The Azam Khan case will decide if the fundamental right to freedom of speech and expression is guaranteed to a Minister of a State making statements that could potentially create doubt about the fairness of the investigation of a crime.
On 29th July 2016, a young girl and her mother were allegedly gang-raped on National Highway 91. When they were on the National Highway passing through Bulandshahr, their car was stopped by criminals who dragged the 13-year-old girl and her mother out and raped them in a field nearby. When the victim of the gangrape filed a FIR, Uttar Pradesh Minister and Samajwadi Party leader Azam Khan made a statement terming it a ‘political conspiracy against the Uttar Pradesh Government.
In August 2016, the victims approached the Supreme Court and filed a writ petition, 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 the Mr. Azam Khan.
The Court identified the core issue as, whether the right to freedom of speech and expression under Article 19(1)(a) is restricted by only Article 19(2) (reasonable restrictions on the right to protect the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, etc.), 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, but 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.
(a) Whether an individual holding a public office can comment on crimes such as rape calling it “an outcome of political controversy”.
(b) Whether the State can allow such comments, as they potentially create doubt in the mind of the victim about a fair investigation.
(c) Whether the statements are protected by the right to freedom of speech and expression.
(d) Whether such comments defeat the concept of constitutional compassion and constitutional sensitivity.
Five Judge Constitutional Bench formed.
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