Supreme Court: A Constitution Bench of S Abdul Nazeer, AS Bopanna, BR Gavai, V Ramasubramanian & BV Nagarathna, JJ, delivered verdict on the issue relating to freedom of speech of public functionaries and whether the right to life and personal liberty of citizens impedes the same. The issue emerged after Samajwadi Party (‘SP’) leader Azam Khan’s remarks on 2016 gang-rape of a minor and her mother in Uttar Pradesh, where he referred to the unfortunate incident as a “political conspiracy only and nothing else”.
Justice V Ramasubramanian delivered the verdict for himself and SA Nazeer, AS Bopanna, BR Gavai, JJ, however, BV Nagarathna, J, while agreeing with the reasoning and conclusions arrived at by the majority on certain questions referred, went on to lend a different perspective on the issues by way of separate opinion.
The bench dealt with the following issues:
1. Whether the Court can impose restrictions on the right to freedom of speech and expression beyond the present restrictions provided under Article 19(2) of the Constitution?
The Court held that the grounds lined up in Article 19(2) of the Constitution for restricting the right to free speech, under the guise of invoking other Fundamental Rights is taking a competing climb against each other, additional restrictions not found in Article 19(2) cannot be imposed on the exercise of right conferred by Article 19(1)(a) of the Constitution.
2. Can a Fundamental Right under Articles 19 and 21 of the Constitution be claimed against anyone other than the ‘State’ or its instrumentalities?
The Court held that the Article 19 and 21 of the Constitution, can be enforced even against persons other than the ‘State’ or its instrumentalities
3. Whether the State is under a duty to affirmatively protect the right of the citizens under Article 21 of the Constitution even if it is against a threat to the liberty of the citizen by the acts or omissions of another citizen or private agency?
The Court held that the State is under a duty to affirmatively protect the rights of persons under Article 21 of the Constitution whenever there is a threat to personal liberty even by a non-State actor.
4. Whether the statement of a Minister, traceable to any affairs of the State, should be attributed vicariously to the government itself for not keeping in mind the principle of collective responsibility?
The Court held that the Statement made by a Minister even if traceable to affairs of State or protecting the Government cannot be attributed vicariously to Government by invoking the principle of collective responsibility
5. Whether a statement made by a Minister, which is inconsistent with the rights granted to the citizen under Part III of the Constitution, constitutes as a violation of such Fundamental Rights and is actionable as ‘Constitutional Tort’ (civil wrong)?
The Court held that the mere statement made by a Minister inconsistent with the rights of citizens may not constitute violation of constitutional rights and to 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 resorting in loss to a citizen then the same may be actionable as a constitutional tort.
Separate views of Justice BV Nagarathna
BV Nagarathna, J. said that the freedom of speech is not contingent only upon the laws of the nation, the compulsions of social relations, and the informal pressures of conformity, exerted in a pervasive manner determined to a great extent the content and limits of permissible speech in a society. It is the laws, however, that, through their own unique methods, reinforce social sanctions. Therefore, the Constitution, that is the fundamental law of the land, as well as the other laws which are measured on the touchstone of the constitution must be interpreted having regard inter alia to the content and permissible limit in a peaceful society.
She said that the present case is not concerned with the right to speech being imposed on the State. Further, the theoretical and doctrinal underpinnings justifying restraint on derogatory and disparaging speech, may be treated to two primary factors:
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Human dignity as a value and as a right.
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The preambular goals of equality and fraternity.
Equality, liberty and fraternity are the foundational values embedded in the preamble of our Constitution. Hate speech, as discussed above strikes at each of these values, by marking out our society as being unequal. The sine qua non of a cohesive society based on plurality and multiculturalism, such as in India, that is Bharat. Fraternity is based on the idea that citizens have reciprocal responsibility towards each other.
Public functionaries and other persons of influence and celebrities having regard to their reach, real or apparent authority and the impact they have on the public, owe a duty towards the citizens at large, to be more responsible and restrain in their speech. They are required to understand and measure their words having regard to the likely consequences thereof on public sentiments and behavior and also be aware of the examples they are setting for the fellow citizens to follow.
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Concerning the question no. 1, BV Nagarathna, J. agreed with the majority view.
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Concerning question no. 2, she said that the State is capable of interfering with the common law rights and natural rights of citizens. Even if the Fundamental rights may overlap with the common law rights, the violation of common law rights shall lie under common law and not under the Constitution. A writ petition cannot be entertained when there are disputed question of facts and cannot be admitted against the private persons as such, but dignity and reputation are important facets under Article 21 of the Constitution and at the same time they are also recognised as common law rights, as they are important personality attributes of individuals. Therefore, on account of the availability of an alternative remedy under common law, the Courts would be reluctant to entertain a writ petition under Article 32 or 226. However, Article 21 will operate horizontally in case of a writ of habeas corpus.Thus, it was held that rights under common law which may be similar or identical in their content to fundamental rights under Articles 19 or 21, operate horizontally, however, the fundamental rights under Articles 19 and 21 may not be reachable horizontally before the Constitutionals courts, except those rights which are 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, based on Article 21 can be before a Constitutional Court i.e., by way of Article 226 before the High Courts or Article 32 read with 142 before the Supreme Court
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Concerning question no. 3, she held that the duty of the State as recognised by the Court only pertains to a negative duty and not to deprive a person of his right to life and liberty, except in accordance with law. The Court has not recognised an affirmative duty of the State under Article 21, to protect the rights of a citizen against the threat to the liberty of a citizen by the acts or omissions of another citizen of private agency.
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Concerning question no.4, she held that a Minister could make statements in two capacities: First in his personal capacity and second in his official capacity, as a delegate of the government. In the first case, the government cannot be made vicariously liable, but the latter category of statements may be traceable to any affair of the State or may be made in view to protect the government, and if such statements are derogatory and represents not only the personal views of the Minister making them, but also embodies the views of the government, then such statements can be attributed vicariously to the government. However, if such statements are stray opinions of an individual Minister and are not consistent with the views of the government, then they shall be attributable to the Minister personally and not to the State.
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Concerning question no.5, she asserted that the concept sovereign functions which acts as an exception to attracting tortious liabilities ends, where Article 21 begins, and held that where Article 21 is violated, the State must pay compensation and the concept of sovereign function does not prevail in this area.
Thus, she concluded that the invocation of writ jurisdiction to grant damages by treating acts of omissions of agencies of the State as constitutional torts must be an exception rather than a rule. The remedy before a competent Court or under criminal law is in any case available. The parliament in its wisdom to enact legislation to restrain the citizens in general and public functionaries, in particular from making disparaging statements against fellow citizens. Further, the political parties through a code of conduct can regulate the actions and speech of their members.
[Kaushal Kishor v. State of Uttar Pradesh, Writ Petition (Criminal) No. 113 of 2016, decided on 03-01-2022]
Advocates who appeared in this case :
For the Petitioner- Advocate Manju Jetley;
For the Respondent- Advocate Swarupama Chaturvedi;
Advocate Abhishek;
Advocate Ajay Lakshmi Raman Singh;
Advocate Ajay Vikram Singh;
Advocate Pradeep Misra;
Advocate Mukesh Kumar Maroria;
Advocate Arvind Kumar Sharma;
Advocate Lakshmi N. Kaimal.
*Apoorva Goel and Simran Singh, Editorial Assistants have reported this brief.
