Article 19(1)(a) of the Constitution, as any student of the Indian Constitution would aver, can only be controlled by Article 19(2) which imposes reasonable restrictions on the exercise of the rights under Article 19(1).
The Supreme Court bench of justices Dipak Misra and A.M.Khanwilkar, however, appears to think that Article 21 too may have some impact on Article 19(1)(a).
Amicus Curiae in the case of Kaushal Kishor v State of Uttar Pradesh and Ors today sought more time from the bench to formulate propositions with regard to the balancing of two preferential rights, namely, the right under Articles 19(1)(a) and 21.
Senior counsel, Harish Salve, who was present in the court during the hearing, offered to assist the court. According to him, 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.
The case arose out of the former UP Minister, Azam Khan’s statement that a gangrape was a “political controversy’. Khan made the statement, when the victim of the gangrape filed an FIR. Thereupon, the Supreme Court, acting on a petition seeking action against Khan, asked whether such statements from a Minister could create distrust in the mind of the victim as regards the fair investigation, and, in a way, the entire system.
Framing the issues to be considered, the bench asked to know whether such comments from the Minister could come within the ambit and sweep of freedom of speech and expression or exceed the boundary that is not permissible.
More significant, the bench sought to know whether such comments defeat the concept of constitutional compassion and also conception of constitutional sensitivity.
The invention of ‘constitutional compassion’ standard, as an additional ground under Article 19(2) to restrict free speech has raised concerns whether the Kaushal Kishor case would also tread the way the Subramanian Swamy case went. In that case, Justice Dipak Misra had held that constitutional fraternity could be a ground to uphold criminal defamation.
Read the Order here.