No One Can Be Penalised For Holding An Opinion Not In Confirmity With Constitutional Values: Supreme Court

Kaushal Kishore vs State of Uttar Pradesh | 2023 (SC) 4 | WP (C) 113 OF 2016 

Insofar as Special Leave Petition (Diary) No.34629 of 2017 is concerned, the same arose out of a judgment of the Division Bench of the Kerala High Court dismissing two writ petitions. The writ petitions were filed in public interest on the ground that the then Minister for Electricity in the State of Kerala issued certain statements in February 2016, 7.4.2017 and 22.4.2017. These statements were highly derogatory of women. Though according to the petitioners in the public interest litigation, the political party to which the Minister belonged, issued a public censure, no action was taken officially against the Minister. Therefore, the petitioner in one writ petition prayed among other things for a direction to the Chief Minister to frame a Code of Conduct for the Ministers who have subscribed to the oath of office as prescribed by the Constitution with a further direction to the Chief Minister to take suitable action if any of the Ministers failed to live upto the oath. The prayer in the second writ petition was for a direction to the concerned Authorities to take action against the Minister for his utterances.

Shahjahanpur National Highway (NH 91). Relying on certain news articles, the petitioner in Writ Petition (Crl.) No. 113 of 2016 has brought to the notice of this Court the remarks made by the said public functionary, terming the alleged incident as an “opposition conspiracy,” which was proliferated merely because “elections were near, and the desperate opposition could stoop to any level to defame the government.” 4.2. In relation to such statements, a First Information Report, being FIR No. 0838 of 2016 was registered against the said Minister on 30th July, 2016 by the Kotwali Police Station, Dehat, Bulandshahr, Uttar Pradesh, for offences under Sections 395, 397, 376-D, 342 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ for the sake of convenience). 4.3. In the above background, the Writ Petition has been preferred, praying as follows:

“P R A Y E R : -

In view of the above stated submissions, it is therefore, most humbly prayed that this Hon’ble Court; may in the interests of justice, be pleased to :-

a. Issue a writ of mandamus and / or any other appropriate writ and / or direction against the respondents directing them to stop the infringement of the fundamental rights of the petitioner to live a lawful life; in addition to passing other appropriate directions to the respondents.

b. Direct the state to pay the appropriate compensation to the petitioner, other victims and the family members as per Law.

c. Direct the state to provide and ensure respectable and appropriate free of cost and safe education arrangements till the attainments of the highest degree in the interest of justice.

d. Direct the state to provide and ensure sufficient life security and appropriate job security to the petitioner, other victims and family members.

e. Summon the status report from the investigation agency in the interests of justice.

f. Monitor the investigation of FIR No.0838/2016 under Section 154 Cr. P.C. 395, 397, 376-D and POCSO Act,

No.0838/2016 against erring police officials for disobeying the directions of law in the present case. j. Pass any other or further orders as this Hon’ble Court may deem fit and proper in the light of the facts and circumstances of the present case in favour of the petitioners and against the respondents.” 4.4. Special Leave Petition bearing Diary No. 34629 of 2017 has been filed impugning the common order dated 31st May, 2017 passed by the High Court of Kerala, at Ernakulam dismissing Writ Petition (C) No. 15869 and Writ Petition (C) No. 14712 of 2017. The said Writ Petitions were filed before the High Court alleging inaction on the part of Government of Kerala in connection with the derogatory statements made on separate occasions, by the then Minister of Electricity, Government of Kerala, against a woman Principal of a polytechnic college in Kerala, the mother of a student who allegedly committed suicide due to the alleged harassment by the college authorities and against women labourers of a tea plantation. Aggrieved by the dismissal of the said Writ Petition, SLP bearing Diary No. 34629 of 2017 came to be filed before this Court, which was directed to be tagged with Writ Petition (Crl.) No. 113 of 2016.

Court's Reasoning: In the case you provided, the court heard arguments from various parties, including the Attorney General for India, senior counsel acting as amicus curiae, and counsel representing the petitioner and interveners. Specifically, Shri Kaleeswaram Raj, representing the petitioner, submitted a detailed note covering various aspects related to freedom of speech, restrictions on it, the concept of horizontal application of fundamental rights, and the role of Ministers in maintaining collective responsibility.

1. **Nature of Freedom of Speech:** The note delves into the nature and extent of freedom of speech, emphasizing its importance and the need for reasonable restrictions.

2. **Horizontal Application of Fundamental Rights:** It discusses the shift from a vertical approach, where enforceability was primarily against the government, to a horizontal approach, where fundamental rights can be enforced against private actors as well.

3. **Role of Ministers and Code of Conduct:** The note highlights the importance of self-regulation by Ministers and suggests the adoption of a code of conduct to regulate their speeches and actions, thereby maintaining collective responsibility.

4. **Definition of Hate Speech:** It references international standards for defining hate speech, emphasizing its harmful nature and advocating for measures to combat it.

5. **Historical Context and Evolution of Constitutional Provisions:** The note provides insights into the historical background of constitutional provisions related to freedom of speech, citing instances such as the National Integration Conference and subsequent amendments to the Constitution.

6. **Judicial Interpretation:** It discusses the judicial history and evolution of Article 19(2) of the Constitution, which enumerates the grounds for restricting freedom of speech, emphasizing the importance of well-established legal principles in resolving conflicts between fundamental rights.

7. **Role of Ministers and Governmental Responsibility:** The note explores the role and responsibility of Ministers in upholding collective responsibility and suggests that individual statements made by Ministers cannot be attributed vicariously to the government, except in certain circumstances where they lead to actionable harm.

8. **Need for Legal Framework:** Finally, it argues for the necessity of a proper legal framework to define constitutional torts and outline the redressal mechanisms for violations of constitutional rights, drawing upon judicial precedent for guidance.

9. **Analysis of Statements by Public Functionaries:**

   - The excerpt suggests that in analyzing statements made by public functionaries, several factors need to be considered. These include whether the statement was made in a personal or official capacity, whether it pertained to a public or private issue, and whether it was made on a public or private platform.

10. **Philosophical Foundations of Free Speech:**

   - The discussion emphasizes that freedom of speech and expression is closely linked to socio-political ideals such as respect for individual dignity, equality, fraternity, and tolerance. These ideals, enshrined in the Constitution's Preamble, form the basis of discourse on free speech.

11. **Differentiating Hate Speech and Derogatory Speech:**

   - Hate speech is defined traditionally as speech that leads to systematic discrimination and marginalization of a community. However, the excerpt suggests that derogatory, vitriolic, and disparaging speech, although not falling strictly under hate speech, can still have insidious effects on societal perception of dignity, social cohesion, and equality.

12. **Comparative Jurisprudence:**

   - The excerpt compares approaches to hate speech in different jurisdictions. For instance, Canada emphasizes multiculturalism and group equality, while Germany prioritizes personal honor and dignity over freedom of expression.

13. **Impact of Technology and Social Media:**

   - It discusses how technology, particularly social media, has revolutionized communication, blurring the distinction between public figures and ordinary citizens in terms of the reach of their speech.

14. **Responsibility of Citizens and Public Figures:**

   - The excerpt underscores the importance of every citizen, including public functionaries and celebrities, exercising self-restraint in speech to preserve constitutional values and prevent societal discord.

15. **Legal Framework and Remedies:**

   - It points out the necessity of a legal framework to address violations of fundamental rights due to derogatory speech. However, it notes that the writ jurisdiction may not always be applicable if alternate common law remedies exist for the same violations.

Conclusion: The provided text delves into various aspects related to freedom of speech and expression, focusing on the commercial aspect of speech, compelled speech, hate speech, and the importance of fraternity as enshrined in the Constitution. 

1. **Commercial Speech:**

   - The excerpt begins by defining "advertise" and "advertisement" in the context of commercial speech, emphasizing that it pertains to drawing attention to goods or services for sale. It cites the case of Hamdard Dawakhana vs. Union of India, which stated that while advertisement is a form of speech, its true character depends on the object it promotes. If the advertisement is commercial in nature, primarily aimed at promoting trade or commerce, it may not fall under the concept of freedom of speech.

2. **Compelled Speech:**

   - Compelled speech refers to speech that compels an individual to state certain information, such as ingredients on a food product or pharmaceutical item. The excerpt explains that compelled speech, aimed at informing consumers, does not violate freedom of speech. However, if the state compels individuals to propagate a point of view against their will, it may infringe upon freedom of speech unless justified under Article 19(2) of the Constitution. The case of Union of India vs. Motion Picture Association is cited to illustrate this point.

3. **Hate Speech:**

   - The text discusses hate speech and disparaging speech, highlighting their detrimental effects on societal harmony and individual dignity. It refers to the case of Pravasi Bhalai Sangathan vs. Union of India, which connects hate speech with discrimination. The excerpt explores international practices on hate speech, citing examples from countries like Australia and Canada, which restrict hate speech to uphold multiculturalism and group equality.

4. **Fraternity and Constitutional Values:**

   - The excerpt underscores the importance of fraternity, equality, and dignity as foundational values enshrined in the Constitution's Preamble. It discusses how hate speech undermines these values by promoting inequality and societal disharmony. The case of Subramanian Swamy vs. Union of India is referenced to justify restraints on free speech in the interest of promoting fraternity. It emphasizes that every citizen has a responsibility to respect the dignity and equality of others, in line with constitutional values.

5. **Democracy and Collective Responsibility:**

   - The text highlights the inherent checks and balances within democracy to ensure inclusiveness and security for all citizens. It stresses the need for citizens, including public functionaries, to uphold the ideals of the Constitution and promote fraternity and unity. Any speech that undermines these values is deemed detrimental to social and political harmony.

6. **Fundamental Duties and Constitutional Values:**

   - The excerpt highlights Article 51-A of the Indian Constitution, which outlines fundamental duties for citizens. These duties include upholding sovereignty, unity, integrity, promoting harmony, brotherhood, and striving towards excellence. It emphasizes that fundamental duties are core constitutional values and must be recognized as obligations correlating to rights.

7. **Discipline of Speech in Srimad Bhagavad Gita:**

   - Verse 15 of Chapter 17 of the Srimad Bhagavad Gita is cited, describing the discipline of speech or 'vāṅ-maya tapas'. It emphasizes the importance of words that are truthful, inoffensive, pleasing, and beneficial, likening them to the recitation of Vedic scriptures.

8. **Nature of Fundamental Rights:**

   - The text presents discussions from legal scholars regarding the nature of fundamental rights and their relationship with the state. It argues that fundamental rights are inherent and inalienable, existing prior to the Constitution. They are not solely dependent on constitutional recognition for their existence.

9. **Protection of Fundamental Rights:**

   - It is highlighted that the state has an affirmative duty to protect fundamental rights, and failure to do so could result in a violation of the right to life and personal liberty under Article 21 of the Constitution. The judiciary plays a crucial role in ensuring that citizens' rights are safeguarded against state interference.

10. **Vicarious Liability and Collective Responsibility:**

   - The excerpt discusses the attribution of statements made by ministers to the government, particularly in cases where such statements reflect the government's stance. It emphasizes the principle of collective responsibility and distinguishes between statements made in personal capacity and official capacity.6. **Constitutional Tort:**

   - The concept of constitutional tort is explained, wherein the state can be held vicariously liable for violations of fundamental rights by its agents. It involves seeking redress for constitutional violations through monetary compensation, distinct from other tort remedies.

11. **Legal Framework for Constitutional Tort:**

   - The text acknowledges the need for a proper legal framework to define acts or omissions constituting constitutional torts and their redressal. It suggests that not all harmful statements made by public functionaries may amount to constitutional torts, and each case should be examined based on its merits.

12. **Role of Parliament and Political Parties:**

   - It suggests that Parliament can enact legislation to restrain citizens, including public functionaries, from making disparaging remarks against fellow citizens, while political parties can regulate the actions and speech of their members through codes of conduct.

13. **Remedies for Victims:**

   - Citizens prejudiced by hate speech or other forms of attack can seek remedies under criminal and civil statutes, including declaratory remedies, injunctions, and pecuniary damages.

In essence, the provided text offers a comprehensive discussion on various legal principles related to fundamental rights, duties, freedom of speech, vicarious liability, and the doctrine of constitutional torts, emphasizing the importance of protecting citizens' rights and promoting harmony in society.