Why the supreme court is right to not curb ministers’ free speech

Why the supreme court is right to not curb ministers’ free speech

It's the party's job to draw the line — that resolve is missing.

A Constitution Bench of the Supreme Court on Tuesday unanimously and rightly ruled out any additional curbs on free speech by ministers. Like other citizens, they are guaranteed the right to freedom of expression under Article 19(1) (a), governed by the reasonable restrictions laid out in Article 19(2) — and those are enough, it said. Because “The role of the court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges.” The majority ruling also made a valid distinction on the government’s vicarious responsibility for ill-judged or hateful remarks made by its individual ministers — “… the flow of stream in collective responsibility is from the Council of Ministers to the individual ministers. The flow is not on the reverse, namely from the individual ministers to the Council of Ministers”. It is not possible to extend the concept of collective responsibility, it said, to “any and every statement orally made by a Minister outside the House of the People/Legislative Assembly”. Even while agreeing with the majority ruling, however, it is possible to underline the concern articulated in the minority judgment over a hateful public discourse — “hate speech, whatever its content may be, denies human beings the right to dignity”. And to agree with it when it speaks of the special duty of public functionaries and other persons of influence to be more responsible and restrained in their speech, to “understand and measure their words”.

The problem of hate speech by ministers and others belonging to the party in power is real, but it is primarily political. The solution is not for the court to draw a new line, or even, as the minority judgment proposed, for Parliament to make another law. There are enough provisions in the statute book to deal with speech that promotes enmity and violence or results in cramping the freedoms of others. What is missing is the political resolve and will of governments to act on instances of hate speech, especially when they involve one of their own, and there are no legal shortcuts to make up for that absence. In fact, the same legal provisions that are designed to curb hate speech can be twisted and turned and weaponised by governments against citizens who dissent and disagree.

Last year in June, the ruling BJP acted against its spokesperson Nupur Sharma when she made offensive remarks on the Prophet, kicking up a controversy that rippled in the Islamic world — she was suspended from the party. More recently, it looked on silently as its Bhopal MP, Sadhvi Pragya Singh Thakur, publicly exhorted Hindus to sharpen their knives, to take on the threat allegedly posed by the minority. The message from those in the ruling party and its government, even those who aspire to be in power, needs to be firm and consistent: Hate speech will not be brooked. Because the “dent on our social and political values” — as the minority judgment put it — caused by speech that undermines constitutional values hurts democracy as well.