Recently, the Supreme Court has ruled that a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.
- The court took this view while ruling that the right of free speech and expression guaranteed under the Article 19(1)(a) cannot be curbed by any additional grounds other than those already laid down in Article 19(2).
GS II: Polity and Governance
Dimensions of the Article:
- What exactly is the constitutional position on free speech?
- What is the Reference for this SC’s Ruling?
What exactly is the constitutional position on free speech?
- Article 19(1)(a) in Part III of the Constitution guarantees the fundamental right to freedom of speech and expression. But this freedom is not absolute or unfettered.
- Freedom of speech and expression
- Freedom to assemble peacefully and without arms
- Freedom to form Associations and Unions
- Freedom to move freely throughout the territory of India
- Freedom to reside and settle in any part of India
- Freedom to practise any profession or to carry on any occupation, trade or business
It is followed by Article 19(2), which lists exceptions or “reasonable restrictions” on that right.
Article 19(2): Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
Following the amendment, Article 19(2) was changed to read as follows:
Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”
What is the Reference for this SC’s Ruling?
Enforcing Rights Against Private Entities:
- According to this understanding, it is the state’s responsibility to make sure that private entities adhere to constitutional standards as well.
- In terms of constitutional law, it opens up a wide variety of possibilities, including enabling the enforcement of privacy rights against a private doctor or the right to free expression against a private social media company.
Earlier Court Decisions Mentioned:
- The Court cited the 2017 Puttaswamy decision, in which a nine-judge panel unanimously recognised privacy as a basic right.
- Privacy is a right that can be enforced against other people, according to the government, so it cannot be elevated to the status of a fundamental right against the state.
- In considering the case, the Court also examined the approaches to defamation law in other countries, particularly in Europe.
- The ruling in the US Supreme Court case of New York Times vs. Sullivan, which found that the defamation law as applied by the state against The New York Times was in conflict with the Constitutional right to freedom of speech and expression, was cited as an example of a change in US law from a “vertical approach” to a “horizontal approach.”
- Under a vertical application of rights, the rights can only be enforced against the state, while a horizontal approach allows for the enforcement of rights against other individuals.
- For example, using a horizontal application of the right to life, an individual could bring a case against a private entity for causing pollution, which would be a violation of the right to a clean environment.
-Source: The Hindu, Indian Express