Justice BV Nagarathna who was a part of the Constitutional Bench rendered her distinct perspective on the issue-'whether public functionaries' freedom of speech can be subjected to more restrictions' while dissenting from the majority view authored by Justice V Ramasubramanian and concurred by Justice S Abdul Nazeer, Justice AS Bopanna and Justice BR Gavai.

Justice BV Nagarathna noted that indiscreet speech is a cause of concern in recent times as it is hurtful and insulting. She stated that public functionaries are required to understand and measure their words.

Justice Nagarathna observed that it is also for respective political parties to regulate and control the action and speech of its functionaries and members, through a code of conduct, which would prescribe the permissible limits of speech and expression.

Vicarious Liability of State

She opined that any statement made by a Minister traceable to any affairs of the State or protecting the government may be attributed vicariously to the government in view of the collective responsibility.

A minister may make statements in two capacities (1) Personal Capacity (2) Official Capacity as a delegate of the Government. In the former capacity, no vicarious liability may be attributed to the Government, the latter category of statements may be traceable to any affair of the state or made with the view to protect the government. If such statements are disparaging or derogatory and represent not only the view of the individual Minister making them but also embodying the views of the Government, then such statements could be attributed vicariously to the government itself, especially in view of the principle of collective responsibility”, she observed.

She further said that “If such statements are endorsed not only in the statements made by an individual Minister but also reflective of the government's stance, such statements may be attributed vicariously to the government. “

Hate Speech

Justice Nagarathna said that liberty, equality and fraternity are the foundational values embedded in our Constitution. She further added that Hate speech strikes each of these foundational values by marking out societies as being unequal. It also violates fraternity of citizens from diverse backgrounds- the sine qua non of a cohesive society based on plurality and multiculturalism such as in India i.e. Bharat. Fraternity is based on the idea that citizens have reciprocal responsibilities towards one another.

Democracy and Freedom of Speech and Expression

Freedom of speech is not contingent only upon the laws of a nation. It is laws, however, through their own unique methods which reinforce social sanctions. For a country like us which is a parliamentary democracy, freedom of speech and expression is a necessary right as well as a concomitant for the purpose of not only ensuring a healthy democracy but also to ensure that the citizens could be well informed and educated on governance. The dissemination of information is to ensure that the citizens are enlightened as to their rights and duties, the manner in which they should conduct themselves in a democracy and enabling a debate on policies and actions of the governments and ultimately for the development of Indian society in an egalitarian way. Right to speech is an inalienable right of a man and fundamental rights are only recognition of those rights, Justice Nagarathna held.

Freedom of Speech and Fundamental Duties

Justice Nagarathna referred to fundamental duties under Part IV-A of the Constitution as means to check disparaging and unwarranted speech, particularly under Article 51-A- It shall be the duty of every citizen of India (c) to uphold and protect the sovereignty, unity and integrity of India; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement

Public Functionaries To Measure Their Words

Public functionaries, given the impact they yield on the public, owe a duty to the citizenry at large to be more responsible and restrained in their speech. They are required to understand and measure their words, having regard to the likely consequences thereof on public sentiments and behaviour, and also be aware of the example they are setting for fellow citizens to follow.

It is also for respective political parties to regulate and control the action and speech of its functionaries and members, this could be through a code of conduct, which would prescribe the permissible limits of speech and expression, Justice Nagarathna observed.