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Showing contexts for: public functionaries in Kaushal Kishor vs The State Of Uttar Pradesh Govt. Of U.P. ... on 3 January, 2023Matching Fragments
10. Ms. Aparajita Singh, learned senior counsel and amicus curiae submitted a written note questionwise, which can be summed up as follows: 1 AIR 1965 SC 1039 2 (1983) 4 SCC 141 3 (1993) 2 SCC 746
(i) The right to free speech under Article 19(1)(a) is subject to clearly defined restrictions under Article 19(2). Therefore, any law seeking to limit the right under Article 19(1)(a) has to necessarily fall within the limitations provided under Article 19(2). Whenever two fundamental rights compete, the Court will balance the two to allow the meaningful exercise of both. This conundrum is not new, as the rights under Article 21 and under Article 19(1)(a) have been interpreted and balanced on numerous occasions. Take for instance the Right to Information Act, 2005. The Act balances the citizen’s right to know under Article 19(1)(a) with the right to fair investigation and right to privacy under Article 21. This careful balancing was explained by this Court in Thalappalam Service Cooperative Bank Ltd. vs. State of Kerala4. The decision of this Court in R. Rajagopal alias R.R. Gopal vs. State of T.N.5 is another example of reading down the restrictions (in the form of defamation) on the right to free speech under Article 19(2), in its application to public officials and public figures in larger public interest. Again, in People’s Union for Civil Liberties (PUCL) vs. Union of India6, the right to privacy of the spouse of the candidate contesting the election was declared as subordinate to the citizens’ right to know under Article 19(1)(a). In Jumuna Prasad Mukhariya vs. 4 (2013) 16 SCC 82 5 (1994) 6 SCC 632 6 (2003) 4 SCC 399 Lachhi Ram7, a challenge to Sections 123(5) and 124(5) of the Representation of the People Act, 1951 (as they prevailed at that time) was rejected, on the ground that false personal attacks against the contesting candidate was not violative of the right to free speech. But when it comes to private citizens who are not public functionaries, the right to privacy under Article 21 was held to trump the right to know under Article 19(1)(a). This was in the case of Ram Jethmalani vs. Union of India8, which concerned the right to privacy of account holders. In Sahara India Real Estate Corporation Limited vs. Securities and Exchange Board of India 9, this Court struck a balance between the right of the media under Article 19(1)(a) with the right to fair trial under Article 21. The argument that free speech under Article 19(1)(a) was a higher right than the right to reputation under Article 21 was rejected by this Court in Subramanian Swamy vs. Union of India, Ministry of Law10in which Section 499 IPC was under
(v) The State acts through its functionaries. Therefore, the official act of a Minister which violates the fundamental rights of the citizens, would make the State liable under constitutional tort. The principle of sovereign immunity of the 25(1997) 1 SCC 35 26(2014) 9 SCC 1 27(2004) 2 SCC 9 State for the tortious acts of its servant, has been held to be inapplicable in the case of violation of fundamental rights. The principle of State liability under Constitutional tort was expounded in Nilabati Behera (supra). In Common Cause, A Registered Society vs. Union of India.28, the position in the case of a public functionary was explained. III.C. Written submissions of Shri Kaleeswaram Raj, Advocate for the SLP petitioner
(i) The Constitutional mandate of freedom of expression and free speech is to be preserved without imposing unconstitutional restrictions. It is a right available to everyone including political personalities. 28(1999) 6 SCC 667
(ii) But even while upholding such a right, efforts should be taken to frame a voluntary code of conduct for Ministers etc., to ensure better accountability and transparency;
(iii) There is an imperative need to evolve a device such as Ombudsman to act as a Constitutional check on the misuse of the freedom of expression by public functionaries using the apparatus of the State;
(xxi) While it is not possible to impose additional restrictions on the freedom of speech, it is certainly desirable to have a code of conduct for public functionaries, as followed in other jurisdictions. The Court may keep in mind the fact that this Court in Sahara India Real Estate Corporation Limited (supra) cautioned against framing guidelines across the board to restrict the freedom of Press; (xxii) Coming to hate speeches, there has been a steep increase in the number of hate speeches since 2014. From May 2014 to date, there have been 124 reported instances of derogatory speeches by 45 politicians. Social media platforms have connived the proliferation of targeted hate speech. Such speeches provide fertile ground for incitement to violence;