Kaushal Kishor vs. State of Uttar Pradesh & Ors. 2023

Case Briefing: Kaushal Kishor vs. State of Uttar Pradesh & Ors. 2023

Case Title and Citation

KAUSHAL KISHOR vs. STATE OF UTTAR PRADESH & ORS., WRIT PETITION (CRIMINAL) NO. 113 OF 2016 (with connected cases including Special Leave Petition @ (Diary) No. 34629 of 2017).

Factual Background

The matter was referred to a Constitution Bench of the Supreme Court to address concerns regarding the misuse of the right to freedom of speech and expression (Article 19(1)(a)) by public functionaries, Ministers, and persons holding responsible positions. Specifically, the proceedings arose from two incidents involving Ministers making controversial statements:

1. In Uttar Pradesh, a former Cabinet Minister publicly termed an alleged gang rape incident as a “political conspiracy”. This led the petitioner to file a writ petition, apprehending a lack of fair investigation and seeking directions for a Code of Conduct for Ministers.
2. In Kerala, a Special Leave Petition challenged the dismissal of writ petitions concerning derogatory statements made by the Minister of Electricity against a woman Principal, the mother of a deceased student, and women labourers. The core issue referred to was how to establish limits on free speech by public functionaries and whether their statements could be subjected to judicial review and deemed an actionable “Constitutional Tort”.

Issue(s)

The questions of law formulated by the Constitution Bench included:

1. Whether the grounds specified in Article 19(2) for imposing reasonable restrictions on the right to free speech are exhaustive, or if restrictions can be imposed on non-specified grounds by invoking other fundamental rights (like Article 21)?.
2. Can a fundamental right under Article 19 or Article 21 be claimed against actors other than the ‘State’ or its instrumentalities?.
3. Is the State under an affirmative duty to protect the rights of a person under Article 21 against a threat to liberty arising from the acts or omissions of another citizen or private agency?.
4. Whether a mere statement made by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, constitutes a violation of constitutional rights and is actionable as a ‘Constitutional Tort’?.

Decision of the Supreme Court

The Court delivered the following answers to the referred questions:

1. The grounds listed in Article 19(2) are exhaustive. No additional restrictions can be imposed on the right to free speech conferred by Article 19(1)(a), even by invoking other fundamental rights.
2. A fundamental right under Article 19 or 21 can be enforced even against persons other than the State or its instrumentalities.
3. 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 by the acts or omissions of another citizen or private agency.
4. A mere statement by a Minister inconsistent with the rights of a citizen under Part III may not constitute a violation actionable as a Constitutional tort.

Reason for the Decision

1. Exhaustiveness of Restrictions (Q1): The exhaustive list of restrictions in Article 19(2) was arrived at after extensive deliberation during the framing and amendment of the Constitution. The role of the Court is to act as a “gate-keeper” to strictly check the entry of restrictions and protect fundamental rights, not to impose additional ones through interpretation. Allowing new restrictions based on other rights would violate the principle that the State cannot directly restrict one freedom (Article 19(1)(a)) merely to secure the enjoyment of another freedom.
2. Horizontal Application (Q2): Over time, the scope of enforceability has expanded from the ‘State’ to entities based on the nature of duties/functions performed. The ability to claim protection under Articles 19 and 21 against non-State actors is supported by judicial precedents where compensation or relief was granted against private entities for rights violations, such as in cases involving environmental torts or sexual assault.
3. Affirmative Duty (Q3): The right to life (Article 21) includes all aspects that make a man’s life “meaningful, complete and worth living”. The State has a constitutional obligation to protect citizens’ rights, including against threats from private actors, and cannot plead its inability to maintain law and order or protect fundamental rights.
4. Constitutional Tort (Q5): While the principle of Constitutional Tort is available in public law proceedings to grant monetary compensation against the State for contravention of fundamental rights, a Minister’s mere utterance, by itself, is insufficient to trigger liability. The statement becomes actionable only if, as a consequence of such a statement, an act of omission or commission is done by officers resulting in harm or loss to a person or citizen.

Conclusion

The limitations on free speech provided under Article 19(2) are conclusive and cannot be expanded by courts. However, the guarantees under Articles 19 and 21 are enforceable even against private, non-State actors. The State is bound by a positive obligation to protect a person’s fundamental right to life and liberty (Article 21) against any threat, including those originating from private citizens. Ministerial statements, though morally scrutinised, only create an actionable constitutional tort if they lead directly to harmful acts by government officials.