The Supreme Court today said that it will examine whether a person in power can be held accountable for making a statement in public about a rape victim who has the fundamental right of protection of life and personal liberty.
A bench of Justices Dipak Misra and A M Khanwilkar said that it will have to see 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 impact on it.
"Both Article 19 (freedom of speech and expression) and Article 21 (protection of life and personal liberty) are preferred rights.
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"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," the bench said.
It 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."
The bench, while giving an example, said that if a minister or government servant like a DGP in exercise of freedom of speech and expression makes a statement that alleged incident of rape is false or an outcome of political controversy then can he be held accountable.
It further said that the said statement of the minister or government servant may give a direction to the probe in the case and impact the fundamental right of the rape victim under Article 21 of Constitution.
The court was hearing a plea filed by a man whose wife and daughter were gangraped in July last on a highway near Bulandshahr, seeking transfer of the case to Delhi, besides lodging of an FIR against former Uttar Pradesh minister Azam Khan for terming the alleged incident as an outcome of political controversy.
The apex court had earlier said it would deliberate upon the questions framed by it on the freedom of speech and expression and probable impact of statements of those holding high offices on free and fair probe in heinous cases including rape and molestation.
Attorney General Mukul Rohatgi said reasonable restrictions are already provided for Article 19(1)(a) in 19 (2) in the bracket of decency or morality.
Rohatgi further said, "Freedom of speech and expression is
not absolute and there are reasonable restrictions provided. No criminal prosecution can be launched on the ground of decency or morality as these are not defined under any law."
The apex court said that it has to see whether a statement by a person in authority affects the right of rape victim under Article 21.
Senior advocate Harish Salve, who was present in the court, expressed his intention to assist the court and said that reasonable restriction under Article 19(2) "may be the only controlling provision but the right of freedom of speech and expression as enshrined and spelt out under Article 19(1)(a), has its own inherent contours and it is not boundless".
Senior advocate and noted jurist Fali S Nariman, who is amicus curiae in the case, said that he requires some more time to think further and formulate the propositions with regard to the balancing of two preferential rights, the right under Article 19(1)(a) and the right under Article 21.
The bench posted the matter for final hearing to April 20 and asked the parties to address on the issue.
The former Uttar Pradesh minister had on December 15, last tendered an "unconditional apology" in connection with his alleged remark in the sensational Bulandshahr gangrape case which the apex court had accepted.
The brutal incident had happened on the night of July 29 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".
On November 17, the apex court had directed Khan to tender an "unconditional apology" for his alleged remarks in the matter while seeking assistance of the attorney general in dealing with the issue of statements made by persons holding public office in such cases.
Initially, the FIR was lodged by the Uttar Pradesh Police under various provisions on July 30. The CBI had re-registered the case on August 18 in pursuance of the Allahabad High Court's interim order.
