New Delhi: The Supreme Court Tuesday said it will consider on January 10 the petition filed by sacked Gujarat-cadre IPS officer Sanjiv Bhatt seeking to bring in additional evidence in an appeal filed by him in the Gujarat High Court.

Bhatt has filed an appeal in the high court challenging his conviction in a 1990 custodial death case.

At the outset, a bench of Justices M R Shah and C T Ravikumar asked senior advocate Devadatt Kamat, appearing for Bhat, if he was serious with regard to a plea seeking recusal of Justice Shah.

Kamat submitted the idea was not to attach ‘bias’ to the Judge but apprehension of ‘bias’.

He said certain issues which are the subject matter of the Special Leave Petition had been decided by Justice Shah on an earlier occasion when he was a judge in the high court.

Justice Shah then remarked, “Your objection is rejected. Merely some order has been passed in some discharge application, it has nothing to do with this controversy. Apprehension should have a reasonable nexus. If you want, we can say many things to say… we will consider.”

Kamat said he can demonstrate apprehension of bias and sought to explain his contention.

The top court said it will hear the matter on January 10.

In August 2022, Bhatt had withdrawn his plea in the apex court seeking suspension of his life sentence in the 30-year-old custodial death case.

The high court had earlier refused to suspend Bhatt’s sentence and observed he had had scant respect for courts and deliberately tried to misuse the process of law. He was sentenced to life imprisonment in June 2019 in the case.

The case relates to the custodial death of Prabhudas Vaishnani, who was among 133 people caught by Jamnagar police after a communal riot broke out following a bandh call in view of BJP leader L K Advani’s Rath Yatra.

Subsequently, his brother lodged an FIR accusing Bhatt, who was then posted as additional superintendent of police in Jamnagar, and six other policemen of killing his sibling by torturing him while he was in their custody.

Supreme Court of India

New Delhi: The Supreme Court on Tuesday ruled additional restrictions cannot be imposed on the fundamental right of freedom of speech and expression of high public functionaries as exhaustive grounds already exist under the Constitution to curb that right.

A five-judge Constitution bench headed by Justice S A Nazeer was unanimous on the larger question with regard to putting additional curbs on freedom of speech and expression of high political functionaries.

The contentious constitutional issue had cropped up following the purported statement of then Uttar Pradesh minister Azam Khan with regard to the alleged gang-rape of a mother- daughter duo on a highway near Bulandshahr in July 2016. Khan had termed the ghastly offence a “political conspiracy”.

On the key issue of whether the government can be held responsible and liable for the statements of an individual minister, the Constitution bench, by a 4:1 majority, ruled that the government cannot be held “vicariously” liable for the disparaging statements made by individual ministers.

Justice V Ramasubramanian, who wrote the judgement for himself and Justices Nazeer, B R Gavai and A S Bopanna, said the concept of collective responsibility is essentially a political concept and it is not possible to extend this concept to any and every statement orally made by a minister outside the House of the People/Legislative Assembly.

Justice B V Nagarathna, who wrote a separate judgement while concurring on the larger issue of additional restrictions on high public functionaries, however, differed on various legal questions including the one related to whether the government can be held vicariously liable for the disparaging utterances of its ministers.

She said a statement made by a minister, if traceable to any affairs of the State or for protecting the government, can be attributed vicariously to the government by invoking the principle of collective responsibility, so long as such statement represents the view of the government.

“The restrictions under clause (2) of Article 19 (Freedom of speech and expression) are comprehensive enough to cover all possible attacks on the individual, groups/classes of people, the society, the court, the country and the State…

“Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual,” Justice Ramasubramanian, said in the 300-page judgement.

Article 19(2) relates to the powers of the State to make laws imposing reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest of sovereignty and integrity of the country, public order, decency, morality etc.

Observing that the State is under a duty to affirmatively protect the rights of a person under Article 21 (Protection of life and personal liberty)even by a non-State actor, the apex court held that a fundamental right under Article 19 and 21 can be enforced even against persons other than the State or its instrumentalities.

On the issue whether a statement by a minister inconsistent with the rights of a citizen constitutes a violation and is actionable, the top court said no one can either be taxed or penalised for holding an opinion which is not in conformity with the constitutional values and is only when his opinion gets translated into action and such action results in injury or harm or loss that an action in tort (a wrongful action or infringement of right) will lie.

“A mere statement made by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, may not constitute a violation of the constitutional rights and become actionable as Constitutional tort. But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort,” the bench said.

It said a fundamental right under Article 19/21 of the constitution can be enforced even against persons other than the State or its instrumentalities.

Justice Nagarathna agreed that greater restriction cannot be imposed on free speech, in addition to grounds under Article 19.

She, however, said such statements can be vicariously attributed to the government in case a minister makes disparaging statements in his “official capacity”.

“Equality, liberty and fraternity are the foundational values embedded in the Preamble of our Constitution. ‘Hate speech’ strikes at each of these foundational values, by marking out a society as being unequal.

“It also violates fraternity of citizens from diverse backgrounds, the sine-qua-non of a cohesive society based on plurality and multi-culturalism such as in India that is, Bharat,” she said.

She said freedom of speech and expression is a much needed right so citizens are well informed and educated on governance.

Justice Nagarathna said the permissible content of the right to freedom of speech and expression ought to be tested on the touchstone of fraternity and fundamental duties as envisaged under our Constitution.

“Although the questions for consideration before the Constitution bench, were with specific regard to the possible restraints on unwarranted and disparaging speech by public functionaries, the observations made hereinabove will apply with equal force to public functionaries, celebrities/influencers as well as all citizens of India, more so because technology is being used as a medium of communication which has a wide spectrum of impact across the globe,” she held.

Justice Nagarathna said public functionaries and other persons of influence and celebrities, having regard to their reach, real or apparent authority and the impact they wield on the public or on a certain section thereof, owe a duty to the citizenry at large to be more responsible and restrained in their speech.

The top court, which reserved its verdict on November 15, had said people holding public offices should exercise self-restraint and not blabber things that are disparaging or insulting to other people in the country.

A three-judge bench had on October 5, 2017 referred to the Constitution bench various issues for adjudication, including whether a public functionary or a minister can claim freedom of speech while expressing views on sensitive matters.

The need for an authoritative pronouncement on the issue arose as there were arguments that a minister cannot take a personal view and his statements have to be in sync with government policy.

Palghar: A court at Vasai in Maharashtra’s Palghar district on Tuesday allowed actor Sheezan Khan, arrested for allegedly abetting the suicide of co-actor Tunisha Sharma, to keep his hair uncut for a month.

Khan, lodged in judicial custody, had sought exemption from the mandatory hair cut in prison stating that he wanted to maintain continuity of look for the TV productions in which he is acting.

First Class Judicial Magistrate S D Hargude asked the officials of the Thane central jail, where Khan (27) is lodged, not to force him to have a hair cut.

The order will be in force for one month, advocate Sharad Rai, who represented Khan

The court also asked prison officials to provide Khan security and counselling as per the jail manual.

Tunisha Sharma (21), who was acting in Ali Baba: Dastaan-E-Kabul’, was found dead in the washroom on the set of the TV serial near Vasai on December 24. Khan was arrested the next day for alleged abetment.

After he was sent to the Thane jail on Saturday, Khan urged the court to allow him to keep his hair uncut for continuity in appearance.

Jail officials told the court that as per the rules, only Sikh inmates are allowed to keep their hair long.

The Vasai sessions court will hear Khan’s bail plea on January 7.

New Delhi: The Supreme Court ruled on Tuesday the owners of cinema halls are entitled to set the terms and conditions for sale of food and beverages and can determine whether outside food should be permitted within the theatre precincts.

The apex court set aside a direction of the Jammu and Kashmir High Court which had in July 2018 directed multiplex and cinema hall owners there not to prohibit movie goers from carrying their own food articles and water inside the theatres.

A bench of Chief Justice D Y Chandrachud and Justice P S Narasimha observed that cinema hall is a private property of the owner, who is entitled to have terms and conditions so long as they are not contrary to public interest, safety and welfare.

“Viewers visit a cinema hall for the purpose of entertainment. We are clearly of the view that the high court transgressed the limits in the exercise of its jurisdiction under Article 226 of the Constitution by ordering and directing the state to ensure that there should be no prohibition on a movie goer bringing eatables and beverages from outside within the precinct of a cinema hall,” the bench said.

The top court was hearing a batch of pleas challenging the direction given by the Jammu and Kashmir High Court.

The bench said whether or not to see a movie is entirely the choice of the viewer and, if he or she seeks to enter a cinema hall, they have to abide by the terms and conditions subject to which the entry is granted.

” .it is open to the theatre owner to determine as to whether food from outside the precinct of the hall should be permitted within,” it said, adding that it is evidently a matter of commercial decision of a theatre owner.

The bench noted that during the course of the arguments before it, the counsel appearing for the appellants stated that due arrangements are made for the supply of hygienic drinking water to the movie goers without levying any charge within the precinct of the cinema hall.

The apex court said it was also stated before it that where an infant or a young child accompanies the parents, as a matter of practice, the cinema hall owners have no objection to reasonable amount of food being carried for the child to serve the nutritional requirements.

It observed that whether or not to purchase, food or beverages after given admission to the cinema hall is entirely the choice of a movie goer.

“The property of the cinema hall constitutes a private property of the owner of the hall. The owner of the hall is entitled to have terms and conditions so long as such terms and conditions are not contrary to public interest, safety and welfare,” it said.

Advocate Sumeer Sodhi, appearing for one of the appellants G S Malls Pvt. Ltd, argued the receipts issued by theatre owners have a specific condition mentioned on them to the effect that no outside food is allowed.

The court said the owner of a private property has the right to decide what can be brought in and what not subject to rules.

“Now, the regulation of what can be brought, what cannot be brought within the precincts of a private property . is for the owner of the property to decide, subject to statutory rules which regulate his activity,” the CJI said.

“Suppose, somebody starts getting ‘jalebis’ into the cinema hall, the owner could say you eat your ‘jalebis’ and wipe your hands on the seats,” Justice Chandrachud said, adding, “I am just giving you an example.”

The bench observed the fundamental aspect which needs to be noted is that the trade and business of conducting a cinema theatre is subject to regulation by the state which has framed the Jammu and Kashmir Cinemas (Regulation) Rules, 1975.

It said, admittedly, the rules contain no mandate compelling the owner of a cinema theatre to allow a movie goer to bring food or beverages within the precinct of the theatre.

The bench said it needed no emphasis that the rule making power of the state has to be exercised in a manner consistent with the fundamental right of the hall owners to carry on a legitimate trade and business within the meaning of Article 19 (1)(g) of the Constitution.

In August 2018, the top court had stayed the high court direction to the cinema hall and multiplex owners of the state not to prohibit movie goers from carrying own food and water inside the theatres.

Besides the relaxation on carrying food items inside the theatres, the high court had on July 18, 2018 passed a number of directions related to cinema halls.

The high court had issued a slew of directions on a public interest litigation (PIL) filed by two lawyers, seeking a direction for the implementation of the Jammu and Kashmir Cinemas (Regulation) Rules, 1975 in their letter and spirit.

The PIL before the high court had sought a direction prohibiting the cinema hall owners from restraining the movie goers from taking outside eatables with them inside.

In its order, the high court had directed the state government, the licensing authority and district magistrates to ensure that a ban on polythene bags at multiplexes and cinema halls was strictly enforced.