In a significant judgment delivered on Tuesday in the case of Kaushal Kishor versus State of Uttar Pradesh & Ors, a five-judge Constitution bench unanimously held that grounds to restrict free speech under Article 19(2) of the Constitution are exhaustive. The bench further held that under the guise of invoking other fundamental rights, additional restrictions not found in Article 19(2) could not be imposed on the exercise of the fundamental right to freedom of speech and expression by an individual under Article 19(1)(a).
The bench, which comprised Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna, was dealing with a reference made by a three-judge bench in 2016 to decide the following issues:
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 Articles 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”?
The reference arose in an Article 32 petition filed by the father of a gang rape survivor in 2016, seeking a fair investigation and monitoring of the investigation into the first information report lodged by the survivor. The petitioner was aggrieved by the statement of the then Cabinet Minister in the Uttar Pradesh Government, Mohd. Azam Khan, who called the incident a political conspiracy. The petitioner had thus submitted that a fair trial would not be possible in Uttar Pradesh. Though Khan had apologised for his remark at the Supreme Court, the court framed the issues concerning the ambit of the right of free speech by public functionaries. It is in this context that this case came up before a larger bench.
Article 19(2) confers the power upon the State to enact any law to impose reasonable restrictions on free speech in the interests of the sovereignty and integrity of India, the 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.
Is Article 19(2) exhaustive?
Answering the first question, Justice Ramasubramanian, who authored the majority judgment on behalf of himself and Justices Nazeer, Gavai and Bopanna, noted that the restrictions under Article 19(2) are comprehensive enough to cover all possible attacks on the individual, groups/classes of people, the society, the courts, the country and the State. The bench took into consideration the ruling of a Constitution bench of the court in Express Newspapers (Private) Ltd. versus The Union of India (1984) in which it was held that a law enacted by the legislature, which does not come squarely within Article 19(2), would be struck down as unconstitutional. The same was first enunciated by another Constitution bench of the court in Sakal Papers (P) Ltd. versus Union of India (1961).
The bench further held that in any event, the law imposing any restriction in terms of Article 19(2) could 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 the entry of restrictions strictly, 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 us to add one or more restrictions than what is already found”, the bench held.
On the aspect of whether additional restrictions could be imposed on free speech other than those mentioned in Article 19(2), the bench held that the exercise of all fundamental rights by all citizens is possible only when each individual respects the other person’s rights.
Referring to the Preamble to the Constitution, the bench said that the word ‘fraternity’ indicates 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 tranquillity on the part of the citizens.
It also referred to the fundamental duty in Article 51A(e) of the Constitution, which enjoins upon every citizen of the country to “promote harmony and the spirit of 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”.
The bench then referred to a series of judgments wherein the courts balanced two competing rights. It thus held that whenever two or more fundamental rights appeared either to be on a collision course or to be seeking preference over one another, the Court has dealt with the same by applying well-established legal tools. The majority thus answered, “[U]nder 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 right”.
Justice Nagarathna who has authored a separate, concurring judgment, has agreed with Justice Ramasubramanian’s judgment in totality on the first question.
Availability of Article 19, 21 rights against non-State actors
Responding to the second question, which is if a fundamental right under Articles 19 or 21 of the Constitution could be claimed against someone other than the ‘State’ or its instrumentalities, the majority judgment by Justice Ramasubramanian answered in affirmative. Referring to Part III of Constitution, Justice Ramasubramanian observed that there are some Articles in Part III where the mandate is directly for the State and there are other Articles where without injuncting the State, certain rights are recognised to be inherent, either in the citizens of the country or in persons. This, Justice Ramasubramanian, said, is an indication that some of the rights conferred by Part III are to be honoured by, and are also enforceable against, non-State actors.
“For instance, the rights conferred by Articles 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) etc., are obviously enforceable against non-State actors also. The owner of a shop, public restaurant, hotel or place of entertainment, though a non-State actor cannot deny access to a citizen of India on grounds only of religion, race etc., in view of Article 15(2)(a). So is the case with wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public, in view of Article 15(2)(b). The right not to be enforced with any disability arising out of untouchability is available against non-State actors under Article 17″, the majority judgment stated.
It added that the right against double jeopardy, and the right against self-incrimination available under sub Articles (2) and (3) of Article 20 may also be available even against non-State actors in the case of the prosecution on private complaints.
To buttress his conclusion on the second question, Justice Ramasubramanian listed a series of judgments in which the Supreme Court extended the ambit of rights to non-State actors. For instance, the Supreme Court awarded damages against non-State actors under the environmental law regime, whenever they were found to have violated the right under Article 21.
Justice Ramasubramanian also referred to Vishaka versus. State of Rajasthan (1997) wherein in the absence of legislation, the court issued guidelines for the enforcement of the right to gender equality of working women, in a class action petition that was filed to enforce the fundamental rights of working women and to prevent sexual harassment of women in workplace. The guidelines imposed an obligation upon both public and private employers not to violate the fundamental rights guaranteed to working women under Articles 14, 15, 19(1 (g) and 21 of the Constitution.
Justice Ramasubramanian thus held that these decisions show that on a case-to-case basis, the Supreme Court applied the horizontal effect on conflicting fundamental rights, considering the nature of the right violated and the extent of obligation on the part of the violator. He also referred to the decision of the nine-judge Constitution bench in Justice K.S. Puttaswamy (Retd.) versus Union of India (2017).
Disagreeing with Justice Ramasubramanian, Justice Nagarathna held that the rights in the realm of common law, which may be similar in their content to the fundamental rights under Articles 19 and 21, operate horizontally; however, the fundamental rights under Articles 19 and 21 do not except those rights which have also been statutorily recognised. She, thus, held that a fundamental right under Articles 19 or 21 cannot be enforced against persons other than the State or its instrumentalities. But she added that a remedy in the form of writ of Habeas Corpus, if sought against a private person on the basis of Article 21 of the Constitution, would lie.
“As far as non-State entities or those entities which do not fall within the scope of Article 12 of the Constitution are concerned, a writ petition to enforce fundamental rights would not be entertained as against them. This is primarily because such matters would involve disputed questions of fact”, Justice Nagarthna said.
Scope of State’s duty to protect Article 21 rights
Answering the third question as to whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency, Justice Ramasubramanian emphatically 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. He cited a catena of judgments to buttress his answer. For example, he referred to the decision of the Supreme Court in Shakti Vahini versus Union of India (2018), in which the court had held, “We are disposed to think so, as it is the obligation of the State to have an atmosphere where the citizens are in a position to enjoy their fundamental rights.”
In Puttaswamy, the Constitution bench had held that “it is a right which protects the inner sphere of the individuals from interference by both the State and non-State actors”.
Justice Nagarathna has also agreed with Justice Ramasubramanian on this issue. She said that the State has an affirmative duty to carry out obligations cast upon it under constitutional and statutory law.
“Such obligations may require interference by the State where acts of a private party may threaten the life or liberty of another individual. Hence, failure to carry out the duties enjoined upon the State under constitutional and 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 liberty, the State would have breached the negative duty cast upon it under Article 21,” she added.
Vicarious liability of the government for minister’s statements?
Dealing with the fourth question as to whether a statement made by a Minister, traceable to any affairs of the State or for protecting the government, be attributed vicariously to the government itself in view of the principle of collective responsibility, Justice Ramasubramanian, for the majority, answered in the negative.
Justice Nagarathna dissented on this point. She held that 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 too. If such a statement is not consistent with the view of the government, only then is it attributable to the minister personally, she held.
Justice Ramasubramanian said that the 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, not to every statement made by every individual Minister. He held:
(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, Justice Ramasubramanian noted.
“In other words, the flow of stream in collective responsibility is from the Council of Ministers to the individual Ministers. The flow is not on the reverse, namely, from the individual Ministers to the Council of Ministers”, Justice Ramasubramanian stated.
Minister’s statement and Constitutional tort
On the final question as to 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 a ‘Constitutional Tort’?, Justice Ramasubramanian 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 constitutional rights and become actionable as a 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, he added.
Explaining it further, Justice Ramasubramanian said that if a Minister makes a statement that women are unfit to be employed in a particular vocation, it may reflect his insensitivity to gender equality and also may expose his low constitutional morality. The fact that due to his insensitivity or lack of understanding or low constitutional morality, he speaks a language that has the potential to demean the constitutional rights of women, cannot be a ground for action in Constitutional tort.
“Needless to say that no one can either be taxed or penalised for holding an opinion which is not in conformity with the constitutional values. It is only when his opinion gets translated into action and such action results in injury or harm or loss that an action in tort will lie. With this caveat, let us now get into the core of the issue”, Justice Ramasubramanian held.
Justice Nagarathna seemed to agree with Justice Ramasubramanian on this question, holding, “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 constitutional torts.”
“Public functionaries could be proceeded against personally if their statement is inconsistent with the views of the Government. If, however, such views are consistent with the views of the Government, or are endorsed by the Government, then the same may be vicariously attributed to the State on the basis of the principle of collective responsibility and appropriate remedies may be sought before a court of law”, she added.
She also said it is also for the respective political parties to regulate and control the actions and speech of its functionaries and members. This could, she suggested, be through the enactment of a code of conduct, which would prescribe the limits of permissible speech by functionaries and members of the respective political parties.
She also held that any citizen, who is prejudiced by any form of attack, as a result of speech/expression through any medium, targeted against them, or by speech which constitutes ‘hate speech’ or any species thereof, whether such attack or speech is by a public functionary or otherwise, may approach a court of law under Criminal and Civil statutes and seek appropriate remedies.
“Whenever permissible, civil remedies in the nature of declaratory remedies, injunctions as well as pecuniary damages may be awarded as prescribed under the relevant statutes”, she added.
Click here to view the Supreme Court’s full judgment, including the majority and concurring opinions.