Attorney General K K Venugopal suggested to the Supreme Court Wednesday that it examine the question whether any restriction, other than those permissible under Article 19(2), can be imposed on the right to freedom of speech and expression guaranteed by the Constitution in Article 19 (1) (a) on the ground that such speech violates some other fundamental right of an individual.
Venugopal mentioned this before a five-judge Constitution Bench, headed by Justice Arun Mishra and also comprising Justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat, which is hearing the question on the limits of free speech of a minister or a person holding a high office.
The matter had risen in the context of controversial remarks by then Uttar Pradesh minister Azam Khan on the July 2016 Bulandshahr gangrape case. Later that year, Khan tendered an unconditional apology to the Supreme Court.
A three-judge bench, headed by then Justice Dipak Misra, had referred the matter to a Constitution Bench after senior advocates Fali S Nariman and Harish Salve, assisting the court as amicus curiae in the matter, said it was of great importance and should be referred. Nariman and Salve had submitted to the court the questions they wanted it to examine in the matter.
On Wednesday, Venugopal proposed three more issues which he urged the court to look into. He said the bench should also consider “whether greater restrictions can be imposed on the rights guaranteed by Article 19(1) (a)… in the case of persons holding high public office, including that of a Minister”.
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, he submitted.
Justice Mishra remarked that the question was “very important”.
Justice Bhat pointed out that in habeas corpus matters, the right is enforced against individuals and not only against the state.
“But your Lordships will not expand it to other fundamental rights,” said the Attorney General, adding “the question is whether any of these rights except those specified will lie against individuals”.
He also proposed that the court decide “whether the State can proceed against an individual in the absence of a statutory position in respect of statements made by him/her on the ground that the statements affect the fundamental right of another individual”.
The three-judge bench too had framed four questions before referring the matter to a Constitution Bench. It wanted to know whether a person holding a high office can pass comments like “it is an outcome of political controversy” when a victim files an FIR alleging rape, gang rape or murder or such other heinous offences against another person or group of persons especially when he has nothing to do with the offence.
It also wanted to know if the “State” should allow such comments “as they have the effect potentiality to create a distrust in the mind of the victim as regards fair investigation and, in a way, the entire system” and whether or not the statements come within the ambit and sweep of freedom of speech and expression.
The bench had also said that it will examine “whether such comments (which are not meant for self protection) defeat the concept of constitutional compassion and also conception of constitutional sensitivity?”.
The hearing remained inconclusive and will continue Thursday.