Recently, the Supreme Court Bench comprising Justice S. Abdul Nazeer, Justice B.R Gavai, A.S Bopanna, Justice V Ramasubramanian and Justice B.V Nagarathna in Kaushal Kishor v. State of Uttar Pradesh held that additional restriction is not found under Article 19(2) and cannot be imposed on the right of free speech under Article 19(1)(a) of Ministers, MPs, MLAs. The ratio of the said judgment is 4:1, though Justice Nagarathna agreed that Article 19(2) is exhaustive, she observed that disparaging statements made by the minister in his official capacity would hold the government vicariously liable.
Relevant Legal Concepts
In this judgment, Article 19(1)(a) and Article 19(2) are the
most important point of law that we must understand:
Article 19(1)(a) provides that “All citizens shall
have the right to freedom of speech and expression. It is a fundamental right
provided in Part III of the Indian Constitution.”This fundamental right is not
an absolute right, but is subject to restrictions that are provided under
Article 19(2)
Article 19(2) states that the fundamental right to
freedom of speech and expression is subject to reasonable restriction i.e “in
the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or morality
or in relation to contempt of court, defamation or incitement to an offence”
Hence, any operation of existing law and state made law can
restrict the freedom of speech and expression on the above grounds.
Constitution Torts
Constitutional torts are the injury or wrong caused by the
state or the agents of the state. A commission of constitutional tort
establishes liability on the government to remediate the damage or injury, or
wrong caused by anyone working under the colour of the state. In other words, a
constitutional tort is a violation of one’s constitutional rights by a
government employee.
Collective Responsibility
Article 75(3) states that “the Council of Ministers shall be collectively responsible to the House of the People.” Similarly, Article 164(2) states “the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State”.
Background of the case
The question of law in this case, arises from a very unfortunate event, i.e Bulandshahar rape incident (a woman (45) from Noida and her minor daughter (14) were raped on July 29, after they were dragged out of their car by dacoits near a highway in western U.P.) After this shameful incident, the Azam Khan (Minister of UP) trivialised the act dismissing the incident as a ‘political conspiracy and nothing else’. As a result, the victims of the incident moved to the Supreme Court against the minister and the Court directed the minister to submit an unconditional apology. Since, this case paved the gateway to larger constitutional issues i.e the obligation of the state regarding freedom of speech and expression. Thus, the matter was a Constitution Bench in 2017.
Reasoning by Supreme Court in
various issues
Whether Article 19(1)(a) can be
restricted on the grounds outside those contained in Article 19(2) of the
Indian Constitution? In other words, is Article 19(2) exhaustive?
The Supreme Court delved into the jurisprudential aspect of
Article 19(1)(a) and Article 19(2) i.e the rationale for enactment of these
provisions. While holding that Article
19(2) is exhaustive in itself, it referred to the case of Express Newspapers
(Private) Ltd. v. The Union of India held that any law that does not fall under
the ambit of Article 19(2) i.e reasonable restriction of Article 19(2) would be
struck down as unconstitutional.
The Supreme Court observed that the eight restrictions i.e
(i) interests of sovereignty and
integrity of India – (ii) the security
of the State (iii) friendly relations with foreign states (iv) public order (v) decency or morality (vi) contempt of
court (vii) defamation; and
(viii) incitement to an offence , provides protection to all in
the following way:
- The individual –
Against the infringement of
his dignity, reputation, bodily
autonomy and property;
- Different sections of society professing and practicing,
different religious beliefs/sentiments against offending their beliefs
andsentiments;
- Classes/groups of citizens belonging to different races,
linguistic identities etc. against an attack on their identities;
- Women and children – against the violation of their special
rights;
- The State against the breach of its security;
- The country against an attack on its sovereignty and
integrity;
- The Court – against an attempt to undermine its authority,
The Supreme Court also referred to the case of Bijoe
Emmanuel v. State of Kerala which observed that “the executive cannot transcend
its boundaries by imposing additional restrictions in the form of executive
instructions.” The reference of the said case suggests that the restraint to
include additional restriction to Article 19(2) also extends to court. Further,
it observed the role of the Supreme Court to be the gate-keeper of the temple
of fundamental rights not the creator of fundamental rights.
Whether additional restrictions on
the right to free speech be imposed by invoking other fundamental rights?
Since, Article 19(2) is exhaustive, the question debated was
can restriction can be imposed by invoking any other fundamental right. To
answer this predicament, the Supreme Court observed plethora of cases such as
People’s Union for Civil Liberties, Sakal Papers Case, Cricket Association of
Bengal Case, etc and observes that
whenever two or more fundamental rights are in collision or seeks
preference over one another, this Court has dealt with
the same by applying well
established legal tools. Therefore, the Supreme Court was of
the view that under the guise of invoking other fundamental rights, additional
restrictions under Article 19(2) cannot be imposed upon the exercise of one’s
fundamental rights.
Whether fundamental rights under
Article 19 or 21 can be claimed against anyone other than state or its
instrumentalities?
The Supreme Court used phraseology adopted by law
philosophers i.e., whether Part III of the Constitution has a “vertical” or “horizontal”
effect. Vertical effect means when the constitutional rights impact the
relations between the government or its instrumentalities and private
individuals. While, horizontal effect means when the constitutional rights
impact the relations between private Individuals
The Supreme Court further referred to all the fundamental
rights and observed that some fundamental right are available against state,
some against person (individual) some citizens. It also referred to the case of
KS Puttaswamy which observed that the constitutional and fundamental rights
provide remedy against state, individuals clothed with the power of state and
non-state actors. Appreciating the said transformation i.e “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”The
Supreme Court held that a fundamental right under Article 19/21 can be enforced
even against persons other than the State or its
instrumentalities.
Dissenting Opinion:
Justice B.V Nagarathna in the realm of common law which may
be similar in its content to the Fundamental Rights under Article 19/21 operate
horizontally fundamental right under Article 19/21 cannot be enforced against
persons other than the State or its instrumentalities.
As far as non-State entities or those entities which do not
fall within the scope of Article 12 of the Constitution are concerned, a writ
petition to enforce fundamental rights would not be entertained as against
them.
Whether the state has an obligation
to protect citizens from violation of their right to life and personal liberty
from other non-state actors?
The Supreme Court observed the nature of Article 21 by referring to all the cases such as Arumugam Servai v State of Tamil Nadu Shakti Vahini, KS Puttaswamy, Lata Singh v. State of UP, etc where court observed that state is duly bound to protect right of the person against state and non-state actors as well. 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 nonState actor.
Whether statements made by public
officials can be be attributed to the government if it is linked to state
affairs?
To deal with this issue, the court looked into the role of a
Minister under our Constitutional scheme. The Supreme Court referred to the
concept of collective responsibility Article 75(3) states that “the Council of
Ministers shall be collectively responsible to the House of the People.” Similarly, Article 164(2) states “the Council
of Ministers shall be collectively responsible to the Legislative Assembly of
the State”. It also observed that “generally collective responsibility of the
Council of Ministers either to the House of the People or to the Assembly should
be understood to correlate
to the decisions and actions
of the Council of
Ministers and not to
every statement made by every individual Minister”
Hence, 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
Dissenting Opinion:
It was observed that when a statement is made by a minister
that is consistent with the view of the Government, then the principle of
collective responsibility can be invoked. In other words, if a Minister makes
disparaging statements in his “official capacity”, then such
statements can be vicariously attributed to the government But if the statement
is not consistent with the view of the Government, then it is attributable to
the Minister personally.
Whether statements made by ministers
amounts to constitutional tort?
The Supreme Court observed a plethora of cases such as Bhim Singh, MLA v. State of J&K, Peoples’ Union for Democratic Rights vs. State of Bihar & Ors, etc and observed that this Court and the High Courts have been consistent in invoking Constitutional tort whenever an act of omission and commission on the part of a public functionary, including a Minister, caused harm or loss. Hence, a mere statement made by a Minister, inconsistent with the rights of a citizen under PartIII 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”.
Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
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Recently, the Supreme Court Bench comprising Justice S. Abdul Nazeer, Justice B.R Gavai, A.S Bopanna, Justice V Ramasubramanian and Justice B.V Nagarathna in Kaushal Kishor v. State of Uttar Pradesh held that additional restriction is not found under Article 19(2) and cannot be imposed on the right of free speech under Article 19(1)(a) of Ministers, MPs, MLAs. The ratio of the said judgment is 4:1, though Justice Nagarathna agreed that Article 19(2) is exhaustive, she observed that disparaging statements made by the minister in his official capacity would hold the government vicariously liable.
Relevant Legal Concepts
In this judgment, Article 19(1)(a) and Article 19(2) are the most important point of law that we must understand:
Article 19(1)(a) provides that “All citizens shall have the right to freedom of speech and expression. It is a fundamental right provided in Part III of the Indian Constitution.”This fundamental right is not an absolute right, but is subject to restrictions that are provided under Article 19(2)
Article 19(2) states that the fundamental right to freedom of speech and expression is subject to reasonable restriction i.e “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”
Hence, any operation of existing law and state made law can restrict the freedom of speech and expression on the above grounds.
Constitution Torts
Constitutional torts are the injury or wrong caused by the state or the agents of the state. A commission of constitutional tort establishes liability on the government to remediate the damage or injury, or wrong caused by anyone working under the colour of the state. In other words, a constitutional tort is a violation of one’s constitutional rights by a government employee.
Collective Responsibility
Article 75(3) states that “the Council of Ministers shall be collectively responsible to the House of the People.” Similarly, Article 164(2) states “the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State”.
Background of the case
The question of law in this case, arises from a very unfortunate event, i.e Bulandshahar rape incident (a woman (45) from Noida and her minor daughter (14) were raped on July 29, after they were dragged out of their car by dacoits near a highway in western U.P.) After this shameful incident, the Azam Khan (Minister of UP) trivialised the act dismissing the incident as a ‘political conspiracy and nothing else’. As a result, the victims of the incident moved to the Supreme Court against the minister and the Court directed the minister to submit an unconditional apology. Since, this case paved the gateway to larger constitutional issues i.e the obligation of the state regarding freedom of speech and expression. Thus, the matter was a Constitution Bench in 2017.
Reasoning by Supreme Court in various issues
Whether Article 19(1)(a) can be restricted on the grounds outside those contained in Article 19(2) of the Indian Constitution? In other words, is Article 19(2) exhaustive?
The Supreme Court delved into the jurisprudential aspect of Article 19(1)(a) and Article 19(2) i.e the rationale for enactment of these provisions. While holding that Article 19(2) is exhaustive in itself, it referred to the case of Express Newspapers (Private) Ltd. v. The Union of India held that any law that does not fall under the ambit of Article 19(2) i.e reasonable restriction of Article 19(2) would be struck down as unconstitutional.
The Supreme Court observed that the eight restrictions i.e (i) interests of sovereignty and integrity of India – (ii) the security of the State (iii) friendly relations with foreign states (iv) public order (v) decency or morality (vi) contempt of court (vii) defamation; and (viii) incitement to an offence , provides protection to all in the following way:
The Supreme Court also referred to the case of Bijoe Emmanuel v. State of Kerala which observed that “the executive cannot transcend its boundaries by imposing additional restrictions in the form of executive instructions.” The reference of the said case suggests that the restraint to include additional restriction to Article 19(2) also extends to court. Further, it observed the role of the Supreme Court to be the gate-keeper of the temple of fundamental rights not the creator of fundamental rights.
Whether additional restrictions on the right to free speech be imposed by invoking other fundamental rights?
Since, Article 19(2) is exhaustive, the question debated was can restriction can be imposed by invoking any other fundamental right. To answer this predicament, the Supreme Court observed plethora of cases such as People’s Union for Civil Liberties, Sakal Papers Case, Cricket Association of Bengal Case, etc and observes that whenever two or more fundamental rights are in collision or seeks preference over one another, this Court has dealt with the same by applying well established legal tools. Therefore, the Supreme Court was of the view that under the guise of invoking other fundamental rights, additional restrictions under Article 19(2) cannot be imposed upon the exercise of one’s fundamental rights.
Whether fundamental rights under Article 19 or 21 can be claimed against anyone other than state or its instrumentalities?
The Supreme Court used phraseology adopted by law philosophers i.e., whether Part III of the Constitution has a “vertical” or “horizontal” effect. Vertical effect means when the constitutional rights impact the relations between the government or its instrumentalities and private individuals. While, horizontal effect means when the constitutional rights impact the relations between private Individuals
The Supreme Court further referred to all the fundamental rights and observed that some fundamental right are available against state, some against person (individual) some citizens. It also referred to the case of KS Puttaswamy which observed that the constitutional and fundamental rights provide remedy against state, individuals clothed with the power of state and non-state actors. Appreciating the said transformation i.e “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”The Supreme Court held that a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.
Dissenting Opinion:
Justice B.V Nagarathna in the realm of common law which may be similar in its content to the Fundamental Rights under Article 19/21 operate horizontally fundamental right under Article 19/21 cannot be enforced against persons other than the State or its instrumentalities.
As far as non-State entities or those entities which do not fall within the scope of Article 12 of the Constitution are concerned, a writ petition to enforce fundamental rights would not be entertained as against them.
Whether the state has an obligation to protect citizens from violation of their right to life and personal liberty from other non-state actors?
The Supreme Court observed the nature of Article 21 by referring to all the cases such as Arumugam Servai v State of Tamil Nadu Shakti Vahini, KS Puttaswamy, Lata Singh v. State of UP, etc where court observed that state is duly bound to protect right of the person against state and non-state actors as well. 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 nonState actor.
Whether statements made by public officials can be be attributed to the government if it is linked to state affairs?
To deal with this issue, the court looked into the role of a Minister under our Constitutional scheme. The Supreme Court referred to the concept of collective responsibility Article 75(3) states that “the Council of Ministers shall be collectively responsible to the House of the People.” Similarly, Article 164(2) states “the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State”. It also observed that “generally collective responsibility of the Council of Ministers either to the House of the People or to the Assembly should be understood to correlate to the decisions and actions of the Council of Ministers and not to every statement made by every individual Minister”
Hence, 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
Dissenting Opinion:
It was observed that when a statement is made by a minister that is consistent with the view of the Government, then the principle of collective responsibility can be invoked. In other words, if a Minister makes disparaging statements in his “official capacity”, then such statements can be vicariously attributed to the government But if the statement is not consistent with the view of the Government, then it is attributable to the Minister personally.
Whether statements made by ministers amounts to constitutional tort?
The Supreme Court observed a plethora of cases such as Bhim Singh, MLA v. State of J&K, Peoples’ Union for Democratic Rights vs. State of Bihar & Ors, etc and observed that this Court and the High Courts have been consistent in invoking Constitutional tort whenever an act of omission and commission on the part of a public functionary, including a Minister, caused harm or loss. Hence, a mere statement made by a Minister, inconsistent with the rights of a citizen under PartIII 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”.
Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access Jurisedge Recent Legal News Archives and our Jurisedge Blog for legal updates from around the globe.
For daily legal updates, follow our official Jurisedge channel on Instagram and LinkedIn and join our Telegram channel
Subscribe to our Law Exams Capsule India’s One and only Comprehensive Law Exam Preparation Journal
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