The central government on Thursday opposed any restrictions on public comments by politicians holding public offices, including ministers, other than those prescribed under the Constitution as the Supreme Court indicated that it may refer the issue to the larger Constitution bench. “We don’t want to open new avenues of restrictions,” said lawyer Madhvi Divan as the bench of Justice Dipak Misra, Justice A.M. Khanwilkar and Justice Mohan M. Shantanagoudar asked amicus curiae Fali S. Nariman and Harish Salve to frame the questions that could be referred to the Constitution bench to decide.
The position taken by the central government on Thursday is continuation of the stand taken earlier by Attorney General Mukul Rohatgi, who had told the court that restraining politicians and public figures from commenting on crimes being investigated would be an infringement of the freedom of speech and expression. “If an offence of rape is committed and someone says it’s a political conspiracy, then there can be no restriction on such expressions. He is not trivialising the incident,” the Attorney General told the court during the last hearing on March 29.
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The Centre reiterated its position in the course of the hearing wherein the court is examining the freedom of expression of a person in power vis-a-vis a rape victim’s fundamental right of protection of life, personal liberty and right to fair investigation and trial. The issue is rooted in Samajwadi Party leader and former Uttar Pradesh minister Azam Khan’s remarks about the 2016 gang-rape case in Bulandshahr in Uttar Pradesh. He had described it as a “political conspiracy”. Khan has already regretted his statement.
The core issue being examined by the court is whether the right conferred under Article 19(1)(a) is to be controlled singularly by the restrictions under Article 19(2) or whether Article 21, too, would have any impact on it. Addressing the court, Salve assailed the central government’s approach of reading the Constitution textually without giving it a philosophy.
“Government is going back to 1947. Says read the Constitution textually. Don’t give Constitution a philosophy,” Salve said, assailing the government’s position including its stand on whether privacy is a right. The Centre in the hearing of challenge to the Aadhaar scheme had said that privacy was not a fundamental right and referred to 1954 (by eight judges) and 1964 (by six judges) judgments, which had said that the privacy was not a fundamental right that could be read in Article 21 guaranteeing protection of life and personal liberty.
“You can’t treat the Constitution as an Income Tax Act,” Salve told the court, saying that Article 14 (Right to Equality), Article 19 (Freedom of Speech and Expression) and Article 21 (Protection of Life and Personal Liberty) were core to the basic structure of the Constitution and had to be seen as a golden trilogy. He said that the enforcement of the fundamental rights could not be against the State alone, as today there were large power centres outside the State apparatus and they could not be allowed to invade the right to privacy.
Next hearing of the matter has been scheduled for May 2.