This case will decide whether the right to free speech and expression, especially of those in public office, may be curtailed by the right to dignity.
On 29th July 2016, a young girl and her mother were allegedly gang-raped on National Highway 91. When they were on the National Highway passing through Bulandshahr, their car was stopped by criminals who dragged the 13-year-old girl and her mother out and raped them in a field nearby. When the victim of the gangrape filed an FIR, Uttar Pradesh Minister and Samajwadi Party leader Azam Khan made a statement terming it a 'political conspiracy against the Uttar Pradesh Government.
In August 2016, the victims approached the Supreme Court and filed a writ petition, seeking action against the minister for making such remarks about the incident. Fearing the absence of a fair investigation in Uttar Pradesh, they requested the Court to transfer the case to another State. The Court engaged Mr Fali S Nariman to assist the Court as Amicus Curiae and ordered a stay on the investigation. Mr Nariman pointed out that the Court is constitutionally obliged to evolve new tools to enhance the cause of justice by instilling public confidence in the fairness of trial, clarifying principles of law on interference with police investigation, and clarifying what is to be done if comments are made on the investigation or on the victim by a public personality or a public servant.
On 17th November 2016, the Court ordered an unconditional apology to be submitted by Mr Azam Khan.
The Court identified the core issue as - whether the right to freedom of speech and expression under Article 19(1)(a) is restricted by only Article 19(2), or is it also restricted by other fundamental rights, specifically Article 21.
On 20th April 2017, the Court referred the matter to a five-judge constitution bench and requested the Amicus Curiae to formulate questions of law for the Bench to consider. The questions were framed and submitted to the Court on 31st July 2017.
On 23 October 2019, a Constitution Bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat began hearing the matter.
1. Can a fundamental right under Article 19 or 21 of the Constitution be claimed other than against the ‘State’ or its instrumentalities?
2. Are the grounds specified in Article 19(2) exhaustive? Or, can restrictions on the right to free speech be imposed by invoking other fundamental rights? Article 19(2) allows the State to frame laws that pose reasonable restrictions on rights guaranteed under Article 19(1).
3. Whether a public statement by a Minister in relation to government business, which is violative of the constitutional rights of a citizen, can constitute a ‘constitutional tort’ as being an action which is an ‘improper abuse of public power’ and thereby actionable in damages?
4. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution, even against a threat to the liberty of this citizen by the acts or omissions of another citizen or private agency?
5. Can a statement by a Minister in relation to any affairs of the State or for the protection of Government, be attributed vicariously to the Government itself?