Larger Supreme Court bench to decide on right to free speech

New Delhi: A five-judge Constitution Bench of the Supreme Court is likely to examine whether right to free speech and expression guaranteed under the Constitution will include the right to insult other person’s right to dignity, protected under Article 21.

 A three-judge Bench of Justices Dipak Misra, A.M. Kanwilkar and M.M. Shantanagouder, while giving this indication, asked senior lawyers Fali Nariman and Harish Salve, amicus curiae in this case, to give the propositions of law which should be adjudicated by the larger bench.

The bench was dealing with a writ petition filed by the victim of Bulandshahar gang rape last year seeking a CBI probe and to initiate action against former UP minister Azam Khan for making statemens affecting the rights and dignity of the victim. As Azam Khan tendered an apology, action against him was dropped but the bench decided to examine the larger issues involved in the matter.

In the last hearing, attorney-general Mukul Rohatgi made it clear to the court that  a politician cannot be prosecuted for airing his “personal views” as there can’t be a moral code of conduct that can be enforced. Referring to Azqm Khan’s statement that the rapes did not happen even before an FIR was registered, the A-G said “such a statement can be made as a free speech. You can’t have a moral code of conduct.” The A-G insisted that the court cannot prosecute anybody for such comments as a politician may genuinely hold these views.

A politician may in a certain case believe that there is no case, he said.

Justice Misra said that the issue involved gender sensitivity, gender violence and rights of the victims to a fair trial. He said there is a need to balance the victims’ rights to life and dignity as well as the need to further the cause of fundamental duties which enjoin a citizen to respect women and refrain from doing anything derogatory to them..

Amicus curiae Fali S. Nariman said free speech is not untramelled as it has its own limitations and subject to the prohibitions contained under Artice 19 (2) of the Constitution.

Mr. Salve said privacy cannot be invaded by a Minister in office as it affects the right to life and dignity of the victim. He said the assumption that such derogatory statements may come within the meaning of 'free speech’ is wrong as both rights must co-exist. As gender justice is part of dignity of woman, any speech that violates her right is a violation of Articles 14 and 21 of the Constitution. The Bench asked the counsel to give propositions for consideration and posted the matter for further hearing on May 2 when a formal reference to larger bench will be made.