Constitution Bench headed by Justice Arun Mishra begins the hearing in

Kaushal Kishore vs State of UP

[Can Persons Holding Public Office Comment On Crimes ?]

AG - If a minister makes a statement which involves a policy -

J. Mishra - To what extent can we hold the minister responsible for certain utterances ? By virtue of very special classes of society. What is the remedy ?

AG - Whether he is functioning in the realm of public law or private. If he speaks on policy issues, there is a collective responsibility and then the State is involved. He would be covered by the civil law or the criminal.

If such a statement is made, the remedy will not be against the State, but against the Minister himself.

AG - It is not a part of the functions of the Minister to make derogatory statements. All investigations are a part of the supervision of the criminal court.

(Now talking about Kharak Singh case of 1964)

Now reading Rangarajan v. Jagjivan Ram.

https://indiankanoon.org/doc/341773/ 

AG: Freedom of speech and expression cannot be held to ransom by a group of intolerable people.

Open criticism of government policies is not a ground to allow intolerance.

J. Bhat - All these judgements have reiterated the same thing.

AG - Fundamental Rights can only be restricted by reasonable restrictions. Public order is not the same as public safety.

Only grounds under Art 19(2) can be placed on Art 19(1)(a).

J. Bhat - Public interest is only in 19(6) and 19(5). The rest is public order.

AG - Take Art. 21. Procedure established by law has not been interpreted in the US line. But, it’s something which is just and reasonable.

We look at the pith and substance for 19(1)(a) and 21. Law is required.

J. Mishra - Due process of law doesn’t mean that there has to be a law.

AG - Take 21 alone. Kharak Singh says that you can’t curtail freedom of movement. There has to be a statutory law.

J. Mishra - It’s not dependant on statutory law alone. It’s an independent right. Due process of law is an additional facet. A reasonable process. It doesn’t mean that there has to be an enacted law.

J. Mishra - Question is Minister is making a statement. You’re saying that there has be an enacted law. What about right of privacy ?

AG - That has to be claimed.

J. Bhat - Puttaswamy has declared the existence of privacy, an intrinsic part of 21. The question is that how do you regulate that ? What are the tests to be considered when it comes to its violation ?

What is the way out for the State if they infringe the victim’s right ? Puttuswamy, specifically Chelameshwar’s decision.

AG - FR to life cannot be just an animal existence (dissenting judgement in Munn v. Illinois).

AG lists the enumerated rights under Art. 21.

These all have been declared as FRs. How can you possibly enforce this ? Parliament has to pass a law to enforce this. You can do what was done in Vishaka. Make a list of guidelines. It’s a stop gap thing.

These are all good laws, but need statutory provisions by the Parliament. These rights cannot be enforced by the Court until it is shown that there is some violation by the State.

J. Mishra - In Vishaka, no government enacted the law. In that case, can the court not regulate that right ? Not in every case.

J. Bhat - In matters of education or in something as Vishaka, the very fact that you made it into a law to further that 21 right, just means that there is some space for the court to say something.

Let it be worked out by the Parliament.

AG - When Parliament makes a law, it’s a very elaborate procedure.

J. Mishra - Can’t guidelines be issued by the court ?

AG - There is a reason there’s separation of powers.

J. Mishra - We are giving you that. In case right exists, we are only saying that this is a reason. A human is given certain rights. We are not creating a right. We are only giving it a regulatory shape. Our job is only to enforce these rights.

AG - Your Lordships cannot independently evolve principles which can be independently defined into law.

J. Mishra - In Rafique Masi (a service law matter), the question of Art. 142 came up. We are not making the law. Law exists in the shape of the Constitution. Once the court has recognised those rights, it’s binding.

What is the lacuna, where is the vacuum ? Law cannot be static. Everything is changing. It involves something new everyday; different technology is developed. From this point of view, we are examining this case. We cannot remain in the era of 30-40 years back.

J. Shah - It cannot be disputed that it is the duty of the SC to protect the FR. To protect these, can’t the SC or any court issue certain guidelines ? Why can’t these be issued to protect the law of the land ?

AG - Let me use an example. Everyone is entitled to housing. Where will the money come from ?

J. Shah - You are stretching it too much. Who says that we can’t issue guidelines for at least some people ?

J. Bhat - There are some critical issues. Such as HIV and blood transfusion. There was no law. Courts had to step in.

J. Mishra - In absence of enforcement machinery, what is to be done ?

J. Bhat - There are some critical issues. Such as HIV and blood transfusion. There was no law. Courts had to step in.

AG - People come to the SC only when all other routes are exhausted. Suggestions are welcome, directions are not. For instance in Sabarimala.

J. Mishra - Our case is different here. How do we address it ? There has to be a certain responsibility when a person is speaking.

Matter will continue post lunch. Everyone will be accommodated.

Matter has commenced.
Counsel of the Petitioner (Kaleeswaram Raj) is arguing.

The Court doesn’t have the mechanism which the legislature otherwise has. When it’s a process of adjudication, Court can only say if A or B is right.

When it’s a matter of legislation, they will be a position to examine all the aspects, the conditions. The legislature has that mechanism.

J. Mishra - If the directives aren’t doing anything, will advice work ?

J. Banerjee - Will the Court just fold its hands and sit back if the legislature is inactive, and watch the infringement of FRs ?

Counsel - 2nd point is about legitimacy. The separation of powers. The question of constitutional legitimacy comes in. A decision of a constitutional court cannot infringe FRs.

J. Mishra - Give us cases.

Counsel - Sakal Papers case (1961 3 SCR 8) and Sahara judgement.
In Sakal, State may place restrictions on rights for the interest of the general public. Right to freedom of speech can be restricted for the interest of the state.

J. Mishra - We are not talking of State restrictions. Once a certain right is recognised and it is being infringed, can you say that the right doesn’t exist if there’s no enacted law ? Why does it require a law ?

Art. 19(1) and Art. 21 need to co-exist. If you kill one, the other one won’t exist.

J. Shah - Both the Articles need to be read harmoniously, so that one person’s rights are not infringed.

Anuj Garg (bartender) and Charu Khanna (makeup artist) cases in the context of 15(2). These are against the State.

J. Mishra - Why can’t we be a respectable democracy ? Why can’t we respect each other’s sides. When you are holding an office, shouldn’t you respect others ? Let us come to the fundamental duties. Can we make such reckless statements and destroy the very harmony of this country ?

J. Bhat - It also jeopardises the fairness of an investigation. This is also an intrinsic part of Art. 21.

J. Mishra - Research this further and find more cases. This is an academic exercise.

J. Bhat - Don’t make a comment that will impede the investigation. This will be grossly undermining public order.

J. Mishra - In sub judice matters, if such comments are made - freedom of speech and expression to what extent ?

Counsel - In Sahara judgement (2010), self regulation is the best regulation.

ASG Madhavi Divan - There are different facets of speech.

J. Mishra - What is the minister’s policy for making such a statement ? We are examining responsibilities of a minister. Whether he is liable and to what extent ?

ASG - He can be taken to task under various laws.

J. Mishra - Why not a writ ?

ASG - Following the Sahara judgement, various people tried to take advantage of it.

Counsel - There can only be a case to case examination.

J. Mishra - You are not answering our questions. You need to do more research, both of you. We’ll hear this when Mr. Salve comes back. 19th or 20th we will come. This is a very serious issue, don’t be casual.

Bench has risen