Prof Satya Narayan Misra in Bhubaneswar, February 27, 2024: The Constitution privileges the MPs from judicial reprimand for any speech made by them inside the Parliament under Article 105(2). However, it does not clarify if their speech / statements outside the house are subject to reasonable restriction by the state under Article 19(2) as for other citizens. An added concern is if the freedom of speech of a Minister or MP under Article 19(1) (2) can trample upon the right to liberty and dignity of another citizen/ citizens under Article 21.

The Supreme Court is divided in its opinion on these vital issues. In the Kaushal Kishore Vs UP case (2023), a 4: 1 majority ruled that the right to freedom of speech of a public functionary could not be restricted to safeguard the fundamental right of another individual. The case stemmed from two instances of Mr. Azam Khan, a Minister in UP making controversial remarks against a victim of rape. The victim’s father approached the court with the submission that the remarks of the Minister violated his daughter’s right to life and personal liberty under Article 21.

In the view of the majority of judges, freedom of speech of a public functionary like the Minister is covered under Art 19(1)(a) and can be restricted under Art19(2) which provides an exhaustive list of restrictions and not by another article viz Art 19(2). For the court, the rights under Art 19 and 21 are horizontal. Justice Nagartha gave the dissenting judgment.

It would be interesting to note that, the US Constitution guarantees unrestricted freedom & specifically freedom of the press. On the other hand, the original Indian Constitution of 1949 put restrictions like libel, slander, defamation, contempt of court, decency, or morality on free speech. The Supreme Court as the watchdog of fundamental rights had a wake-up call when Ramesh Thapar’s weekly journal, Cross Roads, which was critical of schemes of the Government of Madras was not allowed to cross the boundaries of Madras on the ground of public safety.

The Supreme Court fired the first salvo by striking down the restriction as unreasonable in 1950. It clarified that freedom of speech and expression includes freedom to propagate ideas. As it stands now, there are eight restrictions in Art 19(2), like sovereignty, security of the state, friendly countries, public order, decency & morality, contempt of court, defamation & incitement to an offense.

There have been several landmark judgments where the Supreme Court struck down reasonable restrictions by the state by applying the proportionality test, which tries to link intent with outcome. In the Bennet & Coleman Case (1973), the Court struck down the restriction imposed on the number of pages in a newspaper to ten. But the case that struck a popular chord is the Shreya Singhal Case (2015) when the Supreme Court struck down 66A of the IT Act 2000 which attracted three years of imprisonment for sending an offensive message in the electronic medium. Justice Rohinton Fali Faliman observed that the ‘vague and overbroad statutory language will have a chilling effect on speech’. It was a victory for free speech on social media. The most recent case is the electoral bond scheme where the opaque system has been struck down as it puts a veil on the right of voters to informed voting.

However, the Supreme Court in the JMM bribery case (1998) granted immunity to JMM MPs for voting in favor of the Narasimha Rao government after allegedly taking a bribe. It clarified that freedom of speech under Art 105(2) for an MP is independent of freedom of speech by a citizen under Art 19(1) (a). This judgment is in sharp contrast with the Brewster Case (1972) in the USA where the court ruled that ‘Taking a bribe is not part of a legislative act’. Supreme Court’s interpretation of Parliamentary privilege is a low watermark in judicial review.

Against this backdrop, it is refreshing to read the dissenting judgment delivered by Justice Nagarathnain the Kaushal Kishore Case. For her dignity is a quintessence and basic constituent of right under Article 21. Art 19(1) (a) cannot be cited as a reason for curtailing rights under Article 21. Since speech given by the Minister is disparaging, derogatory, and resembles hate speech, it can not be protected under Art 19(1) (a).

She quotes Lau Tzu, the Chinese philosopher who wrote ‘Watch your thoughts, they become words, watch your words, they become actions, watch your actions, they become habits. Watch your habits, they become the character, watch your character, it becomes your destiny.’ She suggests that the Parliament should enact legislation to restrain citizens in general and public functionaries like Ministers in particular from making disparaging and vitriolic remarks against fellow citizens. On the question of balancing between two fundamental rights, the case did not require balancing two FRs but must be considered as an abuse of freedom of speech, when it is used to attack the dignityof another individual.

Justice Evan Hughes in the context of dissenting judgments had written in 1936:’ Dissent in the highest court is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may correct the error in which the dissenting judge believes the court to have been betrayed ‘. India was witness to such historic correction when in the Puttaswamy Case (2017), a Constitution bench upheld the dissenting judgment of Justice HR Khanna in the ADM Jabalpur Case (1978) that the right to life cannot be taken away arbitrarily even during the imposition of emergency. Article 21 has now been ring-fenced from encroachment during the imposition of emergency under Article 352.

Fali Nariman who passed away recently in an interview with Karan Thapar said: ‘The situation in India is like a veiled emergency with the added mood of anti-Muslim and anti-minority sentiments.’As the general elections are nearing, the possibility of Ministers and MPs using hate and abusive speech wearing the armour of Article 19(1)(a) is quite potent. The election commission, as custodian of conducting free and fair elections, apart from scrupulously complying with the code of conduct envisaged by the RPO Act 1951 can draw solace from Justice Nagartha’s call for protecting other’s dignity and liberty as a lynchpin of civilized society. The Ministers and MPs have equal responsibility for protecting others’ right to live with dignity.

Professor Misra teaches Constitutional Law