Free Speech Curbs Limited to Article 19(2); Articles 19 and 21 Enforceable Against Private Persons: Constitution Bench

A three-Judge Bench referred a writ petition under Article 32 to a Constitution Bench, and a special leave petition from the Kerala High Court was tagged with it (Ramasubramanian J., paras 1-2). The writ petition concerned a press statement by a then Uttar Pradesh Minister describing a reported robbery and gang-rape as a political conspiracy (Ramasubramanian J., para 136). The Kerala petitions, dismissed by the High Court, concerned a Minister's statements portraying women disrespectfully (Ramasubramanian J., paras 6-7, 136). On 24.10.2019 the Constitution Bench framed five questions on free speech, horizontal rights, the State's duty, collective responsibility and constitutional tort (Ramasubramanian J., para 3).

The eight heads in Article 19(2) are comprehensive, and a restriction outside their four corners is unconstitutional (Ramasubramanian J., paras 27-28). Restrictions can be made only by the State, and the Court acts as a gate-keeper that cannot add new ones (Ramasubramanian J., para 33). Clashes between fundamental rights are resolved with well-established legal tools, not extra restrictions (Ramasubramanian J., para 44). Horizontal effect has been applied case by case, and Puttaswamy supplied the basic guide (Ramasubramanian J., paras 77-78). Collective responsibility is a political concept of the Council of Ministers and does not cover every oral statement of a Minister outside the legislature (Ramasubramanian J., paras 126, 135). A statement revealing low constitutional morality is not a constitutional tort unless it is translated into action causing harm or loss (Ramasubramanian J., paras 140, 154). Nagarathna J. held that Articles 19 and 21 may not be justiciable horizontally before constitutional courts unless statutorily recognised, save habeas corpus (Nagarathna J., para 43). She held that a Minister's statement embodying the Government's view can be attributed to it (Nagarathna J., para 45). She added that Article 19(1)(a) does not protect speech striking at a fellow citizen's dignity (Nagarathna J., para 34).