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Freedom of Speech of Public functionaries vs. Maintaining Dignity of the Office

  • Published
    16th Nov, 2022

The Supreme Court (SC)reserved its judgment on whether free speech by public functionaries, including inter alia ministers, MLAs, MPs, should have greater restrictions than those imposed by Article 19 (2).

  • There has been a significant increase in hate speeches by public functionaries and referred to an incident where the President was being mocked by a minister.
  • Almost 500% rise in reported Hate speech cases against politicians and public functionaries since 2014.

Key points highlighted by the Bench

Bench: Five-Judge Constitution Bench- Justices S A Nazeer, B R Gavai, A S Bopanna, V Ramasubramanian, and B V Nagarathna

  • Self-restriction: People holding public office should exercise self-restriction and not blabber things that are disparaging or insulting to other countrymen. 
  • No need for a separate code: This approach is part of our constitutional culture and there is no need for it to formulate a code of conduct for public functionaries. 
  • Civil remedy: There is always a civil remedy available to citizens on account of a public functionary making a speech that affects someone.
  • Constitutional culture: Irrespective of what Article 19(2) may say, there is a constitutional culture in the country where there is an inherent limitation or a restriction on what people holding responsible positions say.

Article 19 (2) relates to the powers of the State to make laws imposing reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest of sovereignty and integrity of the country, public order, decency, morality, etc.

What does the ‘Constitutional Limitation’ means?

  • The original purpose of establishing formal or constitutional limits on government was to check the arbitrary actions of hereditary monarchs or rulers who abused their power, imposed unwanted taxes, or launched unpopular wars.
  • In this case, it relates to the ‘duty-based order’ amongst the people in a higher position and responsibility towards a welfare society.

Hate Speech and Law

 Meaning: According to the 267thReport of the Law Commission of India, Hate Speech is stated as an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief, and the like.

 Important Provisions: Under the existing laws, neither hate speech has been defined, nor is there any specific provision to curb it. Police take recourse to Sections 153(A) and 295(A)to tackle it.

  • Section 153A IPC penalizes 'the promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
  • Section 295(A) of the Indian Penal Code (IPC), punishes any speech, writings, or signs that “with premeditated and malicious intent” insult citizens’ religion or religious beliefs with a fine and imprisonment for up to three years.

Is controlling the freedom of Speech of officials against Constitutional Provision?

  • No, according to the Apex Court, the Fundamental right for freedom of speech is exposed to reasonable restrictions based on ‘Public order’ and ‘Security of the Nation’.

What is the difference between hate speech and freedom of speech?

  • The Indian Constitution, under Article 19(1)(a)provides the right to freedom of speech and expression.
  • However, under Article 19(2), the constitution also provides for the ‘reasonable restrictions’ against free speech 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 offense.

Hate speech is considered a reasonable restriction on freedom of speech and expression.

Important Judgements on Freedom of Speech vs.Hate comments:

RangilaRasool case:

  • RangilaRasool was a tract brought out by a Hindu publisher — that had made disparaging remarks about the Prophet’s private life.
  • Cases against the first pamphlet, filed under Section 153A, were dismissed by the Punjab and Haryana High Court, which examined the question of whether targeting religious figures is different from targeting religions.
  • This debate in interpretation prompted the colonial government to enact Section 295A with a wider scope to address these issues.

Ramji Lal Modi v State of Uttar Pradesh:

  • The Supreme Court upheld the law on the grounds that it was brought in to preserve “public order”.
  • The constitutionality of Section 295A was challenged.
  • Public order is an exemption to the fundamental right to freedom of speech and expression and the right to religion recognized by the Constitution.

RamlalPuri v State of Madhya Pradesh:

  • In 1973, the Supreme Court said the test to be applied is whether the speech in question offends the “ordinary man of common sense” and not the “hypersensitive man”.
  • However, these determinations are made by the court and the distinction can often be vague and vary from one judge to the other.

BaragurRamachandrappa v State of Karnataka:

  • In a 2007 decision of the Supreme Court, “a pragmatic approach” was invoked in interpreting Section 295A.
  • The state government had issued a notification banning Dharmakaarana, a Kannada novel on the ground that it was hate speech, invoking a gamut of provisions including Section 295A.
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