A five-judge bench of the Supreme Court is set to examine the point of law whether any restrictions other than those permitted in Article 19 (2) of the Constitution, dealing with free speech, can be imposed on lawmakers on the ground that it violates another persons’ right to lead a dignified life.
Freedom of speech and expression in India is not absolute, with Article 19(2) limiting it “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.
However, any restrictions to freedom of expression can only made by law, which means this is something that will have to be done by parliament and not the Supreme Court. The bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Sharan, MR Shah and Ravindra Bhat is dealing with this question in the context of a statement by controversial Uttar Pradesh politician Azam Khan in 2016, when he termed an incident of rape in Bulandshar “an outcome of political controversy”. In 2016 itself, senior advocate Fali S Nariman, who is assisting the court in the matter, said the court should examine whether such statements “come within the ambit and sweep of freedom of speech and expression or exceed the boundary that is not permissible” Arguing the matter, Attorney General KK Venugopal proposed to the court that the question is whether reasonable restrictions on free speech should be expanded and if restrictions be placed on free speech of ministers and people in power in sensitive cases. The question “whether the rights guaranteed by Article 21 of the constitution can be enforced against individuals or private corporations not falling within the definition of the term state” will also have to be looked into, the AG submitted. Article 21 guarantees “life and liberty” to all citizens.
Venugopal also told the court that it must decide “whether the state can proceed against an individual in the absence of a statutory provision in respect of statements made by him/her on the ground that the statements affect the fundamental right of another individual”.
The court had wanted to know whether a person holding a high office can pass comments such as the one Khan did, when a victim files an FIR alleging a heinous offence. It wanted to know if the state “should allow such comments as they have the effect, potentiality of creating distrust in the mind of the victim as regards the fair investigation and, in a way, the entire system” and whether or not the statements come within the ambit of freedom of speech. The court had said it will examine “whether such comments (not meant for self protection) defeat the concept of constitutional compassion and also conception of constitutional sensitivity ”. The hearing will continue on Thursday.
