# KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS

- **Citation:** [2023] 8 S.C.R. 581
- **Court:** Supreme Court of India
- **Decided:** 2023-01-03
- **Bench:** S. Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kaushal-kishor-v-state-of-uttar-pradesh-ors-37825
- **Pages:** 222

## Headnote

Constitution of India - Arts. 19(1)(a) and 19(2) - Are the
grounds specified in Article 19(2) in relation to which reasonable
restrictions on the right to free speech can be imposed by law,
exhaustive, or can restrictions on the right to free speech be imposed
on grounds not found in Article 19(2) by invoking other fundamental
rights - Held: The grounds lined up in Art.19(2) for restricting the
right to free speech are exhaustive - Under the guise of invoking
other fundamental rights or under the guise of two fundamental
rights staking a competing claim against each other, additional
restrictions not found in Article 19(2), cannot be imposed on the
exercise of the right conferred by Article 19(1)(a) upon any
individual.
Constitution of India - Arts. 19 and 21 - Can a fundamental
right under Article 19 or 21 be claimed other than against the 'State'
or its instrumentalities - Held (per V. Ramasubramanian, J.) (for S.
Abdul Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself): A
fundamental right under Article 19/21 can be enforced even against
persons other than the State or its instrumentalities - Held (per
B.V. Nagarathna, J.): The rights in the realm of common law, which
may be similar or identical in their content to the Fundamental Rights
under Article 19/21, operate horizontally - However, the
Fundamental Rights under Arts. 19 and 21, may not be justiciable
horizontally before the Constitutional Courts except those rights
which have been statutorily recognised and in accordance with the
applicable law - However, they may be the basis for seeking common
law remedies - But a remedy in the form of writ of Habeas Corpus,
if sought against a private person on the basis of Article 21 can be
before a Constitutional Court i.e., by way of Article 226 before the
High Court or Article 32 read with Article 142 before the Supreme
Court.
 [2023] 8 S.C.R. 581
581
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Constitution of India - Art. 21 - Whether the State is under a
duty to affirmatively protect the rights of a citizen under Art.21
even against a threat to the liberty of a citizen by the acts or omissions
of another citizen or private agency - Held (per V.
Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S.
Bopanna, JJ., and himself): 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 - Held (per
B.V. Nagarathna, J.): The duty cast upon the State under Article 21
is a negative duty not to deprive a person of his life and personal
liberty except in accordance with law - The State has an affirmative
duty to carry out obligations cast upon it under statutory and
constitutional law, which are based on the Fundamental Right
guaranteed under Article 21 of the Constitution - Such obligations
may require interference by the State where acts of a private actor
may threaten the life or liberty of another individual -Failure to
carry out the duties enjoined upon the State under statutory law to
protect the rights of a citizen, could have the effect of depriving a
citizen of his right to life and personal liberty - When a citizen is so
deprived of his right to life and personal liberties, the State would
have breached the negative duty cast upon it under Art.21.
Doctrines / Principles - Principle of Collective Responsibility
- Can a statement made by a Minister, traceable to any affairs of
State or for protecting the Government, be attributed vicariously to
the Government itself, especially in view of the principle of Collective
Responsibility - Held (per V. Ramasubramanian, J.) (for S. Abdul
Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself) : 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
- Held (per B.V. Nagarathna, J.): A s

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KAUSHAL KISHOR
v.
STATE OF UTTAR PRADESH & ORS.
(Writ Petition (Criminal) No. 113 of 2016)
JANUARY 03, 2023
[S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA,
V. RAMASUBRAMANIAN AND B. V. NAGARATHNA, JJ.]
Constitution of India - Arts. 19(1)(a) and 19(2) - Are the
grounds specified in Article 19(2) in relation to which reasonable
restrictions on the right to free speech can be imposed by law,
exhaustive, or can restrictions on the right to free speech be imposed
on grounds not found in Article 19(2) by invoking other fundamental
rights - Held: The grounds lined up in Art.19(2) for restricting the
right to free speech are exhaustive - Under the guise of invoking
other fundamental rights or under the guise of two fundamental
rights staking a competing claim against each other, additional
restrictions not found in Article 19(2), cannot be imposed on the
exercise of the right conferred by Article 19(1)(a) upon any
individual.
Constitution of India - Arts. 19 and 21 - Can a fundamental
right under Article 19 or 21 be claimed other than against the 'State'
or its instrumentalities - Held (per V. Ramasubramanian, J.) (for S.
Abdul Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself): A
fundamental right under Article 19/21 can be enforced even against
persons other than the State or its instrumentalities - Held (per
B.V. Nagarathna, J.): The rights in the realm of common law, which
may be similar or identical in their content to the Fundamental Rights
under Article 19/21, operate horizontally - However, the
Fundamental Rights under Arts. 19 and 21, may not be justiciable
horizontally before the Constitutional Courts except those rights
which have been statutorily recognised and in accordance with the
applicable law - However, they may be the basis for seeking common
law remedies - But a remedy in the form of writ of Habeas Corpus,
if sought against a private person on the basis of Article 21 can be
before a Constitutional Court i.e., by way of Article 226 before the
High Court or Article 32 read with Article 142 before the Supreme
Court.
 [2023] 8 S.C.R. 581
581
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SUPREME COURT REPORTS
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Constitution of India - Art. 21 - Whether the State is under a
duty to affirmatively protect the rights of a citizen under Art.21
even against a threat to the liberty of a citizen by the acts or omissions
of another citizen or private agency - Held (per V.
Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S.
Bopanna, JJ., and himself): 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 - Held (per
B.V. Nagarathna, J.): The duty cast upon the State under Article 21
is a negative duty not to deprive a person of his life and personal
liberty except in accordance with law - The State has an affirmative
duty to carry out obligations cast upon it under statutory and
constitutional law, which are based on the Fundamental Right
guaranteed under Article 21 of the Constitution - Such obligations
may require interference by the State where acts of a private actor
may threaten the life or liberty of another individual -Failure to
carry out the duties enjoined upon the State under statutory law to
protect the rights of a citizen, could have the effect of depriving a
citizen of his right to life and personal liberty - When a citizen is so
deprived of his right to life and personal liberties, the State would
have breached the negative duty cast upon it under Art.21.
Doctrines / Principles - Principle of Collective Responsibility
- Can a statement made by a Minister, traceable to any affairs of
State or for protecting the Government, be attributed vicariously to
the Government itself, especially in view of the principle of Collective
Responsibility - Held (per V. Ramasubramanian, J.) (for S. Abdul
Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself) : 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
- Held (per B.V. Nagarathna, J.): A statement made by a Minister if
traceable to any affairs of the State or for protecting the
Government, can be attributed vicariously to the Government by
invoking the principle of collective responsibility, so long as such
statement represents the view of the Government also - If such a
statement is not consistent with the view of the Government, then it
is attributable to the Minister personally.
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Tort - Constitutional Tort - Whether a statement by a Minister,
inconsistent with the rights of a citizen under Part III of the
Constitution, constitutes a violation of such constitutional rights
and is actionable as 'Constitutional Tort" - Held (per V.
Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S.
Bopanna, JJ., and himself) : 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 - Held
(Per B.V. Nagarathna, J.): A proper legal framework is necessary
to define the acts or omissions which would amount to constitutional
tort and the manner in which the same would be redressed or
remedied on the basis of judicial precedent.
Answering the Reference, the Court
Per V. Ramasubramanian, J. (For S. Abdul Nazeer, B.R.
Gavai, and A.S. Bopanna, JJ. and himself) (Majority opinion)
HELD: 1. The restrictions under clause (2) of Article 19
are comprehensive enough to cover all possible attacks on the
individual, groups/classes of people, the society, the court, the
country and the State. This is why this Court repeatedly held that
any restriction which does not fall within the four corners of Article
19(2) will be unconstitutional. [Para 28][635-E-F]
2. That the Executive cannot transgress its limits by
imposing an additional restriction in the form of Executive or
Departmental instruction was emphasised by this Court in Bijoe
Emmanuel vs. State of Kerala. The Court made it clear that the
reasonable restrictions sought to be imposed must be through
"a law" having statutory force and not a mere Executive or
Departmental instruction. The restraint upon the Executive not
to have a back-door intrusion applies equally to Courts. While
Courts may be entitled to interpret the law in such a manner that
the rights existing in blue print have expansive connotations,
the Court cannot impose additional restrictions by using tools of
interpretation. [Para 29][635-H; 636-A-B]
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS.
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3. Since the eight heads of restrictions contained in clause
(2) of Article 19 seek to protect: (i) the individual - against the
infringement of his dignity, reputation, bodily autonomy and
property; (ii) different sections of society professing and
practicing, different religious beliefs/sentiments - against
offending their beliefs and sentiments; (iii) classes/groups of
citizens belonging to different races, linguistic identities etc.-
against an attack on their identities; (iv) women and children -
against the violation of their special rights; (v) the State - against
the breach of its security; (vi) the country - against an attack on
its sovereignty and integrity; (vii) the Court - against an attempt
to undermine its authority, and therefore the restrictions
contained in clause (2) of Article 19 are exhaustive and no further
restriction need to be incorporated. [Para 32][639-D-G]
4. In any event, the law imposing any restriction in terms
of clause (2) of Article 19 can only be made by the State and not
by the Court. The role envisaged in the Constitutional scheme
for the Court, is to be a gate-keeper (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. Clause (2) of Article 19
saves (i) the operation of any existing law; and (ii) the making of
any law by the State. Therefore, it is not for the court to add one
or more restrictions than what is already found. [Para 33][639-H;
640-A-B]
5. The exercise of all fundamental rights by all citizens is
possible only when each individual respects the other person's
rights. This Court has always struck a balance whenever it was
found that the exercise of fundamental rights by an individual,
caused inroads into the space available for the exercise of
fundamental rights by another individual. The emphasis even in
the Preamble on "fraternity" is an indication that the survival of
all fundamental rights and the survival of democracy itself
depends upon mutual respect, accommodation and willingness
to co-exist in peace and tranquility on the part of the citizens.
The Fundamental Duty enjoined upon every citizen of the country
under Article 51-A(e) to "promote harmony and the spirit of
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common brotherhood amongst all the people of India transcending
religious, linguistic and regional or sectional diversities and to
renounce practices derogatory to the dignity of women", is also
an indicator that no one can exercise his fundamental right in a
manner that infringes upon the fundamental right of another. [Para
40][640-B-E]
6. The grounds lined up in Article 19(2) for restricting the
right to free speech are exhaustive. Under the guise of invoking
other fundamental rights or under the guise of two fundamental
rights staking a competing claim against each other, additional
restrictions not found in Article 19(2), cannot be imposed on the
exercise of the right conferred by Article 19(1)(a) upon any
individual. [Para 45][652-B-D]
7. Wherever Constitutional rights regulate and impact only
the conduct of the Government and Governmental actors, in their
dealings with private individuals, they are said to have "a vertical
effect". But wherever Constitutional rights impact even the
relations between private individuals, they are said to have "a
horizontal effect". [Para 47][652-E-F]
8. After defining the expression "the State" in Article 12
and after declaring all laws inconsistent with or in derogation of
the fundamental rights to be void under Article 13, Part -III of
the Constitution proceeds to deal with rights. There are some
Articles in Part- III where the mandate is directly to the State
and there are other Articles where without injuncting the State,
certain rights are recognized to be inherent, either in the citizens
of the country or in persons. In fact, there are two sets of
dichotomies that are apparent in the Articles contained in Part
III. One set of dichotomy is between (i) what is directed against
the State; and (ii) what is spelt out as inhering in every individual
without reference to the State. The other dichotomy is between
(i) citizens; and (ii) persons. The Articles of Part-III are in the
form of a directive to the State, while others are not. This is an
indication that some of the rights conferred by Part -III are to be
honored by and also enforceable against, non--State actors. [Para
73, 74][664-C-D; 667-A]
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS.
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9. The original thinking of this Court that these rights
can be enforced only against the State, changed over a period of
time. The transformation was from "State" to "Authorities" to
"instrumentalities of State" to "agency of the Government" to
"impregnation with Governmental character" to "enjoyment of
monopoly status conferred by State" to "deep and pervasive
control" to the "nature of the duties/functions performed".
Therefore "A fundamental right under Article 19/21 can be
enforced even against persons other than the State or its
instrumentalities ". [Para 78][678-F-G; 679-A]
10. The expression "the State" is not used in Article 21.
This Article 21 guarantees every person that he shall not be
deprived of his life and liberty except according to the procedure
established by law. Going by the scheme of Part -III it is clear
that the State has two obligations, (i) not to deprive a person of
his life and liberty except according to procedure established by
law; and (ii) to ensure that the life and liberty of a person is not
deprived even otherwise. Article 21 does not say "the State shall
not deprive a person of his life and liberty", but says that "no
person shall be deprived of his life or personal liberty". [Para
81][679-D, E]
11. The understanding of this Court in A.K. Gopalan, that
deprivation of personal liberty required a physical restraint,
underwent a change in Kharak Singh and Gobind . From there,
the law marched to the next stage in Satwant Singh Sawhney vs.
D. Ramarathnam, Assistant Passport Officer, New Delhi where a
Constitution Bench of this Court held by a majority, that the right
to personal liberty included the right of locomotion and right to
travel abroad. It was held in the said decision that "liberty" in
our Constitution bears the same comprehensive meaning as is
given to the expression "liberty" by the 5th and 14th Amendments
to the U.S. Constitution and the expression "personal liberty" in
Article 21 only excludes the ingredients of "liberty" enshrined
in Article 19 of the Constitution. The Court went on to hold that
"the expression "personal liberty" in Art. 21 takes in the right
of loco-motion and to travel abroad, but the right to move
throughout the territories of India is not covered by it inasmuch
as it is specially provided in Art. 19. [Para 88][683-F-H; 684-A]
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12. Technological eavesdropping except in accordance with
the procedure established by law was frowned upon by the Court.
This was at a time when mobile phones had not become the order
of the day and the State monopoly was yet to be replaced by private
players such as intermediaries/service providers. Today, the
infringement of the right to privacy is mostly by private players
and if fundamental rights cannot be enforced against non--State
actors, this right will go for a toss. [Para 97][688-D, E]
13. The expression "collective responsibility" can be traced
to some extent, to Article 75(3) insofar as the Union is concerned
and to Article 164(2) insofar as the States are concerned. But in
both the Articles, it is the Council of Ministers who are stated to
be collectively responsible to the House of the People/Legislative
Assembly of the State. Generally collective responsibility of the
Council of Ministers either to the House of the People or to the
Assembly should be understood to correlate to the decisions and
actions of the Council of Ministers and not to every statement
made by every individual Minister. [Para 112][693-F, G]
14. What follows from the discussion is, (i) that the concept
of collective responsibility is essentially a political concept; (ii)
that the collective responsibility is that of the Council of
Ministers; and (iii) that such collective responsibility is to the
House of the People/Legislative Assembly of the State. Generally,
such responsibility correlates to (i) the decisions taken; and (ii)
the acts of omission and commission done. 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. 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. [Para 126,
137][701-A, B; 704-E]
15. This Court and the High Courts have been consistent
in invoking Constitutional tort whenever an act of omission and
commission on the part of a public functionary, including a
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS.
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Minister, caused harm or loss. But the matter pre-eminently
deserves a proper legal framework so that the principles and
procedure are coherently set out without leaving the matter open
ended or vague. In fact, the First Report of the Law Commission
submitted a draft bill way back in 1956. This Court recommended
a legislative measure in Kasturi Lal in 1965 and a bill called
Government (Liability in Torts) Bill was introduced in 1967. But
nothing happened in the past 55 years. In such circumstances,
courts cannot turn a blind eye but may have to imaginatively fashion
the remedy to be provided to persons who suffer injury or loss,
without turning them away on the ground that there is no proper
legal frame work. Therefore, "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". [Para
153, 154][715-F-H; 716-A, B]
Sahara India Real Estate Corporation Limited v.
Securities and Exchange Board of India (2012) 10 SCC
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Union of India (2017) 10 SCC 1 : [2017] 10 SCR 569;
A. Sanjeevi Naidu v. State of Madras (1970) 1 SCC
443 : [1970] 3 SCR 505 and State of Karnataka v.
Union of India. (1977) 4 SCC 608 : [1978] 2 SCR 1 -
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Express Newspapers (Private) Ltd. v. The Union of India
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SCR 548; Life Insurance Corporation of India v. Prof.
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Amish Devgan v. Union of India (2021) 1 SCC 1 -
distinguished.
Romesh Thappar v. State of Madras AIR 1950 SC 124
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2 SCR 525; Maneka Gandhi v. Union of India (1978)
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Morcha v. Union of India & Ors. (1984) 3 SCC 161 :
[1984] 2 SCR 67; National Human Rights Commission
v. State of Arunachal Pradesh & Anr. (1996) 1 SCC
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS.
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742 : [1996] 1 SCR 278; Mr. 'X' v. Hospital 'Z' (1998)
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1 Suppl. SCR 389; P. D. Shamdasani v. Central Bank
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S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574 :
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Shankarappa (2001) 1 SCC 582 : [2000] 5 Suppl.
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SCR 1145; Manoj Narula v. Union of India (2014) 9
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J. Jayalalitha (2004) 2 SCC 9 : [2003] Suppl. SCR 85;
Praga Tools Corporation v. Shri C.A. Imanual (1969) 1
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Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotasav Smarak Trust v. V. R. Rudani (1989) 2 SCC
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Rajasthan v. Union of India (2012) 6 SCC 1 : [2012] 2
SCR 715; Pravasi Bhalai Sangathan v. Union of India
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[2018] 12 SCR 695; Brij Bhushan v. The State of Delhi
AIR 1950 SC 129 : [1950] SCR 605; State of Madras
v. V. G. Row (1952) 1 SCC 410; Smt. Vidya Varma v. Dr.
Shiv Narain Varma AIR 1956 SC 108 : [1955] 2
SCR 983; Sukhdev Singh v. Bhagatram Sardar Singh
Raghuvanshi (1975) 1 SCC 421 : [1975] 3 SCR 619;
Lucknow Development Authority v. M.K. Gupta (1994)
1 SCC 243 : [1993] 3 Suppl. SCR 615; Chairman,
Railway Board & Ors. v. Chandrima Das (Mrs.) & Ors.
(2000) 2 SCC 465 : [2000] 1 SCR 480; M. C. Mehta v.
Kamal Nath (1997) 1 SCC 388 : [1996] 10 Suppl. SCR
12; Vellore Citizens' Welfare Forum v. Union of India
(1996) 5 SCC 647 : [1996] 5 Suppl. SCR 241; Indian
Council for Enviro-Legal Action v. Union of India
(1996) 3 SCC 212 : [1996] 2 SCR 503; Consumer
Education & Research Centre & Ors. v. Union of India
& Ors. (1995) 3 SCC 42 : [1995] 1 SCR 626; Vishaka
v. State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl.
SCR 404; Medha Kotwal Lele & Ors. v. Union of India
(2013) 1 SCC 297 : [2012] 9 SCR 895; Githa
Hariharan (Ms.) & Anr. v. Reserve Bank of India &
Anr. (1999) 2 SCC 228 : [1999] 1 SCR 669; Indian
Medical Association v. Union of India (2011) 7 SCC
179 : [2011] 6 SCR 599; Jeeja Ghosh v. Union of India
(2016) 7 SCC 761 : [2016] 4 SCR 638; Zee Telefilms
Ltd. v. Union of India (2005) 4 SCC 649 : [2005] 1
SCR 913; Janet Jeyapaul v. SRM University (2015) 16
SCC 530 76; A. K. Gopalan v. State of Madras AIR
1950 SC 27 : [1950] SCR 88; R. D. Shetty v.
International Airport Authority (1979) 3 SCC 489 :
[1979] 3 SCR 1014; Andi Mukta v. V. R. Rudani (1989)
2 SCC 691 : [1989] 2 SCR 697; Siddharam Satlingappa
Mhetre v. State of Maharashtra (2011) 1 SCC 694 :
[2010] 15 SCR 201; Kharak Singh v. State of U.P. AIR
1963 SC 1295 : [1964] 1 SCR 332; Mohd. Arif Alias
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Ashfaq v. Registrar, Supreme Court of India & Ors.
(2014) 9 SCC 737 : [2014] 11 SCR 1009; Gobind v.
State of Madhya Pradesh (1975) 2 SCC 148 : [1975] 3
SCR 946; Suchita Srivastava & Anr. v. Chandigarh
(2009) 9 SCC 1 : [2009] 13 SCR 989; Devika Biswas
v. Union of India (2016) 10 SCC 726; District Registrar
and Collector, Hyderabad & Anr. v. Canara Bank &
Ors. (2005) 1 SCC 496 : [2004] 5 Suppl. SCR 833;
Indian Woman says Gang-raped on orders of village
Court published in Business and Financial News dated
23-1-2014, in Re (2014) 4 SCC 786 : [2014] 4
SCR 264; Lata Singh v. State of U.P. (2006) 5 SCC
475 : [2006] 3 Suppl. SCR 350; Arumugam Servai v.
State of Tamil Nadu (2011) 6 SCC 405 : [2011] 5
SCR 488; The State of Bihar v. Abdul Majid AIR 1954
SC 245 : [1954] SCR 786 and Khatri (II) vs. State of
Bihar (1981) 1 SCC 627 : [1981] 2 SCR 408 - referred
to.
John Meskell v. Córas Iompair Éireann 1973 IR 121
1972 IR 330; Murtagh Properties Limited v. Cleary 121
1972 IR 330; Shelly v. Kraemer 334 U.S. 1 (1948);
Lûth Luth (1958) BVerfGE 7, 198; Gitlow v. New York
286 US 652 (1925); "Civil Rights Cases" 109 US 3
(1883); Jones v. Alfred H. Mayer Co 392 US 409 (1968);
New York Times v. Sullivan 376 U.S. 254 (1964); Du
Plessis and Others v. De Klerk and Another 1996 ZACC
10; Khumalo v. Holomisa (2002) ZACC 12; Governing
Body of the Juma Musjid Primary School & Others v.
Essay N.O. and Others (CCT 29/10) [2011] ZACC 13;
2011 (8) BCLR 761 (CC); Douglas v. Hello! Ltd. [2001]
QB 967; X v. Y [2004] EWCA Civ 662; Plattform "Ärzte
Für Das Leben" v. Austria [1988] ECHR 15 X and Y
v. The Netherlands [1985] ECHR 4 Marsh v. Alabama
326 US 501 (1946) - referred to.
Anup Surendranath - Article on "Life and Personal
Liberty" in The Oxford Handbook of the Indian
Constitution (South Asia Edition), 2016 and Frances
Kamm, Morality, Mortality Vol.2, Oxford University
Press, 1996 - referred to.
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Per B.V. Nagarathna, J. (Partly dissenting)
HELD: 1. The freedom of speech and expression as
envisaged under Article 19(1)(a) of the Constitution means the
right to free speech and to express opinions through various
media such as by word of mouth, through the print or electronic
media, through pictographs, writings, graphics or any other
manner that can be discerned by the mind. The right includes
the freedom of press. The content of this right also includes
propagation of ideas through publication and circulation, the right
to seek information and to acquire or impart ideas. In short, the
right to free speech would include every nature of right that would
come within the scope and ambit of free speech. Hence, Article
19(1)(a) in very broad and in wide terms states that all citizens
shall have the right to freedom of speech and expression. The
said right can be curtailed only by reasonable restrictions which
are enumerated in Article 19(2) thereof which can be imposed by
the State under the authority of law but not by exercise of
executive power in the absence of any law. Further, the nature of
restrictions on right to free speech must be reasonable, and in
the interest of the sovereignty and integrity of India, security of
the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation
or incitement to an offence. (Article 19(2)). For a country like
ours which is a Parliamentary Democracy, freedom of speech and
expression is a necessary right as well as a concomitant for the
purpose of not only ensuring a healthy democracy but also to
ensure that the citizens could be well informed and educated on
governance. The dissemination of information through various
media, including print and electronic media or audio visual form,
is to ensure that the citizens are enlightened about their rights
and duties, the manner in which they should conduct themselves
in a democracy and for enabling a debate on the policies and
actions of the Governments and ultimately for the development
of the Indian society in an egalitarian way. The right to freedom
of speech and expression in Article 19(1)(a) of the Constitution
has its genesis in the Preamble of the Constitution which, inter
alia, speaks of liberty of thought, expression, belief. Since, India
is a sovereign democratic republic and we follow a parliamentary
system of democracy, liberty of thought and expression is a
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significant freedom and right under our constitutional setup. [Para
12.3, 12.4, 12.5][730-E-H; 731-A-F]
2. The Constitution of India confers under Article 19(1)(a),
the right to freedom of speech and expression to all its citizens.
The State has a corelative duty to abstain from interference with
such right except as provided in Article 19(2) of the Constitution
which are reasonable restrictions on the right conferred under
Article 19(1)(a). The extent of such duty depends upon the content
of speech. For instance, in respect of speech that is likely to be
adverse to the interests of sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public
order, decency or morality; or speech that constitutes contempt
of court, defamation or is of such nature as would be likely to
incite the commission of an offence, the duty of the State to abstain
from interference, is nil. This principle is Constitutionally reflected
under Article 19(2) which enables the State to enact law which
would impose reasonable restrictions on such speech as described
under eight grounds which are the basis for reasonable
restrictions. [Para 14.1][736-A-D]
3. The extent of protection of speech would depend on
whether, such speech would constitute a 'propagation of ideas'
or would have any social value. If the answer to the said question
is in the affirmative, such speech would be protected under Article
19(1)(a); if the answer is in the negative, such speech would not
be protected under Article 19(1)(a). In respect of speech that
does not form the content of Article 19(1)(a), the State has no
duty to abstain from interference having regard to Article 19(2)
of the Constitution and only the grounds mentioned therein. [Para
14.1][736-G-H; 737-A]
4. Having noted that the protective perimeter within which
a person can exercise his/her rights depends on the degree to
which the State is duty bound to protect the right, it may also be
said as a corollary that in respect of speech that does not form
the content of Article 19(1)(a), the State has no duty to abstain
from interference and therefore, speech such as hate speech,
defamatory speech, etc. would lie outside the protective perimeter
within which a person can exercise his right to freedom of speech.
Such speech can be subjected to restrictions or restraints. While
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restrictions on the right to freedom of speech and expression
are required to be made only under the grounds listed under
Article 19(2), by the State, restraints on the said right, do not
gather their strength from Article 19(2). Restraints on the right
to freedom of speech and expression are governed by the content
of Article 19(1)(a) itself; i.e., any kind of speech, which does not
conform to the content of the right under Article 19(1)(a), may be
restrained. Questions pertaining to the voluntary or binding
nature of such restraint, the force behind the same, the persons
on whom such restraints are to be imposed, the manner in which
compliance thereof could be achieved, etc., are aspects left to be
deliberated upon and answered by the Parliament. However, the
finding made hereinabove is only to the extent of clarifying that
any kind of speech, which does not form the content of Article
19(1)(a), may be restrained as such speech does not constitute
an exchange of ideas, in a manner compatible with the ethos
cultivated in a civilised society. Such restraints need not be
traceable only to Article 19(2), which exhaustively lists eight
grounds on which restrictions may be imposed on the right to
freedom of speech and expression by the state. [Para 14.1][737B-H]
5. Article 19(1)(a) serves as a vehicle through which dissent
can be expressed. The right to dissent, disagree and adopt varying
and individualistic points of view inheres in every citizen of this
Country. In fact, the right to dissent is the essence of a vibrant
democracy, for it is only when there is dissent that different ideas
would emerge which may be of help or assist the Government to
improve or innovate upon its policies so that its governance would
have a positive effect on the people of the country which would
ultimately lead to stability, peace and development which are
concomitants of good governance. [Para 15.2][739-C-D]
6. Equality, liberty and fraternity are the foundational values
embedded in the Preamble of our Constitution. 'Hate speech',
in the sense discussed, strikes at each of these foundational
values, by marking out a society as being unequal. It also violates
fraternity of citizens from diverse backgrounds, the sine-qua-non
of a cohesive society based on plurality and multi-culturalism such
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as in India that is, Bharat. Democracy, being one of the basic
features of our Constitution, it is implicit that in a rule by majority
there would be a sense of security and inclusiveness. Further,
the Preamble of the Constitution which envisages, inter alia,
fraternity, assures that the dignity of individuals cannot be dented
by means of unwarranted speech being made by fellow citizens,
including public functionaries. Thus, the Preamble of the
Constitution and the values thereof assuring the people of India
not only justice, liberty, equality but also fraternity and unity and
integrity of the nation, must remind every citizen of this Country
irrespective of the office or position or power that is held, of the
sublime ideals of the Constitution and to respect them in their
true letter and spirit. There is an inbuilt constitutional check to
ensure that the values of the Constitution are not in any way
undermined or violated. It is high time that we, as a society in
general and as individuals in particular, re-dedicate ourselves to
the sacred values of the Constitution and promote them not only
at our individual level but at the macro level. Any kind of speech
which undermines the values for which our Constitution stands
would cause a dent on our social and political values. [Para 26,
27.3][762-C, D; 764-G-H; A-D]
7. The status of the violator of the right, is also an essential
parameter for distinction between the two rights and
corresponding remedies. Where the interference with a
recognized right is by the State or any other entity recognized
under Article 12, a claim for the violation of a fundamental right
would lie under Articles 32 and 226 of the Constitution before
this Court or before the High Court respectively. Where
interference is by an entity other than State or its instrumentalities,
an action would lie under common law and to such extent, the
legal scheme recognises horizontal operation of such rights.
Though the content of the Fundamental Right may be identical
under the Constitution with the common law right, it is only the
common law right that operates horizontally except when those
Fundamental Rights have been transformed into statutory rights
under specific enactments or where horizontal operation has been
expressly recognised under the Constitution. [Para 42, 43][780F-H; 781-A-B]
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8. Recognising a horizontal approach of Fundamental Rights
between citizens inter se would set at naught and render
redundant, all the tests and doctrines forged by this Court to
identify "State" for the purpose of entertaining claims of
fundamental rights violations. Had the intention of this Court been
to allow Fundamental Rights, including the rights under Articles
19 and 21, to operate horizontally, this Court would not have
engaged in evolving and refining tests to determine the true
meaning and scope of "State" as defined under Article 12. This
Court would have simply entertained claims of fundamental rights
violations against all persons and entities, without deliberating
on fundamental questions as to maintainability of the writ petitions.
Although this Court has significantly expanded the scope of
"State" as defined under Article 12, such expansion is based on
considerations such as the nature of functions performed by the
entity in question and the degree of control exercised over it by
the State as such. This is significantly different from recognising
horizontality of the fundamental rights under Articles 19 and 21,
except while seeking a writ in the nature of habeas corpus. Such
a recognition would amount to disregarding the jurisprudence
evolved by this Court as to the scope of Article 12 of the
Constitution. Another aspect that needs consideration is that a
Writ Court, does not ordinarily adjudicate to issue Writs in cases
where alternate and efficacious remedies exist under common
law or statutory law particularly against private persons. Therefore,
even if horizontal operation of the Fundamental Rights under
Article 19/21 is recognised, such recognition would be of no avail
because the claim before a Writ Court of fundamental rights
violations would fail on the ground that the congruent common
law right which is identical in content to the Fundamental Right,
may be enforced by having recourse to common law remedies.
Therefore, on the ground that there exists an alternate and
efficacious remedy in common law, the horizontal claim for
fundamental rights violations would fail before a Writ Court. [Para
43][785-A-G]
9. The duty cast upon the State under Article 21 is a negative
duty not to deprive a person of his life and personal liberty except
in accordance with law. The State has an affirmative duty to carry
out obligations cast upon it under statutory and constitutional
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law, which are based on the Fundamental Right guaranteed under
Article 21 of the Constitution. Such obligations may require
interference by the State where acts of a private actor may
threaten the life or liberty of another individual. Failure to carry
out the duties enjoined upon the State under statutory law to
protect the rights of a citizen, could have the effect of depriving a
citizen of his right to life and personal liberty. When a citizen is
so deprived of his right to life and personal liberties, the State
would have breached the negative duty cast upon it under Article
21. [Para 44][792-D-G]
10. A statement made by a Minister if traceable to any affairs
of the State or for protecting the Government, can be attributed
vicariously to the Government by invoking the principle of
collective responsibility, so long as such statement represents
the view of the Government also. If such a statement is not
consistent with the view of the Government, then it is attributable
to the Minister personally. [Para 45][793-D-E]
11. A proper legal framework is necessary to define the
acts or omissions which would amount to constitutional tort and
the manner in which the same would be redressed or remedied
on the basis of judicial precedent.