A five-judge Constitution Bench of the Supreme Court will determine whether Ministers and public servants while sitting in positions of authority have a right of free speech to give personal opinion on crimes being investigated under their jurisdiction that can seriously prejudice the victim's right to have a fair trial.
A Bench headed by Chief Justice Dipak Misra decided to examine this issue in the backdrop of a petition filed by a resident of Uttar Pradesh who sought action against former UP Minister Azam Khan for terming the gruesome gang-rape of a mother and daughter in Bulandshahr to be a "conspiracy" against the political establishment. Although Khan tendered unconditional apology for his statement, the bench, also comprising Justices AM Khanwilkar and DY Chandrachud, felt the issue raised a substantial question of constitutional importance as any comment by a Minister or a public servant dents the expectation of victims for an impartial, independent probe. Noted legal luminaries Fali S Nariman and Harish Salve, appointed as amicus curiae, agreed with the Court.
During discussions in Court, Salve pointed out that social media allowed anybody and everybody to make uncharitable and aggressive comments against any person so much so that he was forced to close his twitter account. The bench too shared its anxiety on how Twitter carried observations made by judges during judicial proceedings as if it was the final judgment given by the Court.
Justice Chandrachud referred to a recent remark by a senior advocate and a former President of Supreme Court Bar Association for stating that majority judges in Supreme Court are acting pro-Government. The judge challenged the lawyer saying, "they should sit in the Supreme Court to see how the Government is hauled up."
Nariman submitted that the civil laws in the country are "defective" and there is serious need to debate whether freedom of speech and expression of one individual will weigh over the collective duty of the State to ensure fair trial.