KAUSHAL KISHORE VS. STATE OF UTTAR PRADESH & ORS.

Case Citation: (2023) 4 SCC 1

Decision Date: 3 January 2023

Bench Strength: 5 Judges

Number of Opinion(s): 2

Aspect(s) of Privacy: Dignity

Legal Provision(s): Article 19 and Article 21 of the Constitution of India, 1950

(‘Constitution’).

Case Status: Not Overruled

Case Type: Criminal Writ Petition

“Take for instance a case where 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.”

This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -

Kaushal Kishore vs. State of Uttar Pradesh & Ors. (ccgnlud.org)

1
CASE BRIEF

In this case, the Supreme Court of India (“Court”) held that the right to freedom of
speech of a public functionary could not be restricted in order to safeguard
fundamental rights of another individual. The Court also held that the State has a
duty to protect the right to life and personal liberty even against non-state actors.

This case stemmed from two instances of Ministers making controversial remarks
against victims of crime. The victims claimed that these remarks violated their right
to life and personal liberty under Article 21.

In a 4:1 decision the Court held that the right to freedom of speech and expression
could only be curtailed by the list of reasonable restrictions laid down under Article
19(2) of the Constitution. The Court held that this was an exhaustive list, and that
new restrictions could not be imposed in addition to these grounds. This case also
dealt with the horizontal application of rights across both State and non-state
actors. The Court held that ‘right to life’ has evolved over past decades to include
human dignity, the right to privacy, and the right to be forgotten. Considering that
non-state actors perform a number of key roles in all spheres of life, the State had a
positive duty to extend protection against violation of right to life against these
entities.

This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -

Kaushal Kishore vs. State of Uttar Pradesh & Ors. (ccgnlud.org)

2
CASE SUMMARY

FACTS

In this Case, the Court clubbed together two cases relating to derogatory
statements made by State Ministers of Uttar Pradesh and Kerala in two unrelated
instances. The Case involved issues relating to the conflict between the right to
freedom of speech of the Ministers and the right to dignity of the Petitioners.

A Minister in the Government of Uttar Pradesh (“UP”) made derogatory comments

against two victims of sexual assault. He alleged that the sexual assault of a
woman and her minor child was a ‘political controversy’ against the government. In
the second instance, a minister in the Government of Kerala issued statements that
were ‘highly derogatory to women’. Both the petitions alleged the violation of the
right to dignity by the public functionaries which is protected under Article 21 of the
Constitution.

The two petitions were placed before the three-judge bench of the Supreme Court.
The two petitions raised similar issues and involved substantial legal questions
relating to the interpretation of the Constitution. Therefore the matter was referred to
the five-judge bench of the Court.

ISSUES

A) Whether the right to freedom of speech protected under Article 19 (1) (a) can
be curtailed to protect the right to dignity of an individual guaranteed under
Article 21.
B) Whether the State has a positive duty to protect the rights of an individual
under Article 21 against Non-State actors.

This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -

Kaushal Kishore vs. State of Uttar Pradesh & Ors. (ccgnlud.org)

3
DECISION

In this case, the Court, in a 4:1 verdict held that the right to freedom of speech and
expression of an individual could not be restricted for violating the dignity of another
individual. The Court gave two opinions, a majority opinion and another opinion by
Justice BV Nagarathna which was partly concurring and partly dissenting.

The majority judgment of the Court held that in cases, where two or more
fundamental rights are in conflict, the Court must either strike a balance or prioritise
one over the other. The Court considered that the grounds for restricting the
freedom of speech and expression were listed under Article 19(2) of the
Constitution. They held that this was an exhaustive list and that no new grounds
could be added to the list to impose further restrictions. Therefore, they held that
the right to freedom of speech of a public functionary could not be curtailed in order
to protect the right to dignity of an individual.

The majority judgement also considered the issue of the horizontal application of
fundamental rights against both State and non-state actors. The Court explained
that the understanding of terms ‘right to life’ and ‘personal liberty’ under Article 21
had evolved over past decades to include the right to live with dignity, right to
privacy and right to be forgotten. With science and technology intruding into all
spheres of life, it has become possible for non-state actors to affect these rights.The
Court held that there was an affirmative duty of the State to protect the life and
personal liberty of citizens from private individuals as well.

Justice Nagarathna, in a partly dissenting judgement, opined that dignity is a

quintessential and basic constituent of the rights guaranteed under Article 21 of the
This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -

Kaushal Kishore vs. State of Uttar Pradesh & Ors. (ccgnlud.org)

4
Constitution. Therefore, Article 19(1)(a) of the Constitution cannot be cited as a
reason for curtailing the rights under Article 21. She held that since the speech in
the given case was disparaging, derogatory and resembled hate speech, it could
not be protected under Article 19(1)(a). She held that facts of this case did not
require balancing two fundamental rights, but rather dealt with an abuse of freedom
of speech used to attack the fundamental rights of an individual.

This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -

Kaushal Kishore vs. State of Uttar Pradesh & Ors. (ccgnlud.org)