SC Decision Allows for Enforcement of Article 19 Fundamental Rights Against Private Citizens

Relevance: GS Paper 2; Indian Polity; Fundamental Rights

The First Amendment to the Indian Constitution

• The First Amendment to the Indian Constitution was passed in 1951 and made several changes to the Constitution, including the addition of Article 31C, which allows certain laws to be exempt from judicial review if they are deemed to be in the “public interest.”
• The First Amendment also expanded the scope of restrictions on the right to free speech, including the introduction of the qualification “reasonable” to the restrictions imposed by Article 19(2) and the inclusion of specific terms such as “public order” and “incitement to an offense.”

Free Speech in the Indian Constitution

• Article 19(1)(a) of the Indian Constitution guarantees the fundamental right to freedom of speech and expression, but this freedom is not absolute and is subject to exceptions or “reasonable restrictions” listed in Article 19(2).
• The First Amendment made two key changes to Article 19(2), including the introduction of the qualification “reasonable” and the inclusion of specific terms such as “public order” and “incitement to an offense.”

Supreme Court Rulings on Free Speech

• The First Amendment was largely motivated by two Supreme Court rulings in 1950: Brij Bhushan v State of Delhi and Romesh Thappar v State of Madras.
• In the Romesh Thappar case, the Supreme Court struck down a provision of the Madras Maintenance of Public Order Act as unconstitutional, finding that the terms “public safety” and “maintenance of public order” were too vague and could not be equated with the restrictions allowed in Article 19(2).
• In the Brij Bhushan case, the Supreme Court ruled that the government could not impose prior restraint on the press, except in cases where there was a clear and imminent danger to the security of the state.

Challenge to the First Amendment

• A group of individuals and organizations have filed a petition challenging the First Amendment to the Indian Constitution, arguing that it violates the principle of the separation of powers and the fundamental right to equality before the law

• The Supreme Court of India has ruled that the freedom of speech and expression guaranteed by Article 19 of the Indian Constitution applies not only to the state, but also to private citizens.
• This means that private citizens can be challenged on their freedom of speech and expression, just like the state can.
• The Court made this ruling in response to a petition filed by a group of citizens who had been accused of making derogatory and inflammatory statements on social media.
• The Court emphasized that the freedom of speech and expression is not absolute and can be restricted if necessary in the interests of public order, decency, or morality.
• The Court also stated that the right to free speech must be balanced against the right to reputation, and that individuals should not be allowed to use their freedom of speech to defame or harass others.
• This ruling has the potential to bring an obligation on the state to ensure that private entities also abide by Constitutional norms, such as seeking enforcement of privacy rights against a private doctor or seeking the right to free speech against a private social media entity.
• The Court referred to the 2017 Puttaswamy case, in which the Indian Supreme Court upheld privacy as a fundamental right, and to foreign jurisdictions including the US and Europe in making its decision. The Court noted that no jurisdiction has adopted a purely vertical or horizontal approach to fundamental rights, but rather a balance between individual autonomy and choice and the need to imbibe Constitutional values in all individuals.
• For example, consider a private social media company that censors certain types of content that it deems inappropriate. Previously, individuals or groups who felt that their freedom of speech was being unfairly restricted by this censorship might not have had any legal recourse. However, under the new ruling, they may be able to challenge the social media company’s censorship as a violation of their fundamental right to freedom of speech and expression.
• Similarly, if a private doctor breaches a patient’s privacy by sharing their medical information without consent, the patient may now be able to seek legal remedies for this violation of their privacy, which is also protected as a fundamental right under the Indian Constitution.
• It’s important to note that the freedom of speech and expression is not absolute and can still be restricted if necessary in the interests of public order, decency, or morality. Additionally, the right to free speech must be balanced against the right to reputation, and individuals should not be allowed to use their freedom of speech to defame or harass others.

• The Supreme Court of India has ruled that statements made by ministers, including MLAs and MPs, cannot be attributed to the government, even when applying the principle of collective responsibility.
• This ruling came in the case of Kaushal Kishor v the State of Uttar Pradesh, which concerned a rape incident in 2016 in which a minister made statements that were seen as violating the rights of the survivors.
• The Court emphasized that citizens have the right to petition the Court for violations of their freedom of expression and right to life, but a statement made by a minister may not by itself be actionable. However, if it leads to an offense being committed by a public official, remedies can be sought against it.
• Justice B V Nagarathna wrote a dissenting opinion, stating that freedom of speech and expression is a necessary right for citizens to be well-informed about governance, but that common law remedies already exist to address hate speech and other harmful statements. She also argued that creating additional guidelines or laws to address such issues should be the responsibility of Parliament.

What Is Article 19 of the Indian Constitution?

• Article 19 of the Indian Constitution guarantees the fundamental right to freedom of speech and expression, the right to peacefully assemble and protest, the right to form unions and associations, the right to move freely throughout India, the right to live and settle anywhere in India, and the right to work in any profession or business.
• These rights can be restricted by the government if it is necessary for the security of the state, the preservation of India’s sovereignty and integrity, to maintain good relations with foreign countries, to preserve public order, or to protect morals or the legal system.
• The government is also allowed to impose reasonable restrictions on these rights for the benefit of the general public or to protect the interests of certain groups.