Issue 4 – Supreme Court’s power to frame guidelines

Whether Supreme Court has the power to impose restrictions on Article 19(1) (a) when Article 19 (2) specifically mentions that limitations can be imposed only by ‘state enacted law’?

Most of the senior counsels including Fali Nariman and Ram Jethmalani contended that Supreme Court does not have any power whatsoever to impose restrictions on Article 19 (1) (a) and it would be considered a judicial outreach because as per Article 19 (2), only state enacted law can impose restrictions on the said right.

Undoubtedly, the contention is unambiguous. Only State can impose restrictions through its laws. But, what if State fails to enact a law? What if there is a vacuum?

Particularly regarding the issues which are being discussed by the Supreme Court in this case, Law Commission submitted its report almost 5 and half years back and suggested few changes in law. However, so far, the Government has not accepted the said report or enacted any law to protect the rights of an accused.

As stated in the earlier post, there certainly is a vacuum in case of protection of rights of an accused till the charge sheet is filed in case of criminal cases since the Contempt of Courts Act does not cover the same.

The Supreme Court has decided in numerous cases that when there is a vacuum in law and State has failed to fill the same, it is essential and indeed a constitutional obligation for the Supreme Court to issue such directions/ guidelines for the enforcement of fundamental rights.

Chief Justice Kapadia had a simplified illustration. For example, if some restrictions are being imposed by the Supreme Court on a Mining business to safeguard fundamental rights of other aggrieved persons, is it outside Supreme Court’s jurisdiction simply because Right to business/profession [Article 19(1)(g)] can be restricted only by state enacted law under Article 19 (2) ? What if there is no law?

This is certainly not the first time that directions/guidelines have been issued by the Supreme Court. The law on this aspect is very clear. Article 142 of the Indian Constitution is certainly wider enough to include the powers of the Supreme Court to frame guidelines for the purpose of protecting fundamental rights of the citizens.

Some of the cases wherein guidelines were issued by the Supreme Court are as follows:

  1. S.P. Gupta v Union of India 1981 Supp SCC 87 para 27
  2. Lakshmi Kant Pandey v Union of India 1984 (2) SCC 244 (para 1)
  3. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, para 13
  4. Delhi Judicial Service  Assn v State of Gujarat (para 51, guidelines at para 55) 1991 (4) SCC 406
  5. Union Carbide Corporation etc v UOI, & Ors. (para 15) 1991 (4) SCC 584
  6. Kartar Singh Vs. State of Punjab (1994) 3 SCC 569 (para 263)
  7. Kumari Madhuri Patil v Commr. Tribal Development 1994 6 SCC 241
  8. Common Cause v Union of India 1996 (1) SCC 752 (para 1, guidelines/directions at para 14)
  9. Delhi Development Authority v Skipper Construction Co. (P) Ltd. & Anr. 1996 (4) SCC 622 (paras 15, 16, 32, 34)
  10. People’s Union of Civil Liberties (PUCL) Vs. Union of India (UOI) and Anr.  (1997) 1 SCC 301
  11. D.K. Basu v State of West Bengal 1997 (1) SCC 416 (para 22, 23, 35)
  12. Vishaka & Ors v State of Rajasthan & Ors 1997 (6) SCC 241 (paras 1, 11 and 16)
  13. Vineet Narain & Ors v Union of India & Anr. 1998 (1) SCC 226 (paras 49, 51, 52, and 53)
  14. Union of India v Association for Democratic Reforms & Anr with PUCL & Anr v UOI & Anr 2002 (5) SCC 294 (para 15, 16, 20, 45, 46)
  15. Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284, para33
  16. Destruction of Public & Private Properties v State of AP 2009 (5) SCC 212 (paras 17, 18, 25, 28, 29 30, 32)

Irrespective of the fact that, whether the guidelines which might be framed by the Supreme Court would be effective or not and even could be enforced or not, this case would certainly set what rights are available to the press and what are not.

Or, at least, it will give an opportunity for the future judiciary to overrule and come up with a better judgment.


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