The five-Judge Constitution Bench of the Supreme Court on Tuesday refused to impose additional restrictions on the Right to Freedom of Speech of public functionaries, such as MPs, MLAs, Ministers and persons holding high offices by 4:1 majority.
Justice B.V. Nagarathna, who was part of the Constitution Bench, said in her dissenting verdict that any citizen who felt hurt by the words or statements made or the hate showcased by a public functionary, can approach court for civil remedies.
She said that civil remedies in the nature of declaratory remedies, injunctions as well as pecuniary damages may be awarded as prescribed under relevant statues.
She suggested the political parties to regulate and control the action and speech of their functionaries and members by making a code of conduct, which would prescribe the limits of permissible speech by functionaries and members of the respective political parties.
She said public functionaries and other persons of influence and celebrities, having regard to their reach and impact on the public or a certain section, were duty bound to be more responsible and restrained in their speech.
Such functionaries were required to understand and measure their words having regard to the likely consequences on public sentiment and behaviour and also be aware of the example they were setting on fellow citizens to follow, added the Supreme Court Judge.
The Constitution Bench comprising Justice S. Abdul Nazeer, Justice B.R. Gavai, Justice A.S. Bopanna and Justice V. Ramasubramanian had refused to impose additional restrictions on public functionaries under Article 19 of the Constitution.
While concurring with majority on other issues, Justice Nagarathna dissented on the contention that vicarious liability could be envisaged in such a situation.
She said hate speech struck at the preambular goals of liberty, equality and fraternity, which were the foundational values embedded in the Indian Constitution.
Justice Nagarathna observed that proposing to hold the government vicariously liable for a statement made by a Minister, which was traceable to any affairs of the state or for the protection of the government by invoking the principle of collective responsibility.
In her separate opinion, she analysed the critical and doctrinal underpinnings justifying a restraint on derogatory and discouraging speech with respect to two primary factors – human dignity as a value as well as a right, and the preambular goals of equality and fraternity.
The Apex Court Judge said that hate speech struck at the foundational values of the Constitution by marking out a society as being unequal. It also violated the fraternity of citizens from diverse backgrounds, which was the sine qua non of a cohesive society based on plurality and multiculturalism, such as in Bharat.
She further gave opinion on fraternity, saying that it was based on the idea that citizens had reciprocal responsibilities towards one another and took within its sweep, inter alia, the ideals of tolerance, cooperation and mutual aid.
Justice Nagarathna held that it was the fundamental duty of every citizen of the country to uphold and protect the sovereignty, unity, and integrity of the nation and promote harmony and the spirit of common brotherhood between all the citizens, transcending religious, regional, linguistic and sectional diversities.
She said every citizen was under a constitutional obligation to renounce practices derogatory to the dignity of women and to strive towards excellence in all spheres of individual and collective activity.
(Case Title: Kaushal Kishor vs State of UP)