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.
Whether the State can proceed against an individual under statutory provisions?
Whether Article 21 of the Constitution can be enforced horizontally, i.e. can it be enforced against individuals and corporations that do not fall within the definition of ‘State’ under Article 12 of the Constitution?
Whether more severe restrictions on freedom of speech and expressions can apply to persons holding high public office?
Whether restrictions can be placed on freedom of speech and expression under Article 19(1)(a) of the Constitution, beyond those provided for in Article 19(2)? In particular, can constitutional 'compassion' and 'sensitivity', flowing from Article 21, restrict free expression?