The Supreme Court on Tuesday said that there is an unwritten rule that people holding public office must impose self-restriction and ensure they do not make disparaging remarks.
The top court emphasised that this must be inculcated in our political and civic life, as it reserved its judgement on a reference whether restrictions can be imposed on a public functionary’s right to freedom of speech and expression including on pending criminal cases.
During the hearing, a five-judge Constitution bench of Justices S Abdul Nazeer, B R Gavai, A S Bopanna, V Ramasubramanian, and B V Nagarathna asked, “How can we frame a code of conduct for legislators? We would be encroaching onto the powers of the legislature and the executive”.
A counsel, representing a petitioner, contended that there is significant increase in hate speech by public functionaries.
On this, the bench asked, “Is there no provision under IPC to prosecute in such cases?” The counsel replied, "Yes! They can be booked under offence for hurting the dignity of others."
Attorney General R Venkataramani, however, contended that the counsel may have academic interest to address all these abstract propositions, but there is a positive law on this and there is an existing roadmap available, putting vicarious liability for speeches by a minister.
The bench remarked, "Is there no constitutional culture in our country that is inherently applicable to those in public office? There is an unwritten rule that we impose a self-restriction towards making disparaging remarks, when the person holds such posts".
Solicitor General Tushar Mehta contended that the issue is more of an academic question, whether a writ can be filed citing Article 21 for action against a particular statement.
The AG cited the top court’s judgments in Tehseen Poonawalla and Amish Devgan cases and emphasized that sufficient guidelines already existed.
He said that as a matter of constitutional principle, any additions or modifications of restrictions to fundamental rights have to come from Parliament.
The bench again observed the reason why there is no law all this while is because there has always been an inherent self-imposed code on those in public life.
"Now the impression is that such restrictions are being relaxed, leading to hurtful speeches being made and no checks are being made, allowing them to get away, especially those in high office including public servants," the bench added.
In October 2017, a three-judge bench referred the matter to the constitution bench to decide various issues, including whether a public functionary or a minister can claim freedom of speech while expressing views on sensitive matters.
The issue before the court arose after then controversial Uttar Pradesh minister and Samajwadi Party leader Azam Khan made a remark in the 2016 sensational Bulandshahr gangrape case. He subsequently tendered unconditional apology which was accepted by the court.