Observer Desk

Posted on 05.10.17 by

Azam Khan Case: Freedom of Speech and Expression – Day 1 – 7 Arguments

On 29th July 2016, a young girl and her mother were allegedly gang-raped on National Highway 91, while passing through Bulandshahr, Uttar Pradesh. When the victim filed a complaint, Uttar Pradesh Minister Azam Khan made a statement terming it a ‘political conspiracy against the Uttar Pradesh Government’. The victims approached the Supreme Court and filed a writ petition seeking action against the minister for such remarks.

On Day 1 of arguments (29th August 2016), the Supreme Court expressed disapproval on the comments. A bench of Justices Dipak Misra and C. Nagappan framed the following questions:

(a) Whether an individual holding a public office can make such comment on crimes.

(b) Whether comments which potentially create doubt in the mind of the victim about a fair investigation can be allowed the State.

(c) Whether the statement is protected by the Right to freedom of speech and expression.

(d) Whether such comments defeat the concept of constitutional compassion and constitutional sensitivity.

The court stayed the investigation in the case and issued notice to Mr. Khan. Mr. Fali S Nariman was appointed as Amicus Curiae.

On Day 2 of the arguments (8th November 2016), Mr. Khan, represented by Mr. Kapil Sibal, denied making the statement. Mr. Nariman suggested to the Court that print and electronic media which published the press conference in which Mr. Khan made those remarks, be added as respondents in the case. Referring to observations in Manoj Narula vs. UOI (2014), Mr. Nariman contended that ‘constitutional morality’, ‘constitutional trust’, ‘good governance’ and ‘oath of office’, must be practically implemented. Ministers must adhere to Nolan’s Principles, especially owing to the language used in the oath taken by Ministers. Mr. Nariman further contended that Mr. Khan is liable under the tort law, since it includes public law remedies. He drew the Court’s attention to the views of the Canadian Supreme Court which propounded the doctrine of ‘negligent investigation’ that attracts principles of tort. The Bench decided to debate on the issue after receiving a response from Mr. Khan.

On the third day of arguments, (17th November 2016), the Court gave Mr. Khan two weeks to tender an unconditional apology for his comments. Mr. Sibal argued that his client had made a general remark which was not targeted at the family. The Court enquired how a public figure like Mr. Khan could make such a comment, more so, when he had nothing to do with the offences in question. Mr. Sibal argued that other ministers have made worse statements that have gone unnoticed, and further accused the media of distorting Mr. Khan’s statement. The Court remarked that although Mr. Khan cannot be sentenced to prison, a fine can be imposed on him as a public law remedy.

On the next date of hearing (7th December 2016), the Court declined Mr. Khan’s apology noting that it was ‘not unconditional’ as was demanded of him. The Court also asked Mukul Rohatgi, Attorney General, to assist the Court.

On Day 5 (15th December 2016), the Court accepted Mr. Khan’s amended apology, wherein he expressed sincere and heartfelt remorse if his comments made the victim feel humiliated.  The Bench decided to continue the hearing with regard to the four issues framed on 29th August.

On Day 6 (20th April 2017), the Court indicated that a five-judge constitution bench must hear the matter, which will decide whether a minister can exercise individual right to free speech and make statements contrary to government policy. Mr. Harish Salve, appearing as Amicus Curiae, said that ministers are bound by the constitutional mandate of collective responsibility and cannot speak contrary to government policy.

On Day 7 (July 21st 2017), Mr. K K. Venugopal, Attorney General, claimed that Mr. Khan’s ‘atrocious’ statement, made days after the incident, was an attempt to obstruct a police officer from discharging his public duty, and he should not have been exonerated. He questioned whether a high functionary can make comments which potentially create distrust in the minds of victims of a crime about the fairness of the on-going investigation. Justice Misra pointed out that Mr. Khan had offered an unconditional apology. Mr. Venugopal said that Mr. Khan made statements, branding the victims as liars, as a cabinet minister. He argued that the statement is contrary to the rule of law and he should not be exonerated for obstructing the course of justice. He pointed out Mr. Khan also made seditious comments against the Army shortly after his apology, proving that he was in the habit of making such remarks. Calling him a repeat offender, Mr. Venugopal insisted that he be charged under Section 186 of the Indian Penal Code (IPC).

Mr. Nariman argued that a Civil Rights Act must be framed to enable citizens to protect their fundamental rights against violation by other private individuals or companies. Fundamental Rights enshrined in the Constitution provide remedies against violations by the State but not against fellow citizens or private bodies. He contended that the Court should expand Article 21 to include action against individuals, and asked the Court to direct the government to frame a separate Civil Rights Act.

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