Day 1 CB ArgumentsAzam Khan – Freedom of Speech and Expression
October 23rd 2019
Today, the 5 judge bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S Ravindra Bhat began hearing the case pertaining to the Bulandshahr rape incident. In 2016, a teenage girl and her mother were allegedly gang raped along National Highway 91. When the victim of the gangrape filed an FIR, Uttar Pradesh Minister Azam Khan called the victim’s account a ‘political conspiracy’ against the Uttar Pradesh government. Subsequently, the victims approached the court seeking action against the Minister and on 17th November 2016, the Court ordered Azam Khan to submit an unconditional apology.
Rather than disposing of the case, the court referred the matter to a five judge Constitution Bench in order to address the following issues:
“(a) When a victim files an F.I.R. alleging rape, gang rape or murder or such other heinous offences against another person or group of persons, whether any individual holding a public office or a person in authority or in-charge of governance, should be allowed to comment on the crime stating that “it is an outcome of political controversy”, more so, when as an individual, he has nothing to do with the offences in question?
(b) Should the “State”, the protector of citizens and responsible for law and order situation, allow these comments as they have the effect potentiality to create a distrust in the mind of the victim as regards the fair investigation and, in a way, the entire system?
(c) Whether the statements do come within the ambit and sweep of freedom of speech and expression or exceed the boundary that is not permissible?
(d) Whether such comments (which are not meant for self protection) defeat the concept of constitutional compassion and also conception of constitutional sensitivity?”
Today, the Attorney General framed the following issues for the Bench:
- Whether restrictions can be placed on freedom of speech and expression under Article 19(1)(a), beyond those provided for in Article 19(2)?
- Whether more severe restrictions on freedom of speech and expressions can apply to persons holding high public office?
- Whether Article 21 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?
- Whether the State can proceed against an individual under statutory provisions?
Justice Mishra inquired if rights read into Article 21, such as the right to dignity, can place restrictions on Article 19(1)(a). Attorney General K.K. Venugopal submitted that Article 21, and any right flowing from it, would have to correlate with Article 19(2), for it to place restrictions on Article 19(1)(a). In addition, he emphasised that Article 21 could only restrict Article 19(1)(a) through a relevant law, alluding to the issue of judicial overreach.
Justice Bhat observed that individuals whose rights had been infringed by another’s exercise of free speech, could seek remedy under civil, criminal or tort law. He noted that it may not be necessary to establish a framework whereby Article 21 is considered a restriction on Article 19(1)(a).
The Attorney General triggered a discussion as to whether Azam Khan’s free speech and expression could be curtailed only because of his public ministerial status. Further, he raised the question as to whether the Minister’s speech could be considered State action. He pointed out that fundamental rights are usually enforced against State action, not individuals.
Tomorrow, the Bench will hear Sr. Adv. Harish Salve frame issues.