of Ministers.” (Para 128). Finally, the court held that “a statement made by a Minister even if traceable to any affairs of the State or for protecting the Government, cannot be attributed vicariously to the Government by invoking the principle of collective responsibility” (Para 137).

Dissenting view: About collective responsibility, Justice Nagarathna observed that:

“A statement made by a Minister if traceable to any affairs of the State or for protecting the Government, can be attributed vicariously to the Government by invoking the principle of collective responsibility, so long as such statement represents the view of the Government also. If such a statement is not consistent with the view of the Government, then it is attributable to the Minister personally.” (Para 6)

The question number five is “whether a statement by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort’?”. The court said, “no one can either be taxed or penalised for holding an opinion which is not in conformity with the 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.” (Para 140)

“A mere statement made by a Minister, inconsistent with the rights of a citizen under PartIII of the Constitution, may not constitute a violation of the constitutional rights and become actionable as Constitutional tort. But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort,” the court held.

Dissenting view: Justice Nagarathna, with regards to this question said,

“Public functionaries could be proceeded against personally if their statement is inconsistent with the views of the Government. If, however, such views are consistent with the views of the Government, or are endorsed by the Government, then the same may be vicariously attributed to the State on the basis of the principle of collective responsibility and appropriate remedies may be sought before a court of law.”

The court directed the two petitions to be listed before the appropriate bench.

Hate Speech

Justice Nagarathna in her dissenting judgment wrote specifically about hate speech. She said, “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.” (Para 16.3)

She even referred to Amish Devgan vs. Union of India, (2021) 1 SCC 1 where the court held ‘hate speech’ as being antithetical to, and incompatible with the foundations of human dignity.

“I am concerned with speech that may not be linked to systematic discrimination and eventual political marginalisation of a community, but which may nonetheless have insidious effects on the societal perception of human dignity, values of social cohesion, fraternity and equality cherished by “We the people” of India,” she wrote (Para 16.7)

She further held that hate speech is when abuse of the right to freedom of speech by a person attacks the fundamental rights of another. (Para 25)

“26. Equality, liberty and fraternity are the foundational values embedded in the Preamble of our Constitution. ‘Hate speech’, in the sense discussed hereinabove, strikes at each of these foundational values, by marking out a society as being unequal. It also violates fraternity of citizens from diverse backgrounds, the sine-qua-non of a cohesive society based on plurality and multi-culturalism such as in India that is, Bharat.”

She further added, “It is high time that we, as a society in general and as individuals in particular, re-dedicate ourselves to the sacred values of the Constitution and promote them not only at our individual level but at the macro level. Any kind of speech which undermines the values for which our Constitution stands would cause a dent on our social and political values.” (Para 27.3)

Stressing on the value of fraternity she wrote, “The concept of fraternity under the Constitution expects every citizen to respect the dignity of the other. Mutual respect is the fulcrum of fraternity that assures dignity.” (Para 28)

About fundamental duties correlating with rights she observed, “Fundamental duties have a keen bond of sorority with the Constitutional goals and must therefore be recognised not merely as Constitutional norms or precepts but as obligations, correlative to rights. In short, the permissible content of the right to freedom of speech and expression, ought to be tested on the touchstone of fraternity and fundamental duties as envisaged under our Constitution.” (Para 28)

About the responsibility of a public functionary while making a speech she observed thus,

“Public functionaries and other persons of influence and celebrities, having regard to their reach, real or apparent authority and the impact they wield on the public or on a certain section thereof, owe a duty to the citizenry at large to be more responsible and restrained in their speech. They are required to understand and measure their words, having regard to the likely consequences thereof on public sentiment and behaviour, and also be aware of the example they are setting for fellow citizens to follow.” (Para 32)

“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.” (Para 34)

She concluded her judgement leaving it to the wisdom of the Parliament 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. (Para 67) She also put the onus on political parties to regulate and control the actions and speech of its functionaries and members.

The complete judgement may be read here: