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Constitution of India Constitutional law

Kaushal Kishor vs. State

of Uttar Pradesh & Ors.
(2023)
September 12, 2024  7429  0

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This article was written by Utkarsh Singh and

further updated by Pujari Dharani. This article
deals with the case analysis of Kaushal Kishor
vs. State of Uttar Pradesh & Ors. (2023),
which exhaustively explains the background
facts of the case, laws involved in the case,
arguments, the detailed judgement with ratio
decidendi and the dissent by Justice B.V.
Nagarathna. The case deals with questions
like the restrictions to Article 19(1)(a), its
enforceability against the non-state actors,
and the State’s liability for the minister’s
derogatory statements, among other things.

Table of Contents

1. Introduction
2. Details of the case
3. Background facts of the case
3.1. Chronological list of events
4. Provisions and concepts involved
4.1. Article 19(1)(a)
4.2. Article 19(2)
4.3. Article 21
4.4. Articles 32 and 226
4.5. The principle of collective responsibility
4.6. Constitutional tort
5. Questions raised in Kaushal Kishor vs.
State of Uttar Pradesh & Ors. (2023)
6. Arguments presented by both parties
6.1. Arguments presented by the petitioner
6.1.1. Submissions by the learned amicus
curiae, Ms. Aparajita Singh
6.1.2. Submissions presented by the learned
counsel Mr. Kaleeswaram Raj
6.2. Arguments presented by the respondent
7. Judgement in Kaushal Kishor vs. State of
Uttar Pradesh & Ors. (2023)
8. The ratio decidendi of the judgement of
the case
8.1. Exhaustiveness of the restrictions
provided in Article 19(2)
8.1.1. Historical evolution of Article 19(2)
8.1.2. Whether the restrictions mentioned in
Article 19(2) are exhaustive
8.1.3. Whether any other new restrictions on
free speech be imposed by invoking other
fundamental rights
8.2. Enforceability of fundamental rights
against non-state actors
8.2.1. Position in other countries
8.2.2. Position in India
8.2.3. Precedents referred
8.3. The obligation of the State to protect
Article 21 over Article 19
8.3.1. Personal liberty under Article 21
8.4. Obligation of the State for a minister’s
statements
8.4.1. Precedents referred
8.5. Whether a minister’s statements amount
to a constitutional tort
8.5.1. Precedents referred
9. Justice B.V. Nagarathna’s separate
opinion in the case of Kaushal Kishor vs.
State of Uttar Pradesh & Ors. (2023)
10. Conclusion
11. References

Introduction
It is pertinent to mention a Sanskrit text,
which was cited by the Hon’ble Supreme
Court of India at the beginning of its
judgement. The Sanskrit verse says:

सत्यं ब्रूयात िप्रयं ब्रूयान न ब्रूयत सत्यम् अिप्रयम् |

िप्रयं च नानृतं ब्रूयाद एष धमर्ः सनातनः ||

satyam brūyāt priyaṃ brūyān na brūyāt

satyam apriyam |

priyaṃ ca nānṛtaṃ brūyād eṣa dharmaḥ

sanātanaḥ ||

It means “speak what is true; speak what is

pleasing; Do not speak what is unpleasant,
even if it is true; And do not say what is
pleasing, but untrue; this is the eternal law.”

The Constitution of India grants its citizens

certain fundamental rights. One of these is
Article 19(1)(a) which guarantees the right to
freedom of speech and expression. This right
allows citizens to think, speak, and share
opinions and information freely. However,
certain restrictions have to be imposed on this
freedom so that such a speech does not
become the cause of anarchy. Article 19(2)
lays down the reasonable restrictions that can
be imposed on the exercise of this right. The
real question that stands here is whether the
restrictions mentioned in Article 19(2) are
enough to safeguard the rights of the people.
Should more restrictions be imposed on this
freedom? What if the speech of a person
endangers the dignity or privacy of another
person? What if such a person, who made a
controversial speech, is a public functionary?
Can a State be held responsible for such
speech and harm caused to the aggrieved
party?

In the case of Kaushal Kishor vs. State of

Uttar Pradesh (2023), many such significant
questions were raised before the
Constitutional Bench of the Hon’ble Supreme
Court. Let us look into this case to know how
the judiciary, regarded as the defender of
constitutional rights, dealt with such crucial
issues.

Details of the case

Following are the details of the case-

1. Case Name- Kaushal Kishor vs. State of

Uttar Pradesh & Ors.

2. Equivalent Citations– (2023) 4 SCC 1;

2023 INSC 4.

3. Court– Supreme Court of India

4. Bench– Justice S. Abdul Nazeer, Justice

B.R. Gavai, Justice A.S. Bopanna, Justice V.
Ramasubramanian, and Justice B.V.
Nagarathna.

5. Petitioner– Kaushal Kishor

6. Counsels who represented the

petitioner- Aparajitha Singh, the Senior
Advocate (Amicus Curiae); Advocates-on-
Record namely Uttara Babbar, Suvidutt
M.S., and Manju Jetley; and Advocates
namely Shipra Jain, Kaleeswaram Raj,
Thulasi K. Raj, Somlagna Biswas, Rishesh
Sikarwar, Aman Khullar, Renu Yadav, Samer
Jit Singh Chaudhry, Hitesh Kumar Sharma,
Akhileshwar Jha, Niharika Dewivedi, E.
Vinay Kumar, Amit Kumar Chawla, Nitin
Sharma, Ravish Kumar Goyal, Narendra Pal
Sharma, Shweta Sand and Mirdula Singh
Chauhan.

7. Respondents- State of Uttar Pradesh &

Others

8. Counsels who represented the

respondents- Attorney General of India,
R. Venkataramani; Solicitor General of
India, Tushar Mehta; Additional Solicitor
Generals of India namely Balbir Singh and
Madhavi Divan; Additional Advocate
General, Garima Prasad; Senior Advocate,
R. Bala; Advocates-on-Record namely
Arvind Kumar Sharma, Mukesh Kumar
Maroria, Ajay Vikram Singh, Swarupama
Chaturvedi, Pradeep Misra, Abhishek,
Lakshmi Raman Singh and Lakshmi N.
Kaimal; Advocates namely Naman Tandon,
Samarvir Singh, Presenjeet Mohapatra,
Rajat Nair, Ankur Talwar, Kanu Agrawal,
Anirudh Bhatt, Shyam Gopal, Monica
Benjamin, Sujatha Bagadhi, Shraddha
Deshmukh, Udai Khanna, Anu S., Mayank
Pandey, Vinayak Mehrotra, Chitvan Singhal,
Sonali Jain, Abhishek Kumar Pandey, Vikas
Bansal, Priyanka Singh, Sharjheel Ahmad,
Renjith B. Marar, Arun Poomuli, Ashu Jain
and Davesh Kumar Sharma.

9. Judgement Date– 3rd January, 2023

Background facts of the case

On 29 July 2016, a young girl and her mother
were gang-raped on National Highway 91 in
Uttar Pradesh. They travelled from Noida to
Shahjahanpur with other family members to
attend a relative’s last rites, the said gang
robbed cash as well as jewellery which were in
their possession. The men that were travelling
with them were tied up in the field and beaten
harshly. The First Information Report
(hereinafter referred to as “FIR”) was
registered on 30 July 2016 at the Bulandshahr
Police Station for the offences of gang rape
under Sections 395, 397 and 376D of the
Indian Penal Code, 1860 (hereinafter referred
to as “IPC”) read with the Protection of
Children from Sexual Offence (POCSO) Act.

Following this, the media got involved with

this incident and it made it to the headlines all
over newspapers, television channels and
social media. Azam Khan, who was a minister
for urban development in Uttar Pradesh, while
addressing the public described this alleged
gangrape incident as a “political conspiracy”
because “elections were near, and the
desperate opposition could stoop to any level
to defame the government”. Thereafter, an
FIR was registered against the said minister
under charges Sections 395, 397, 376-D, and
342 of the IPC.

In 2016, a writ petition under Article 32 of the

Constitution was filed by the husband and the
father of the two gangrape survivors to seek
the following relief from the Supreme Court.

To monitor the criminal investigation of this

case by the Central Bureau of Investigation
(hereinafter mentioned as “CBI”).

To conduct the trial proceedings of the said

case outside the State of Uttar Pradesh as
Azam Khan’s statement spoiled the chance
of a fair hearing in that State.

To register a complaint against Azam Khan

for passing such statements which
allegedly was outrageous to the modesty of
the victims.

They argued that Azam Khan’s public

Statement adversely affected the reputation
of the victims. Following this petition, the
Supreme Court Bench made Azam Khan a
respondent to the case. He later presented an
unconditional apology before the Supreme
Court and offered his sincere remorse to the
petitioner.

The court accepted this apology and moved

on to consider the larger questions that were
involved in the case. The case continued and,
by an order dated 5th October 2017, a three-
judge bench directed the writ petition to a
five-judge constitution bench of the Supreme
Court to decide on important questions, i.e.,
the right to free speech on sensitive matters
that are under investigation and whether it
offers an individual’s right to a dignified life.
This was with respect to the Statement made
by the minister. In the 2017 order, the
Supreme Court also considered a Special
Leave Petition (SLP) from the Kerala High
Court. This petition involved two public
interest litigations against the Minister for
Electricity of the Government of Kerala. The
minister had allegedly made derogatory
statements against a female principal, a
student’s mother, and women labourers at a
tea plantation. These petitions were dismissed
by a Division Bench of the High Court of
Kerala on the ground that the questions are of
such a nature that it has no jurisdiction to
decide upon the same. Petitioners in this case
contended that no official action was taken
against the said minister though a public
censure was issued by the political party to
which he belonged. The petitioner in this SLP
sought the Supreme Court to take the
following steps.

To direct the Chief Minister of Kerala to

frame a Code of Conduct for the ministers
who took the oath before entering into the
office as prescribed by the Constitution.

To direct the Chief Minister of Kerala to

take appropriate action if any minister
breached what he or she promised in the
oath.

To direct the concerned authorities to take

action against the minister for his
derogatory statements.

Because a few questions to be decided by the

Supreme Court in the said SLP and the writ
petition were the same, though the facts and
circumstances of the case were different, the
Court decided to hear the matter together by
tagging them.

Chronological list of events

For a better and more detailed understanding

of the background of the case, it is suggested
to go through the below table consists of a
chronological list of legal developments.

Date Event

A minor girl and

her mother were
gang-raped on the
29th July, 2016
National Highway
91 in Uttar
Pradesh.

An FIR was lodged

at the
30th July, 2016
Bulandshahr
Police Station.

The minor girl in

the Bulandshahr
gang-rape
incident
approached the
Supreme Court
and sought an FIR
to be lodged
against the
minister for
making such
outrageous
statements about
her and the
incident.The girl
also alleged that
the police were
helping the
13th August, 2016
accused and,
hence, prayed to
the Court to
transfer the case
to Delhi and the
investigation of
this case, which is
being conducted
by the CBI, be
monitored by the
Court, as she has
no trust the
working of the UP
Government and is
highly being
influenced by the
minister (Source:
Live Law).

The Allahabad
High Court
directed the CBI
to step into this
case and start the
investigation as it
12th August, 2016 was not satisfied
with the
investigation
conducted by the
state police
(Source: Live
Law).

The Supreme
Court Bench
consisting of
Justice Dipak
Misra and Justice
U.U. Lalit, on the
petition filed by
the minor girl,
framed questions
to be addressed
by this Court.The
Court passed a
stay order against
29th August, 2016 the investigation
in this case by the
CBI and ordered
to transfer of this
case to another
state.Further, the
Court appointed
Mr. Fali S.
Nariman as
amicus curiae to
give his assistance
to the Court in
addressing the
questions framed.

The Supreme
Court lifted the
stay on the CBI
probe and allowed
them to
investigate as per
the law. The Court
also accepted the
request by the CBI
to be a party to
8th September,
this case.The
2016
Court ordered the
Allahabad High
Court to stop the
proceedings in
this case as the
entire case was
taken up by the
Supreme Court
(Source: Live
Law).

The Supreme
Court Bench
ordered the CBI to
serve notices to
the minister
asking him to give
27th September,
explanations for
2016
his alleged
statements on the
Bulandshahr
gang-rape
incident (Source:
Live Law).

Azam Khan, the

minister in the
then Uttar
Pradesh
Government,
denied that he
made such alleged
controversial
statements, i.e.,
the Bulandshahr
gang-rape
incident to be a
conspiracy by the
opponent party in
light of the
upcoming
elections, at a
press conference.
His denial was
presented before
the Supreme Court
by his lawyer, Mr.
Kapil Sibal.The
amicus curiae, Mr.
Fali S. Nariman,
suggested the
Court to order the
news
8th November, organisations,
2016 who already
published articles
and reports
stating that the
minister made
such statements,
to submit the
audio recording of
that press
conference.The
amicus curiae also
submitted to the
Court a
comprehensive
report on this case
in which he
viewed that the
minister would be
liable under the
law of torts by
citing the
judgements
delivered by the
Supreme Court of
Canada and the
Supreme Court of
the United
Kingdom (Source:
Live Law).

The Supreme
Court directed the
Minister to
unconditionally
apologise for his
controversial
statements in an
affidavit and gave
two weeks of time
to submit the said
affidavit to the
CourtThe Court
decided that a
woman’s dignity
should not be
 compromised and
directed the Uttar
Pradesh State
Government to
admit the minor
survivor of the
gang rape in the
nearby central
17th November, school of her
2016 father’s choice.
Not just the
admission, but
also the fees and
expenditures for
her education
shall be borne by
the State
Government.The
Court also stated
that the victims
can also obtain
the required help
from the Central
Government.Furth
ermore, the Court
imposed a duty on
the school, where
the child was
admitted, to
ensure that her
dignity is not
tarnished (Source:
The Hindu).

The Supreme
Court was not
satisfied with the
apology affidavit
of the minister on
the grounds that
his apology was
conditional and,
hence, refused to
accept the same.
The Court found
6th December,
the apology
2016
conditional
because it states
that the minister
apologises if the
victim has got
hurt for his
statements, which
were claimed to
be twisted by the
media (Source:
Live Law).

The Supreme
Court accepted the
minister’s fresh
apology affidavit.
In this regard, the
Court cited the
relevant
paragraph from
the said affidavit:
“If by any
statement made
16th December,
by him, the
2016
petitioner has felt
insulted or
humiliated, then
he unconditionally
and without
reserve expresses
his sincere and
heartfelt remorse
in this regard”
(Source: Live
Law).

The Supreme
Court referred this
case, which
involves a major
question of law,
i.e., whether a
minister can make
such statements
20th April, 2017 which have a
great chance of
interfering with
the then-ongoing
investigation, to a
Constitutional
Bench (Source:
Live Law and The
Hindu).

The Supreme
Court referred to a
Constitutional
Bench as an issue
of formulation of a
policy providing a
code of conduct
for the ministers
or any other
5th October, 2017
persons holding
public offices as
well as prescribing
penalties for
making
controversial
statements
(Source: Live
Law).

Provisions and concepts

involved
The entire case mainly deals with various
intricacies of the belowmentioned
constitutional provisions and concepts. It
would be easier to understand the case if one
has basic knowledge about the same. So, let
us look into those.

Article 19(1)(a)

This constitutional provision guarantees

freedom of speech and expression to every
Indian citizen, not to foreigners. This
fundamental right is crucial in our country
because the absence of it would result in the
collapse of the democratic setup. In our
country, rulers or the political executive are
elected by the people and the essence of
democracy lies in the fair conduct of elections
by people with informed and wise decisions,
which will happen only when there is a free
political discussion.

A citizen can express his or her views,

convictions, feelings, etc. on any subject
matter in any mode of communication like
newspaper, social media or even by gestures.
The State will ensure that the citizens of this
country are not restricted from their free
speech. However, such free speech is subject
to Article 19(2), which allows the State to
impose reasonable restrictions on this
freedom under certain circumstances.

For more information about the freedom of

speech and expression, please refer to
additional resources or legal texts.

Article 19(2)

Every freedom mentioned in Article 19(1) of

the Constitution of India has reasonable
restrictions and, hence, is not an absolute
right. In any modern and organised society,
there would not be any absolute rights
because it may violate the rights of fellow
beings and lack of social control could lead to
societal imbalance. Therefore, under Clause
(2) of Article 19, the Parliament can impose
reasonable restrictions on the freedom of
speech and expression on any of the following
grounds;

1. To maintain the sovereignty and integrity of

India;

2. To ensure the security of the State;

3. To foster friendly relations with the foreign

states;

4. To uphold public order;

5. To uphold decency or morality;

6. To prevent contempt of court;

7. Defamation; and

8. Incitement of an offence.

If any restriction made by the Parliament is

questioned before a court of law, the court will
adopt the test of reasonable restriction and
assess whether it is arbitrary or reasonable.

For more information about the reasonable

restrictions, click here.

Article 21

This provision confers to every Indian citizen

as well as foreigners the right to life and
personal liberty and ensures that it is not
violated by executive and legislative actions.
However, this right can be deprived if a law
dictates so, provided the procedure
established by such law should be just, fair
and reasonable and should be as per Articles
14 and 19.

Articles 32 and 226

The framers of the Constitution believed that

merely granting fundamental rights without
providing remedies for their violation would be
meaningless. Hence, the right to
constitutional remedies is provided under
Article 32 of the Constitution as a
fundamental right empowering the Supreme
Court of India to deal with the cases where
remedies for the violation of fundamental
rights are sought and issue appropriate writs,
directions or orders accordingly. Similarly,
Article 226 empowers the High Courts in
various states of India to issue writs. Thus,
the Supreme Court and High Courts have writ
jurisdiction under Articles 32 and 226
respectively.

The principle of collective

responsibility

The principle of collective responsibility is the

basic principle of a parliamentary form of
government. Articles 75(3) and 164(2) of the
Constitution embody this principle obligating
the council of ministers at the centre and
state respectively to be collectively
responsible towards their respective
legislatures for their general activities relating
to any affairs of the State. This means that
the council of ministers acts as a team, and
every decision they make is considered a joint
decision taken by all its members. Though a
difference of opinions exists within the
cabinet, this principle mandates each member
to support all decisions of the cabinet not just
in the legislatures, but also requires them to
publicly support these joint decisions. This
ensures unity and discipline among the
council of ministers.

Constitutional tort

When a tortious act is committed by a

government or public servant, it is deemed to
be a constitutional tort and, in such cases, the
State will vicariously be held liable. Certain
constitutional provisions, such as Articles
294(b) and 300(1), address the state’s
liability for the constitutional torts committed
by its employees. Once an action for
constitutional tort is commenced, the claimant
should prove the tortious acts committed by
government employees would result in
constitutional tort and, once it is proved, the
State will be ordered to pay damages to the
claimant.

Questions raised in Kaushal

Kishor vs. State of Uttar
Pradesh & Ors. (2023)
Question No.1 – Whether the Court can
impose restrictions on the right to freedom of
speech and expression beyond the existing
reasonable restrictions provided under Article
19(2) of the Constitution of India by invoking
any other fundamental rights.

Question No.2 – Can a fundamental right

under Article 19, i.e., the freedom of speech
and expression, or Article 21, i.e., the right to
life and personal liberty, be enforced against
anyone other than the ‘State’ or its
instrumentalities?

Question No.3 – Whether the State is under

a duty to affirmatively protect the rights of
the citizens under Article 21 of the
constitution even if it is against a threat to the
liberty of the citizen by the acts or omissions
of another citizen or private agency.

Question No.4 – Whether the statement of a

minister, traceable to any affairs of the State
or for protecting the Government, should be
attributed vicariously to the government itself,
especially by following the principle of
collective responsibility.

Question No.5 – Whether a statement made

by a minister, which is inconsistent with the
rights granted to the citizen under Part III of
the Constitution, i.e., the fundamental rights,
constitutes a violation of such fundamental
rights and is actionable as ‘constitutional
tort’.

Arguments presented by
both parties

Arguments presented by the

petitioner

Submissions by the learned amicus

curiae, Ms. Aparajita Singh

Senior Counsel Ms Aparajita Singh acted as

amicus curiae and gave her assistance to the
Supreme Court for this case. The written
submissions for the said questions made by
the learned counsel before the Supreme Court
are briefed below.

Question No.1 – The reasonable

restriction to the freedom of speech and
expression under Article 19(1)(a) is
provided under Article 19(2). And,
whenever two fundamental rights are in
conflict with each other at a particular
instance, the courts always try to strike a
balance between the two and are
successful in enforcing both in a meaningful
way. To highlight various instances, the
learned counsel cited many cases, including
R. Rajagopal vs. State of Tamil Nadu
(1994), People’s Union of Civil Liberties
(PUCL) vs. Union of India (1996), Sahara
India Real Estate Corporation Ltd. vs.
Securities and Exchange Board of India
(2012), among other cases.

Question No.2 – Generally, the duty to

protect and enforce the fundamental rights
is on the State and, therefore, the said
rights are enforced by the aggrieved party
against the State in case of its violation. It
is a good sign that the ambit of the
expression “state” as defined under Article
12 of the Constitution is increasing to
obligate as many entities as possible to not
infringe the citizens’ fundamental rights.
However, a few fundamental rights, such as
rights under Articles 15(2), 17, 23 and 24
of the Indian Constitution and some
inherent rights of Article 21 like the right to
a clean environment, can be exercised
even against the entities which do not fall
under the ambit of Article 12 by virtue of
usage of the word “person” instead of the
“state” in the said provisions. Nevertheless,
it is pertinent to note that, as far as the
word “state” is mentioned in any of the
provisions of Part III of the Constitution,
the State has the constitutional obligation
to not only protect citizens’ fundamental
rights but also to ensure that even the
private persons and entities do not violate
them, even if no existing law imposes such
obligation on the State. Just because a
person or entity, who infringed the
fundamental rights of a citizen is a private
person or entity, it does not mean that the
courts are ignorant of such violation. The
learned counsel cited a few instances
where private persons were held liable for
infringing the citizens’ rights. Cases cited
were Bodhisattwa Gautam vs. Ms. Subhra
Chakraborty (1995), where the Court
resorted to the public law remedy by
imposing an interim compensation against
the private entities, and M.C. Mehta vs.
Kamal Nath & Ors. (1996), where the Court
awarded damages to the aggrieved parties
whose right to a clean environment was
violated by non-state actors.

Question No.3 – The fundamental rights

are both negative as well as positive rights.
Those are positive rights because the State
is under obligation to protect the rights
from being violated or infringed. Such a
positive obligation of the State is clearly
explained by the Supreme Court in the
case of Justice K.S. Puttaswamy vs. Union
of India (2018). The State cannot take a
defence stating that they are not in a
position to implement the fundamental
rights due to the reasons which are not in
their hands as decided in S. Rangarajan vs.
P. Jagjivan Ram (1989). The learned
counsel also cited the case of Pt.
Parmanand Katara vs. Union of India &
Ors. (1989) where the Court held that the
doctors in Government hospitals are also
obligated to enforce the constitutional duty
of the State under Article 21.

Question No. 4 – The learned counsel

contended that the cabinet minister acts on
behalf of the State during their official duty
or activities and, thus, the State can be
made liable for the acts done by the
cabinet minister. The counsel further
suggested that it would be unreasonable if
the minister, who acts for the State,
himself violates the right under Article 21
and is immune from any liability when the
State itself is the one who should protect it
from being infringed. Furthermore, the
counsel stated that the alleged violation
should be determined by the court by
considering the facts of the case such as
when the minister made such an alleged
derogatory statement – during personal or
official capacity, what kind of matter is the
alleged gangrape incident – public or
private matter and where did the
ministered uttered such statements –
private or public place. Stating this, the
counsel referred to cases like Amish
Devgan vs. Union of India (2020) where
the court highlighted the considerable
impact and influence of the person holding
a government position; in State of
Maharashtra & Ors. vs. Sarabgdharsingh
Shivdassingh Chavan & Anr. (2010), the
State was made responsible for the Chief
Minister’s unfair interference with the
investigation of a case; the case of
Secretary, Jaipur Development Authority,
Jaipur vs. Daulat Mal Jain (1996) and
Manoj Narula vs. Union of India (2014)
clearly explains the constitutional duties of
the Ministerial office, though such code of
conduct is not enforceable as laid down in
R. Sai Bharathi vs. J. Jayalalitha & Ors.
(2003). The learned amicus curiae finally
argued that the ministers, whether in the
centre or state, must act in accordance
with the duties of the State prescribed in
the Constitution.

Question No.5 – The State is an

imaginary entity and, hence, requires a
human agency to function in a society.
Therefore, a group of persons, bodies and
other instrumentalities constitute a state.
Similarly, the State Government is said to
function through its cabinet ministers and
other public servants. With this analogy,
the learned counsel argued that the State
would be held liable under the
constitutional tort for the wrongs
committed by its agencies, including
ministers and cannot escape its liability by
resorting to the principle of sovereign
immunity as it is inapplicable in matters of
infringement of fundamental rights of the
citizens. In this regard, the counsel
referred to cases, Smt. Nilabati Behera
alias Lalita Behera (Through the Supreme
Court Legal Aid Committee) vs. State of
Orissa & Ors. (1993) and Common Cause
(A Registered Society) vs. Union of India
(2018), where the principle of state liability
is discussed.

Submissions presented by the learned

counsel Mr. Kaleeswaram Raj

Advocate Kaleeswaram Raj appeared on

behalf of the petitioner in the Special Leave
Petition and submitted comprehensive written
submissions. The submissions made by the
learned counsel before the Supreme Court are
briefed below.

The main argument from the petitioner is

the formulation of a code of conduct for
those political personalities who are holding
public offices while exercising the right to
freedom of speech and expression to
ensure better accountability and
transparency in their day-to-day activities
as their every utterance will affect the
government policy. The Counsel also
requested that the code of conduct must be
in line with the constitutional morality and
norms of good governance. He also argued
that, along with a code of conduct, there is
a dire need to set up an appropriate
mechanism like the ombudsman to be
vigilant about the misuse of the said right
by public servants. Till such a position is
created, the National and State Human
 Rights Commissions should take proper
steps according to the provisions of the
Protection of Human Rights Act, 1993.

Regarding the principle of collective

responsibility, the petitioner referred to
Articles 75(3) and 164(2) of the
Constitution and argued that, though the
wording of these provisions conveys that
the collective responsibility of the council of
ministers should be towards the cabinet
and legislature of centre or state, the
essence of the provisions is that such
responsibility should be towards the
general public at large. This makes the
aforesaid code of conduct constitutionally
justifiable as it is in the best interests of
the people. The Counsel also pointed out
that such a code of conduct exists in the
developed democracies in the world.

The petitioner stated that a new restriction

cannot be added to the freedom under
Article 19 by the court while exercising the
interpretation function and referred to the
case of Sakal Papers (P) Ltd. & Ors. vs.
Union of India (1961), where the Supreme
Court held that the freedom of speech can
be restricted only in the interest of security
of the State, friendly relations with foreign
states, public order, decency or morality or
concerning contempt of court, defamation
or incitement to an offence. Stating this,
the petitioner contended that, though a
new restriction cannot be inserted into the
freedom under Article 19, a code of
conduct to regulate the speeches of the
public functionaries is a need in the current
state of affairs.

The petitioner stated that the countries in

the world are gradually shifting to welfare
governance from laissez faire governance
because of this the role and responsibility
of the State to enforce and protect the
fundamental rights is increasing. In many
countries like South Africa, Ireland, Canada
and Germany, the concept of the horizontal
application is followed i.e., the fundamental
rights can be exercised not only against the
State but also against private persons.
Whereas, in India, horizontal application is
not followed for all fundamental rights, but
only for Articles 15(2), 17, 23 and 24 of
the Indian Constitution. However, the
Supreme Court issued various writs against
private persons under Article 32 in various
instances; provided
Such private persons are performing
public functions; or

Such private persons are performing

statutory functions that affect the
citizens’ rights.

From this, the petitioner contended that it is

evident from many notable cases, including
M.C. Mehta vs. Union of India & Ors. (1986),
that the Court can exercise its writ jurisdiction
against the above-mentioned private persons.

The counsel for the petitioner also

mentioned the increase in hate speeches in
India. The Counsel went on to cite the
definition of hate speech as provided in the
United Nations Strategy and Plan of Action
on Hate Speech and the resolution adopted
by the European Parliamentary Assembly
i.e., the role and responsibilities of political
leaders in combating hate speech and
intolerance.

Finally, the petitioner highlighted that there

is no conflict between two fundamental
rights in the present case. Rather, the
question before the Court is whether there
can be any constitutionally valid restriction
imposed on the ministers and public
officers to regulate their speech and
expression.

Arguments presented by the

respondent

The Attorney General of India, R.

Venkataramani, along with the Solicitor
General of India, Tushar Mehta, represented
the respondent – Union of India. Their brief
submissions for the said questions are given
below.

Question No.1 – The Attorney General

stated that the existing reasonable
restrictions provided under clauses (2) and
(6) should always be considered exhaustive
and a court has no authority to add more
rules or criteria to impose any restriction
other than those mentioned in the said
clauses, as it is a legislative function. Such
a thing cannot be done by the court even
with the help of another fundamental right
because, in a constitutional scheme, one
fundamental right or freedom cannot come
into conflict with the other. Although if two
fundamental rights are conflicting in a
particular case and come before the court
to decide which fundamental right is
greater or more important to be protected,
the court always tries to balance both the
fundamental rights and exercise two of
them simultaneously.

Question No.2 – The Attorney General

said that, in the Constitution of India, a few
fundamental rights can only be exercised
against the State and/or its agencies,
whereas a few other fundamental rights are
available even against persons or bodies
other than the State or its agencies such as
Articles 15(2), 17, 23 and 24 of the
Constitution. Any addition to this
arrangement would amount to
‘constitutional change’, which has the effect
of endless constitutional litigation. He
further said, “Claims against persons other
than the State, either through enacted law
or otherwise must be confined to
constitutionally enacted subjects or
matters.”

Question No.3 – The Attorney General

firmly stated that there is no obligation on
the part of the court to provide additional
protection to the citizen under Article 21 if
it is infringed by any person, especially if
the citizen adequately has the protections
such as constitutional and legal remedies.
If a citizen wants to enforce fundamental
rights on the grounds of their infringement,
the constitutional remedies can be availed
by the citizen under Article 32 of the
Constitution of India by approaching the
Supreme Court of India and Article 226 by
approaching the High Courts in India.

Question No.4 – The learned Attorney

General confirmed that the conduct of the
persons holding public offices like ministers
is subject to judicial review and the court is
allowed to adjudicate upon the same. He
further clarified that a punishment can be
inflicted upon such persons if the
misconduct or malfeasance, including
statements, is proved to be committed
under the colour of the office and the
government cannot vicariously be held
liable following the principle of collective
responsibility, if the said misconduct is not
a statutory violation, i.e., not a breach of
public duty and a duty related to the affairs
of the State, as the misconduct will be
deemed as an individual wrong or violation.
The Attorney General noted that the
Supreme Court can grant compensation to
the persons whose constitutional rights are
infringed due to the misconduct of the
public officers in cases like Kasturilal Ralia
Ram Jain vs. The State of Uttar Pradesh
(1964) and Rudul Sah vs. State of Bihar &
Anr. (1983) and, further, brought to the
notice of the court that there is a need to
give a conceptual basis for better clarity
and certainty which may be better if given
through a statutory enactment.

Question No.5 – The principle of

constitutional tort emerged in the case of
Smt. Nilabati Behera alias Lalita Behera
(Through the Supreme Court Legal Aid
Committee) vs. State of Orissa & Ors.
(1993) and was made applicable in various
matters to provide constitutional remedies.
The Attorney General raised a concern
regarding the need to bring an appropriate
legal framework so that the principles and
procedures are unambiguously provided
with no room for vagueness.

Judgement in Kaushal Kishor

vs. State of Uttar Pradesh &
Ors. (2023)
On 3rd January 2023, a constitution bench
comprising Justice S. Abdul Nazeer, Justice
B.R. Gavai, Justice A.S. Bopanna, Justice V.
Ramasubramanian and Justice B.V.
Nagarathna answered all the questions that
came before it and clarified all the ambiguity
as to the constitutional provisions raised by
the parties to the petition. The exact answers
given by the Supreme Court for the questions
are given below.

Questions
Supreme Court’s
addressed by the
holding
Supreme Court

“The grounds lined

up in Article 19(2)
for restricting the
right to free speech
Whether the Court are exhaustive.
can impose Under the guise of
restrictions on the invoking other
right to freedom of fundamental rights
speech and or under the guise of
expression beyond two fundamental
the existing rights staking a
reasonable competing claim
restrictions provided against each other,
under Article 19(2) additional
of the Constitution restrictions not
of India by invoking found in Article
any other 19(2), cannot be
fundamental rights. imposed on the
exercise of the right
conferred by Article
19(1)(a) upon any
individual.”

Can a fundamental
right under Article
19, i.e., the freedom
“A fundamental right
of speech and
under Article 19/21
expression, or
can be enforced
Article 21, i.e., the
even against
right to life and
persons other than
personal liberty, be
the State or its
enforced against
instrumentalities.”
anyone other than
the ‘State’ or its
instrumentalities?

“The State is under

a duty to
affirmatively protect
Whether the State is the rights of a
under a duty to person under Article
affirmatively protect 21, whenever there
the rights of the is a threat to
citizens under Article personal liberty,
21 of the even by a non-State
constitution even if actor” and “the
it is against a threat importance of the
to the liberty of the right to personal
citizen by the acts or liberty over and
omissions of another above all the other
citizen or private rights guaranteed
agency. under Articles 19
and 14 need hardly
to be over-
emphasized.”

“A statement made
Whether the
by a Minister even if
statement of a
traceable to any
minister, traceable to
affairs of the State
any affairs of the
or for protecting the
State, should be
Government, cannot
attributed vicariously
be attributed
to the government
vicariously to the
itself, especially by
Government by
following the
invoking the
principle of collective
principle of collective
responsibility.
responsibility.“

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

The ratio decidendi of the

judgement of the case
Let us look at the issue-wise ratio decidendi of
the Supreme Court in delivering such a
judgement in the case of Kaushal Kishor vs.
State of Uttar Pradesh & Ors. (2023).

Exhaustiveness of the restrictions

provided in Article 19(2)

The first question in this case addressed by

the Supreme Court is whether the Court can
impose restrictions on the right to free speech
beyond the existing reasonable restrictions
provided under Article 19(2) of the
Constitution of India by invoking any other
fundamental rights.

Historical evolution of Article 19(2)

Before answering this question, the Court

turned back to look into the history of the
evolution of Article 19(2) of the Constitution.

Constituent Assembly debates

The Court first discussed the constituent

assembly debates as well as the development
of Clauses (1) and (2) of Article 19 by looking
at various reports and draft constitutions
submitted by the Drafting Committee to the
President. The relevant draft constitution for
the present discussion is the one drafted and
submitted in February 1948 (BSR III, 522),
where Article 13(2), the present Article 19(2),
mentions “any other matter which offends
against decency or morality or undermines
the authority or foundation of the State” as
one of the ground to restrict the free speech.

Cases referred by the Bench

After reviewing the Constituent Assembly

debates, the Court examined several
landmark judicial decisions by the SC. The
cases referred by the court include:-

The Court discussed the case of Romesh

Thappar vs. State of Madras (1950). In this
case, the respondent argued that a statutory
restriction on the circulation of a weekly
journal fell under the ‘security of the State’ as
outlined in Article 19(2). This restriction was
imposed by the Government of Madras under
Section 9(1-A) of the Madras Maintenance of
Public Order Act, 1949, which aims to ‘secure
public safety or maintenance of public order’.
The Supreme Court responded that such
statutes, which use broad terms like public
safety and maintenance of public order as
grounds to restrict fundamental rights, cannot
be upheld as reasonable restrictions under
Article 19(2) because these terms go beyond
what the Constitution prescribes. A similar
holding was made in the case of Brij Bhushan
& Anr. vs. The State of Delhi (1950).

Amendments to Article 19(2)

Following these two landmark decisions, the

legislature amended Article 19(2) through the
Constitution (First Amendment) Act, 1951.
This amendment, which was given
retrospective effect, introduced several
restrictions, including friendly relations with
foreign States, public order, and incitement to
an offence. It also added the term ‘reasonable
restrictions’, mandating the adoption of a test
of reasonableness. This test and the factors to
be considered for determining the
reasonableness of a restriction were clearly
explained by the Supreme Court for the first
time in the case of State of Madras vs. V.G.
Row (1952).

By exercising the right under Article 19(1)(a),

there may be a threat to the sovereignty and
integrity of India. This was recognised by the
National Integration Council and its
committee’s recommendations because of
which a new restriction, namely “the
sovereignty and integrity of India” was added
in Clause (2) of Article 19 by the Constitution
(Sixteenth Amendment) Act, 1963.

Whether the restrictions mentioned in

Article 19(2) are exhaustive

The first part of question no.1 is whether the

reasonable restrictions provided under Article
19(2) are exhaustive or whether any other
additional restrictions can be imposed by the
State on the freedom of speech and
expression.

The Court observed that Clause (2) of Article

19 not only provides restrictions but also
saves the existing laws and enables the State
to impose restrictions on free speech on the
prescribed grounds. The Court noted that the
Indian Penal Code, 1860 (hereinafter
mentioned as “IPC”), which is an existing law,
have many provisions such as Sections 117,
124A, 153A(1)(a), 153B, 171C, 228, 228A,
295A, 298, 351, 354, 354A, 354C, 354D,
354E, 355, 383, 390, 499, 504, 505(1)(b),
505(1)(c) and 509 which curtail the freedom
of speech and expression in order to protect
the individual persons, the State, courts,
certain sections of the society and other
entities. The Court also noted that there are
many other statutes other than the IPC that
impose restrictions on the right under Article
19(1)(a) like the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989, the Prevention of Insults to
National Honour Act, 1971, etc.

Upon careful review of these statutory

provisions, it becomes clear that the
restrictions mentioned in Article 19(2) are
sufficient to cover all possible threats to
society and are therefore exhaustive. This
reasoning has already been given by the
Supreme Court in previous cases such as
Express Newspapers Pvt. Ltd. & Ors. vs. The
Union of India & Ors. (1985) and Sakal Papers
(P) Ltd. & Ors. vs. Union of India (1961),
where the Court affirmly ruled that any
restriction imposed by the State on free
speech which does not belong to any of the
grounds mentioned in Article 19(2) is said to
be constitutionally invalid. The Court further
highlighted that not only the State but also its
agencies cannot inflict any restrictions which
are not mentioned in Clause (2) as decided in
the case of Bijoe Emmanuel & Ors. vs. State
of Kerala & Ors. (1986). The Court stated that
even the courts, along with the State and its
instrumentalities, are not allowed to widen the
scope of Article 19(2) or add more grounds
through the power of interpretation. It is apt
to mention the Supreme Court’s observation,
in this context, in Ram Jethmalani & Ors. vs.
Union of India & Ors. (2011). The Court
observed: “An argument can be made that
this Court can make exceptions under the
peculiar circumstances of this case… There is
an inherent danger in making exceptions to
fundamental principles and rights on the fly.
Those exceptions, bit by bit, would then
eviscerate the content of the main right itself”.

Furthermore, the Court also pointed out the

restrictions on free speech prescribed in
various other countries, namely the United
Kingdom, the United States of America,
Australia, the European Union and the
Republic of South Africa, stating that they are
very similar to those of India. To check the
comparative analysis, see Para 31 of the
judgement.

The Court, thus, concluded that the

reasonable restrictions provided under Article
19(2) are exhaustive and the competent
authority makes laws authorising to
imposition of restrictions, which are in line
with the grounds mentioned in Clause (2) of
Article 19, on the freedom of speech and
expression is the State, not the courts.
Regarding its authority, the Supreme Court
clarified by stating that “the role envisaged in
the Constitutional scheme for the Court, is to
be a gatekeeper (and a conscience keeper) to
check strictly the entry of restrictions, into the
temple of fundamental rights. The role of the
Court is to protect fundamental rights limited
by lawful restrictions and not to protect
restrictions and make the rights residual
privileges.”

Whether any other new restrictions on

free speech be imposed by invoking other
fundamental rights

The second part of question no.1 is whether

any other new restrictions on the freedom of
speech and expression can be imposed on
grounds other than those provided in Article
19(2) by invoking other fundamental rights.

The Court said that this question was partly

answered in the case of Sakal Papers (P) Ltd.
& Ors. v. Union of India (1961). In this case,
the Court held that no freedom or
fundamental right is greater than another
and, hence, the State cannot curtail or restrict
one right for the sake of better enjoyment of
another fundamental right.

The Supreme Court agreed with the

submissions made by the learned amicus
curiae regarding the application of the
doctrine of balancing fundamental rights. This
doctrine is applied by the courts when two or
more fundamental rights conflict in a given
case, as reflected in various precedents. The
Court also noted that the fundamental
principle of any law is to declare such a code
of conduct where an individual should enjoy
his or her fundamental rights in such a way as
to ensure that the fundamental rights of other
individuals have not been affected. All
individuals in a society can peacefully exercise
their respective fundamental rights if they
sensibly and responsibly act by respecting
other citizens’ rights. Indeed, mutual respect,
the sense of accommodation and brotherhood
are inherent in one of the features of the
Preamble of the Constitution i.e., in the word
“fraternity”.

Precedents referred

The Court referred to a few precedents where

Articles 19(1)(a) and 21 were in conflict and
examined the observations made by the
Supreme Court in those cases. The cases
referred and the court’s observations are
given below.

Relevant
Fundament
Court/Judg
Case al rights
e’s
referred which are
observation
in conflict
s

The Court
laid down a
general rule
that the
personal
aspects of an
individual
such as his
family,
marriage,
and
procreation,
among other
aspects,
cannot be
made public
without the
individual’s
consent.
However,
there is an
exception to
this general
rule. Any
person can
comment,
whether
appreciation
Freedom of
or criticism,
speech and
on any
expression
matter which
under Article
Rajagopal is published
19(1)(a) and
vs. State of as “public
the right to
Tamil Nadu records”,
privacy of
(1994) which also
government
includes the
servants
judgements
under Article
given by the
21
court.
However, if a
public record
involves the
dignity and
modesty of
women who
are victims
of sexual
offences,
kidnapping,
abduction, or
similar
offences,
then the
media and
individuals
are
restricted
from freely
discussing
such
sensitive
matters. This
is to protect
the dignity of
these
women.

Justice
Venkatarama
Reddi
expressed
the opinion
that the right
to
The voters’
information
right to
should be
People’s information
prioritized,
Union of Civil under Article
as it serves
Liberties 19(1)(a) and
the broader
(PUCL) vs. the right to
interests of
Union of privacy of a
the public.
India (1996) spouse of an
Consequentl
electoral
y, the right
candidate
to privacy
should be
considered
secondary to
the voters’
right to
information.

Individuals
causing
noise argued
that their
actions are
protected by
the freedom
of speech
and
expression
granted
under Article
19(1)(a) of
the
Constitution.
However, the
court
affirmed that
this freedom
is not
Using absolute. It
louspeakers ruled that
by exercising individuals
Article 19(1) cannot
Noise (a) and right create noise,
Pollution for an for instance,
(V.), in Re pollution- by using
free loudspeakers
environment and forcing
under Article others to
21 listen to their
speech. Such
actions
violate the
neighbours’
right to
peacefully
enjoy their
property and
to have an
environment
free from
noise
pollution.
The Court
observed
that Article
19(1)(a)
cannot
defeat Article
21.

The Court
observed
that, in a
democracy,
citizens have
the right to
be informed
about the
activities of
The right to the State,
know of ensuring
citizens transparency
Ram under Article and
Jethmalani & 19(1)(a) and accountabilit
Ors. vs. the right to y. However,
Union of privacy of this right
India & Ors. foreign bank cannot be
(2011) account exercised
holders against
under Article fellow
21 citizens in a
way that
infringes on
their right to
privacy. Such
infringement
s can lead to
an
undesirable
social order.

The Court
observed
that the right
to a fair trial
under Article
21 is an
appropriate
restriction on
the free
speech of
people and
media.
Dealing with
Sahara India
Freedom of the publicity
Real Estate
the press postponeme
Corporation
under Article nt order, the
Ltd. vs.
19(1)(a) and Court held
Securities
the right to a that such an
and
fair trial order, for a
Exchange
under Article temporary
Board of
21 period, can
India (2012)
be passed
against the
press only in
exceptional
cases where
the
administratio
n of justice
and fairness
of trial will
be disturbed
if not
passed.

The Court
held that the
privacy of a
few
individuals
cannot be
breached as
their
information
The right to
did not serve
know of
any greater
Thalapplam citizens
purpose than
Service under Article
the public
Cooperative 19(1)(a) and
interest. If
Bank Ltd. & the right to
there is a
Ors. vs. privacy of
significant
State of cooperative
public
Kerala & Ors. bank account
interest
(2013) holders
involved,
under Article
then
21
individuals
may be
required to
disclose
information;
otherwise,
their privacy
should be
protected.

The Court
held that a
person is not
allowed to
enjoy his
right to free
speech in
such a way
which
Freedom of
tarnishes the
speech and
reputation of
Subramanian expression
another
Swamy vs. under Article
person
Union of 19(1)(a) and
because free
India, the right to
speech is a
Ministry of dignity and
qualified
Law & Ors. reputation of
right and
(2016) a fellow
should be
person under
exercised
Article 21
without
defaming
another.
Here, it is to
be noted
that
“defamation”
is present in
Article 19(2).

Based on the precedents mentioned earlier,

the Supreme Court observed that it is evident
that the court will strike a balance when two
fundamental rights conflict with any situation
and, further, held that the freedom of speech
and expression cannot be restricted by
involving other fundamental rights which are
beyond Article 19(2). Justice B.V. Nagarathna,
in her separate opinion, concurred with the
majority’s conclusion and the ratio decidendi
about the first question.

Enforceability of fundamental rights

against non-state actors

The second question considered by the

Supreme Court in this case pertains to the
enforceability of fundamental rights under
Article 19 (freedom of speech and expression)
and Article 21 (right to life and personal
liberty) against entities other than the ‘State’
or its instrumentalities.

The underlying question as observed in the

Court is whether the fundamental rights have
vertical or horizontal effects. Before answering
the question, the court gave the meaning of
these terms stating that every country in this
world follows both these approaches, as given
under.

Vertical effect: When a constitutional

provision regulates only those dealing
where one of the parties is the State
and/or its agencies, the provision is said to
have a vertical effect of application. This
approach gives more emphasis to
individual autonomy, choice and privacy.

Horizontal effect: When a constitutional

provision regulates only those dealing
where both the parties are private persons
or entities, the provision is said to have a
horizontal effect of application. This
approach aims to maintain constitutional
values and sense in every individual.

Position in other countries

The Court analyses various U.S. Supreme

Court cases like Jones vs. Alfred H. Mayer Co.
(1968) and Shelly vs. Kraemer (1948). In
these cases, the U.S. Supreme Court gave
more preference to constitutional rights over
contractual rights to protect African and Asian
Americans from racial discriminative contracts
by upholding the Equal Protection Clause of
the Fourteenth Amendment of the American
Constitution and, thus, binding private
persons to follow constitutional obligations.
From this analysis, the Court conclude that
the U.S.A. also started adopting the horizontal
approach.

Whereas, the Irish Supreme Court interpreted

that its constitutional rights have a full
horizontal approach one such example is John
Meskell vs. Córas Iompair Éireann (1973),
where the private players are been awarded
to compensate an employer for violating their
right to form associations and unions.

In the South African Constitution, many rights

are conferred on citizens simultaneously
obligated every person, not just the State, to
not violate the same. The Supreme Court
referred to various constitutional provisions
and their interpretations made by the
Constitutional Court of South Africa, where
the fundamental rights of citizens, in case of
their violation, are enforced against non-state
actors obligating them to not intervene with
the rights of fellow people.

Position in India

After examining all the provisions mentioned

under Part III of the Constitution, the
Supreme Court of India concluded that some
of the fundamental rights such as rights under
Articles 15(2)(a) and (b), 17, 20(2), 20(3) 21,
23, 24 and 29(2) are enforceable against non-
state actors if they are violated.

Precedents referred

The Court referred to a few precedents made

by the Supreme Court to understand the
evolution of the court’s stance on the
enforceability of fundamental rights against
non-state actors. The cases referred and the
court’s observations are given below.

Issue and Relevant

the Court/Judg
Case
fundament e’s
referred
al right(s) observation
in question s

Articles
31(1) and 21
shares a
common
phrase,
“except by
procedure
established
Petitioner’s by law”. This
shares are implies that,
sold by the if private
respondent entities
by exercising violate these
P.D. their right to rights, the
Shamdasani lien. State is not
vs. Central Petitioner obliged to
Bank of India contended follow them
Ltd. (1952) that his and, hence,
rights under a writ would
Article 19(1) not lie in
(f) and 31(1) these cases.
are This view
infringed. was
reiterated in
the case of
Smt. Vidya
Verma vs.
Dr. Shiv
Narain
Verma
(1956).

Justice K.K.
Mathew, in
his separate
but
concurring
opinion,
observed
that if a
Sukhdev Whether
private
Singh & Ors. Articles 14
person’s act
vs. and 16 are
of violating
Bagatram enforced
others’ rights
Sardar Singh against a
is not
Raghuvanshi statutory
supported by
(1975) corporation
the State, it
is not a
State action
and, hence,
the State
cannot be
liable for the
same.

The Court
held that the
State is
under a duty
to ensure
that the
contractors
are abiding
by the
constitutiona
People’s Whether
l provisions.
Union of Civil rights under
Because
Liberties Article 24 be
Article 24 is
(PUCL) vs. enforced
enforceable
Union of against
against
India (1996) contractors
every
person, the
Court
decided that
these
fundamental
rights can be
enforced
against the
entire world.

The Court
expressed
surprise at
the reasons
given by the
Tamil Nadu
Government
and, under
the
The Madras
constitutiona
High Court
l duty to
revoked the
protect
‘U’ certificate
fundamental
of a Tamil
rights, held
movie, which
that the
S. was
State shall
Rangarajan supported by
protect the
vs. P. the Tamil
rights which
Jagjivan Nadu
are
Ram (1989) Government
conferred
on the
upon them
grounds of
with no
the public
consideration
protests to
of the public
ban that
 opinion and
movie.
their
protests. The
Court
decided that
the inability
to maintain
public order
was no
excuse.

Justice Dr
A.S. Anand,
in his
separate but
concurring
opinion,
emphasised
the provision
of pecuniary
compensatio
n and viewed
it as a public
law remedy
rooted in the
concept of
strict
Discussed liability. The
and justice also
distinguished observed
the that such
Smt. Nilabati
applicability compensatio
Behera alias
of the n, which is
Lalita Behera
doctrine of usually
(Through the
sovereign exemplary
Supreme
immunity in damages,
Court Legal
cases of sets as a
Aid
torts punishment
Committee)
committed on the
vs. State of
by its wrongdoer
Orissa & Ors.
agencies and and also a
(1993)
infringement liability on
of the State for
fundamental failing to
rights. perform its
public duty
of protecting
the rights of
the people.
He further
clarified that
this public
law remedy
is available
to the
aggrieved
party in
addition to
civil and
criminal
remedies.

The Court
held that the
State shall
be made
accountable
by
compensatin
Lucknow Liability of
g the
Development the State
aggrieved
Authority vs. under
citizens who
M.K. Gupta administrativ
suffered an
(1994) e law
injury due to
the arbitrary
and ultra
vires acts of
the
government
of employees

The Court
held that this
was a case
of violation
of the
woman’s
Monthly right under
maintenance Article 21
Bodhisattwa
by the and, thus,
Gautam vs.
husband directed the
Ms. Subhra
during the accused
Chakraborty
pendency of husband, a
(1995)
the non-state
prosecution actor, to pay
monthly
interim
compensatio
n to the
aggrieved
wife

The Court
applied the
“polluter
pays
The liability principle”
of a club and
owner, the “precautiona
M.C. Mehta
private ry principle”
vs. Kamal
person, to and ordered
Nath & Ors.
compensate the private
(1996)
for the person to
environment pay the costs
al damage to restore
the
environment
to its original
condition.

The Court
observed
that
Compensatio compensatio
Consumer
n as a n is the most
Education &
remedy in practical and
Research
the exercise inexpensive
Centre &
of the writ remedy
Ors. vs.
jurisdiction available for
Union of
under Article the State or
India & Ors.
32 or Article its agencies’
(1995)
226 act of
violation of
fundamental
rights.

The Court
set out
guidelines to
enforce the
right to
gender
equality of
working
women.
Such
guidelines
are not only
Working
obligates the
women filed
State but
a class
also for
action
private
petition to
employers.
enforce their
The
Vishaka & right to
Supreme
Ors. vs. gender
reiterated its
State of equality and
direction in
Rajasthan & to prevent
the case of
Ors. (1997) sexual
Medha
harassment
Kotwal Lele
towards a
& Ors. vs.
working
Union of
woman in
India (2013)
her
and ordered
workplace
State
functionaries
and private
and public
sector bodies
to
immediately
set up such
mechanisms
as mandated
by Vishaka
guidelines.

The
provisions of
Section 6(a)
of the Hindu
Minority and By invoking
Guardianship the mothers’
Act, 1956 right to
and Section dignity and
19(b) of the gender
Guardians equality
and Wards under
Act, 1890, Articles 21
which and 14
confers the respectively,
Githa father as the after
Hariharan natural examining
(Ms.) & Anr. guardian of various
vs. Reserve their child aspects of
Bank of India and the this issue,
& Anr. properties in including the
(1999) the name of international
the child, are conventions,
challenged the Supreme
as the Court
separated decided to
mothers interpret the
faced issues. word “after”
As per the used in the
provisions, provisions as
the mother “in the
will be the absence of”.
natural
guardian
only “after
the father”.

The Court
observed
that, when
you read
Article 15(2),
Army College along with
of Medical Preamble
Sciences and Articles
admits only 14, 15, 16,
children of and 38, it is
army understood
personnel by that the
conducting educational
Indian
an entrance institutes,
Medical
test. Non- though the
Association
army private body,
vs. Union of
personnel should
India (2011)
challenged manage their
this policy as institutions
it is in such a
discriminativ way that
e towards they do not
them and promote
violates discriminate
Article 15. the classes
who are
already
facing
discriminatio
n.

Whether
Section 12 of
the Right of
Children to
Free and The Court
Compulsory held that the
Education said
Act, 2009, provisions,
which along with
mandates international
the public conventions,
and private obligate the
Society for
schools to State to not
Unaided
allot one- only confer
Private
fourth of the but also
Schools of
seats to protect the
Rajasthan
marginalised rights of
vs. Union of
people was children,
India (2012)
constitutiona even against
lly valid and non-state
whether the actors, to
provision ensure that
violates there is no
Articles infringement
19(1)(g) and of those
30 of those rights.
who had
established
private
schools

The Court
ordered the
private
Airlines to
compensate
the
petitioner for
violating his
fundamental
rights of
dignity,
equality, and
free
The flight
movement,
crew
among other
disrespectfull
rights.
y instructed
Furthermore,
the
the Court
petitioner,
stated that
who is
the Union of
Jeeja Ghosh suffering
India,
& Anr. vs. from
Respondent
Union of cerebral
1 in the
India & Ors. palsy, to get
present
(2016) off the flight
case, is
that belongs
under
to SpiceJet
obligation to
Airline, a
see that the
private
citizens’
company,
rights are
due to his
protected
disability.
and are not
violated and
ensure that
the citizens,
especially
differently-
abled
persons, do
not face
humiliation
and
discriminatio
n.

The Court
declared that
BCCI did not
meet the
criteria to be
considered a
State as per
Article 12.
Therefore,
one cannot
enforce
fundamental
rights under
Article 32
against
BCCI.
Further, the
Court
The question
provided
of whether
remedies in
BCCI is the
case of
Zee Telefilms State for the
violation of
Ltd. & Anr. sake of
citizens’
vs. Union of enforcing
fundamental
India & Ors. fundamental
rights by
(2005) rights
BCCI,
against them
namely by
is raised in
approaching
this case.
ordinary
courts of law
or filing a
writ petition
before the
High Court
under Article
226. The
Court
observed
that “the
violator of a
constitutiona
l right could
not go scot-
free merely
because it is
not a State.”

The Court substantially relied on the decision

made by the nine-judge Supreme Court Bench
in the case of Justice K.S. Puttaswamy vs.
Union of India (2018), it stated that there are
two kinds of rights, namely common law
rights and constitutional rights, including
fundamental rights, and interests can be
treated as both common law rights and
constitutional rights. The Court further ruled
that, if the constitutional rights are violated by
the State and its agencies, remedies can be
sought under Articles 32 and 226; if the
violator is a private person or body other than
the State, a common law action would lie in
an ordinary court of law.

Finally, in response to the second question,

the Supreme Court stated that part of the
answer to this question is found in the K.S.
Puttaswamy case. The Court’s final answer
was that “a fundamental right under Article
19/21 can be enforced even against persons
other than the State or its instrumentalities.”

The obligation of the State to

protect Article 21 over Article 19

The third question considered by the Supreme

Court is whether the State is under a duty to
affirmatively protect the rights of the persons
under Article 21 of the constitution even if it is
against a threat to the liberty of the citizen by
the acts or omissions of another citizen or
private agency.

The Court noted that the expression “State” is

not mentioned in Article 21; it just says “No
person shall be deprived of his life or personal
liberty”. This implies that the State is
responsible for ensuring that this right, as
outlined in Article 12, is not violated for any
person unless it aligns with the procedure
established by law. At the beginning of our
independence, the essential services which
involve one’s right to life are only provided by
the State alone. But, now, even private
players are allowed to provide such services
to the public. Additionally, inherent rights
under broader rights, such as the ‘right to life’
under Article 21, have expanded over time
due to court interpretations and precedents.
These changes led the courts to modify the
test or the deciding elements for allowing a
writ petition. Initially, the test was to identify
who the respondent is- if the respondent is
the State, the writ petition is maintained;
otherwise, it is dismissed. But, now, the test
followed by the court to see whether a writ
petition is maintainable or not is to check the
functions or duties the respondent was
performing and its effect on the people’s
rights.

The Court decided to firstly examine the

concept of personal liberty as contemplated
by Article 21 and its deprivation by non-state
actors, and then answer the main question of
the State’s duty to protect the same. The
Court wants to confine itself to the discussion
of the ‘right to personal liberty’, besides the
‘right to life’, as the main question involves
the former.

Personal liberty under Article 21

The Court referred to the case of Siddharam

Satlingappa Mhetre vs. State of Maharashtra
(2011) where a detailed explanation of the
concept of personal liberty, including its origin
in Greek civilisation, is provided by the
Supreme Court.

Precedents referred

The Court referred to a few precedents made

by the Supreme Court to understand the
evolution of the court’s interpretation of the
expression “personal liberty”. The cases
referred and the court’s observations are
given below.

Relevant
Case referred Court/Judge’s
observations

The Court held that

the expression
“personal liberty”
implies liberty of a
person from physical
restraint and
coercion which is not
A.K. Gopalan vs.
the procedure
State of Madras
provided in statutory
(1950)
laws. Therefore, as
per Article 21, the
Court held that
every person has the
freedom from
unauthorised arrest
and detention.

Justice K. Subba
Rao, in his minority
opinion, observed
that, in an advanced
and civilised society,
psychological
restraints are more
effective than
Kharak Singh vs.
physical restraints in
State of Uttar
terms of human
Pradesh & Ors.
psychology.
(1962)
Therefore, personal
liberty not only
protects physical
movements from
being restrained but
also guards against
intrusions into one’s
private life.

The protection of a
Gobind vs. State of
person’s privacy at
Madhya Pradesh &
his home was
Anr. (1975)
emphasised.

The right of
locomotion and the
right to travel
abroad are also
included in Article 21
by the Court, which
was later upheld by
a seven-judge Bench
in Maneka Gandhi
Satwant Singh
vs. Union of India
Sawhney vs. D.
(1978). The Court
Ramarathnam,
further held that the
Assistant Passport
“liberty” in Article 21
Officer, New Delhi
is similar to the
(1967)
“liberty” mentioned
in the Fifth and the
Fourteenth
Amendments of the
U.S. Constitution
and excludes the
liberties mentioned
and provided under
Article 19.

The Court held that

the hospital is not
liable for violating
the right to privacy
of the HIV patient as
the disclosure of this
private fact
potentially saved his
fiancee’s life.
However, the Court
also emphasised the
right to privacy as a
part of the bundle of
Mr. ‘X’ vs. Hospital rights under Article
‘Z’ (1998) 21 and the doctors
are under moral as
well as legal
obligation to
maintain
confidentiality
between him and
the patient. The
Court also clarified
that a patient’s right
to privacy is not
absolute and can be
curtailed to protect
the rights of others.
The Court referred to a few cases where the
Supreme Court discussed the obligation of the
State to protect the fundamental rights, which
are given below.

Relevant
Case referred Court/Judge’s
observations

The Court addressed

a complaint
regarding the
inhuman work
conditions of the
bonded labourers in
stone quarries. The
maintainability of
the writ petition was
questioned in this
case. The Court
responded by stating
that the issue
pertains to the
Bandhua Mukti
socio-economic
Morcha vs. Union of
order. Regardless of
India & Ors. (1982)
whether the workers
are bonded, the
Court should
investigate such
complaints for
instances of forced
labour. Based on the
findings, the Court
should further direct
the State to take
appropriate
measures to ensure
social and economic
justice.

While issuing
directives, the Court
National Human noted that the State
Rights Commission has constitutional
vs. State of and statutory duties
Arunachal Pradesh & to protect the
Anr. (1996) aggrieved group
from assaults by
another mob.

The Court held that

telephone tapping is
said to be an
intrusion into one’s
private life and,
hence, is violative of
the right to privacy.
It can be infringed
only in case of the
procedure
established by law,
not otherwise.

The Supreme Court,

by referring to this
case, stated that the
judgement was
delivered at that
time, i.e., in the
People’s Union for
year 1997, when
Civil Liberties (PUCL)
mobiles were a
vs. Union of India
privilege, not a new
(1997)
normal to the very
common man, and
also
telecommunication
services were mostly
a monopoly by the
State. But, now, the
situation took a sea
change. Most of the
service providers are
private companies.
By observing this,
the Court stated that
the right to privacy
of the persons will
be at risk if it is not
exercisable against
non-state actors.

The freedom of
choice in marriage is
inherent in Article 21
and the State,
including the police
machinery, is duty-
bound to protect the
same. The Court
further held that the
Arumugam Servai
duty of the State
vs. State of Tamil
does not end when
Nadu (2011)
compensating the
victims, but is also
mandated to
rehabilitate them for
their protection. A
similar emphasis
was made in Shakti
Vahini vs. Union of
India & Ors. (2018).

Most importantly, the Supreme Court referred

to Justice Rohinton Nariman’s observations in
the case of Mohd. Arif @ Ashfaq vs. Registrar,
Supreme Court of India & Ors. (2014). In this
case, the learned Justice regarded life at the
top in the imaginary pyramidical structure,
after which personal liberty, which includes all
the judicially recognised bundle of rights,
comes second.

From the above-mentioned court’s

observation and reasoning given, the
Supreme Court in the present case concluded
that “the State is under a duty to affirmatively
protect the rights of a person under Article
21, whenever there is a threat to personal
liberty, even by a non-State actor” and “the
importance of the right to personal liberty
over and above all the other rights
guaranteed under Articles 19 and 14 need
hardly to be over-emphasized.”

Obligation of the State for a

minister’s statements

The first question considered by the Supreme

Court in this case was whether the statement
of a minister, traceable to any affairs of the
State or for protecting the Government,
should be vicariously attributed to the
government itself, especially by following the
principle of collective responsibility.

Initially, the Court examined the role of a

minister as contemplated by our constitutional
scheme. The Court reviewed Part V and Part
VI and Articles 74, 75, 75(3), 77, 77(3) and
78 which deal with various aspects of Central
legislature. Similar provisions concerning
State legislature are provided under Articles
163, 164, 164(2), 166, 166(3) and 167
respectively.

When the issue of “collective responsibility”

arises, one would refer to Articles 75(3) and
164(2) which state that the council of
ministers are collectively responsible towards
Lok Sabha, in the case of the Union ministers,
or State Legislative Assembly, in case of the
State ministers. The Court in the present case
contemplates that the said provisions are
referring to the decisions and activities of the
council of ministers, not every statement
given by them.

Precedents referred

The Court examined several precedents set by

the Supreme Court to understand the
previously established interpretations of the
concept of collective responsibility and state
liability. The cases referred and the court’s
observations are given below.

Relevant
Case referred Court/Judge’s
observations

while dealing with

Article 166(3), the
Court stated that
“the cabinet is
responsible to the
Legislature for every
action taken in any
of the Ministries.
That is the essence
A. Sanjeevi Naidu
of joint
vs. State of Madras
responsibility.”
(1970)
In the present case,
the Supreme Court
noted that the Court
in the Sanjeevi
Naidu case used the
expression “joint
responsibility”, not
“collective
responsibility”.

The Court, while

interpreting Article
164(2), observed
that the purpose of
the concept of
collective
responsibility is to
hold all individuals in
ministerial positions
vicariously
accountable for the
actions, decisions,
and policies enacted
by other ministers,
even if those
ministers are not
personally liable.
The Court further
highlighted that this
concept has a
political purpose,
origin and operation.
The Court also
stated that, by
convention, the
minister may be
State of Karnataka compelled to resign
vs. Union of India from office due to
(1977) his wrongful acts
and decisions;
however, the only
way to enforce the
said collective
responsibility is by
way of withdrawal of
political support by
members of the
Parliament or State
Legislative
Assembly, as the
case may be, due to
the pressure of the
public opinion.

From the above

court’s
interpretations and
observations, the
Supreme Court,
thus, concluded that
“the only sanction
for the enforcement
of collective
responsibility is the
pressure of public
opinion”.

The Court clearly

explained the duties
of the Council of
Ministers. It was
said that the council
of ministers hold
their respective
ministerial office
until they maintain
the confidence of the
majority in the
Parliament or
Legislative
Assembly, as the
case may be. They
are also required to
maintain secrecy
and confidentiality.
Furthermore, the
Court emphasized
that every minister,
R.K. Jain vs. Union
regardless of their
of India (1993)
personal views on
government policies,
is required to
publicly support all
policies and
decisions made by
the government to
ensure effective
governance. If any
minister is unable to
support the
government policies,
the only option he
has is to resign from
his office. Therefore,
as long as the
minister is holding
his office, he must
support the
decisions of the
cabinet.

The Court held that,

though all executive
functions are
performed in the
name of the
Governor and with
the assistance of the
bureaucrats, still
every minister is
answerable to the
people by being
Secretary, Jaipur personally as well as
Development collectively
Authority, Jaipur vs. responsible for the
Daulat Mal Jain governmental
(1997) policies and
decisions.
Furthermore, the
minister in question
will be liable for his
actions and policies,
given that he holds a
public office in a
democratic society.
Therefore, their
liability is joint and
several.

The Court held that

the minister cannot
escape his liability
just because his
activities are
performed in the
name of the
Common Cause (A President, who has
Registered Society) immunity under
vs. Union of India Article 361. The
(2018) minister in question
contended that the
President’s immunity
would also apply to
the orders issued in
his name under
Clause (1) or (2) of
Article 77.

Based on the interpretations by the Supreme

Court in various instances, the Court made
the following observations in the present
case:

1. The concept of collective responsibility as

contemplated in the Constitution of India is
primarily political.

2. Such collective responsibility is attributed

to the council of ministers, whether Union
or the State, as the case may be. By this, it
means that each minister is responsible for
the actions and decisions togetherly taken
by members of the council of ministers, not
otherwise.

3. The responsibility of the council of

ministers is towards the legislatures, i.e.,
the Lok Sabha in the Parliament for the
Union, or the State Legislative Assembly
for the State.

4. Such responsibility would, generally, arise

due to two things- decisions taken by a
minister and acts or omissions.

5. Finally, the Court concluded that “it is not

possible to extend this concept of collective
responsibility to any and every statement
orally made by a Minister outside the
House of the People/Legislative Assembly.”

Regarding the prayer for the formulation of a

code of conduct for ministers, the Court
observed that it would not be compatible to
implement such a code in courts. However,
there is already an existing mechanism, that
is, disciplinary proceedings, to make
ministers, or for that matter any government
servant, accountable for their misconduct or
violation of service rules. In addition to this,
the Court held that “even in the case of
Government servants, it may not be possible
to justify a dismissal/removal from service
based on a statement uttered by a
Government servant, as it may not pass the
proportionality test, viz-a-viz the gravity of
the misconduct.”

Moreover, the Court also noted that while the

Prime Minister or Chief Minister is considered
the head of the council of ministers, it is
practically impossible for them to exercise
disciplinary control over ministers, particularly
in a coalition government.

From the court mentioned above’s observation

and reasoning given, the Supreme Court in
the present case concluded that “a statement
made by a Minister even if traceable to any
affairs of the State or for protecting the
Government, cannot be attributed vicariously
to the Government by invoking the principle
of collective responsibility.“

The Supreme Court also clarified that the

interpretations and observations in the
present case pertain solely to collective
responsibility, not the concept of hate speech.
The Court is not endorsing or encouraging
ministers to make irresponsible statements or
engage in hate speech, and then seek refuge
under the inapplicability of the concept of
collective responsibility.

Whether a minister’s statements

amount to a constitutional tort

The question no.5 in this case considered by

the Supreme Court is whether a statement
made by a minister, which is inconsistent with
the rights granted to the citizen under Part III
of the Constitution, i.e., the fundamental
rights, constitutes a violation of such
fundamental rights and is actionable as
‘constitutional tort’.

The Court noted that the above-given

question just said “a statement made by a
minister”. Whether a statement amounts to
constitutional tort or not depends upon when,
where and how such statement is made,
which is not mentioned in the question.

Furthermore, the Court stated that mere

utterances of a minister cannot form the basis
of a constitutional tort action even though it
lacks constitutional morality. Also, the Court
noted that “needless to say no one can either
be taxed or penalised for holding an opinion
which is not aligned with the constitutional
values”. In conclusion, the Court ruled that a
minister’s statements, in and of themselves,
do not constitute a constitutional tort.
However, if such statements result in harm or
injury, a constitutional tort action may be
maintainable, before which the Court went
through the definition of tort as given by
Halsbury’s Law of England. It explained tort as
“Those civil rights of action which are
available for the recovery of unliquidated
damages by persons who have sustained
injury or loss from acts, statements or
omissions of others in breach of duty or
contravention of right imposed or conferred
by law rather than by agreement are rights of
action in tort.”

Precedents referred

The Supreme Court had a detailed perusal of

Paragraph 66 of the First Report of the Law
Commission on the topic “Liability of the State
in Tort” for a better understanding of the
concept of constitutional tort. In 1967, based
on this report, the Government (Liability in
Torts) Bill was introduced in the legislature.
However, it did not become an Act. As a
result, the responsibility of developing the law
fell on the courts in India, which had to rely
on judicial precedents. Some of the judicial
precedents and important observations by the
Supreme Court are given below.

Relevant
Case referred Court/Judge’s
observations

In this case, a
government servant
filed a case against
the State for
recovery of arrears
State of Bihar vs. of salaries. The
Abdul Majid (1954) Supreme Court
rejected the State’s
plea of the doctrine
of pleasure and held
that this doctrine is
inapplicable in India.

In this case, the

widow, who was
grievously injured by
a government
vehicle, filed a claim
for damages against
the State. The State
defended itself by
invoking the
principle of
sovereign immunity,
which traditionally
protects a state from
State of Rajasthan being sued without
vs. Mst. Vidhyawati its consent. The
(1962) Court held that,
since the rule of
sovereign immunity
was made
inapplicable in the
United Kingdom, the
place where the rule
 originated, there is
no legal warrant to
continue following
this rule in India,
especially when this
country adopted our
constitution.

Kasturi Lal’s gold

jewellery was seized
by the police upon
his arrest. However,
it was
misappropriated by
the Head Constable,
who then to
Pakistan. Kasturi Lal
sued the State for
Kasturi Lal Ralia the recovery of the
Ram Jain vs. The value of the gold
State of Uttar jewellery and the
Pradesh (1964) State claimed no
liability. The Court
held that, if a
government servant
commits a tortious
act that was not
delegated or
assigned by the
State, then the
victim has the right
to sue for damages.

In this case, the

Supreme Court
ordered the State to
pay monetary
compensation to a
Rudul Sah vs. State
prisoner who spent
of Bihar (1983)
14 years of
imprisonment even
after being acquitted
of the offences he
was charged with.

Similarly, in the cases of Sebastian M.

Hongray vs. Union of India, (1984), Bhim
Singh, MLA vs. State of J&K. (1985),
Peoples’ Union for Democratic Rights vs.
State of Bihar & Ors. (1987), Saheli, a
Women’s Resources Centre through Ms.
Nalini Bhanot & Ors. vs. Commissioner of
Police, Delhi Police Headquarters & Ors.
(1990), Supreme Court Legal Aid
Committee through its Hony. Secretary vs.
State of Bihar & Ors. (1991), Nilabati
Behera (Smt.) alias Lalita Behera (Through
the Supreme Court Legal Aid Committee)
vs. State of Orissa & Ors. (1993), Arvinder
Singh Bagga vs. State of U.P. & Ors.
(1994), N. Nagendra Rao & Co. vs. State of
A.P. (1994), Inder Singh vs. State of Punjab
& Ors. (1995), Paschim Banga Khet
Mazdoor Samity & Ors. vs. State of W.B. &
Anr. (1996), D.K. Basu vs. State of W.B.
(1997), People’s Union for Civil Liberties vs.
Union of India & Anr. (1997) and Municipal
Corporation of Delhi, Delhi vs. Uphaar
Tragedy Victims Association & Ors. (2011),
the Supreme awarded compensation or
damages to the aggrieved party who was
injured due to the tortious or wrongful acts
of the State or its servants.

From the above-mentioned court’s

observation and reasoning given, the
Supreme Court in the present case concluded
that “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.”

Justice B.V. Nagarathna’s

separate opinion in the case
of Kaushal Kishor vs. State
of Uttar Pradesh & Ors.
(2023)
Justice B.V. Nagarathna, one of the judges in
the case of Kaushal Kishor vs. State of Uttar
Pradesh & Ors. (2023), though agreed with
the reasoning and conclusions to a few
questions by the majority, gave a separate
opinion on the given questions to give a
distinct opinion and reasoning on other
questions. The conclusions to each question
by Justice B.V. Nagarathna are provided
below.

Questions
Conclusions
addressed Supreme
by Justice
by the Court’s
B.V.
Supreme holding
Nagarathna
Court

“The grounds
lined up in
Article 19(2)
for
restricting
the right to
free speech
Whether the
are
Court can
exhaustive.
impose
Under the
restrictions
guise of
on the right
invoking
to freedom
other The answer
of speech
fundamental given by the
and
rights or majority to
expression
under the question
beyond the
guise of two no.1 is
existing
fundamental completely
reasonable
rights agreed and
restrictions
staking a there is no
provided
competing separate
under Article
claim against conclusion
19(2) of the
each other, on the same.
Constitution
additional
of India by
restrictions
invoking any
not found in
other
Article 19(2),
fundamental
cannot be
rights.
imposed on
the exercise
of the right
conferred by
Article 19(1)
(a) upon any
individual.”

There can be
no horizontal
approach in
the case of
the rights
under
Can a Articles 19
fundamental and 21,
right under except those
Article 19, which were
“A
i.e., the statutorily
fundamental
freedom of conferred.
right under
speech and Thus, these
Article 19/21
expression, fundamental
can be
or Article 21, rights cannot
enforced
i.e., the right be enforced
even against
to life and against non-
persons
personal state actors
other than
liberty, be by way of
the State or
enforced writ petition
its
against because the
instrumentali
anyone other matter
ties.”
than the involves
‘State’ or its questions of
instrumentali fact.
ties? However,
common law
remedies are
available to
the
aggrieved
party.

“The State is
under a duty
to
affirmatively
protect the
Whether the
rights of a
State is
person under The State
under a duty
Article 21, primarily has
to
whenever a negative
affirmatively
there is a duty, along
protect the
threat to with an
rights of the
personal affirmative
citizens
liberty, even duty, not to
under Article
by a non- violate the
21 of the
State actor” right to life
constitution
and “the and personal
even if it is
importance liberty as per
against a
of the right Article 21. If
threat to the
to personal such a right
liberty of the
liberty over is violated, it
citizen by
and above is said that
the acts or
all the other the State
omissions of
rights failed to
another
guaranteed carry out its
citizen or
under duties.
private
Articles 19
agency.
and 14 need
hardly to be
over-
emphasized.
”

The
minister’s
statements,
if consistent
with the
government’
s views and
attributed to
any affairs of
“A statement the State,
made by a would make
Whether the
Minister the State
statement of
even if vicariously
a minister,
traceable to liable
traceable to
any affairs of following the
any affairs of
the State or principle of
the State,
for collective
should be
protecting responsibility
attributed
the and
vicariously to
Government, appropriate
the
cannot be remedies
government
attributed must be
itself,
vicariously to granted to
especially by
the the
following the
Government aggrieved
principle of
by invoking party. If the
collective
the principle statement is
responsibility
of collective inconsistent
.
responsibility with the
.“ government’
s views or is
not endorsed
by the
government,
then only the
minister will
be made
liable
personally.

“A mere
Not all
statement
statements
made by a
made by
Minister,
public
inconsistent
servants that
with the
resulted in
rights of a
the injury of
citizen under
another
Whether a Part III of
person would
statement the
amount to
made by a Constitution,
constitutiona
minister, may not
l tort. It
which is constitute a
depends
inconsistent violation of
upon the
with the the
government’
rights constitutiona
s views and
granted to l rights and
whether it
the citizen become
endorses
under Part actionable as
such
III of the Constitutiona
statements.
Constitution, l tort. But if
Furthermore,
i.e., the as a
it is felt
fundamental consequence
necessary to
rights, of such a
have
constitutes a statement,
legislation on
violation of any act of
this matter
such omission or
to remove
fundamental commission
vagueness
rights and is is done by
and to
actionable as the officers
clearly define
‘constitution resulting in
constitutiona
al tort’. harm or loss
l tort
to a
mention
person/citize
remedies
n, then the
and lay down
same may
a redressal
be actionable
mechanism
as a
for the
constitutiona
same.
l tort.”

Conclusion
Our constitution has ensured that every
citizen is entitled to their basic rights and
freedoms in the form of fundamental rights
and has also laid down certain restrictions on
the freedom of the citizens to ensure that the
rights of fellow people are not violated and,
thus, balance is maintained. Similarly, the
freedom of speech and expression under
Article 19(1)(a) is also subjected to
restrictions by Article 19(2). Making efforts to
strengthen these restrictions by other
fundamental rights like Article 21 is slowly
chipping away at the right to free speech that
is guaranteed to all citizens. In a
constitutional democracy like India, a judge’s
role is to defend the rights of the citizens and
strike a balance between the conflicted rights.
The Courts in India are not authorized to add
more restrictions on civil liberties, it is the job
of the legislature. Today, if the Court allows
restrictions on free speech based on dignity
due to its inconsistency with Article 21,
tomorrow there could be other reasons that
judges might consider to limit the citizens’
freedom. Therefore, in the present case, the
Supreme Court, held that the restrictions
under Article 19(2) are comprehensive
enough to cover a speech or statement made
towards a rape victim.

Besides this, the Supreme Court also

answered many crucial questions. The Court
held that the obligation to protect and
preserve one’s fundamental rights is cast
upon the State and can be enforced against
State as well as non-state actors. The Court
also ruled that the State cannot be made
liable for every utterance made by a minister;
however, if such speech causes harm or
injury, then it may be considered a
constitutional tort and an action against the
State would lie.

References
https://thewire.in/law/supreme-court-free-
speech-azam-khan-neutrality

https://indiankanoon.org/doc/1489350/

https://www.scconline.com/blog/post/2024/01
landmark-constitutional-law-judgments-
2023-supreme-court-india-part-ii/

https://www.livelaw.in/top-
stories/supreme-court-constitutional-
values-opinion-tort-kaushal-kishore-vs-
state-of-uttar-pradesh-2023-livelaw-sc-4-
218000

https://www.scconline.com/blog/post/2023/01
freedom-of-speech-of-public-functionaries-
right-to-life-personal-liberty-of-citizens-
impedes-same-legal-news-legal-reasearch-
updates/

“Constitutional Law of India” authored by

Dr.J.N.Pandey.

“Constitution of India” authored by

V.N.Shukla.

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