KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS

Citation: [2023] 8 S.C.R. 581

Court: Supreme Court of India

Bench: S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA, V. RAMASUBRAMANIAN AND B. V. NAGARATHNA, JJ.

Judgment text

SUPREME COURT OF INDIA KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 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. 581 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. KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 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] 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 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 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] 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] KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 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 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 603 : [2012] 12 SCR 256; Justice K. S. Puttaswamy v. 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 - followed. Express Newspapers (Private) Ltd. v. The Union of India [1959] SCR 12; Sakal Papers (P) Ltd. v. The Union of India [1962] 3 SCR 842; Bijoe Emmanuel v. State of Kerala(1986) 3 SCC 615 : [1986] 3 SCR 518; Ram Jethmalani v. Union of India (2011) 8 SCC 1 : [2011] 8 SCR 725; Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal(1995) 2 SCC 161 : [1995] 1 SCR 1036; Ramlila Maidan Incident, in re. (2012) 5 SCC 1 : [2012] 4 SCR 971; R. Rajagopal alias R. R. Gopal v. State of KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. T. N(1994) 6 SCC 632 : [1994] 4 Suppl. SCR 353; People's Union for Civil Liberties (PUCL) v. Union of India(2003) 4 SCC 399 : [2003] 2 SCR 1136; Noise Pollution (V. ), in Re (2005) 5 SCC 733 : [2005] 1 Suppl. SCR 624; Thalappalam Service Cooperative Bank Ltd. v.

State of Kerala(2013) 16 SCC 82 : [2013] 14 SCR 475; Subramanian Swamy v. Union of India, Ministry of Law (2016) 7 SCC 221 : [2016] 3 SCR 865; Asha Ranjan v. State of Bihar (2017) 4 SCC 397 : [2017] 1 SCR 945; Railway Board representing the Union of India v. Niranjan Singh(1969) 1 SCC 502 : [1969] 3 SCR 548; Life Insurance Corporation of India v. Prof. Manubhai D. Shah (1992) 3 SCC 637 : [1992] 3 SCR 595; S. Krishnan v. State of MadrasAIR 1951 SC 301 : [1951] SCR 621; Pt. Parmanand Katara v. Union of India(1989) 4 SCC 286 : [1989] 3 SCR 997; Shakti Vahini v. Union of India & Ors. (2018) 7 SCC 192 : [2018] 3 SCR 770; R. K. Jain v. Union of India(1993) 4 SCC 119 : [1993] 3 SCR 802; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain (1997) 1 SCC 35 : [1996] 6 Suppl. SCR 584; Vineet Narain v. Union of India(1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595; Common Cause, A Registered Society v. Union of India(1999) 6 SCC 667 : [1999] 3 SCR 1279 and State (NCT of Delhi) v.

Union of India (2018) 8 SCC 501 : [2018] 7 SCR 1 - relied on. Amish Devgan v. Union of India(2021) 1 SCC 1 distinguished. Romesh Thappar v. State of MadrasAIR 1950 SC 124 : [1950] SCR 594; Rustom Cavasjee Cooper v. Union of India(1970) 1 SCC 248 : [1970] 3 SCR 530; Satwant Singh Sawhney v. D. Ramarathna m, Assistant Passport Officer, New Delhi AIR 1967 SC 1836 : [1967] 2 SCR 525; Maneka Gandhi v. Union of India(1978) 1 SCC 248 : [1978] 2 SCR 621; Bandhua Mukti 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 742 : [1996] 1 SCR 278; Mr. 'X' v. Hospital 'Z'(1998) 8 SCC 296 : [1998] 1 Suppl. SCR 723; People's Union for Civil Liberties (PUCL) v. Union of India(1997) 1 SCC 301 : [1996] 10 Suppl. SCR 321; M/s. Kasturi Lal Ralia Ram Jain v. The State of Uttar Pradesh, AIR 1965 SC 1039 : [1965] 1 SCR 375; State of Rajasthan v. Mst. VidhyawatiAIR 1962 SC 933 : [1962] Suppl.

SCR 989; Rudul Sah v. State of Bihar(1983) 4 SCC 141 : [1983] 3 SCR 508; Nilabati Behera (Smt. ) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa (1993) 2 SCC 746 : [1993] 2 SCR 581; Jumuna Prasad Mukhariya v. Lachhi Ram [1955] 1 SCR 608; People's Union for Democratic Rights v. Union of India(1982) 3 SCC 235 : [1983] 1 SCR 456; Bodhisattwa Gautam v. Subhra Chakraborty (Ms. )(1996) 1 SC 490 : [1995] 6 Suppl. SCR 731; M. C. Mehta v. Kamal Nath(2000) 6 SCC 213 : [2000] 1 Suppl. SCR 389; P. D. Shamdasani v. Central Bank of India Ltd. [1952] SCR 391; State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal(2010) 3 SCC 571 : [2010] 2 SCR 979; S. Rangarajan v. P. Jagjivan Ram(1989) 2 SCC 574 : [1989] 2 SCR 204; Union of India v. K. M. Shankarappa (2001) 1 SCC 582 : [2000] 5 Suppl. SCR 117; Indibly Creative Private Limited v. Government of West Bengal (2020) 12 SCC 436 : [2019] 5 SCR 679; State of Maharashtra vs.

Sarangdharsingh Shivdassingh Chavan(2011) 1 SCC 577 : [2010] 15 SCR 1145; Manoj Narula v. Union of India(2014) 9 SCC 1 : [2014] 9 SCR 965; R. Sai Bharathi v. J. Jayalalitha(2004) 2 SCC 9 : [2003] Suppl. SCR 85; Praga Tools Corporation v. Shri C. A. Imanual(1969) 1 SCC 585 : [1969] 3 SCR 773; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotasav Smarak Trust v. V. R. Rudani(1989) 2 SCC 691 : [1989] 2 SCR 697; M. C. Mehta v. Union of India AIR 1987 SC 1086 : [1987] 1 SCR 819; Binny Ltd. v. V. Sadasivan (2005) 6 SCC 657 : [2005] 2 Suppl. SCR 421; Society for Unaided Private Schools of KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. Rajasthan v. Union of India(2012) 6 SCC 1 : [2012] 2 SCR 715; Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477 : [2014] 4 SCR 446; Kodungallur Film Society v. Union of India (2018) 10 SCC 713 : [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 VarmaAIR 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 MadrasAIR 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 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 MajidAIR 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 Éireann1973 IR 121 1972 IR 330; Murtagh Properties Limited v. Cleary 121 1972 IR 330; Shelly v. Kraemer334 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. Sullivan376 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. KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 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 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 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 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][737- B-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 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][780- F-H; 781-A-B] KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 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 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. Particularly, it is not prudent to treat all cases where a statement made by a public functionary resulting in harm or loss to a person/citizen, as a constitutional tort, except in the context of the answer given to Question No. 4 .

It is for the Parliament in its wisdom to enact a legislation or code to restrain, citizens in general and public functionaries, in particular, from making disparaging or vitriolic remarks against fellow citizens, having regard to the strict parameters of Article 19(2) and bearing in mind the freedom under Article 19(1) (a) of the Constitution of India. [Para 66, 67][801-B-D] Pravasi Bhalai Sangathan v. Union of India(2014) 11 SC 477 : [2014] 4 SCR 446; K. S. Puttaswamy (Retd. ) v. Union of India(2019) 1 SCC 1 : [2018] 8 SCR 1; Subramanian Swamy v. Union of India(2016) 7 SCC 221 : [2016] 3 SCR 865; His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala(1973) 4 SCC 225; People's Union for Civil Liberties v. Union of India (2005) 2 SCC 436 : [2005] 1 SCR 494; P. D. KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. Shamdasani v. Central Bank of India Ltd. A. I. R. 1952 SC 59 : [1952] SCR 391; Zoroastrian Cooperative Housing Society Limited v.

District Registrar, Cooperative Societies (Urban) (2005) 5 SCC 632 : [2005] 3 SCR 592; Ramakrishna Mission v. Kago Kunya (2019) 16 SCC 303 : [2019] 5 SCR 452; Parmanand Katara v. Union of IndiaA. I. R. 1989 SC 2039 : [1989] 3 SCR 997; National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742 : [1996] 1 SCR 278; Gaurav Kumar Bansal v. Union of India (2015) 2 SCC 130 : [2014] 7 SCR 725 and Swaraj Abhiyan v. Union of India (2016) 7 SCC 498 relied on. Romesh Thappar v. State of Madras A. I. R. 1950 SC 124 : [1950] SCR 594; S. Khushboo v. Kanniammal (2010) 5 SCC 600 : [2010] 5 SCR 322; Shreya Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963; Sakal Papers (P) Ltd. v. Union of India A. I. R. 1962 SC 305 : [1962] 3 SCR 842; Life Insurance Corporation vs. Prof. Manubhai D. Shah (1992) 3 SCC 637 : [1992] 3 SCR 595; Kedar Nath Singh v. State of Bihar A. I. R. 1962 SC 955 : [1962] Suppl. SCR 769; Directorate General of Doordarshan v.

Anand Patwardhan(2006) 8 SCC 433 : [2006] 5 Suppl. SCR 403; Hamdard Dawakhana (Wakf) Lal Kuan v. Union of IndiaA. I. R 1960 SC 554 : [1960] 2 SCR 671; Indian Express Newspaper (Bombay) Pvt. Ltd. v. Union of India (1985) 1 SCC 641 : [1985] 2 SCR 287; Tata Press Limited v. Mahanagar Telephone Nigam Limited (1995) 5 SCC 139 : [1995] 2 Suppl. SCR 467; Union of India v. Motion Picture Association A. I. R. 1999 SC 2334 : [1999] 3 SCR 875; National Legal Services Authority v. Union of India (2014) 5 SCC 438 : [2014] 5 SCR 119; Prabha Dutt v. Union of India (1982) 1 SCC 1 : [1982] 1 SCR 1184; Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 639 : [2018] 11 SCR 57; Union of India v. Naveen Jindal(2004) 2 SCC 510 : [2004] 1 SCR 1038; Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615 : [1986] 3 SCR 518; Amish Devgan v. Union of India (2021) 1 SCC 1; Charu Khurana v. Union of India (2015) 1 SCC 192 : [2014] 12 SCR 259; In Re. Noise Pollution (V) (2005) 5 SCC 733 : [2005] 1 Suppl.

SCR 624; Additional District Magistrate, Jabalpur vs. Shivkant Shukla A. I. R. 1976 SC 1207 : [1976] Suppl. SCR 172 ; Pradeep Kumar Biswas v. Indian Institute of Chemical Biology(2002) 5 SCC 111 : [ 2002] 3 SCR 100; Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 : [2005] 1 SCR 913; Janet Jeyapaul v. S. R. M. University (2015) 16 SCC 530; Union of India v. Paul Manickam(2003) 8 SCC 342 : [2003] 4 Suppl. SCR 618; Mohd. Ikram Hussain v. State of Uttar Pradesh A. I. R. 1964 SC 1625 : [1964] 5 SCR 86; Nirmaljit Kaur (2) v. State of Punjab(2006) 9 SCC 364 : [2005] 5 Suppl. SCR 514; Union of India v. Paul Manickam(2003) 8 SCC 342 : [2003] 4 Suppl. SCR 618; Pt. Rudul Sah v. State of Bihar(1983) 4 SCC 141 : [1983] 3 SCR 508; Sebastian M. Hongray v. Union of India (1984) 3 SCC 82 : [1984] 3 SCR 544; Bhim Singh v. State of J&K (1985) 4 SCC 677; People's Union for Democratic Rights v. Police Commissioner (1989) 4 SCC 730; Saheli v. Commissioner of Police (1990) 1 SCC 422 : [1989] 2 Suppl.

SCR 488; State of Maharashtra v. Ravikant S. Patil (1991) 2 SCC 373; Kumari v. State of Tamil Nadu (1992) 2 SCC 223; Shakuntala Devi v. Delhi Electric Supply Undertaking (1995) 2 SCC 369; Tamil Nadu Electricity Board v. Sumanth(2000) 4 SCC 543 : [2000] 3 SCR 708; Railway Board v. Chandrima Das (2000) 2 SCC 465 : [2000] 1 SCR 480; Sabastian M. Hongray v. Union of India A. I. R. 1984 SC 1026 : [1984] 3 SCR 544; Bhim Singh, MLA v. State of Jammu and Kashmir A. I. R. 1986 SC : 494; Nilabati Behera v. State of Orissa (1993) 2 SCC 746 : [1993] 2 SCR 581; D. K. Basu v. State of West Bengal (1997) 1 SCC 416 : [1996] 10 Suppl. SCR 284; Hindustan Paper Corporation Ltd. v. Ananta Bhattacharjee (2004) 6 SCC 213; Chairman, Railway Board v. Chandrima Das(2000) 2 SCC 465 : [2000] 1 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. SCR 480; Kumari v. State of Tamil Nadu (1992) 2 SCC 223; Tamil Nadu Electricity Board v. Sumathi Das (2000) 4 SCC 543 : [2000] 3 SCR 708;and Delhi Jal Board v.

National Campaign for Dignity & Rights of Sewerage& amp;Allied Workers (2011) 8 SCC 568 : [2011] 12 SCR 34 - referred to. Chaplinsky v. State of New Hampshire 315 U. S. 568 (1942); R v. James Keegstra [1990] 3 SCR 697; Canada Human Rights Commission v. Taylor [1990] 3 SCR 892; Pat Eatock v. Andrew Bolt (2011) FCA and Peninsular; Oriental Steam Navigation Co. v. Secy. of State(1868- 69) 5 Bom HCR APP 1 and Saskatchewan Human Rights Commission v. William Whatcott2013 SCC 11 - referred to. Case Law Reference In the judgment of V. Ramasubramanian, J. [1965] 1 SCR 375 referred to Para 9 (iv) [1983] 3 SCR 508 referred to Para 9 (iv) [1993] 2 SCR 581 referred to Para 9 (v) [2013] 14 SCR 475 relied on Para 10 (i) [1994] 4 Suppl. SCR 353 relied on Para 10 (i) [2003] 2 SCR 1136 relied on Para 10 (i) [1955] 1 SCR 608 referred to Para 10 (i) [2011] 8 SCR 725 relied on Para 10 (i) [2012] 12 SCR 256 followed Para 10 (i) [2016] 3 SCR 865 relied on Para 10 (i) [2005] 1 Suppl.

SCR 624 relied on Para 10 (i) [2017] 1 SCR 945 relied on Para 10 (i) [1983] 1 SCR 456 referred to Para 10 (ii) [1995] 6 Suppl. SCR 731 referred to Para 10 (ii) [2000] 1 Suppl. SCR 389 referred to Para 10 (ii) [2017] 10 SCR 569 followed Para 10 (ii) [1952] SCR 391 referred to Para 10 (ii) [2010] 2 SCR 979 referred to Para 10 (iii) [1989] 2 SCR 204 referred to Para 10 (iii) [2000] 5 Suppl. SCR 117 referred to Para 10 (iii) [2019] 5 SCR 679 referred to Para 10 (iii) [1989] 3 SCR 997 relied on Para 10 (iii) (2021) 1 SCC 1 distinguished Para 10 (iv) [2010] 15 SCR 1145 referred to Para 10 (iv) [1996] 6 Suppl. SCR 584 relied on Para 10 (iv) [2014] 9 SCR 965 referred to Para 10 (iv) [2003] 6 Suppl. SCR 85 referred to Para 10 (iv) [1999] 3 SCR 1279 relied on Para 10 (v) [1962] 3 SCR 842 relied on Para 10 (vi) [1969] 3 SCR 773 referred to Para 10 (xii) [1989] 2 SCR 697 referred to Para 10 (xii) [1987] 1 SCR 819 referred to Para 10 (xiii) [2005] 2 Suppl.

SCR 421 referred to Para 10 (xiii) [2012] 2 SCR 715 referred to Para 10 (xiv) [2014] 4 SCR 446 referred to Para 10 (xxiii) [2018] 12 SCR 695 referred to Para 10 (xxiii) [1950] SCR 594 referred to Para 15 [1950] SCR 605 referred to Para 17 (1952) 1 SCC 410 referred to Para 20 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [1959] SCR 12 relied on Para 28 [1986] 3 SCR 518 relied on Para 29 [1995] 1 SCR 1036 relied on Para 30 [2012] 4 SCR 971 relied on Para 30 [1969] 3 SCR 548 relied on Para 43 (ix) [1992] 3 SCR 595 relied on Para 43 (ix) [1955] 2 SCR 983 referred to Para 76 (ii) [1975] 3 SCR 619 referred to Para 76 (iii) [1993] 3 Suppl. SCR 615 referred to Para 76 (vii) [2000] 1 SCR 480 referred to Para 76 (viii) [1996] 10 Suppl. SCR 12 referred to Para 76 (ix) [1996] 5 Suppl. SCR 241 referred to Para 76 (ix) [1996] 2 SCR 503 referred to Para 76 (ix) [1995] 1 SCR 626 referred to Para 76 (x) [1997] 3 Suppl.

SCR 404 referred to Para 76 (xi) [2012] 9 SCR 895 referred to Para 76(xi) [1999] 1 SCR 669 referred to Para 76 (xii) [2011] 6 SCR 599 referred to Para 76 (xiii) [2016] 4 SCR 638 referred to Para 76(xv) [2005] 1 SCR 913 referred to Para 76 (xvi) (2015) 16 SCC 530 referred to Para 76 (xvi) [1950] SCR 88 referred to Para 78 [1951] SCR 621 relied on Para 78 [1979] 3 SCR 1014 referred to Para 78 [1989] 2 SCR 697 referred to Para 78 [2010] 15 SCR 201 referred to Para 85 [1964] 1 SCR 332 referred to Para 86 [2014] 11 SCR 1009 referred to Para 86 [1970] 3 SCR 530 referred to Para 86 [1975] 3 SCR 946 referred to Para 87 [1967] 2 SCR 525 referred to Para 88 [1978] 2 SCR 621 referred to Para 90 [1984] 2 SCR 67 referred to Para 91 [1996] 1 SCR 278 referred to Para 93 [1998] 1 Suppl. SCR 723 referred to Para 94 [2009] 13 SCR 989 referred to Para 96 (2016) 10 SCC 726 referred to Para 96 [1996] 10 Suppl. SCR 321 referred to Para 97 [2004] 5 Suppl.

SCR 833 referred to Para 98 [2014] 4 SCR 264 referred to Para 99 [2006] 3 Suppl. SCR 350 referred to Para 99 [2011] 5 SCR 488 referred to Para 99 [2018] 3 SCR 770 relied on Para 100 [1970] 3 SCR 505 followed Para 111 [1978] 2 SCR 1 followed Para 113 [1993] 3 SCR 802 relied on Para 113 [1997] 6 Suppl. SCR 595 relied on Para 121 [2018] 7 SCR 1 relied on Para 125 [1954] SCR 786 referred to Para 146 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [1962] Suppl. SCR 989 referred to Para 146 [1981] 2 SCR 408 referred to Para 146 In the judgment of B. V. Nagarathna, J. [1950] SCR 594 referred to Para 12. 6 (i) [2010] 5 SCR 322 referred to Para 12. 6 (ii) [2015] 5 SCR 963 referred to Para 12. 6 (iii) [1962] 3 SCR 842 referred to Para 15. 1 [1992] 3 SCR 595 referred to Para 15. 1 [1962] Suppl. SCR 769 referred to Para 15. 3 (ii) [2006] 5 Suppl. SCR 403 referred to Para 15. 3 (iii) [1960] 2 SCR 671 referred to Para 15. 4 (i) [1985] 2 SCR 287 referred to Para 15. 4 (ii) [1995] 2 Suppl.

SCR 467 referred to Para 15. 4 (iii) [1999] 3 SCR 875 referred to Para 15. 5 (i) [2014] 5 SCR 119 referred to Para 15. 5 (ii) [1982] 1 SCR 1184 referred to Para 15. 5 (ii) [2018] 11 SCR 57 referred to Para 15. 5 (ii) [2004] 1 SCR 1038 referred to Para 15. 5 (ii) [1986] 3 SCR 518 referred to Para 15. 5 (ii) [2014] 4 SCR 446 relied on Para 16. 2 (2021) 1 SCC 1 referred to Para 16. 3 [1990] 3 SCR 697 referred to Para 21 (i) [1990] 3 SCR 892 referred to Para 21 (i) [2014] 12 SCR 259 referred to Para 22 [2005] 1 Suppl. SCR 624 referred to Para 22 [2018] 8 SCR 1 relied on Para 24 [2016] 3 SCR 865 relied on Para 27. 1 (1973) 4 SCC 225 relied on Para 36 [1976] Suppl.

SCR 172 referred to Para 37 [2005] 1 SCR 494 relied on Para 39 [1952] SCR 391 relied on Para 43 (ii) (a) [2005] 3 SCR 592 relied on Para 43 (ii) (b) [2002] 3 SCR 100 referred to Para 43 (iii) [2005] 1 SCR 913 referred to Para 43 (iii) (2015) 16 SCC 530 referred to Para 43 (iii) [2019] 5 SCR 452 referred to Para 43 (iii) [2003] 4 Suppl. SCR 618 referred to Para 43 (iii) [1964] 5 SCR 86 referred to Para 43 (iii) [2005] 5 Suppl. SCR 514 referred to Para 43 (iii) [2003] 4 Suppl. SCR 618 referred to Para 43 (iii) [1989] 3 SCR 997 relied on Para 44 (i) [1996] 1 SCR 278 relied on Para 44 (ii) [2014] 7 SCR 725 relied on Para 44 (iii) (2016) 7 SCC 498 relied on Para 44 (iv) [1983] 3 SCR 508 referred to Para 51 [1984] 3 SCR 544 referred to Para 51 (1985) 4 SCC 677 referred to Para 51 (1989) 4 SCC 730 referred to Para 51 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [1989] 2 Suppl.

SCR 488 referred to Para 51 (1991) 2 SCC 373 referred to Para 51 (1992) 2 SCC 223 referred to Para 51 (1995) 2 SCC 369 referred to Para 51 [2000] 3 SCR 708 referred to Para 51 [2000] 1 SCR 480 referred to Para 51 [1983] 3 SCR 508 referred to Para 54 [1984] 3 SCR 544 referred to Para 54 A. I. R. 1986 SC 494 referred to Para 54 [1993] 2 SCR 581 referred to Para 55 [1996] 10 Suppl. SCR 284 referred to Para 56 (2004) 6 SCC 213 referred to Para 56 [2000] 1 SCR 480 referred to Para 57 (1992) 2 SCC 223 referred to Para 59 [2000] 3 SCR 708 referred to Para 60 [2011] 12 SCR 34 referred to Para 63 CRIMINAL ORIGINAL/CIVIL APPELLATE JURISDICTION: Writ Petition (Criminal) No. 113 of 2016. Under Article 32 of The Constitution of India With Special Leave Petition @ (Diary) No. 34629 of 2017 Ms. Aparjitha Singh, Sr. Adv. (A. C. ) Ms. Uttara Babbar, Ms. Shipra Jain, Advs. Kaleeswaram Raj, Ms. Thulasi K. Raj, Ms. Radhalakshmi R. , Suvidutt M. S. , Ms.

Somlagna Biswas, Rishesh Sikarwar, Aman Khullar, Mrs. Renu Yadav, Samerjit Singh Chaudhry, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Mirdula Singh Chauhan, Ms. Sandhya Singh for Ms. Manju Jetley, Advs. for the Petitioner. R. Venkataramani, AG, Tushar Mehta, SG, Balbir Singh, Ms. Madhavi Divan, ASGs, R. Bala, Pradeep Rai, Ms. Garima Prasad, Sr. Advs. , Naman Tandon, Samarvir Singh, Presenjeet Mohapatra, Rajat Nair, Ankur Talwar, Kanu Agrawal, Anirudh Bhatt, Shyam Gopal, Ms. Monica Benjamin, Ms. Sujatha Bagadhi, Ms. Shraddha Deshmukh, Udai Khanna, Ms. Anu S. , Mayank Pandey, Vinayak Mehrotra, Chitvan Singhal, Ms. Sonali Jain, Abhishek Kumar Pandey, Arvind Kumar Sharma, Mukesh Kumar Maroria, Ajay Vikram Singh, Ms. Rajshree Rai, Vinay Kumar, Shashank Rai, Arnav Mittal, Ms. Ritika Gaur, Ms. Banshika Garg, Vipin Bharti, Amrendra Kumar Singh, Ms. Priyanka Singh, Ms. Pranjali Goel, Sharjeel Ahamad, Mrs. Swarupama Chaturvedi, Pradeep Misra, Abhishek, Lakshmi Raman Singh, Advs.

for the Respondents. Ranjith B. Marar, Ms. Lakshmi N. Kaimal, Arun Poomulli, Santhosh M. Jose, Keshav Raj Nair, Ashu Jain, Davesh Kumar Sharma, Ms. Preetha Chandran, Abhijith Sreekumar, Joseph Kurian, Advs. for the Intervenor. The Judgments of the Court were delivered by V. RAMASUBRAMANIAN, J. PRELUDE Said the Tamil Poet-Philosopher Tiruvalluvar of the Tamil Sangam age (31, BCE) in his classic "Tirukkural". Emphasizing the importance of sweet speech, he said that the scar left behind by a burn injury may heal, but not the one left behind by an offensive speech. The translation of this verse by G. U. Pope in English reads thus: "In flesh by fire inflamed, nature may thoroughly heal the sore; In soul by tongue inflamed, the ulcer healeth never more. " KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J. ] A Sanskrit Text contains a piece of advice on what to speak and how to speak.

The meaning of this verse is: "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 "Book of Proverbs" (16:24) says: "Pleasant words are a honeycomb, sweet to the soul and healing to the bones" Though religious texts of all faiths and ancient literature of all languages and geographical locations are full of such moral injunctions emphasising the importance of sweet speech (more than free speech), history shows that humanity has consistently defied those diktats. The present reference to the Constitution Bench is the outcome of such behaviour by two honourable men, who occupied the position of Ministers in two different States. I. Questions formulated for consideration 1. By an order dated 05. 10. 2017, a Three Member Bench of this Court directed Writ Petition (Criminal) No.

113 of 2016 to be placed before the Constitution Bench, after two learned senior counsel, appointed as amicus curiae, submitted that the questions arising for consideration in the writ petition were of great importance. Though the Bench recorded, in its order dated 05. 10. 2017, the questions that were submitted by the learned amicus curiae, the Three Member Bench did not frame any particular question, but directed the matter to be placed before the Constitution Bench. 2. At this juncture, a Special Leave Petition (Diary) No. 34629 of 2017 arising out a judgment of the Kerala High Court came up before the same Three Member Bench. Finding that the questions raised in the said SLP were also similar, this Court passed an order on 10. 11. 2017, directing the said SLP also to be tagged with Writ Petition (Criminal) No. 113 of 2016. 3. Thereafter, the Constitution Bench, by an order dated 24. 10. 2019, formulated the following five questions to be decided by this Court:- "...

1) 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? 2) Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the 'State' or its instrumentalities? 3) Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? 4) 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?

5) Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as 'Constitutional Tort"? ... " II. A brief backdrop 4. Without a brief reference to the factual matrix, the questions to be answered by us may look abstract. Therefore, we shall now refer to the background facts in both these cases. 5. Writ Petition (Criminal) No. 113 of 2016 was filed under Article 32 of the Constitution praying for several reliefs including monitoring the investigation of a criminal complaint in FIR No. 0838/2016 under Section 154 Cr. P. C. , for the offences under Sections 395, 397 and 376-D read with the relevant provisions of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act') and for the trial of the case outside the State and also for registering a complaint against the KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J.

] then Minister for Urban Development of the Government of U. P. for making statements outrageous to the modesty of the victims. The case of the petitioner in Writ Petition (Criminal) No. 113 of 2016 in brief was that on 29. 7. 2016 when he and the members of his family were travelling from Noida to Shahjahanpur on National Highway 91 to attend the death ceremony of a relative, they were waylaid by a gang. According to the writ petitioner, the gang snatched away cash and jewelry in the possession of the petitioner and his family members and they also gang raped the wife and minor daughter of the petitioner. Though an FIR was registered on 30. 7. 2016 for various offences and newspapers and the television channels reported this ghastly incident, the then Minister for Urban Development of the Government of U. P. called for a press conference and termed the incident as a political conspiracy. Therefore, the petitioner apprehended that there may not be a fair investigation.

The petitioner claims that he was also offended by the irresponsible statement made by the Minister and hence he was compelled to file the said writ petition for the reliefs stated supra. 6. Insofar as Special Leave Petition (Diary) No. 34629 of 2017 is concerned, the same arose out of a judgment of the Division Bench of the Kerala High Court dismissing two writ petitions. The writ petitions were filed in public interest on the ground that the then Minister for Electricity in the State of Kerala issued certain statements in February 2016, 7. 4. 2017 and 22. 4. 2017. These statements were highly derogatory of women. Though according to the petitioners in the public interest litigation, the political party to which the Minister belonged, issued a public censure, no action was taken officially against the Minister.

Therefore, the petitioner in one writ petition prayed among other things for a direction to the Chief Minister to frame a Code of Conduct for the Ministers who have subscribed to the oath of office as prescribed by the Constitution with a further direction to the Chief Minister to take suitable action if any of the Ministers failed to live upto the oath. The prayer in the second writ petition was for a direction to the concerned Authorities to take action against the Minister for his utterances. 7. Both the writ petitions were dismissed by a Division Bench of the Kerala High Court, on the ground that the prayer of the public interest writ petitioners were in the realm of moral values and that the question whether the Chief Minister should frame a code of conduct for the Ministers of his cabinet or not, is not within the domain of the Court to decide.

Therefore, challenging the said common order, the petitioner in one of those public interest writ petitions has come up with Special Leave Petition (Diary) No. 34629 of 2017. Since the questions raised by the petitioner in the Special Leave Petition overlapped with the questions raised in the Writ Petition, they have been tagged together. III. Contentions 8. We have heard Shri R. Venkataramani, learned Attorney General for India, Ms. Aparajita Singh, learned senior counsel who assisted us as amicus curiae, Shri Kaleeswaram Raj, learned counsel for the petitioner in the special leave petition and Shri Ranjith B. Marar, learned counsel appearing for the person who sought to intervene/implead. III. A. Preliminary note submitted by learned Attorney General for India 9. The learned Attorney General for India submitted a preliminary note containing his submissions question-wise, which can be summed up as follows:- Question No. 1 (i) On question No.

1 it is his submission that as a matter of constitutional principle, any addition, alteration or change in the norms or criteria for imposition of restrictions on any fundamental right has to come up through a legislative process. The restrictions already enumerated in clauses (2) and (6) of Article 19 have to be taken to be exhaustive. Therefore, the Court cannot, under the guise of invoking any other fundamental right such as the one in Article 21, impose restrictions not found in Article 19(2). Under the Constitutional scheme, there can be no conflict between two different fundamental rights or freedoms. Question No. 2 (ii) The Constitution itself sets out the scheme of claims of fundamental rights against the State or its instrumentalities and it has also enacted in respect of breaches or violations of fundamental rights by persons other than State or its instrumentalities.

Any proposition, to add or insert subjects or matters in respect of which claims can be made against persons other than the State, would amount to Constitutional KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J. ] change. The concept of State action propounded and applied in US Constitutional Law and the enactment of 42 US Code Sec. 1983 have to be seen in the context of peculiar state of affairs dealing with governmental and official immunities from legal proceedings. In view of specific provisions in Articles 15(2), 17, 23 and 24 of the Indian Constitution, there may not be a strict need to take recourse to the law obtaining in the USA. 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 (iii) There are sufficient Constitutional and legal remedies available for a citizen whose liberty is threatened by any person.

Beyond the Constitutional and legal remedy and protection available, there may not be any other additional duty to affirmatively protect the right of a citizen under Article 21. Cases of infringement of fundamental rights are taken care of under Articles 32 and 226. Question No. 4 (iv) Conduct of public servants like a Minister, if it is traceable to the discharge of public duty or the duties of the office, is subject to scrutiny of the law. Sanction for prosecution can be granted if misconduct is committed under colour of office. Such misconduct including statements that may be made by a Minister cannot be linked to the principles of collective responsibility. The concept of vicarious liability is incapable of being applied to situations and no government can ever be vicariously liable for malfeasance or misconduct of Minister not traceable to statutory duty or statutory violations for the purpose of legal remedies.

Ministerial misdemeanors, which have nothing to do with the discharge of public duty and not traceable to the affairs of the State, will have to be treated as acts of individual violation and individual wrong. To extend in the abstract, the liability of the State to such situations or instances without necessary limitations can be problematic. Post M/s. Kasturi Lal Ralia Ram Jain vs. The State of Uttar Pradesh1 and following Rudul Sah vs. 1 AIR 1965 SC 1039 State of Bihar2, this Court has treated misconduct of public servants or officers and consequent infringement of Constitutional rights as ground for grant of compensation. However, there is need for clarity and certainty as far as the conceptual basis is concerned. This may be better resorted through enacted law. Question No. 5 (v) While the principle of Constitutional tort has been conceived in Nilabati Behera (Smt. ) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) vs.

State of Orissa3, and subsequently applied to provide in regard to the constitutional remedies, the matter pre-eminently deserves a proper legal framework in order that the principles and procedures are coherently set out without leaving the matter open-ended or vague. III. B. Notes of submissions by Amicus 10. Ms. Aparajita Singh, learned senior counsel and amicus curiae submitted a written note question-wise, which can be summed up as follows:- Question No. 1 (i) The right to free speech under Article 19(1)(a) is subject to clearly defined restrictions under Article 19(2). Therefore, any law seeking to limit the right under Article 19(1)(a) has to necessarily fall within the limitations provided under Article 19(2). Whenever two fundamental rights compete, the Court will balance the two to allow the meaningful exercise of both. This conundrum is not new, as the rights under Article 21 and under Article 19(1)(a) have been interpreted and balanced on numerous occasions.

Take for instance the Right to Information Act, 2005. The Act balances the citizen's right to know under Article 19(1)(a) with the right to fair investigation and right to privacy under Article 21. This careful balancing was explained by this Court in Thalappalam Service Cooperative Bank Ltd. 2 (1983) 4 SCC 141 3 (1993) 2 SCC 746 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J. ] vs. State of Kerala4. The decision of this Court in R. Rajagopal alias R. R. Gopal vs. State of T. N. 5 is another example of reading down the restrictions (in the form of defamation) on the right to free speech under Article 19(2), in its application to public officials and public figures in larger public interest. Again, in People's Union for Civil Liberties (PUCL) vs. Union of India6, the right to privacy of the spouse of the candidate contesting the election was declared as subordinate to the citizens' right to know under Article 19(1)(a). In Jumuna Prasad Mukhariya vs.

Lachhi Ram7, a challenge to Sections 123(5) and 124(5) of the Representation of the People Act, 1951 (as they prevailed at that time) was rejected, on the ground that false personal attacks against the contesting candidate was not violative of the right to free speech. But when it comes to private citizens who are not public functionaries, the right to privacy under Article 21 was held to trump the right to know under Article 19(1)(a). This was in the case of Ram Jethmalani vs. Union of India8, which concerned the right to privacy of account holders. In Sahara India Real Estate Corporation Limited vs. Securities and Exchange Board of India9, this Court struck a balance between the right of the media under Article 19(1)(a) with the right to fair trial under Article 21. The argument that free speech under Article 19(1)(a) was a higher right than the right to reputation under Article 21 was rejected by this Court in Subramanian Swamy vs.

Union of India, Ministry of Law10 in which Section 499 IPC was under challenge. The right to free speech was balanced with the right to pollution free life in Noise Pollution (V. ), in Re11 and the right to fair trial of the accused was balanced with the right to fair trial of the victim in Asha Ranjan vs. State of Bihar12. 4 (2013) 16 SCC 82 5 (1994) 6 SCC 632 6 (2003) 4 SCC 399 7 (1955) 1 SCR 608 8 (2011) 8 SCC 1 9 (2012) 10 SCC 603 10 (2016) 7 SCC 221 11 (2005) 5 SCC 733 12 (2017) 4 SCC 397 Question No. 2 (ii) There are some fundamental rights which are specifically granted against non-State actors. Article 15(2)(a) - access to shops, public restaurants, hotels and places of public entertainment, Article 17 - untouchability, Article 23 - forced labour and Article 24- prohibition of employment of children in factories, mines etc. , are rights which are enforceable against private citizens also.

Some aspects of Article 21 such as the right to clean environment have been enforced against private parties as well. The State is also under a Constitutional duty to ensure that the rights of its citizens are not violated even by non-State actors and ensure an environment where each right can be exercised without fear of undue encroachment. In People's Union for Democratic Rights vs. Union of India13, while rejecting the contention of the State that it was the obligation of the private party i. e. , the contractor to follow the mandate of Article 24 of the Constitution and the relevant laws, it was clarified that the primary obligation to protect fundamental rights was that of the State even in the absence of an effective legislation. In Bodhisattwa Gautam vs. Subhra Chakraborty (Ms. )14, interim compensation was awarded holding that fundamental rights under Article 21 can be enforced even against private bodies and individuals.

Public law remedy has been repeatedly resorted to even against non-State actors when their acts have violated the fundamental rights of other citizens. Award of damages against non-State actors for violation of the right to clean environment under Article 21 was laid down in M. C. Mehta vs. Kamal Nath15. Similarly, the majority and concurring opinion in Justice K. S. Puttaswamy vs. Union of India16, while elaborating on the duty of the State and non-State actors to protect the rights of citizens, pointed out that recognition and enforcement of claims qua non-State actors may require legislative intervention. However, when it comes 13 (1982) 3 SCC 235 14 (1996) 1 SC 490 15 (2000) 6 SCC 213 16 (2017) 10 SCC 1 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J. ] to Article 19, a Constitution Bench in P. D. Shamdasani vs. Central Bank of India Ltd. 17, has held it to be inapplicable against private persons. Question No.

3 (iii) Fundamental rights of citizens enshrined in the Constitution are not only negative rights against the State but also constitute a positive obligation on the State to protect those rights. The Constitution Bench in State of West Bengal vs. Committee for Protection of Democratic Rights, West Bengal18, while upholding the power of the Constitutional Court to transfer an investigation to the CBI without the consent of the concerned State, emphasized the duty of the State to conduct a fair investigation which is a fundamental right of the victim under Article 21. The majority judgment in Justice K. S. Puttaswamy (supra), defines the positive obligation of the State to ensure the meaningful exercise of the right of privacy. In S. Rangarajan vs. P. Jagjivan Ram19, this Court has categorically laid down that the State cannot plead its inability to protect the fundamental rights of the citizens. In Union of India vs. K. M.

Shankarappa20, Section 6(1) of the Cinematograph Act, 1952 which granted the Central Government, the power to review the decision of the quasi-judicial Tribunal under the Act, was sought to be defended on the ground of law and order. The contention was rejected holding that it was the duty of the Government to ensure law and order. In Indibly Creative Private Limited vs. Government of West Bengal21, the negative restraint and positive obligation under Article 19(1) (a) has been explained. In Pt. Parmanand Katara vs. Union of India22, it was held that even the doctors in Government hospitals are duty bound to fulfil the constitutional obligation of the State under Article 21. 17 1952 SCR 391 18 (2010) 3 SCC 571 19 (1989) 2 SCC 574 20 (2001) 1 SCC 582 21 (2020) 12 SCC 436 22 (1989) 4 SCC 286 Question No. 4 (iv) The Minister being a functionary of the State, represents the State when acting in his official capacity.

Therefore, any violation of the fundamental rights of the citizens by the Minister in his official capacity, would be attributable to the State. The State also has a positive obligation to protect the rights of citizens under Article 21, whether the violation is by its own functionaries or a private person. It would be preposterous to suggest that while the State is under an obligation to restrict a private citizen from violating the fundamental rights of other citizens, its own Minister can do so with impunity. However, the factum of violation would need to be established on the facts of a given case. It would involve a detailed inquiry into questions such as (a) whether the statement by the Minister was made in his personal or official capacity; (b) whether the statement was made on a public or private issue; (c) whether the statement was made on a public or private platform. In Amish Devgan vs.

Union of India23, while dealing with hate speech, the impact of the speech of "a person of influence" such as a Government functionary, was explained. State of Maharashtra vs. Sarangdharsingh Shivdassingh Chavan24, provides a clear instance of direct interference with the investigation by a Chief Minister. The Court held the action of the Chief Minister to be "wholly unconstitutional" and contrary to the oath of allegiance to the Constitution and imposed costs on the State. The concurring opinion emphasizes the responsibility that the oath of office casts on the Minister under the Constitution. In Secretary, Jaipur Development Authority, Jaipur vs. Daulat Mal Jain25, while dealing with a case involving the misuse of public office by a Minister, this Court elaborated on the responsibility and liability of the Ministerial office under the Constitution.

The importance of the Oath of Office under the Constitution was also emphasized by the 23 (2021) 1 SCC 1 24 (2011) 1 SCC 577 25 (1997) 1 SCC 35 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J. ] Constitution Bench in Manoj Narula vs. Union of India26. However, the Ministerial code of conduct was held to be not enforceable in a court of law in R. Sai Bharathi vs. J. Jayalalitha27, as it does not have any statutory force. An argument can be made that the Minister is personally bound by the oath of his office to bear true faith and allegiance to the Constitution of India under Articles 75(4) and 164(3) of the Constitution. The Constitution imposes a solemn obligation on the Minister as a Constitutional functionary to protect the fundamental rights of the citizens. The code of conduct for Ministers (Both for Union and States) specifically lays down that the Code is in addition to the ". . .

observance of the provisions of the Constitution, the Representation of the People Act, 1951". Therefore, a Constitutional functionary is duty bound to act in a manner which is in consonance with this constitutional obligation of the State. Question No. 5 (v) The State acts through its functionaries. Therefore, the official act of a Minister which violates the fundamental rights of the citizens, would make the State liable under constitutional tort. The principle of sovereign immunity of the State for the tortious acts of its servant, has been held to be inapplicable in the case of violation of fundamental rights. The principle of State liability under Constitutional tort was expounded in Nilabati Behera (supra). In Common Cause, A Registered Society vs. Union of India. 28, the position in the case of a public functionary was explained. III. C. Written submissions of Shri Kaleeswaram Raj, Advocate for the SLP petitioner 11.

Shri Kaleeswaram Raj, learned counsel appearing for the petitioner in the special leave petition submitted an elaborate note. This note is divided into several chapters dealing with the nature and extent of the freedom of speech, the restrictions on the same, the horizontality 26 (2014) 9 SCC 1 27 (2004) 2 SCC 9 28 (1999) 6 SCC 667 of fundamental rights, constitutional rights and constitutional values, statements made by Ministers and collective responsibility, self-regulation as the best mode of regulation, hate speech not being a protected speech and the way forward. The contents of this note are summarized as follows:- (i) The Constitutional mandate of freedom of expression and free speech is to be preserved without imposing unconstitutional restrictions. It is a right available to everyone including political personalities. (ii) But even while upholding such a right, efforts should be taken to frame a voluntary code of conduct for Ministers etc.

, to ensure better accountability and transparency; (iii) There is an imperative need to evolve a device such as Ombudsman to act as a Constitutional check on the misuse of the freedom of expression by public functionaries using the apparatus of the State; (iv) The right under Article 19(1)(a) is limited by restrictions expressly indicated in Article 19(2), under which the restrictions should be reasonable and must be provided for by law, by the State. Therefore this Court cannot provide for any additional restriction by an interpretative exercise or otherwise; (v) It is too remote to suggest that the right of a victim under Article 21 stands violated if there is a statement by someone that the case was born out of political conspiracy. Therefore, there is actually no conflict of any other right with Article 21; (vi) Unlike Article 25 which makes the right thereunder subject to public order, morality and health, Article 19(1)(a) does not contain such restrictions.

As held by this Court in Sakal Papers (P) Ltd. vs. The Union of India29, 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 in relation to contempt of court, defamation or incitement to an offence. It cannot be 29 (1962) 3 SCR 842 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J. ] curtailed, in the interest of the general public, as in the case of freedom to carry on business; (vii) Restricting speech by public figures, such as politicians, on serious crimes will have great impact on the freedom of speech. Such criticism which calls out true conspiracies and true miscarriage of justice, plays an important role in a democracy; (viii) In so far as the enforcement of fundamental rights against non-State actors is concerned, the vertical approach is giving way to the concept of horizontal application.

The vertical approach connotes a situation where the enforceability is only against the Government and not against private actors. But with Nation States gradually moving from laissez faire governance to welfare governance, the role of the State is ever expanding, which justifies the shift. (ix) While the South African Constitution has adopted a horizontal application by providing in Section 9(4) of the Bill of Rights of Final Constitution of 1996 that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of sub-Section (3) which sets out the grounds that bind the State, the judiciary itself has adopted a direct horizontal effect, in Ireland as could be seen from the decisions in John Meskell vs. Córas Iompair Éireann30 and Murtagh Properties Limited vs. Cleary31.

In John Meskell (supra), the Irish Supreme Court granted damages against the employer who dismissed the employee for not joining a particular union after serving a due notice to persuade him. In Murtagh Properties Limited (supra), the High Court recognized and enforced the right to earn livelihood without any discrimination based on sex against a private employer. Countries like Canada and Germany have developed indirect horizontal application, meaning thereby that