Day 8 Arguments

Azam Khan – Freedom of Speech and Expression

October 5th 2017


Today the Bench comprising Chief Justice Dipak Misra, AM Khanwilkar and DY Chandrachud heard arguments regarding the right to freedom of speech and expression. In the previous Mr. Nariman had stressed upon the need for a Civil Rights Act to ensure a horizontal application of fundamental rights against private parties.

Mr Salve and Mr Nariman argued that in India there was no legislation in the nature of a Civil Rights Act by which citizens might enforce fundamental rights against private parties. Article 19(2) also requires a law that imposes a restriction on free speech under one of the grounds specified in the Article. The Court agreed that there was a need for legislation.

Justice Chandrachud noted that in Justice K. S. Puttaswamy v. Union of India, a 9-Judge bench of the Supreme Court had held that the right to privacy could have horizontal application and might be enforced in case of violations of rights by private parties. Mr Salve observed that in the Whatsapp matter the main argument was that private parties should be held responsible if they violated an individual’s right to privacy, in the context of personal data on online messaging services. It was therefore required to be determined whether such a principle might be extended to the right to free speech.

Justice Chandrachud observed that comments on social media have become problematic. Senior Bar Members are now making comments on social media alleging that Supreme Court judges were predominantly pro-government. He also noted that cases were reported on social media such as Twitter and other websites and often observations by judges were taken out of context and became a matter of debate. He also mentioned that cases were also reported incorrectly- and presented the example of a website which misreported the Rohingya matter by recording observations by the judges as the judgment of the Court and then went on to criticize the Bench.

Mr Salve concurred and said that he had to delete his Twitter account because he was trolled with abusive comments for his arguments on cases. Both counsels mentioned that such comments required regulation and that there should be guidelines to determine accountability for offensive posts. Mr Nariman remarked that he was relieved that he did not have a Twitter account and believed it was better to stay away from social media.

The Bench agreed with the submissions and felt that the questions framed in previous orders required examination by a larger Constitutional bench with particular emphasis on the contours of Article 19 (1)(a) and 19(2) – i.e. the nature of restrictions on the right to free speech. The matter was therefore referred to a Constitution Bench of 5 judges.

(This post relies on contributions from Ms. Nidhi Khanna.)