People holding public office should exercise self restriction and not blabber things which are disparaging or insulting to other countrymen, the Supreme Court said on Tuesday.
The top court said this approach is part of our constitutional culture and there is no need for it to formulate a code of conduct for public functionaries.
A five-judge Constitution bench headed by Justice S A Nazeer, which reserved its verdict on whether restrictions can be imposed on a public functionary’s right to freedom of speech and expression, said there is always a civil remedy available to citizens on account of a public functionary making a speech that affects someone.
The court noted that 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.
“It is inherent and there is no need for this court to give a code of conduct on that. Any person holding a public office or is public servant, there is an unwritten rule and it is part of constitutional culture that they impose a self restriction and not blabber things which are very disparaging or insulting to our other countrymen.
“There is something like a constitutional restriction or limitation inherent in such persons. This must be inculcated in our political society and our civic life,” Justice B V Nagarathna, who was part of the five-judge bench, observed orally.
Attorney General R Venkataramani submitted before the bench, also comprising Justices B R Gavai, A S Bopanna and V Ramasubramanian, that any addition or modification of restrictions to a fundamental right have to come from Parliament as a matter of constitutional principle.
Mehta said the issue is more of an academic question, of whether a writ can be filed citing Article 21 for action against a particular statement.
“It can before a regular bench. It is because of two judgements of the top court in the case of Tehseen Poonawala and Amish Devgan where the apex court has laid down detailed guidelines,” Mehta said.
Advocate Kaleeswaram Raj, appearing for the petitioner, submitted the element of public functionary is missing in the two judgements of the apex court.
“The reason for this referral is concern for hate speech by public functionaries, this is an element lacking in other cases addressed by this court,” he said.
Responding to his submission, the bench asked,”How can we frame a code of conduct for public functionaries? Would we not be encroaching the powers under the Constitution. We would be encroaching into the powers of the Legislature and the Executive.” Kaleeswaram said 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.
The apex court said the reason why there has been no legislation all this while on the issue is because there has always been a self imposed restriction by people holding responsible positions.
“The impression now being given is that slowly those restrictions are being relaxed, and as a result, the persons are speaking in such a way that other persons are affected. There is nobody checking it and anybody can get away with anything,” the bench told the AG.
Venkataramani said it is better if there is a parliamentary debate where Parliament can look at whether there is a need for a law on the issue.
A three-judge bench had on October 5, 2017 referred to the the Constitution bench various issues for adjudication, including whether a public functionary or a minister can claim freedom of speech while expressing views on sensitive matters.
The need for an authoritative pronouncement on the issue arose as there were arguments that a minister cannot take a personal view and his statements have to be in sync with government policy.
The apex court had earlier said it will consider whether the Fundamental Right of Speech and Expression would be governed under reasonable restriction of decency or morality or other preferred fundamental rights would also have an impact on it.
The case was related to a statement made by then Uttar Pradesh minister Azam Khan about the Bulandshahr gang-rape case victims.
The court was hearing a plea filed by a man whose wife and daughter were allegedly gang-raped in July, 2016 on a highway near Bulandshahr seeking transfer of the case to Delhi and lodging of an FIR against Khan for his controversial statement that the gang-rape case was a “political conspiracy”.
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