3 January 2023

Table of Contents

No additional restrictions against free speech for MPs and MLAs, rules Supreme Court

GS-2: Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.

The supreme Court upheld that MPs, and MLAs enjoy freedom of speech under Article 19(1)(a) of the Constitution on par with other citizens ministers. They are also subjected to restrictions prescribed under Article 19(2) of the Constitution like any other citizens and no additional restrictions can be imposed on a public representatives.

Right to freedom of Speech and Expression

• The Indian Constitution has conceded the power of the fundamental rights under Part-III to every citizen against the encroachment of their right by government.
• One of them is Article -19, which provides protection of certain rights regarding freedom of speech.

• Art-19 (1): All citizens shall have the right –

1. To freedom of speech and expression;
2. To assemble peaceably and without arms;
3. To form associations or unions;
4. To move freely throughout the territory of India;
5. To reside and settle in any part of the territory of India; and
6. Omitted
7. To practise any profession, or to carry on any occupation, trade or business.

• Art-19 (2): It imposes reasonable restrictions on the exercise of the right conferred by the sub clause (a) of clause (1) 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 offence.

• On the contrary, Art-105 provides powers, privileges, etc of the Houses of Parliament and of the members and committees whereas Art-194 provides powers, privileges, etc, of the House of State Legislatures and of the members and committees.

• Art 105(1) gives the members of parliament freedom of speech.
• Art 105(2) provides that no member of parliament will be liable in any proceedings before any Court for anything said or any vote given by him in the Parliament.

• Also, no person will be held liable for any publication of any report, paper, votes or proceedings if the publication is made by the parliament or any authority under it.

• Thus, Both the Articles, Article 19 (1) (a) and Article 105 of the Constitution talks about freedom of speech.

• Article 105 applies to the members of parliament not subjected to any reasonable restriction whereas Article19 (1)(a) applies to citizens but are subject to reasonable restrictions.
• On the other hand, Article 105 is an absolute privilege but can be used in the premises of the parliament and not outside the parliament.

• If any statement or anything is published outside the parliament by any member and if that is reasonably restricted under freedom of speech then that published article or statement will be considered as defamatory.

Points of conflict between fundamental rights and parliamentary privileges

1. The right to prohibit publication of proceedings and reports and the freedom of press and speech under Article 105 comes in conflict with the right of the freedom of speech and expression under Article 19(1)(a).
2. Article 105 is an independent right, with no reasonable restrictions, but the fundamental right of Article 19(2) is an absolute individual right with reasonable restrictions.

• There were the few instances in which parliamentary privileges were to curtail the rights of the citizens such as-

• In 2003, a speaker of the Tamil Nadu’s Legislative Assembly ordered to arrest the editors of “the Hindu”, as they published the conduct of the member in the session of the assembly in their article, stating that it was considered to be a breach of his privilege. The journalists were not even given the chance to be heard, which acted in violation of the principles of natural justice, thereby resulting in the breach of Article 19 and Article 21 of the Constitution of India. 
• In 2019, the Speaker of Maharashtra Legislative Assembly ordered action of arrest against the man for creating a parody video of the speech made by one of the members of the Assembly. 
• In 2006, the Chief of Maharashtra Dance Bar Association was given imprisonment for 90 days for using the remark that “we would not allow minister’s wives to move around if dance bars were banned”.
• In 2017, the editors of two Kannada tabloids were arrested and imprisoned by the Karnataka High Court on the recommendations by the Speaker of the Legislative Assembly of Karnataka contending that the journalists’ published defamatory statements against the Speaker, which violated their privileges. 

• Thus, to strike balance between the fundamental rights and parliamentary privileges, judiciary has intervened through its judgements such as-

• In G.K. Reddy Case (1954), he was held for the contempt of a privilege and was under illegal detention. The Supreme Court held that the failure to produce the arrested person before the Magistrate within twenty-four hours amounted to an illegal arrest, which would act as a violation of his right guaranteed under Article 22(2) of the Constitution.
• Similarly, also in Keshav Singh case (1965) and K. Anandan Nambiar case (1966), the Supreme Court upheld individual fundamental rights over misuse of parliamentary privileges. 

Background of this case (Freedom of Speech or Parliamentary Privilege)

• In 2016, Samajwadi Party (SP) leader Azam Khan remarked that a gang-rape of a minor and her mother in Uttar Pradesh was a political conspiracy and a publicity stunt. In this context, the father of the victim requested the Supreme Court to take action against Khan for such comments.
• The Court identified the issue pertaining to the right to freedom of speech and expression under Article 19(1)(a) restricted by only Article 19(2), or is it also restricted by other fundamental rights.
• In addition, following questions were framed on referring the case to the Constitutional bench –

• Whether the Court can impose restrictions on the right to freedom of speech and expression beyond the present restrictions provided under Article 19(2) of the Constitution?
• Can a Fundamental Right under Article 19 and Article 21 (that is right to life and Personal Liberty) of the Constitution, can be claimed against anyone other than the ‘State’ or its instrumentalities?
• Whether the State is under a duty to affirmatively protect the right of the citizens under Article 21 of the Constitution even if it is against a threat to the liberty of the citizen by the acts or omissions of another citizen or private agency?
• Whether the statement of a minister, traceable to any affairs of the State, should be attributed vicariously to the government itself for not keeping in mind the principle of collective responsibility?
• Whether a statement made by a minister, which is inconsistent with the rights granted to the citizen under Part III of the Constitution, constitutes as a violation of such Fundamental Rights and is actionable as ‘Constitutional Tort’ (civil wrong)?

The Supreme court Verdict

• The right to freedom of speech and the restrictions can be exercised not only against the state but also against non-state actors.
• A mere statement by a minister which is inconsistent with the rights of a citizen does not lead to a Constitutional tort.
• A minister may make a statement in personal capacity or official capacity.

• Personal capacity: No vicarious liability can be attributed.
• Official capacity: Attributable to the government on the principle of collective responsibility.

• It is the responsibility of the political parties to control the speeches made by their ministers by formulating a code of conduct. 
• The Parliament needs to come up with a law to restrain public functionaries from making disparaging remarks against other citizens.
• Hate speech strikes at the foundational values by making the society unequal and also attacks citizens from diverse backgrounds in India. Thus, it shall be the duty of every Indian to uphold the dignity of every individual irrespective of religion, caste etc. and also uphold the dignity of women.

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