Azam Khan Freedom Of Speech Case Day#1: SC Reserves Case For Judgment
Azam Khan – Freedom of Speech and ExpressionJudges: Abdul Nazeer J, B.R. Gavai J, A.S. Bopanna J, V. Ramasubramanian J, B.V. Nagarathna J
A Constitution Bench led by Justice Abdul Nazeer on November 15th, reserved Judgment on whether the right to free speech and expression of persons in public offices may be curtailed by the right to dignity under the Constitution.
Background
On 29th July 2016, a young girl and her mother were allegedly gang-raped on National Highway 91. When the victim filed an FIR, Uttar Pradesh Minister and Samajwadi Party leader Azam Khan made a statement terming the victim’s FIR as a ‘political conspiracy against the Uttar Pradesh Government.
In August 2016, the victims approached the Supreme Court, seeking action against the minister for making such remarks about the incident. Fearing the absence of a fair investigation in Uttar Pradesh, they requested the Court to transfer the case to another State. The Court engaged Mr Fali S Nariman to assist the Court as Amicus Curiae and ordered a stay on the investigation. Mr Nariman pointed out that the Court is constitutionally obliged to evolve new tools to enhance the cause of justice by instilling public confidence in the fairness of trial, clarifying principles of law on interference with police investigation, and clarifying what is to be done if comments are made on the investigation or on the victim by a public personality or a public servant.
On 17th November 2016, the Court ordered an unconditional apology to be submitted by Mr Azam Khan.
The Court identified the core issue—is the right to freedom of speech and expression under Article 19(1)(a) restricted by only Article 19(2), or is it also restricted by other fundamental rights, specifically Article 21?
On 20th April 2017, the Court referred the matter to a five-judge constitution bench and requested the Amicus Curiae to formulate questions of law for the Bench to consider. The questions were framed and submitted to the Court on 31st July 2017.
Today, appearing as the Amicus Curiae, Senior Advocate Aparajitha Singh argued that free speech jurisprudence has been developed on a case to case basis and asked the Bench to send the case back to a regular Bench. She submitted that there is a public law remedy for violation of fundamental rights.
Appearing for the union government, Solicitor General Tushar Mehta argued that the individual made a horrible statement, however the case involves more of an academic question. Mr. Mehta argued that the Supreme Court in Poonawala (2018) and Amish Devgan (2021) has laid down detailed guidelines for the course of action when hate speeches are made.
Attorney General R Venkatramani argued that the government cannot be held liable for the statements made by legislators, while adding that such a proposition will lead to an unmanageable situation. Mr. Venkatramani submitted that laying down a model code for legislators is in the parliament’s domain and the courts cannot interfere in it. He argued that as a matter of Constitutional principle, any additions or modifications of restrictions to a fundamental right have to come from Parliament.
Advocate Kaleeswaram Raj, appearing for Joseph Shine, in a connected case argued that both Tehseen Poonawala and Amish Devgan were delivered for abstract hate speech cases. He submitted that the reason for this case being referred to a Constitution Bench is the concern for hate speech by public functionaries. Mr. Raj submitted that every Constitution Bench hearing is an academic exercise but they lay down the law. Mr. Raj submitted that a voluntary code of conduct be formed along with a special ombudsman for such cases. He argued that the court must lay down a code, atleast until Parliament codifies a law in this regard.
The Bench, at this juncture, questioned how the court can frame a code of conduct for legislators as it would be encroaching into the powers of the legislature and the executive. Mr. Raj submitted that there has been a significant increase in hate speech by public functionaries. The Bench further noted that there is a civil remedy available to persons affected by hate speech made by public functionaries, indicating that a new code may be unnecessary.