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Whether violation of Article 21 can be a restriction to freedom of speech and expression? – S

This matter was first framed by Former Chief Justice of India, Dipak Misra, Justice A.M.Khanwilkar, Justice D.Y.Chandrachud. In this matter Mr.F.S.Nariman and Mr.Harish Salve, learned senior counsel, who have been assisting this Court as amicus curiae. The court consider that the matter is of great importance should be referred to the constitution bench.

Mr.F.S.Nariman, learned senior counsel further submits that this Court has already framed four questions on 29.08.2016. The said questions are as follows:

“(a) 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?

(b) 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?

(c) Whether the statements do come within the ambit and sweep of freedom of speech and expression or exceed the boundary that is not permissible?

(d) Whether such comments (which are not meant for self protection) defeat the concept of constitutional compassion and also conception of constitutional sensitivity?”

It is also submitted by him that the Constitution Bench may not restrict its advertence to the questions but may also include other questions. Mr.Nariman, learned senior counsel, has framed four questions, which are as follows:

“1. 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;

2. 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;

3. 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);

4. 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.”

Mr.Harish Salve, learned senior counsel, has also framed three questions, which read as follows:

“1) 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?

2) 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?

3. 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?”

Even though the court had mentioned the questions, it states that they are not referring any particular question to the Constitution Bench but the matter in entirety. The mater comes before the bench of Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah, Justice S. Ravindra Bhat today. Upon hearing the arguments the court remained unconcluded and listed the matter, tomorrow as part-heard.



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