Supreme Court Starts Examining If Free Speech Can Be Curtailed On Sensitive Issues Under Probe

A five-judge Constitution bench of the Supreme Court commenced hearing Wednesday on whether the fundamental right to free speech can be curtailed on sensitive matters under investigation if it affects other individuals' right to a dignified life.

The bench, headed by Justice Arun Mishra, said it would go into all the questions referred to it by a three-judge bench in 2017, after the top court had taken note of a controversial statement of ex-Uttar Pradesh Minister Azam Khan that the gruesome Bulandshahr gang-rape in 2016, was part of a "political conspiracy".

He had tendered an unconditional apology before the apex court, which was accepted. The top court had said however that it would go into the larger question on whether a public functionary or a minister claims freedom of speech while expressing his views on matters which are under investigation.

Attorney General KK Venugopal contended Wednesday that freedom of speech is not absolute and unlike some western countries India has definite and specific exceptions under Article 19(2) of the Constitution. He told the bench, also comprising Justices Indira Banerjee, Vineet Saran, MR Shah, and S Ravindra Bhat, that the question is whether such restrictions provided under the constitution can be extended and to what level.

The bench said it would also have to look whether making a speech by an individual or government functionary like a minister affects the right to a fair investigation of a matter. "Prosecution also has a right and an accused also has a right. Nowadays, in media, an accused is convicted even before the judgment comes. Even if there is an honourable acquittal, it does not help you," the bench observed.

It said that during the trial, you cannot name the victim or obstruct the investigation but these are all statutory provisions or judicial laws. "If we put more restrictions, can it be enforced as these restrictions cannot be vague," the bench said.

Venugopal said other than restrictions under Article 19 (2) of the Constitution there are no exceptions and if more conditions are added, then it can be done through law. "It has to be a law which enforces restrictions which should be reasonable. It is my submission that without a law, Article 21 cannot come into play which provides for the right to live a dignified life," he said.

The hearing would continue tomorrow. The bench said it will hear the views of senior advocates Harish Salve and FS Nariman, appointed as amicus curiae to assist the court in the matter. On Oct. 5, 2017, the three-judge bench of the top court had referred the matter to the Constitution bench to adjudicate various issues including whether a public functionary or a minister can claim freedom of speech while expressing views in sensitive matters which are under investigation.

The court was hearing a plea filed by a man, whose wife and daughter were allegedly gang-raped in July, 2016 on a highway near Bulandshahr, seeking transfer of the case to Delhi and lodging of an FIR against Azam Khan for his controversial statement.

The three-judge bench had framed certain issues including whether an individual, holding public office, 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 offenses in question".

"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 fair investigation", said the second question. It had said that the court would examine whether such statements fell within "the ambit and sweep of freedom of speech and expression or exceed the boundary that is not permissible."

"Whether such comments (which are not meant for self-protection) defeat the concept of Constitutional compassion and also the conception of constitutional sensitivity," it also posed.

The apex court had earlier said it would consider whether the fundamental right of speech and expression would be governed under a reasonable restriction of decency or morality or whether other preferred fundamental rights would also have an impact on it.