Ministers and legislators enjoy freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech, the Supreme Court said on Tuesday, reported Bar and Bench.

A five-judge Constitution bench of Justices BR Gavai, AS Bopanna, V Ramasubramanian, SA Nazeer and BV Nagarathna held that the curbs on ministers and legislators cannot extend beyond what is prescribed under Article 19(2) of the Constitution that imposes reasonable restrictions on free speech.

The court was dealing with the question of whether restrictions can be imposed on the right to freedom of speech and expression of a public functionary.

The question arose during the hearing of a petition filed by a man whose wife and daughter were allegedly gang-raped in July 2016 near Uttar Pradesh’s Bulandshahr city. The petition sought that the case be transferred to Delhi and a first information report be filed against Samajwadi Party leader Azam Khan, who was a minister at the time.

Khan had said that the rape case was “political conspiracy”. An Uttar Pradesh court had taken note of his statement, and the matter was sent to the Constitution bench to adjudicate whether a public functionary or a minister could exercise freedom of speech while expressing their views on sensitive matters.

On Tuesday, the court passed two separate judgements with Justice Nagarathna’s dissenting opinion. However, Nagarathna agreed with the majority view on not imposing additional restrictions on public functionaries.

Justice Ramasubramanian, who delivered the majority judgement, held that the statements made by a minister in an official capacity cannot be vicariously attributed to the government, reported Live Law.

“A statement made by a minister even if traceable to any affairs of the state or for protection of the government cannot be attributed vicariously to the government by invoking the principle of collective responsibility,” he said.

The court also addressed the question of whether the statement of a minister, that is inconsistent with the fundamental rights of citizens, can result in a constitutional tort.

It said: “A mere statement by a minister inconsistent with the rights of citizen does not form to be a constitutional tort but if it leads to omission or commission of offence by a public official then it is a constitutional tort.”

A constitutional tort is a legal tool that provides for the state to be held vicariously accountable for the actions of its agents.

Meanwhile, Justice Nagarathna disagreed with the majority’s view and wrote in her judgement that if a minister makes disparaging statements in official capacity, it can be vicariously attributed to the government.

However, the government is not liable if the minster has made the statements in his personal capacity. “If the statements of the ministers are stray remarks not consistent with stand of government then it would be treated as personal remark,” she added.

The judge also said that a hate speech strikes at the foundational values of our Constitution.

“They [public functionaries] are required to understand and measure their words having regard to the likely consequences on public sentiment and behaviour and also be aware of of the example they are setting on the fellow citizens to follow,” she added.

Nagarathna said that she was not inclined to issue guidelines to stop public functionaries from making unguarded and hurtful statements as it is something that Parliament should address.

“It is for the party to control the speeches made by their ministers which can be done by forming a code of conduct,” she said. “Any citizen who feels attacked by such speeches made or hate speech by public functionary etc can approach court for civil remedies.”

A detailed copy of the judgement is awaited.