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".