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SC constitution bench to hear on Monday if right to free speech of public office holders may be curtailed by other fundamental rights

New Delhi: On Monday a five-judge constitution bench of the Supreme Court will hear arguments on whether right to free speech and expression of persons holding public offices may be curtailed by other fundamental rights.

The case relates to an incident of July 29, 2016, when a young girl and her mother, while passing through Bulandshahr on the national highway were stopped by criminals who dragged the 13-year-old girl and her mother out of the car and gangraped them in a field nearby.

Pursuant to filing of an FIR by the victims, Uttar Pradesh minister and Samajwadi Party leader Azam Khan made a statement terming it a “political conspiracy” against the Uttar Pradesh government.

Azam Khan

In August 2016, the victims filed a writ petition before the Supreme Court, 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 appointed Senior Counsel Fali S. Nariman to assist the Court as Amicus Curiae and ordered a stay on the investigation. Nariman submitted before the Court that “it 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 November 17, 2016, the Court ordered an unconditional apology to be submitted by Azam Khan.

The Court thereafter framed the core issue: “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 April 20, 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 July 31, 2017.

On October 23, 2019 a constitution bench, comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat began hearing the matter.

After hearing Attorney General K.K. Venugopal, Senior Advocate and Amicus Harish Salve, the bench formulated the following questions to be decided in the matter:

1) Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?

2) Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?

3) Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?

4) Can a statement made by a minister, traceable to any affairs of state or for protecting the government, be attributed vicariously to the government itself, especially in view of the principle of Collective Responsibility?

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5) Whether a statement by a minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”?

The bench listed the matter for next hearing on August 24, 2020.

– India Legal Bureau


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