Freedom of Speech of Politicians

In News

• Recently, the Supreme Court (SC) held that there is no reason to impose “additional restrictions” on the right to free speech of Ministers.

Supreme Court’s Divided Stand

• Arguments For: 
  • Principle of collective responsibility:
    • A statement by a Minister, even if traceable to any affairs of the state or for protecting the government, cannot be attributed vicariously to the government by invoking the principle of collective responsibility.
    • It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly.
  • Reasonable Restrictions: 
    • Reasonable restrictions on free speech for citizens, including Ministers and public functionaries, were exhaustive. 
    • Besides, the state has an affirmative duty to protect when there is a threat to personal liberty, even by a non-state actor. 
    • The fundamental right to free speech and right to dignity could be enforced against private parties. 
    • There was no need to bring in further shackles on free speech in the guise of protecting the competing fundamental right to life and dignity under Article 21 of persons at the receiving end of a Minister’s comments.
  • Whip not possible in multi party systems:
    • In a country like India, where there is a multi­-party system and where coalition Governments are often formed, it is not possible at all times for a Prime Minister/Chief Minister to take the whip whenever a statement is made by someone in the Council of Ministers.
  • Constitutional Tort – Punishment or Fine:
    • No one can either be taxed or penalised for holding an opinion which is not in conformity with the constitutional values. 
    • It is only when his opinion gets translated into action and such action results in injury or harm or loss that an action in tort will lie.
• Arguments Against: 
  • Principle of collective responsibility: 
    • A Minister’s statement, if traceable to any affairs of the State or for protecting the government, can be attributed vicariously to the government by invoking the principle of collective responsibility, so long as such statement represented the view of the government too.
    • If such a statement is not consistent with the view of the government, then it is attributable to the Minister personally.
  • Reasonable Restrictions: 
    • But a derogatory speech which closely resembled hate speech did not fall within the ambit of the free speech right.
  • Article 21:
    • Public functionaries and other persons of influence and celebrities, having regard to their reach, owe a duty to the citizenry at large to be more responsible and restrained in their speech. 
    • Therefore, when such speech has the effect of infringing the fundamental right under Article 21 of another individual, it would not constitute a case which requires balancing of conflicting rights.
  • Hate Speech:
    • Hate speech struck at the foundational values and violated the fraternity of citizens from diverse backgrounds.
    • The Preamble of the Constitution assures that the dignity of individuals cannot be dented by means of unwarranted speech being made by fellow citizens, including public functionaries.
  • Constitutional Tort – Punishment or Fine:
    • A proper legal framework was necessary before taking action as a constitutional tort. 
    • The Parliament could enact a legislation or code to restrain citizens in general and public functionaries in particular from making provoking remarks against fellow citizens. 
    • Similarly, political parties could come up with a code of conduct to regulate and control the actions and speech of their functionaries and members.

Parliamentary Privileges

• About:
  • Article 105 of the Constitution expressly mentions two privileges, that is,
    • Freedom of speech in Parliament and 
    • Right of publication of its proceedings.
  • All Members of Parliament (MPs) enjoy rights and immunities, individually and collectively, so that they can discharge their duties and functions effectively. 
• Applicability:
  • The Constitution also extends the parliamentary privileges to those persons who are entitled to speak and take part in the proceedings of a House of Parliament or any of its committees. These include the Attorney General of India.
  • The parliamentary privileges do not extend to the President who is also an integral part of the Parliament. Article 361 of the Constitution provides for privileges for the President.
• Other Privileges:
  • Apart from the privileges as specified in the Constitution, the Code of Civil Procedure, 1908, provides for freedom from arrest and detention of members under civil process during the continuance of the meeting of the House or of a committee thereof and forty days before its commencement and forty days after its conclusion.
• Rules Governing Privilege:
  • Rule No. 222 in Chapter 20 of the Lok Sabha Rule Book and correspondingly Rule 187 in Chapter 16 of the Rajya Sabha rulebook governs privilege.
  • Rules say that a member may, with the consent of the Speaker or the Chairperson, raise a question involving a breach of privilege either of a member or of the House or a committee thereof.
• Role of the Lok Sabha Speaker and Rajya Sabha Chairperson:
  • The speaker of Lok Sabha and the Chairperson of Rajya Sabha are the first levels of scrutiny of a privilege motion in the two Houses of Parliament. 
  • They can either take a decision on the privilege motion or can also refer it to the privileges committee of Parliament. 
  • Once the Speaker or the House Chairperson gives consent under Rule 222, the concerned member is allowed to explain himself or herself.
• Privilege Committee:
  • The Speaker of Lok Sabha nominates a committee of privileges consisting of 15 members of parliament from each party. 
  • While the Rajya Sabha committee has 10 members.
  • The report prepared by the committee is submitted to the House for its consideration. 
  • The Speaker may also allow a half-hour debate on the report by the committee before passing orders or directing that the report be tabled before the House.
• Punishment for Breach:
  • Any instance when these rights and immunities are disregarded by any member of Lok Sabha or Rajya Sabha is an offence, called ‘breach of privilege’, which is punishable under the Laws of Parliament.

Way Ahead

• India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
• The expression or thought that is not in consonance with the policy of the government of the day should not be considered sedition.
  • The Law Commission has rightly said, “an expression of frustration over the state of affairs cannot be treated as sedition”. 
  • If the country is not open to positive criticism, there would be no difference between the pre-and post-Independence eras.

Source: TH