KAUSHAL KISHORE VS STATE OF UTTAR PRADESH : CASE SUMMARY
The Supreme Court in Kaushal Kishore Vs State of Uttar Pradesh (2023)4SCC1 held inter alia that reasonable restrictions provided under Article 19 (2) on right to freedom of speech and expression under Article 19 (1) (a) are exhaustive.
FACTS OF THE CASE
The Supreme Court was dealing with two petitions in this matter.The case in Writ Petition (Criminal) No. 113 of 2016 was that Petitioner and his family members were travelling from NOIDA to Shahjahanpur to attend death ceremony of a relative. They were waylaid by a gang, their valuables snatched and wife and minor daughter were raped. Minister of Urban Development of UP described it as political conspiracy. The case in SLP (Diary) 34629/2017 was that Minister of Electricity in Kerala issued highly derogatory statement for women.
FINDINGS OF THE SUPREME COURT
(i) 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 ?
Article 19 (2) provides for reasonable restriction on grounds of – (i) interests of sovereignty and integrity of India (ii) the security of the state (iii) friendly relations with foreign states (iv) public order (v) decency or morality (vi) contempt of court (vii) defamation and (viii) incitement to an offence.
The Supreme Court held that eight heads of restrictions under Article 19 (2) are exhaustive. Under the guise of invoking other Fundamental Rights, additional restrictions over and above those prescribed in Article 19 (2) cannot be imposed upon the exercise of one’s fundamental rights.
(ii) Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the “State” or its instrumentalities ?
The Supreme Court noted that 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 what is directed against the State and what is spelt out as inhering in every individual without reference to the State. The other dichotomies are between citizens and persons.
The rights conferred by Articles 15 (2) (a) and (b), 17, 20 (2), 21, 23, 24, 29(2) are obviously enforceable against non-state actors also.
The Supreme Court observed that its original thinking that these rights can be enforced only against 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”.
The Supreme Court held that a fundamental right under Article 19/21 can be enforced even against persons other than the State of its instrumentalities.
(iii) Whether the State is under a duty to affirmatively protect the right of a citizen under Article 21 of the Constitution of India even against a threat to liberty of a citizen by the acts of omissions of another citizen or private agency ?
The Supreme Court observed that the understanding of this Court in A. K. Gopalan Vs State of Madras (1950) SCR 88 that deprivation of personal liberty required a physical restraint underwent a change a Kharak Singh Vs State of UP AIR 1963SC1295 and Gobind Vs State of Madhya Pradesh (1975)2SCC148. From there the law marched to the next stage in Satwant Singh Sawhney Vs D. Ramarathnam AIR 1967SC1836, Assistant Passport Officer where a Constitution Bench held that the right to personal liberty included 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 it given to the expression “liberty” by the 5th and 14th amendments to the US 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 Article 21 takes in the right of locomotion and to travel abroad but the right to move throughout the territories of India is not covered by it in as much as it is specially provided in Article 19.
The Supreme Court held that the State is under a duty to affirmatively protect the rights of a person under Article 21 whenever there is a threat to personal liberty even by a non-state actor.
(iv) Can a statement made by a Minister traceable to any affairs of State or protecting the Government be attributed vicariously to the Government itself, especially in view of the principle of the Collective responsibility ?
The Supreme Court observed that generally collective responsibility of the Council of Ministers either to the House or the People or the Legislative Assembly should be understood to corelate to the decisions and actions of the Council of Ministers and not to every statement made by every individual minister.
The Supreme Court held that – (i) the concept of collective responsibility is essentially a political concept. (ii) that the collective responsibility is that of the Council of Ministers (iii) such collective responsibility is to the House of the People/Legislative Assembly. 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.
(v) 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” ?
The Supreme Court held that a mere statement made by a Minister inconsistent with the rights of a citizen under Part III of the Constitution may not constitute a violation of the constitutional rights and become actionable as Constitutional Tort. But if as a consequence of such statement, any act of omission or commission is done by officers resulting in harm or loss to a person/citizen then the same may be actionable as a constitutional tort.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.
