The Supreme Court seeks a constitutional perspective on Azam Khan’s comment
On the night of July 29, 2016, a woman and her teenage daughter were brutally gangraped on the highway near Bulandshahr. Samajwadi Party leader Azam Khan, who was a minister at the time, issued a statement that the Bulandshahr gangrape case could have been a conspiracy to malign the then Akhilesh Yadav government. It created a political storm and also became entangled in the case filed by the police against the accused who had been arrested. The minor victim was forced to file a petition seeking criminal prosecution of Khan and for transfer of the case outside the state.
Khan was let off by the Supreme Court after he gave an unconditional apology to the victim, but now, it has become a cause célèbre regarding the issue of free speech.
Attorney General Mukul Rohatgi said in the apex court on Wednesday (March 29), that Khan’s statement can fall within the purview of free speech guaranteed under Article 19(1)(a) of the Constitution. While Article 19(1)(a) states that all citizens have the right to express their opinions without any hesitation in writing, orally or in any other mode, Article 19(2) says restrictions are possible. Restrictions, while they should be reasonable, can be imposed by due process of law and must be purpose-specific. Also, the judiciary retains the authority to analyze these restrictions.
The bench of Justice Dipak Misra and C Nagappan reminded Rohatgi: “Do not forget that women suffer the worst assault on their dignity and identity through sexual assaults.” They went on to frame four important questions in the context of free speech.
* 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?
* 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?
* Whether the statements do come 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 conception of constitutional sensitivity?
The court had appointed senior advocate Fali S Nariman as amicus curie in the case. Justice Misra asked Nariman: “You have to tell us that whether such a comment made by a politician on a rape issue comes under freedom of speech.” The judge also said that the court has to compare Freedom of Speech with the Right to Life. Nariman’s view was that there are two rights, one under Article 19(1)a and another under Article 21. These have to be equated and analyzed first. At this point, Rohatgi intervened and said that the parties are going into “a very dangerous area and it is going to open a Pandora’s box,” to which Justice Misra replied that they were seeking a constitutional perspective.
He then took the unusual step of inviting Senior Advocate Harish Salve, who was sitting in the court, to assist in the issue. Salve’s view was that Article 19(1)(a) is limited by Article 19(2) and Part III of the Constitution and that these have to be laid down by the apex court. Finally, when Nariman asked for more time to do proper research, the matter was adjourned, to be taken up again.
The bench, however, observed that the core issue of discussion is whether rights under Article 19(1) should be controlled only by Article 19(2) or should be controlled by parts of fundamental rights too. Salve was invited to join the discussion at the next hearing on April 20. It should be an interesting continuation of the discussion and the legal limits of free speech.
—By India Legal Bureau, with
inputs from Vinay Vats