The Supreme Court today proposed to refer to a constitution bench the issue whether a minister can claim refuge under the right to free speech while expressing views in matters of official business.
The need for authoritative pronouncement on the issue arose as there were arguments that a minister cannot take a personal view and his statement has to be coherent with the government policy.
The issue came up in the context of former Uttar Pradesh minister Azam Khan's statement last year that the Bulandshahr gangrape incident was an outcome of a political controversy. Khan had on December 15 last year tendered an "unconditional apology" for the remark, which the apex court had accepted.
The court was hearing a plea filed by a man whose wife and daughter were allegedly gangraped in July last year on a highway near Bulandshahr, seeking transfer of the case to Delhi and lodging of an FIR against Khan for his controversial statement.
A bench headed by Justice Dipak Misra said the matter was required to be referred for consideration to a larger bench as important questions of interpretation of Article 19 (freedom of speech and expression) and Article 21 (protection of life and personal liberty) of Constitution was involved in it.
"Regarding the importance of the matter, we think it appropriate to refer the matter to a constitution bench," the bench, also comprising Justices A M Khanwilkar and M M Shantanagoudar, said.
The bench said that it would deliver a judgement while referring the issue to a constitution bench and posted the matter for hearing on May 2.
Senior advocate Harish Salve, who is assisting the court as an amicus curiae, told the bench that ministers cannot have personal views on official business matters as whatever he or she is saying must reflect government policy.
"Every minister is equally responsible for every official act. If a minister is giving opinion on matters of official business, he cannot say that it is my personal view," Salve said, adding, "this is a matter of constitutional importance. There are no private views as far as ministers are concerned".
"Any statement given by a minister on official business must reflect government policy. Consider the implications of such statements. If a minister says a criminal case is politically motivated, it has to be the government's view," he said.
The apex court had earlier said it will consider whether the fundamental right of freedom of speech and expression will be governed under reasonable restriction of decency or morality or other preferred fundamental rights will also have an impact on it.
During the hearing today, senior advocate and noted jurist Fali S Nariman, who is also an amicus curiae in the matter, said Khan had raised the issue of freedom of speech and expression but rights of a victim of criminal offence must also be considered.
Referring to an earlier verdict of the apex court and a provision of the Constitution, Salve said it has been held that ministers have collective responsibility. He said the right conferred under Article 19 cannot violate somebody's right under Article 21. "Rights must have boundaries. It cannot overlap to other rights," he said.
To this, the bench said, "we will refer it to a larger bench because these issues requires consideration".
The apex court asked Nariman to give the propositions for deliberation by a larger bench within a week.
The apex court had earlier said it will examine whether a person in power can be held accountable for making a statement in public about a rape victim who has fundamental right of protection of life and personal liberty.
"We need to see whether freedom of speech and expression which is not absolute can be governed only by reasonable restriction provided under Article 19 (2) or Article 21, will also have impact on it," it had said.
It had also said "the core issue, as is projected before us, is whether the right conferred under Article 19(1)(a) is to be controlled singularly by the language employed under Article 19(2) or also the other fundamental right, that is right under Article 21 would have any impact on it."
Attorney General Mukul Rohatgi had earlier said that reasonable restrictions were already provided for Article 19 (1)(a) in 19(2) in the bracket of decency or morality.
The brutal incident had happened on the night of July 29 last year when a group of highway robbers stopped the car of a Noida-based family and sexually assaulted a woman and her daughter after dragging them out of the vehicle at gun-point.
The apex court had on August 29 last year taken note of the alleged controversial remarks of Khan that the gangrape case was a "political conspiracy".
Initially, the FIR was lodged by the Uttar Pradesh Police under various provisions on July 30 last year. The CBI had re-registered the case on August 18 last year in pursuance of the Allahabad High Court's interim order.
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