Justice B.V. Nagarathna. File. Photo: Special Arrangement
There is an unwritten rule of self-restraint for public functionaries to not “blabber” things which are “very disparaging or insulting” to fellow citizens, Justice B.V. Nagarathna, sitting in a Constitution Bench, said on Tuesday.
The five-judge Supreme Court Bench led by Justice S. Abdul Nazeer is examining whether guidelines should be framed to stop or even prevent government Ministers, MPs, MLAs and even political leaders from making unguarded, derogatory and hurtful statements in public.
Justice Nagarathna said there is an inherent constitutional restriction on persons holding responsible offices to follow a certain code of conduct. Such self-imposed restraint is irrespective of the “reasonable restriction” on free speech.
“For any person holding a public office or is a public servant, there is an unwritten rule, and it is part of our constitutional culture, that we impose a self-restriction when we hold offices of responsibility and not blabber things which are very disparaging or insulting to our countrymen,” Justice Nagarathna observed orally.
Advocate Kaleeswaram Raj, appearing for petitioner Joseph Shine, said there is a need for the court to “indicate a voluntary code of conduct”.
Attorney General R. Venkataramani, for the Union of India, said the state should not be held vicariously liable for the hurtful statements made by individual Ministers. The situation would become “unmanageable” if this was done. There would be a flurry of petitions in courts against the state by persons claiming to have been wronged.
He said the issue of whether or not to make a separate law or include changes in the Indian Penal Code should be left to the Parliament.
Mr. Raj said most of these statements were found to be made by lawmakers themselves. “So should we leave it to them or should the court fill the gaps in the law?” he asked.
At one point, as an aside, he wondered whether hate speech should be allowed in the guise of exercising free speech.
Justice B.R. Gavai, on the Bench, remarked that he thought the issue was exclusively within the domain of the Parliament.
Justice V. Ramasubramanian said that holding the state liable for an individual’s statements would be as unwieldy as holding statements made by a judge attributable to the court.
“Imposing a final, binding liability on the government for an individual’s misconduct would be a very serious issue,” Mr. Venkataramani submitted.
Justice Nagarathna said there were civil remedies available.
“There may be no right against the state when an individual makes a statement, but on account of a public functionary making a statement, if a section of population or individuals are affected, there is always a civil remedy available,” Justice Nagarathna said.
The court reserved the case for judgment on the question whether the right to free speech and expression of high public functionaries require “greater restrictions”.
Justice Nazeer, in an earlier hearing, had wondered whether the court could lay down general guidelines in “thin air” without examining the factual background of each case.
Mr. Shine had moved the court against comments made by Kerala Minister M.M. Mani.
The reference to a Constitution Bench was made two years ago in April 2017. It sprouted from a petition filed by the family members of the Bulandshahr rape case victim against a former Minister’s public statements that the rape case was part of a political conspiracy against the then Akhilesh Yadav government. The Minister had subsequently apologised unconditionally in the apex court. But the court had decided to examine the question of imposing curbs on the free speech of public functionaries in sensitive matters.
