Day 4 CB ArgumentsAzam Khan – Freedom of Speech and Expression
January 21st 2020
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 MP 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 overarching constitutional issues. In particular, the Supreme Court will examine whether (a) Ministers enjoy a more a restricted right to free speech and expression while they are in public office; (b) Article 19(1)(a) can be curtailed by the fundamental right to life and personal liberty under Article 21 (for a full set of issues, see oral arguments on 24 October 2019).
In the previous hearing, the Bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S Ravindra Bhat heard Sr. Adv. Harish Salve urge the Court to frame guidelines to balance Article 19(1)(a) and Article 21. It also heard Sr. Adv. Rajeev Dhavan present on constitutional torts. Via a constitutional tort, a public official could be held liable for violating someone’s fundamental rights.
Today, the Court heard Advocate Kaleeswaram Raj and Senior Advocate Rajeev Dhavan for the petitioners. The Bench asked them to present on the question of whether the restrictions on free speech under Article 19(2) are sufficient in nature or whether the Court should invoke other fundamental rights to restrict free speech. Article 19(2) allows the State to make laws to restrict free spech for legitimate State interests. The underlying question before the petitioners is whether there is a lack of necessary legislation restricting the free speech of ministers, when they speak as representatives of the State.
New restrictions required?
As Sr. Adv. Dhavan was presenting arguments in the Article 370 matter, the Court first heard advocate Kaleeswaram Raj. Mr. Raj raised an issue pertaining to Article 164(3): could utterances of a Minister, such as those made by MP Azam Khan, violate their oath of office under Article 164(3)? The Bench was not very receptive to this line of argument.
Mr. Raj briefly suggested that the Court could introduce a disqualification for defamatory utterences. He added that the disqualification could be dependent on whether the utterances violate constitutional principles. The Bench remarked that a breach of oath does not necessarily disqualify a Minister. Further, it expressed trepidation towards issuing generalized guidlines, remarking that disqualification ought to be decided on a case by case basis. It observed that ministers, as public functionaries, should not have their speech excessively restricted.
The Bench again asked whether Article 19(1)(a) can be restricted by constitutional provisions other than Article 19(2)? Mr. Raj said that premitting other restictions may be too extreme. Instead, he suggested that the moral code of conducts followed by Union and State Ministers could have relevant provisions on permissible speech. He offered as examples the moral codes of conduct followed by the Australian and UK legislatures, which he said include restrictions on the content of speech made by ministers in public.
The Bench disagreed with Mr. Raj that such restrictions existed in the UK and Australia. In addition, it observed that Indian ministers already find themselves subject to being sued, should they make disparaging remarks against an individual (i.e. defamation).
Justice S.R. Bhat stressed that public statements made by ministers are not binding on the government. For example, the Courts have already held that statements made in the press are not binding. Pointing to Article 75(3) of the Constitution, Justice M.R. Shah added that while a Union Minister is responsible to the Parliament, his statements are not binding on the Parliament.
Sr. Adv. Dhavan urges Court to dispose of matter
Sr. Adv. Dhavan appeared on behalf of MP Azam Khan. He argued that the reference questions should not be answered by the Bench. He contended that all the referred questions have previously been settled by the Court. He argued that Articles 19 and 21 have been read together ever since the bank nationalisation case and Nagaraj.
Further, he submitted that the Court has previously declined to hear referrals on the ground that they had already been answered. He cited examples of Justice DY Chandrachud doing so.
Sr. Adv. Dhavan proceeded to take the Bench through various other case law to substantiate his claim that the referrance had already been answered.
The matter will continue tomorrow, when the Court will hear Additional Solicitor General Madhavi Divan.