Bar & Bench reports that in light of UP Minister Azam Khan’s statement that a gangrape was a ‘political controversy’, the Supreme Court has framed the following four “questions” for consideration:

“(i)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 has now become almost tedious to repeat that under Article 19(2) of the Constitution, the freedom of speech can only be restricted by a “law”; so where exactly the Supreme Court receives the power to censor speech of its own accord is unclear.

That said, the four “questions” are paradoxically broad and specific at the same time. Is the Supreme Court going to pass an order prohibiting the usage of the words “it is an outcome of political controversy” every time a “heinous offence” occurs? Or is it going to pass an order prohibiting comments that create a distrust in the mind of the victim regarding “the entire system“?

Secondly, what on earth is ‘constitutional compassion’, and where is it found under the eight sub-clauses of Article 19(2)? And yet, perhaps, the question is a little silly. There was no stricter obscenity threshold for ‘historically respectable personalities’ – but the Court invented it in Devidas Tuljapurkar. ‘Constitutional fraternity’ was never a ground for restricting speech under Article 19(2) – but the Court invented it in Subramanian Swamy to uphold criminal defamation. No doubt, in its wisdom, the Court can invent a ‘constitutional compassion’ standard as well.

What that does (and keeps doing) to the sanctity of the constitutional text and structure is another matter.