Can violation of Article 21 be a ground to curb Freedom of Speech under Article 19? Supreme Court begins hearing
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Can violation of Article 21 be a ground to curb Freedom of Speech under Article 19? Supreme Court begins hearing

Shruti Mahajan

Can persons holding public office make comments on heinous crimes? The Supreme Court today began hearing this issue which was an outcome of the  petition filed by a relative of the Bulandshahr rape accused The case, Kaushal Kishor v. State of Uttar Pradesh, raises the question of whether freedom of speech and expression of a person holding a position of power can be curbed on the grounds that the same impinges upon the rights under Article 21 of another person.

The matter is being heard by a Constitution Bench of Justices Arun Mishra, Vineet Saran, Indira Banerjee, MR Shah, and Ravindra Bhat

The genesis of the case is in Bulandshahr gang-rape case after which State Cabinet Minister Azam Khan made a statement alleging that the case was politically motivated. A relative of the rape victim then moved the Supreme Court seeking action against Azam Khan.

When the matter was heard in 2016, a Bench headed by Justice Dipak Misra had framed the following questions for consideration of a Constitution Bench.

“(i)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?”

When the matter was taken up today, Attorney General for India KK Venugopal today laid down four issues for consideration of the Supreme Court in this matter.

  1. Whether or not restrictions beyond those enumerated in Article 19(2) can be imposed in the freedom of expression of a person, and to what extent.
  2. Whether greater restrictions can be imposed on the freedom of expression of a person holding a position of power or a high office
  3. Whether rights under Article 21 can be enforced against individuals and corporations not falling under the definition of State
  4. Whether the State can proceed against an individual under Statutory provisions.

Venugopal asked if fundamental rights enshrined under other Articles can be used as restrictions on the freedom of expression of an individual without an enactment to that effect.

Justice Arun Mishra, however, asked whether a right which has been read into Article 21 like the right to privacy or dignity, be used as a restriction against Freedom of Expression. The Attorney General took the view that without a law, Article 21 cannot be invoked or introduced to act as a restriction to Article 19(1)(a). He further submitted that Article 21 must be correlated to Article 19(2) for it to be treated as a limitation.

Justice Bhat raised the point of taking a remedial recourse instead of using fundamental rights as restrictions. If one’s exercise of his Freedom of Speech affects the rights of another, why not take remedy under civil, criminal or tort law, Justice Bhat opined.

Marrying the Constitutional questions raised to the facts of the instant case, Venugopal said that the question is whether the freedom of speech and expression of a Minister, Azam Khan in this case, can be curbed because it affected the right of the accused or merely because of the position he holds.

“Even accused persons have rights”, Justice Mishra said, adding further that, “people call for immediate conviction which damages the reputation of the accused. So the matter has to be considered from both the aspects.”

Justice Bhat, weighing in on the same said that there are statutory provisions as regards matters that are sub judice. For instance, a victim cannot be named but if there are statements made that are “likely to chill or sully an investigation, why not take recourse under Article 226 as remedy instead of imposing restrictions.”

The discussion was taken further when Venugopal pointed out that fundamental rights exist and can be enforced against the State and not individuals. Therefore, can a Minister’s conduct be construed as State action on account of “collective responsibility”, is a question which will also have to be looked into,

The hearing on framing of issues in the case remained part-heard and is likely to resume tomorrow.

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