A bench of Justices S Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian and BV Nagarathna were unanimous on the issue that the right to free speech needed no additional restrictions. The bench said “the grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive” — an important determination that comes in the backdrop of concerns ranging from proliferation of social media and its alleged misuse and violation of citizen’s privacy and increasingly emotive rhetoric deployed by politicians in times of intense polarisation.
The reference of “curbing free speech of public functionaries” to a Constitution bench was prompted by the statement of Samajwadi Party leader Azam Khan who, as urban development minister in UP government, had termed the horrific 2016 gang-rape incident on Noida-Saharanpur Highway as an “opposition conspiracy” because the “elections were near, and that the desperate opposition could stoop to any level to defame the government”.
No additional curbs needed for public functionaries: SC on freedom of speech
The bench, however, voted in favour of freedom of speech, and said the role of the courts is to protect the fundamental rights and not to insert more restrictions to constrict the valued freedoms guaranteed by the Constitution. “The role envisaged in the constitutional scheme for the court, is to be a gatekeeper (and a conscience keeper) to check strictly the entry of restrictions into the temple of fundamental rights. The role of the court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges.”
While the Justice Ramasubramanian-authored verdict was signed by Justices Nazeer, Gavai and Bopanna, Justice Nagarathna wrote a separate judgment, agreeing on certain conclusions of the majority verdict and differing on others. While agreeing to reject fresh curbs on free speech, she said, “Article 19(1)(a) (right to free speech) serves as a vehicle through which dissent can be expressed. The right to dissent, disagree and adopt varying and individualistic points of view inheres in every citizen of this country.”
“In fact, the right to dissent is the essence of a vibrant democracy, for it is only when there is dissent that different ideas would emerge which may be of help or assist the government to improve or innovate upon its policies so that its governance would have a positive effect on the people of the country which would ultimately lead to stability, peace and development which are concomitants of good governance,” she said.
The Justice Ramasubramanian-authored judgment comprehensively dealt with the Article 19(2) restrictions in the original Constitution adopted on November 26, 1949, and the additions made through the first constitutional amendment in 1951. It said, “The restrictions under Article 19(2) are comprehensive enough to cover all possible attacks on the individual, groups/classes of people, the society, the court, the country, and the State. This is why this Court repeatedly held that any restriction which does not fall within the four corners of Article 19(2) will be unconstitutional.”
The Constitution allows for “reasonable restrictions” on free speech on grounds of sovereignty and integrity of India, national security, friendly ties with foreign countries, public order, decency, morality, contempt of court, defamation and inctitement to a criminal offence.
After examining the restrictions on free speech in the US, UK, Australia and European Union countries, Justice Ramasubramanian said, “That the eight heads of restrictions contained in Article 19(2) are exhaustive, can be established from another perspective also. The nature of the restrictions on free speech imposed by law/judicial pronouncements even in countries where a higher threshold is maintained, are almost similar.”
The SC said that exercise of all fundamental rights by all citizens would be possible only when everyone respected the rights of others. However, it said the competing rights of individuals cannot become a fertile ground for growing additional restrictions on the right of free speech.
“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) upon any individual,” the majority said.