Supreme Court: A Constitution Bench of S Abdul Nazeer, AS Bopanna, BR Gavai, V Ramasubramanian & BV Nagarathna, JJ, has 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 and has ruled against imposing further restrictions on freedom of speech of Ministers.
V Ramasubramanian, J 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 some issues by way of separate opinion.
Here’s a breakdown of the 300-pages-long verdict:
Issues
The following issues emerged after SP leader Azam called the unfortunate incident of 2016 gang-rape of a minor and her mother in Uttar Pradesh a “political conspiracy only and nothing else”:
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 person under Article 21 of the Constitution of India even against a threat to the liberty of a person by the acts or omissions of another person 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”?
Ramasubramanian, J for himself and Nazeer, Bopanna, Gavai, JJ
Issue 1 – Exhaustive Reasonable Restrictions
The restrictions contained in clause (2) of Article 19 are exhaustive and no further restriction need to be incorporated. 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. Clause (2) of Article 19 saves (i) the operation of any existing law; and (ii) the making of any law by the State.
“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.”
Further, 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.
Issue 2: Enforceability of Fundamental Rights against non-State actors
Some of the rights conferred by Part III are to be honored by and also enforceable against, non-State actors. For example, the rights conferred by Articles 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) etc., are 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 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 prosecution on private complaints.”
Further, from a series of judgments it can be seen that the original thinking 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” .
Hence, a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.
Issue 3: State’s duty to protect against threat to personal liberty by a non-State actor
The importance of the right to personal liberty over and above all the other rights guaranteed under Articles 19 and 14 need hardly to be over-emphasized, hence 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.
Issue 4: State’s collective responsibility for Minister’s statements
Explaining the scope of collective responsibility, the Court states:
(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.
The Court said that 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.
“The Prime Minister or the Chief Minister does not have disciplinary control over the members of the Council of Ministers. It is true that in practice, a strong Prime Minister or Chief Minister will be able to drop any Minister out of the Cabinet. But in a country like ours where there is a multi-party system and where coalition Governments are often formed, it is not possible at all times for a Prime Minister/Chief Minister to take the whip, whenever a statement is made by someone in the Council of Ministers.”
The Court, hence, held that 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.
It, however, made clear that it was only dealing with the question of collective responsibility and the vicarious liability of the Government, and not suggesting for a moment that any public official including a Minister can make a statement which is irresponsible or in bad taste or bordering on hate speech and get away with it.
Issue 5: Irresponsible statements if a Constitutional Tort
Explaining that the words “a statement by a Minister”, appearing in Issue no .5, the Court observed that a statement may be made by a Minister either inside or outside the House of People/Legislative Assembly of the State. A statement may also be made by a Minister in writing or by words spoken. A statement may be made in private or in public. A statement may also be made by a Minister either touching upon the affairs of the Ministry/ department of which he is in control or touching generally upon the policies of the Government of which he is a part. A Minister may also make a statement, in the form of an opinion on matters about which he or his department is not concerned or over which he has no control. Hence, all such statements need not necessarily give rise to an action in tort or in constitutional tort.
For example,
“a Minister makes a statement that women are unfit to be employed in a particular avocation. 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.”
Keeping this in mind, 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.
Nagarathna, J’s ‘different perspective’
Issue 1 – Exhaustive Reasonable Restrictions
Agreeing with the views expressed by Ramasubramanian, J, Nagarathna J, added that
“it is a no brainer that the right to freedom speech and expression, in a human-rights based democracy does not protect statements made by a citizen, which strike at the dignity of a fellow citizen. Fraternity and equality which lie at the very base of our Constitutional culture and upon which the superstructure of rights are built, do not permit such rights to be employed in a manner so as to attack the rights of another.”
Issue 2: Enforceability of Fundamental Rights against non-State actors
Nagarathna, J disagreed with the view that a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities. She said that the same can be permitted only by ignoring the fact that the incidence of the duty to respect a Fundamental Right is on the State and its instrumentalities.
“Recognition of horizontal enforceability of Fundamental Rights would also ignore the status of the violator of the right except when a Fundamental Right is also recognised as a statutory right against another person or citizen. Therefore, such a recognition is misplaced as it proceeds with total disregard to the elementary differences in status of the two forms of rights, incidence of duty to respect each of such forms of rights, and the forum which would be called upon to adjudicate on the failure to respect each of such rights.”
Further, 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 the Supreme 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, the Supreme Court would not have engaged in evolving and refining tests to determine the true meaning and scope of “State” as defined under Article 12. It 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. She, further, explained that the expansion of the scope of “State” as defined under Article 12, 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.
She went on to state that 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.
She, hence, concluded that 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 Articles 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 of the Constitution 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.
Issue 3: State’s duty to protect against threat to personal liberty by a non-State actor
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.
Issue 4: State’s collective responsibility for Minister’s statements
A Minster may make statements in two capacities: first, in his personal capacity; second, in his official capacity and as a delegate of the Government. It is a no brainer that in respect of the former category of statements, no vicarious liability may be attributed to the Government itself. The latter category of statements may be traceable to any affair of the State or may be made with a view to protect the Government. If such statements are disparaging or derogatory and represent not only the personal views of the individual Minister making them, but also embody the views of the Government, then, such statements can be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility. 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 Government.
This is contrary to the majority’s opinion that 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.
Issue 5: Irresponsible statements if a Constitutional Tort
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. Regard must be had in every case to the nature of resultant harm or loss. Further, it is to be noted that even the cases cited hereinabove have permitted treating an act or omission as a constitutional tort only where there has been an infraction of fundamental right as a direct result of such act or omission. Therefore, the causal connection between the act or omission and the resultant infraction of fundamental rights, is central to any determination of an action of constitutional tort.
However, 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.
Other Conclusions
- a) 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. Hence, I am not inclined to issue any guideline in this regard, but the observations made hereinabove may be borne in mind.
- b) It is also for the respective political parties to regulate and control the actions and speech of its functionaries and members. This could be through enactment of a Code of Conduct which would prescribe the limits of permissible speech by functionaries and members of the respective political parties.
- c) Any citizen, who is prejudiced by any form of attack, as a result of speech/expression through any medium, targeted against her/him 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 the 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.
[Kaushal Kishor v. State of Uttar Pradesh, 2023 SCC OnLine SC 6, decided on 03.01.2023]
Majority Opinion by: Justice V. Ramasubramanian
Partial Dissent by: Justice BV Nagarathna
Justice BV Nagarathna: Igniting hope for the first ever woman Chief Justice of India
For State: Attorney General R. Venkataramani,
Amicus Curiae: Senior Advocate Aparajita Singh,
For Petitioner: Advocate Kaleeswaram Raj
For Intervenor: Advocate Ranjith B. Marar
