Supreme Court: It's time for a law regulating MPs and MLAs' offensive speech.

  • Nov. 16, 2022, 12:05 p.m.

Suggesting it’s time for Parliament to think of a new law for a crackdown on offensive statements made by public functionaries such as MPs and MLAs, a Constitution bench in the Supreme Court on Tuesday stressed that a "constitutional culture" prescribing a self-imposed restriction must be inculcated among politicians.

The five-judge bench regretted the degradation in the quality of discourse, pointing out that the need for a specific law for public functionaries was not felt earlier because of the inherent restrictions they exercised. However, it added, those in "high offices" are now getting away despite making objectionable speeches.

"The reason why there has been no legislation till date is because there has always been an inherent and self-imposed restriction against speaking anything disparaging about others." "Now, the impression is that those restrictions are slowly getting relaxed, leading to hurtful speeches being made," observed the bench, comprising justices SA Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian, and BV Nagarathna.

It added: "Nobody seems to be checking them, and anyone can get away with saying anything disparaging... especially those who are occupying high positions, public functionaries, and government servants."

According to the bench, a "constitutional culture" should be inherently applicable to those in public office. "It is an unwritten rule and inherent that any person holding public office will have a self-imposed restriction towards making disparaging remarks when he or she holds such posts... and don’t blabber anything disparaging or insulting to fellow countrymen. Should there not be a constitutional culture? "This must be inculcated in our political society and civic life," it emphasised.

The Constitution bench was examining a matter involving the prime question if an additional accountability and thus, a legal obligation, can be cast upon the public functionaries with respect to obnoxious statements made by them. In 2017, a three-judge bench framed a raft of legal questions surrounding the scope of freedom of speech for a public official, especially legislators. The case arose out of a controversial statement made by Samajwadi Party leader Azam Khan, who was at that time a minister in the Uttar Pradesh government, regarding a gang rape case. Khan had then tendered his unconditional apology before the top court.

Meanwhile, when the hearing on the reference commenced on Tuesday, attorney general (AG) R Venkataramani and solicitor general (SG) Tushar Mehta urged the bench to refrain from dwelling on the issue any further. The law officers claimed that not only had some subsequent judgments by the Supreme Court covered the entire scope by laying down extensive guidelines against hate speech, but the question regarding whether or not to have an additional legislative sanction against the public functionaries was within the ambit of the parliament.

"It is a matter of positive law and not just a matter of intellectual discourse." It will be an unmanageable proposition to examine if a government can be held vicariously liable for a statement made by its minister or any such abstract question framed in the reference order. "It is exclusively for the parliament to consider whether there needs to be a modification in the law or that there should be a new law," argued the AG.

As the bench pointed out that there have been instances of reckless statements by public functionaries of late, Venkataramani responded: "Maybe there is a need to have a law... Aberrations need to be taken care of. We are not saying that the issue is not serious or that there is no need to look at the law. But it is not for a court to add or subtract something from the law or the Constitution as far as provisions relating to freedom of speech are concerned.

On his part, advocate Kaleeswaram Raj, appearing for the petitioner in the matter, pointed out that he has pleaded for a code of conduct for the public functionaries and an ombudsman to examine the statements issued by them. Raj further contended that the issues before the constitution bench are novel since they pertain specifically to the public functionaries, which can form a class apart from general public.

At this, the bench wondered: "How can we frame a code of conduct for public functionaries?" Will it not amount to encroaching upon the legislative functions? Can we add any condition to the right to free speech? Or we will have to finally say that the parliament can do this?"

Raj, on his part, urged the bench to examine the issue further since the spurt in hate speeches, particularly those by the legislators, will warrant an institutional mechanism to save democratic values.

After the conclusion of the preliminary submissions, the bench reserved its decision on whether the matter needs further adjudication or should be laid to rest.

Author : Rajdhani Delhi Representative

Rajdhani delhi representative

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