Day 3 CB Arguments

Azam Khan – Freedom of Speech and Expression

November 20th 2019


On 29th July 2016, a young girl and her mother were allegedly gang-raped on National Highway 91 (‘Bulandshahr rape case’). 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. In November 2016, the Court ordered Azam Khan to issue an unconditional apology.

Subsequently, the Court broadened the scope of the case to include overarching constitutional questions regarding freedom of speech and expression under Article 19(1)(a) of the Constitution. The Supreme Court is now examining 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 list of issue, see here).


The Bench comprises Justices Arun MishraIndira BanerjeeVineet SaranM.R. Shah and S Ravindra Bhat.


The Bench assembled at 10.36 AM.
Need for regulation 

Today, the Bench primarily heard Sr. Adv. Harish Salve, appearing as an amicus curiae. He began by asserting that the State has a positive duty to enforce Article 21 – the right to life and personal liberty. He said that this could extend to regulating private entities. For example, he said that if private entities were obtaining and publishing the private information of citizens (the fundamental right to privacy flows from Article 21), the State had a duty to put in place appropriate legislation. Such legislation would balance these entities right to free expression with citizens right to privacy.


Justice Shah inquired about the relationship between Article 19 and 21. In particular, he questioned how Article 21 could be horizontally applied in the absence of relevant legislation. He asked what remedies someone can seek if their rights under Article 21 are violated in the course of someone else exercising their rights under Article 19(1)(a).


Sr. Adv. Salve put forward the need to have a regulatory framework in place to ensure a balance of rights. He said there was a need for an ecosystem where rights can be enjoyed by all citizens, especially with the rising power of the private sphere. He proposed that the Court could frame appropriate guidelines and recommend Parliament to enact legislature. He gave the example of the Vishaka Guidelines, frame by the Court in 1997, which paved the way for gender justice laws, in particular with regards to sexual harassment. He said that given the legislative vacuum, the Court should formulate regulatory guidelines in accordance with Article 19(2), which places reasonable restrictions on the exercise of free speech and expression.


He proceeded to elaborate on reasonable restrictions on the right to free expression on the basis of public interest. In particular, he emphasised the relationship between the rights to free expression and privacy, which he said must be viewed together so as to ensure that the larger public interest is upheld. He framed public interest in terms of ‘faith in democracy’. He asserted that India’s fragile democratic structure is dependent on citizens’ continuous faith in public institutions. He concluded that there were sufficient ‘building blocks’ within the Constitution in order to develop jurisprudence, and subsequently legislation, to fill the absence of appropriate regulation.


Finally, he concluded by briefly discussing how constitutional rights could be enforced using tort law.


Constitutional torts
The Bench then heard Sr. Adv. Rajeev Dhavan make submissions on constitutional torts. Via a constitutional tort, a public official could be held liable for violating someone’s fundamental rights. For example, the Bulandshahr rape victim could file for damages against Minister Azam Khan for violating her right to dignity under Article 21. Clasically, fundamental rights violations are usually only enforceable agains the State.


Sr. Adv. Dhavan clarified that not every fundamental rights violations warrants a constitutional tort. He stressed that the Court should clearly delineate when constitutional torts may be appropriate.


Then, picking up on Amicus Curiae Harish Salve’s submissions, he said that any regulation introduced in this regard must be conducive to the fundamental rights guaranteed under Articles 14, 19 and 21. Referring to Maneka Gandhi, he emphasised that each of these rights carries equal wieght and must be viewed as a cohesive whole, bound together by reasonableness.


Finally, he warned against regulation which may catalyse a rise in ‘stateism’. He appeared to be suggesting that placing too expansive a positive duty on the State to regulate private entities, may vest too much power in the State.

The Bench rose at 1.02pm

(Court reporting by Sanya Talwar)