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THE CONTEXT: In the case of Kaushal Kishor versus State of Uttar Pradesh &Ors, a five-judge Constitution bench unanimously held that grounds to restrict free speech under Article 19(2) of the Constitution are exhaustive. The bench further held that under the guise of invoking other fundamental rights, additional restrictions not found in Article 19(2) could not be imposed on the exercise of the fundamental right to freedom of speech and expression by an individual under Article 19(1)(a). This topic delves into deep to highlight the various aspects of these decisions.
BACKGROUND OF THE ISSUE
ABOUT FUNDAMENTAL RIGHTS
- Fundamental Rights are those rights which are needed for the overall development of the individual. It is guaranteed by the supreme law of the land that is Constitution. These human rights are conferred upon the citizens of India for the Constitution and are given protection against the encroachment. It is enshrined in Part III of the Constitution. However, these rights are not absolute as reasonable restrictions exist.
ARTICLE 19(1) IN THE CONSTITUTION OF INDIA 1949
All citizens shall have the right:
a) to freedom of speech and expression;
b) to assemble peaceably and without arms;
c) to form associations or unions;
d) to move freely throughout the territory of India;
e) to reside and settle in any part of the territory of India; and
g) to practise any profession, or to carry on any occupation, trade or business
ARTICLE 19(2) IN THE CONSTITUTION OF INDIA 1949
Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or Morality or in relation to contempt of court, defamation or incitement to an offence
SUMMARY OF THE JUDGEMENT
CONSTITUTION BENCH JUDGEMENT
- Justices S Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian and BV Nagarathna unanimously held that the grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive. Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2) cannot be imposed on the exercise of the right conferred by Article 19(1)(a).
- A fundamental right under Article 19 or 21 can be enforced even against persons other than the state or its instrumentalities however Justice BV Nagarathna dissents to say only habeas corpus remedy can be horizontally applied against private persons.
- The State is obliged to affirmatively protect a person’s rights under Article 21 even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency. 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.”
WHETHER MINISTER’S STATEMENT CAN BE VICARIOUSLY ATTRIBUTED TO THE GOVERNMENT
- A statement made by a minister, even if traceable to any affairs of the state or for protection of the government, cannot be attributed vicariously to the government by invoking the principle of collective responsibility. However Justice Nagarathna dissents that statements in an official capacity reflecting views of the govt can be vicariously attributed to the govt.
- A mere statement made by a minister inconsistent with the rights of a citizen of Part III of the Constitution may not constitute a violation of constitutional rights and become actionable as a 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 or citizen, then the same may be actionable as a constitutional tort.
WHAT IS A CONSTITUTIONAL TORT
If a government official violates an individual’s constitutional rights, then a civil action can lie against him. As the government official is a functionary of the state such wrongs are considered to be committed under the colour of state law. Such civil wrongs are called constitutional tort. A constitutional tort is a legal tool that allows the state to be held vicariously accountable for the actions of its agents.
ANALYSIS OF THE JUDGEMENT
- Article 19’s six freedoms are to promote intellectual self-expression and social interaction among citizens, and preserve the spirit of unity by encouraging free movement throughout India, as well as the development of personality and the pursuit of gainful activity to boost national productivity.
- The legal system of any democratic country places a high value on freedom of speech and expression. Freedom of speech and expression is critical for our country’s growth and progress, and its absence would negate democracy’s genuine meaning. But, it is also true that absolute freedoms will always damage society’s smooth functioning because every individual’s personal interests would be emphasised. This would result in the state withering away, resulting in anarchy. A balance between rights and restrictions is thus quintessential. The government should have the authority to place constraints on freedom as the maker and executor of the law. The reasonableness of the restriction determines the balance.
- However, the extent of balancing and how far we can go with these restrictions is also a matter of concern. Only reasonable limits are protected under the Constitution, and courts have established guidelines for determining whether or not a restriction is reasonable. We can only be safe if we can create a safer society. Reasonable limits are needed somewhere to maintain public order and decency. The term “reasonable restrictions” implies that the limitations placed on a person’s ability to exercise a right should not be arbitrary or unreasonable. A law that arbitrarily infringes on a person’s right cannot be considered reasonable. As a result, a balance between rights and restrictions is required.
- Supreme Court in the judgement ‘Express Newspapers (Private) Ltd. versus The Union of India (1984)’ and ‘Sakal Papers (P) Ltd. versus Union of India (1961)’ held that law enacted by the legislature, which does not come squarely within Article 19(2), would be struck down as unconstitutional. Thus there should be a balance between rights and restrictions; otherwise the fundamental freedom can not be ensured.
- In the preamble of the Indian constitution fraternity, fundamental rights are indicated, and the survival of democracy itself depends upon mutual respect, accommodation and willingness to co-exist. Also in fundamental duty in Article 51A(e) of the Constitution calls for promoting harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities. Thus to enjoy fundamental rights, there has to be restrictions on the individual to respect so that each can enjoy their fundamental rights.
MEANING OF ‘REASONABLE RESTRICTIONS UNDER ARTICLE 19 OF INDIAN CONSTITUTION
- Over time, the Supreme Court has laid down, in a plethora of cases, various tests and principles with respect to the concept of reasonable restrictions. The term “reasonable” has not been defined under the Constitution and no tests were laid down either. It is in this regard, the role of the Supreme Court to interpret the Constitution comes into play.
- Reasonableness – With respect to the ambit of reasonable restrictions, the Supreme Court in Chintaman Rao v State of Madhya Pradesh had laid down the principle that the legislative view of what constitutes reasonable restriction shall not be conclusive and final and that it shall be subjected to supervision by the Supreme Court.
- The most basic rule while testing whether a law falls within the ambit of reasonable restriction is that no general or abstract rule shall be adopted for the application of all case. Each case has to be seen independently. The test of reasonableness shall be however on the basis of the following grounds; “The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time”
- In Express Newspapers v Union of India, it was held by the Supreme Court that there ought to be a reasonable balance between the freedoms enshrined under Article 19(1) and the social control permitted by clauses (2) to (6). In addition to this, the restriction imposed shall have a direct or proximate nexus with the object sought to be achieved by the law.
GROUNDS FOR RESTRICTIONS
Article 19(2) draws a line of division between permissible speech and impermissible speech.
- Sovereignty and Integrity of India- This ground was added in 1963 by the 16th Amendment Act with a view to restrict those categories of speech that could be detrimental to national integrity and the sovereignty of India. Speeches inciting secession from the Union of India shall be restricted as it compromises the sovereignty of India.
- Security of the state might be at stake when actions intended to overthrow the government are carried on. It is thus necessary to restrict such circumstances in the interest of the security of the state. Words, signs, speech etc which caused incitement to violence shall be restricted.
- Friendly Relations with the Foreign States- Apart from internal peace, there is something else the government need to sure; relation with foreign countries. Restrictions may be imposed on any form of speech that could jeopardize India’s relations with foreign countries.
- Public Order- The restrictions in the interest of public order have been discussed above. Public order as the ground was later added in 1951 by the First Amendment Act. It is synonymous with public peace and tranquillity.
- Decency and Morality- these are further grounds on which the government may impose restrictions upon the people. The collective interest of society as a whole shall override individual rights and interests.
- The Contempt of Courts Act is the legislation enacted to impose a restriction upon actions including speech and expression that would scandalize the courts and jeopardize their position. Civil Contempt is the willful disobedience of a court order whereas criminal contempt is the publication of any matter or doing of any act which scandalizes or tends to scandalize or lower or tend to lower the authority of any court
- Defamation- Free Speech does not warrant an individual to defame another. A person knowingly makes a statement or publishes a matter to the public about another person that would tarnish the latter’s reputation shall be restricted on grounds of defamation. A defamatory matter in a permanent form such as a matter written or printed is labelled as Libel and the defamatory matter which is spoken is called slander
- Incitement to an Offence- Free speech shall be restricted if it incites offences punishable under law. The First Constitutional Amendment Act, 1951 added this.
AVAILABILITY OF ARTICLE 19, 21 RIGHTS AGAINST NON-STATE ACTORS
- Referring to Part III of Constitution, Justice Ramasubramanian observed that there are some Articles in Part III where the mandate is directly for the State and there are other Articles where without injuncting the State, certain rights are recognised to be inherent, either in the citizens of the country or in persons. This, Justice Ramasubramanian, said, is an indication that some of the rights conferred by Part III are to be honoured by, and are also enforceable against, non-State actors.
- “For instance, the rights conferred by Articles 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) etc., are obviously enforceable against non-State actors also.
- Disagreeing with Justice Ramasubramanian, Justice Nagarathna held that a fundamental right under Articles 19 or 21 cannot be enforced against persons other than the State or its instrumentalities. But she added that 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, would lie.
MINISTER’S STATEMENT AND CONSTITUTIONAL TORT
- Supreme Court held that mere statement made by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, may not constitute a violation of constitutional rights and become actionable as a 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, he added.
- Explaining it further, Justice Ramasubramanian said that if a Minister makes a statement that women are unfit to be employed in a particular vocation, it may reflect his insensitivity to gender equality and also may expose his low constitutional Morality. Due to his insensitivity or lack of understanding or low constitutional Morality, he speaks a language that can potentially demean the constitutional rights of women, cannot be a ground for action in Constitutional tort.
THE CONCLUSION: In the context of this judgement, it can be said that the judiciary has taken a stand to protect a fundamental right. Supreme Court is the protector of the fundamental rights of Indian citizens and the guardian of the Indian Constitution because it has been given the power to protect, safeguard and uphold the Constitution and its various components.Thus it has given a more predictable restriction to fundamental rights so that executive and legislative activism against fundamental rights can be curbed.It has upheld constitutional Morality which holds the principles, philosophy and values as supreme.Further, it upholds the protection of fundamental rights not only against the state but also non state actors. Thus in this way, Supreme Court judges has enlarged the protection against the violation of fundamental rights.However, there is still a very large scope of restriction in Article 19(2) .Thus it provides a lot of room to manoeuvre and restrict the fundamental right by the legislature. In this context, there is a need of to protect constitutional Morality so that constitutional values can be protected
1. Limiting the restriction of Fundamental Rights to Article 19(2) by Supreme Court in a recent judgement will help protect fundamental rights. Critically examine.
2. Analyse the Supreme Court judgement on Article 19(2). Will it help in protecting Constitutional Morality?