Public servant’s freedom of speech issue sent to constitution bench

New Delhi: The Supreme Court today referred to a five-judge constitution bench several issues such as whether a public functionary or a minister can claim freedom of speech while expressing views in sensitive matters which are under investigation.

Chief Justice of India Dipak Misra
Chief Justice of India Dipak Misra

A bench headed by Chief Justice Dipak Misra considered the questions framed on the issue by senior advocates Fali S Nariman and Harish Salve and said, “we are sending it to a constitution bench”.

The top court had taken note of a controversial statement of ex-Uttar Pradesh Minister Azam Khan that the Bulandshahr gangrape was part of a “political conspiracy”. Khan had tendered an unconditional apology which was accepted.

The bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud, also said that besides the issues framed by the two lawyers, the constitution bench would also frame questions to be dealt by it.

The court was hearing a plea filed by a man, whose wife and daughter were allegedly gangraped in July last year on a highway near Bulandshahr, seeking transfer of the case to Delhi and lodging of an FIR against former Uttar Pradesh Minister Azam Khan for his controversial statement that the gangrape case was a “political conspiracy”.

Later, the bench and the bar discussed for some time the issue of the social media being used to make uncharitable or aggressive comments or to troll someone on any issue, including judges and judicial proceedings.

During the course of this discussion, the bench also disapproved and expressed anguish over a statement made by a senior advocate and former Supreme Court Bar Association President Dushyant Dave that several judges were pro- government.

The bench reacted by saying “they should sit in the Supreme Court to see how the government is hauled up.”

Earlier, the 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 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 fair investigation,” said the second question framed by the bench earlier.

The bench had said it 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 conception of constitutional sensitivity,” it also posed.

Nariman, who is assisting the bench as an amicus curiae, said the civil laws in the country are “defective”.

The brutal gangrape incident had happened on the night of July 29 last year when a group of highway robbers stopped the car of a Noida-based family and sexually assaulted a woman and her daughter after dragging them out of the vehicle at gun- point.

Salve had told the bench that ministers cannot have personal views on official business matters as whatever such a person says, must reflect government policy.

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