The Supreme Court on Wednesday 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 is 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.
"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.
The remarks from the bench came after Attorney General Mukul Rohatgi told the court that Samajwadi Party leader and former Uttar Pradesh minister Azam Khan's statement alleging that the Meerut gang rape case was a conspiracy to malign the then Akhilesh Yadav government fell within the purview of free speech guaranteed under Article 19(1)(a).
The court was hearing a plea filed by the man whose wife and daughter were gang raped in July last on a highway near Bulandshahr, seeking transfer of the case to Delhi, besides lodging of a case against Azam Khan.
The court also wanted to examine whether a minister could make such a statement, especially in a sexual assault case. Khan subsequently tendered an unconditional apology and the apex court dropped proceedings against him.
The AG said Khan's statement would fall within the free speech category and if anyone was aggrieved by it, he / she could take the SP leader to court by filing civil / criminal defamation case.
"Reading in more restrictions on free speech to give it a restrictive meaning, in addition to the restrictions imposed by the Constitution under Article 19(2), would harm the right to freedom of speech and expression and seriously stifle expression of opinion by politicians, noted personalities and journalists," Rohatgi said.
But the bench is examining whether right to free speech could be impacted by right to dignity and privacy, both included in right to life guaranteed under Article 21 of the Constitution, of a person, especially in sexual assault cases.
"Do not forget that women suffer the worst assault on their dignity and identity through sexual assaults," the bench said.
Amicus curiae Fali S Nariman said he had not examined right to free speech from the aspect of a preferred right under Article 21.
He sought two weeks to examine the issue from this perspective and suggest possible means to strike a balance between the two rights.
The bench 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 senior police officer 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 top 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.
Rohatgi insisted that reasonable restrictions are already provided for Article 19(1)(a) in 19 (2) in the bracket of decency or morality.