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Can Persons Holding Public Office Comment On Crimes? SC Constitution Bench To Hear From Wednesday

20 Oct 2019 9:27 AM GMT
Can Persons Holding Public Office Comment On Crimes? SC Constitution Bench To Hear From Wednesday
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The Constitution Bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and Ravindra Bhat will be hearing the following cases listed before it on 23rd October. 


Can Persons Holding Public Office Comment On Crimes ?

The bench headed by Justice Dipak Misra, in August 2016, while considering a writ petition filed by father of a rape victim from Bulandshahar, framed the following questions considering the allegations made in the petition. It was alleged in the petition that a minister and prominent political personality of the state (Azam Khan) had termed the entire incident as a "political conspiracy only and nothing else".

  • When a victim files an F.I.R. alleging rape, gang rape or murder or such other heinous offences against another person or group of persons, whether any individual holding a public office or a person in authority or in-charge of governance, should be allowed to comment on the crime stating that "it is an outcome of political controversy", more so, when as an individual, he has nothing to do with the offences in question?
  • Should the "State", the protector of citizens and responsible for law and order situation, allow these comments as they have the effect potentiality to create a distrust in the mind of the victim as regards the fair investigation and, in a way, the entire system?
  • Whether the statements do come within the ambit and sweep of freedom of speech and expression or exceed the boundary that is not permissible?
  • Whether such comments (which are not meant for self protection) defeat the concept of constitutional compassion and also conception of constitutional sensitivity?

Later, Azam Khan tendered the apology for calling a Bulandshahar gang rape a "political conspiracy" which was accepted by the Court. But the bench then proceeded to consider larger issue.

The questions framed by Amicus Curiae Senior Advocate Fali S. Nariman are as follows:

  • Whether, and if so under what circumstances (if any) would a private individual or group of private individuals (including private corporations) be required to conform to the rigor and discipline of Article 21 (in the Fundamental Rights chapter) of the Constitution – whether as "State" as broadly defined, or otherwise;
  • In what cases/circumstances is it permissible in law for an individual or group of individuals to be proceeded against to protect a third person's fundamental right under Article 21 of the Constitution;
  • Whether and if so in what circumstances should private corporations whose activities have the potential of affecting the life and health of the people be subjected to the discipline of Article 21 – as opined (prima facie) in the Constitution Bench decision of this Hon'ble Court in M.C.Mehta vs. Union of India (1987);
  • Whether the acts and action of a public figure (i.e. A Minister of a Central or State Government) would be brought under, and be subjected to, the discipline of Article 21 of the Constitution, where it adversely effects the right of a third person to a fair investigation of a criminal case and/or to a fair trial of the case.

Senior Advocate Harish Salve, amicus curiae, had also framed three questions:

  • Whether a statement made by a Minister, in relation to a matter of government business, is attributable to the government on account of the principle of Collective Responsibility inherent in the Westminster system of democracy and expressly recognised in Article 75(3) and Article 164(2) of the Constitution?
  • Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable?
  • Whether the statement by a Minister, in relation to government business, which is violative of the constitutional rights of a citizen, can constitute a "Constitutional Tort" as being an action which is "improper abuse of public power" and thereby actionable in damages?"

Taking note of these questions framed, the three judge bench had referred the matter in entirety to the Constitution bench.


Deprivation Of Immunity By Retrospective Operation Of SC Judgment

Section 6A(1) of Delhi Special Police Establishment Act, 1946 provided immunity for officers of the level of Joint Secretary and above a kind of immunity. The Delhi High Court held that the accused (one such officer) was entitled to the benefit of the said provision. The High Court took the view that the matter required fresh consideration for grant of previous approval under Section 6A (1).

In the meanwhile, the provisions of Section 6A(1) of the Delhi Special Police Establishment Act, 1946 was held to be unconstitutional being violative of Article 14 of the Constitution of India by a Constitution Bench in Subramanian Swamy versus Director, Central Bureau of Investigation.

In the appeal filed by CBI against Delhi HC judgment, the Court noticed that the judgment in Subramanian Swamy is silent as to whether its decision would operate prospectively or would have retrospective effect. So the question referred to the constitution bench was whether there can be a deprivation of such immunity by a retrospective operation of a judgment of the Supreme Court, in the context of Article 20 of the Constitution of India? It was observed:

"The provisions of Section 6A(1), extracted above, do indicate that for officers of the level of Joint Secretary and above a kind of immunity has been provided for. Whether there can be a deprivation of such immunity by a retrospective operation of a judgment of the Court, in the context of Article 20 of the Constitution of India, is the moot question that arises for determination in the present case."


Forcing Governors To Resign

This is a writ petition filed by former Uttarakhand Governor Dr. Aziz Qureshi challenging the Union Home Secretary's oral communication asking him to resign from the post. The bench headed by the then CJI Justice TS Thakur had referred the petition to Constitution bench. He had alleged that the then Home Secretary had called him on the Government's behalf, asking him to put in his papers or face a transfer. 

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