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. Khanwilkar 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 gangrape last year seeking a CBI probe and to initiate action against the former UP minister Azam Khan for making statements 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.
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.
SC says Issue involves gender sensitivity
Referring to UP minister Azam Khan’s statement that the rapes did not happen even before an FIR was registered, Attorney General Mukul Rohatgi said, “Such a statement can be made as a free speech. You can’t have a moral code of conduct to govern this.” The AG 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. Mr Nariman said free speech is not untrammelled as it has its own limitations and subject to the prohibitions contained under Article 19 (2).
Mr Salve said privacy cannot be invaded by a minister in office as it affects the right to life and dignity of the victim.
