TEAM CODE: CQ21

AUTHOR’S NAME
AMBUJESH UPAMANYU

INSTITUTION
NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

COURSE
B.A.LL.B (HONS)

YEAR OF STUDY
3RD YEAR

EMAIL
ambujesh21@nluassam.ac.in

PHONE NO
+919854075101
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Kaushal Kishore V. State Of Uttar Pradesh & Ors., (2023) 4 SCC 1

INTRODUCTION

How profoundly disheartening it is to observe a paradoxical scenario where the architects of

India's Constitution enshrined the sacrosanct principle of 'Freedom of speech and expression',
yet those entrusted with upholding it are found guilty of trampling upon others' 'Right to life'.
Among these custodians of the Constitution are not only the esteemed members of the
judiciary but also the bureaucracy, collectively charged with the solemn duty of maintaining
societal harmony.

An adage echoes with poignant relevance: "Speak only when your words are better than
silence." Regrettably, the former minister of Uttar Pradesh unequivocally disregarded this
wisdom by callously dismissing a ghastly incident of gang rape as a mere political ploy. Such
utterances underscore a blatant disregard for the profound responsibility that accompanies the
privilege of free speech.

The core intent behind the provision of free speech and parliamentary privileges was to
facilitate the righteous exercise of democracy. However, the right to free speech is all too
often misconstrued as a license to offend and, in doing so, infringe upon the very essence of
the right to life. While Article 19(2) delineates 'reasonable' restrictions to curb the abuse of
freedom of speech and expression, one must ponder: are these restrictions exhaustive? And if
so, how shall the system safeguard the right to life of those subjected to such infringement?

Furthermore, the discourse delves into the notion of vicarious liability concerning the actions
and statements of public officials. Should the state be held accountable for their
transgressions? Equally pertinent is the call to honour and uphold Fundamental Duties in
tandem with Fundamental Rights.

In scrutinising the multifaceted dimensions of the case, the narrative navigates through the
varying perspectives of jurists entrusted with delivering justice. It underscores the
indispensable role of both the judiciary and bureaucracy in fostering trust in the institutional
framework. Moreover, it advocates for the conscientious utilisation of privileges accorded to
public officials for the betterment, rather than detriment, of society.

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In summation, the discourse implores a collective introspection and commitment towards

safeguarding the sanctity of rights and duties, thereby nurturing a society founded on
principles of justice, empathy, and integrity.

FACTS OF THE CASE

In a pivotal case before the Constitution bench, the judiciary grappled with the repercussions
of inflammatory statements made by two state ministers, ostensibly exercising their
constitutionally guaranteed right to freedom of speech and expression. However, in doing so,
they inadvertently trampled upon the inviolable rights to life and personal liberty of the
victims.

The genesis of the legal battle lay in a writ petition filed under Article 324, wherein the
petitioner sought redress against Azam Khan, the Minister for Urban Development of Uttar
Pradesh. Khan had brazenly dismissed the Bulandshahr rape incident as a mere ploy
orchestrated by opposition parties to tarnish his government's reputation. The petitioner, a
victim of the heinous crime along with his family, found himself thrust into the spotlight of
national highway 91, where they fell prey to highway robbers who not only looted them but
subjected his wife and 13-year-old daughter to a brutal gang rape. Khan's callous remarks not
only impeded the prospect of a fair investigation but also flagrantly violated the modesty of
the victims and their fundamental rights.

Subsequently, under the weight of mounting public outrage and judicial scrutiny, Khan
tendered an unconditional apology, prompted by a directive from the Supreme Court.

Simultaneously, another writ petition was amalgamated with this case, presenting analogous
queries before the constitutional bench. This pertained to incidents involving a Minister for
Electricity in Kerala who had made reprehensible remarks against women. Despite fervent
appeals in the petitions, the Kerala High Court, in a division bench ruling, dismissed both
pleas. The court maintained that it lacked jurisdiction to prescribe codes of conduct for
ministers or compel executive action against them.

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This legal saga underscores the delicate balance between freedom of expression and the
imperative to uphold fundamental rights. It serves as a poignant reminder of the judiciary's
pivotal role in safeguarding constitutional principles, even in the face of political tumult. As
the wheels of justice turn, they illuminate the path towards a society where accountability and
respect for rights reign supreme.

LEGAL ISSUES

The court, in its deliberations, grappled with five pivotal legal questions, meticulously
examining arguments presented by both the petitioner and the defendant. These key issues
revolved around
1. Is it possible to impose limitations on Freedom of Speech and Expression beyond
those specified in Article 19(2) of the Constitution? Could the exercise of one
individual's fundamental rights impose further constraints on another's right to speech
and expression?
2. Is it permissible for an individual to allege violations of their rights to life and liberty
under Article 21 of the Constitution against non-State entities, such as private
individuals, akin to claims against governmental bodies?
3. Is there a requirement for the State to safeguard citizens against infringements upon
their Right to Life and Personal Liberty perpetrated by non-State entities?
4. Is it possible to assign statements made by public officials to the government if they
are associated with matters concerning the state?
5. Could statements uttered by public officials potentially lead to legal action as a
'constitutional tort' if they impinge upon an individual's constitutional rights? (A
'Constitutional tort' refers to a recourse where the State is held accountable for actions
carried out by its entities.)

Through rigorous examination and nuanced analysis, the court endeavoured to address these
fundamental legal quandaries, seeking to uphold the sanctity of constitutional principles
while navigating the complexities of contemporary governance and individual rights.

ARGUMENTS

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In the legal discourse surrounding these issues, the petitioner underscored the importance of
establishing a voluntary code of conduct for public officials, particularly ministers, to ensure
the judicious exercise of their rights under Article 191. This proposed code of conduct aims to
delineate appropriate boundaries for expression while upholding constitutional principles.
Conversely, the respondent maintained that the existing provisions within Article 19(2)2
already offer comprehensive restrictions on freedom of speech and expression, and any
further constraints should be introduced through formal legislative channels, rather than
through voluntary codes.

Expanding on the issue of holding non-state entities accountable for violations of

fundamental rights, the respondent expressed apprehensions about deviating from established
constitutional norms. They argued that imposing liability on non-state entities for such
violations could potentially inundate the legal system with a plethora of litigations, posing
challenges to the administration of justice. In contrast, the petitioner emphasized the inherent
obligations of states to safeguard fundamental rights against infringement, asserting that a
mechanism to regulate the speech of individual ministers is essential to address potential
violations effectively.

Furthermore, the petitioner highlighted the need for clarity regarding the concept of collective
responsibility within the government. Citing Article 75(3)3 of the Constitution, they argued
that ministers bear collective accountability towards the legislative government, given the
impact of their statements on the general public. Referencing precedents such as the Common
Cause judgement4, the petitioner underscored the significance of collective responsibility in
ensuring governmental accountability and transparency. Conversely, the respondent
contended that ministerial remarks unrelated to state affairs or public duty cannot be
unequivocally linked to the principle of collective responsibility, thus warranting a nuanced
examination of the scope and applicability of this principle.

WHAT THE SUPREME COURT HOLD?

1
Constitution of India 1950, art 19
2
Constitution of India 1950, art 19(2)
3
Constitution of India 1950, art 75(3)
4
Common Cause, A Registered Society v Union of India (1999) 6 SCC 667

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In the judicial pronouncement, the Bench, led by Justice V. Ramasubramanian and

accompanied by Justices Nazeer, Gavai, and Bopanna, grappled with fundamental questions
concerning the scope and limitations of freedom of speech and expression. Through
meticulous analysis, the Bench unanimously concluded that the bounds set forth in Article
19(2) serve as exhaustive restrictions on freedom of speech, dismissing the possibility of
additional grounds for constraint. Furthermore, the Bench underscored the significance of
enforcing fundamental rights against non-State entities, affirming citizens' entitlement to
legal recourse even in interactions with private individuals or organizations. Justice
Nagarathna, in her elucidative contribution, expounded upon the conditions warranting such
enforcement, emphasizing the role of statutes and common law rights in delineating
actionable violations.

Integral to the deliberations was the discourse on the State's obligation to safeguard citizens'
rights, particularly when threatened by non-State actors. While affirming this duty, the
Bench, guided by Justice Nagarathna's insights, articulated certain conditions tempering the
State's responsibility, notably emphasizing the nexus between State inaction and the
escalation of hostile situations or failure to fulfill obligations under existing policies or
schemes.

Addressing the attribution of statements made by public officials to the government,

divergent perspectives emerged within the Bench. Justice Ramasubramanian held steadfast to
the view that such statements could not be imputed to the government, distinguishing
between personal and official capacity utterances. In contrast, Justice Nagarathna advocated
for a nuanced approach, advocating for governmental attribution in cases where statements
align with the official position of the government or pertain to state affairs.

The Bench further deliberated on the thorny issue of government accountability for
statements deemed violative of fundamental rights. While affirming that direct government
accountability for such statements was untenable, the Bench, echoing the sentiments of both
Justices, acknowledged the government's vicarious liability for ensuing actions or
consequences that harm citizens.

In addition to these substantive conclusions, Justice Nagarathna proposed pragmatic

measures aimed at regulating the conduct of public officials, suggesting legislative

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mechanisms to curb disparaging remarks and advocating for enhanced party codes of
conduct. Moreover, she underscored the importance of citizens seeking redress through civil
and criminal statutes in cases where they suffer harm or loss due to injurious speech.

Overall, the Bench's deliberations signify a seminal advancement in constitutional

jurisprudence, reaffirming the delicate balance between individual freedoms and
governmental responsibilities, while charting a course for enhanced accountability and
protection of citizens' rights in the evolving landscape of public discourse.

WHAT DOES THE JUDGEMENT MEANS?

The judgment rendered by the 5-Judge Constitution Bench on January 3rd, 2023, holds
significant implications regarding the scope and enforcement of fundamental rights in the
Indian constitutional framework. Firstly, the Bench decisively concluded that the restrictions
enumerated in Article 19(2) represent exhaustive grounds for curbing freedom of speech and
expression, thereby precluding any additional constraints on this fundamental right. This
affirmation was underscored by referencing landmark cases that underscored the necessity of
upholding these prescribed restrictions.

Furthermore, the Bench delved into the enforceability of fundamental rights against non-State
actors, affirming that certain rights, notably Article 215 pertaining to the right to life and
liberty, extend to private individuals or entities. While the majority opinion emphasized
statutory recognition as a prerequisite for invoking fundamental rights against non-State
actors, Justice B.V. Nagarathna's dissent introduced a nuanced perspective, suggesting that
such enforcement may be contingent upon statutory or common law recognition.

Moreover, the judgment elucidated the State's duty in safeguarding fundamental rights
against encroachments by non-State actors, emphasizing the paramount importance of
protecting the right to liberty. Drawing from precedent and constitutional principles, the
Bench highlighted the State's obligation to intervene when private individuals threaten to
infringe upon these rights, reiterating the significance of State action in preserving individual
liberties.

5
Constitution of India 1950, art 21

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In addressing the attribution of statements made by public officials to the government and the
issue of government liability for personal statements, the Bench clarified the scope of
collective responsibility, delineating between official capacity statements aligning with
governmental views and personal capacity expressions diverging from the official stance.

Lastly, the judgment touched upon the concept of 'Constitutional Tort', clarifying that while
irresponsible speech by public officials may not inherently constitute a constitutional tort,
recourse may be sought if such statements result in tangible harm or injury to individuals or
groups. Justice Nagarathna's contribution emphasized the necessity for a robust framework to
discern actionable statements warranting the invocation of a 'Constitutional Tort'.

Overall, the judgment underscores the intricate interplay between individual freedoms,
governmental responsibilities, and the imperative of safeguarding fundamental rights against
encroachments, thus shaping the contours of constitutional jurisprudence in India.

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