Before the Supreme Court, a Case of Free Speech vs Neutrality of State

New Delhi: On Wednesday, the Supreme Court’s constitution bench will begin hearing a noteworthy case impinging simultaneously on a minister’s right to free speech and his/her duty to not exercise the same right in order to protect the dignity and neutrality of office. The case is one of those intriguing ones left behind without resolution by the former chief justice of India, Dipak Misra, who, if time had been in his favour, would have loved to hear and decide the matter himself.

Kaushal Kishor vs State of Uttar Pradesh was a case which could have been disposed of by any other bench, once the immediate issue got resolved with the protagonist, Azam Khan, who was then a minister in the Akhilesh Yadav government in Uttar Pradesh, tendering an apology.  But not the bench headed by Justice Dipak Misra – then a puisne judge in the Supreme Court – who had always been curious about larger academic questions hidden in ordinary cases.

The genesis

On July 29, 2016, a young girl and her mother were gangraped on the national highway passing through Bulandshahr, Uttar Pradesh, when they were on their way from Noida to Shajahanpur. The men of the family were tied up and beaten in the fields.

Following the registration of a first information report at Police Station Kotwali Dehat, Bulandshahar for offences of gangrape under the Indian Penal Code read with the Protection of Children from Sexual Offences Act, Khan, who was then minister for urban development in UP, publicly described the gangrape as a “political conspiracy only and nothing else”. He criticised one of the victims when she complained about not being able to meet him to press her demand for justice. “She sure has gained publicity now,” Khan had said, and continued: “Her complaint is clearly in connection to the disgrace she is facing but if she goes around spreading the incident that happened with her, how will she face the world?”

The father and husband and of the two gangrape survivors sought a probe into the incident by the Central Bureau of Investigation, and for the trial to be held outside Uttar Pradesh, on the ground that Khan’s statement vitiated the chances of fair hearing in the state. He argued that Khan’s airing of his views in public maligned his dignity and affected the reputation of the victims.

Also read: For a Change, the Centre Defends Free Speech As Supreme Court Ponders More Restrictions

The Supreme Court bench comprising Justices Dipak Misra, A.M. Khanwilkar and Mohan M.S hantanagoudar then made Khan a respondent in the case, and sought his response. Although Khan subsequently offered his sincere and heartfelt remorse to the petitioner, and the court accepted it, the bench went ahead to consider the larger questions involved in the case when its query to senior advocate, Fali Nariman, who was present in the court then, led to the court framing four important issues for consideration.

Among the issues which the court framed was the question of whether the state could allow comments by ministers which have the potential to create distrust in the mind of a crime victim with regard to a fair investigation and, in a way, “the entire system”. Also, the court sought to know whether such statements by ministers come within the ambit of freedom of speech and expression or exceed the boundary of what is permissible.

Also known for coining catchy phrases, Justice Misra asked Nariman (whom the court appointed as amicus curiae

in the case) to answer whether such comments defeat the concepts of “constitutional compassion” and “constitutional sensitivity”.

Nariman responded through a written note, submitting that the Supreme Court is “constitutionally obliged to evolve new tools to enhance the cause of justice” in such cases.  He brought to the court’s notice the language used in the oath of ministers and its gravity. He also referred to a passage from Halsbury’s Laws of England Vol. 20 (5th Edition, 2014), the report on Committee of Standards in Public Life (popularly known as Nolan’s Principles) and thereafter, the principles laid down by the former prime minister of the United Kingdom and the code of conduct prevalent in India which has been framed for the purpose of Union and state ministers.

Nariman also hinted that Azam Khan, if the factual allegations are proved or established, might be liable under tort law that includes the public law remedy. Nariman cited Lord Denning’s Hamlyn Lecture of 1949 titled “Freedom under the Law”, and several cases decided by the Supreme Court in support of his contention. He drew the attention of the court to the views of the Supreme Court of Canada, which has propounded the doctrine of “negligent investigation” that attracts the principles of tort and the view of the UK Supreme Court which has not accepted the same.

To a query from the bench, Nariman had replied that the electronic and print media which had published Khan’s statement should be added as party respondents in the case, and their stand should be taken into consideration, and eventually necessary directions could be issued.

After Khan tendered his unconditional apology and sincere and heartfelt remorse, Nariman persuaded the bench to debate the issue further to render a decision so that those who hold public office or authority think carefully before making statements on crime victims, especially victims of rape or molestation.

On March 29, 2017, the court sought to know whether the free speech right conferred under Article 19(1)(a) is to be controlled singularly by the language employed under Article 19(2) (i.e. reasonable restrictions) or might also be impacted by the fundamental right to life and liberty under Article 21 of the constitution.

Harish Salve, who was present in court then, submitted that Article 19(2) may be the only controlling provision, but the right of freedom of speech and expression as enshrined and spelt out under Article 19(1)(a) has its own inherent contours and is not boundless.

Also read: Criminal Defamation and the Supreme Court’s Loss of Reputation

On April 20, 2017, the case saw a strange reversal of roles on the question of who could be expected to defend the freedom of expression – the courts or the government. The Centre surprised observers by opposing the court’s effort to expand the avenues of restrictions on the freedom of speech and expression, guaranteed by Article 19(1)(a).

Both Nariman and Salve (also appointed as amicus in the case) submitted that freedom of expression must yield to the right to a fair trial. Both contended that it is one thing to oppose state action in curbing freedom of expression and another when non-state actors invade a person’s right to privacy. “I have a right to protect my reputation; the invader of my right to privacy cannot invoke his freedom of expression under Article 19(1)(a). These are troublesome issues in today’s times,” Salve told the court.

Madhavi Divan, counsel for the Union of India, who intervened in the absence of the then attorney general for India, Mukul Rohatgi, questioned the need to expand the grounds for restricting speech mentioned in Article 19(2). New avenues of restriction under Article 21 would seriously imperil the freedom of expression guaranteed under Article 19(1)(a), she suggested.

The grounds for reasonable restriction over freedom of expression mentioned in Article 19(2) include upholding 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.

Divan told the court that it is well settled that the right under Article 19(1)(a) can be restricted reasonably only by law on grounds specifically set out under Article 19(2).

She pointed out that while balancing Articles 19(1)(a) and 21 – from which the rights to reputation and fair trial flow – the courts have been careful not to expand the avenues of restriction so carefully defined under Article 19(2).

Also read: A Look Back at Chief Justice Dipak Misra’s Errors of Commission and Omission

Divan cited the Sahara guidelines case, decided by the late Chief Justice S.H. Kapadia-led constitution bench in 2012, in which it was held that media reporting could be restricted by issuing temporary postponement orders – by invoking the Article 19(2) ground of contempt of court – to protect unwarranted interference with the administration of justice.

She cited other cases in which restrictions over freedom of expression were read into Article 19(1)(a) itself. In the Noise Pollution

 (2005) case, Article 19(1)(a) was considered broad enough to encompass both speech and the converse of speech, that is, the right to silence. In Bijoe Emmanuel vs State of Kerala, (1986), the right to refrain from singing the national anthem was read into the right to free speech under Article 19(1)(a).

Despite Divan’s persuasive submissions, the bench remained unconvinced. On October 5 2017, the three judge bench comprising the CJI Dipak Misra and Justices A.M. Khanwilkar and D.Y.Chandrachud formally referred the case to a constitution bench.

On Wednesday, the constitution bench which will hear the case will comprise Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Ravindra Bhat.