Kaushal Kishor vs The State of Uttar Pradesh Govt. of U.P. Home Secretary

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL/CIVIL APPELLATE JURISDICTION

WRIT PETITION (CRIMINAL) NO. 113 OF 2016

KAUSHAL KISHOR … PETITIONER(S)

VERSUS

STATE OF UTTAR PRADESH & ORS. …RESPONDENT(S)

WITH

SPECIAL LEAVE PETITION @ (DIARY) NO. 34629 OF 2017

JUDGMENT

V. RAMASUBRAMANIAN, J.

PRELUDE

ததய யனனறற சடறட பணற உளறள னறமற ஆறனதத நனவயனனறற சடறட வட Said the Tamil Poet­Philosopher Tiruvalluvar of the Tamil Sangam

age (31, BCE) in his classic “Tirukkural”. Emphasizing the

importance of sweet speech, he said that the scar left behind by a Signature Not Verified

burn injury may heal, but not the one left behind by an offensive Digitally signed by Anita Malhotra Date: 2023.01.03 16:58:23 IST Reason: 1 speech. The translation of this verse by G.U. Pope in English reads

thus:

“In flesh by fire inflamed, nature may thoroughly heal the sore; In soul by tongue inflamed, the ulcer healeth never more.”

A Sanskrit Text contains a piece of advice on what to speak and

how to speak.

सतयय बबरययतब पपबपयय बबरययनन बबरययतब सतयमपपबपयमब । पपबपयय च नयनन तय बबरययदद ष धमरर सनयतनर ॥

satyam brūyāt priyaṃ brūyān na brūyāt satyam apriyam | priyaṃ ca nānṛtaṃ brūyād eṣa dharmaḥ sanātanaḥ ||

The meaning of this verse is: “Speak what is true; speak what is

pleasing; Do not speak what is unpleasant, even if it is true;

And do not say what is pleasing, but untrue; this is the

eternal law.”

The “Book of Proverbs” (16:24) says:

“Pleasant words are a honeycomb, sweet to the soul and

healing to the bones”

Though religious texts of all faiths and ancient literature of all

languages and geographical locations are full of such moral

injunctions emphasising the importance of sweet speech (more than 2 free speech), history shows that humanity has consistently defied

those diktats. The present reference to the Constitution Bench is

the outcome of such behaviour by two honourable men, who

occupied the position of Ministers in two different States.

I. Questions formulated for consideration

1. By an order dated 05.10.2017, a Three Member Bench of this

Court directed Writ Petition (Criminal) No.113 of 2016 to be placed

before the Constitution Bench, after two learned senior counsel,

appointed as amicus curiae, submitted that the questions arising for

consideration in the writ petition were of great importance. Though

the Bench recorded, in its order dated 05.10.2017, the questions

that were submitted by the learned amicus curiae, the Three

Member Bench did not frame any particular question, but directed

the matter to be placed before the Constitution Bench.

2. At this juncture, a Special Leave Petition (Diary) No.34629 of

2017 arising out a judgment of the Kerala High Court came up

before the same Three Member Bench. Finding that the questions

raised in the said SLP were also similar, this Court passed an order

3 on 10.11.2017, directing the said SLP also to be tagged with Writ

Petition (Criminal) No.113 of 2016.

3. Thereafter, the Constitution Bench, by an order dated

24.10.2019, formulated the following five questions to be decided by

this Court:­

“…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 citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen 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”? …”

4 II. A brief backdrop

4. Without a brief reference to the factual matrix, the questions

to be answered by us may look abstract. Therefore, we shall now

refer to the background facts in both these cases.

5. Writ Petition (Criminal) No.113 of 2016 was filed under Article

32 of the Constitution praying for several reliefs including

monitoring the investigation of a criminal complaint in FIR

No.0838/2016 under Section 154 Cr.P.C., for the offences under

Sections 395, 397 and 376­D read with the relevant provisions of

the Protection of Children from Sexual Offences Act, 2012 (for

short, ‘POCSO Act’) and for the trial of the case outside the State

and also for registering a complaint against the then Minister for

Urban Development of the Government of U.P. for making

statements outrageous to the modesty of the victims. The case of

the petitioner in Writ Petition (Criminal) No.113 of 2016 in brief was

that on 29.7.2016 when he and the members of his family were

travelling from Noida to Shahjahanpur on National Highway 91 to

attend the death ceremony of a relative, they were waylaid by a

5 gang. According to the writ petitioner, the gang snatched away cash

and jewelry in the possession of the petitioner and his family

members and they also gang raped the wife and minor daughter of

the petitioner. Though an FIR was registered on 30.7.2016 for

various offences and newspapers and the television channels

reported this ghastly incident, the then Minister for Urban

Development of the Government of U.P. called for a press

conference and termed the incident as a political conspiracy.

Therefore, the petitioner apprehended that there may not be a fair

investigation. The petitioner claims that he was also offended by the

irresponsible statement made by the Minister and hence he was

compelled to file the said writ petition for the reliefs stated supra.

6. Insofar as Special Leave Petition (Diary) No.34629 of 2017 is

concerned, the same arose out of a judgment of the Division Bench

of the Kerala High Court dismissing two writ petitions. The writ

petitions were filed in public interest on the ground that the then

Minister for Electricity in the State of Kerala issued certain

statements in February 2016, 7.4.2017 and 22.4.2017. These

statements were highly derogatory of women. Though according to

6 the petitioners in the public interest litigation, the political party to

which the Minister belonged, issued a public censure, no action

was taken officially against the Minister. Therefore, the petitioner in

one writ petition prayed among other things for a direction to the

Chief Minister to frame a Code of Conduct for the Ministers who

have subscribed to the oath of office as prescribed by the

Constitution with a further direction to the Chief Minister to take

suitable action if any of the Ministers failed to live upto the oath.

The prayer in the second writ petition was for a direction to the

concerned Authorities to take action against the Minister for his

utterances.

7. Both the writ petitions were dismissed by a Division Bench of

the Kerala High Court, on the ground that the prayer of the public

interest writ petitioners were in the realm of moral values and that

the question whether the Chief Minister should frame a code of

conduct for the Ministers of his cabinet or not, is not within the

domain of the Court to decide. Therefore, challenging the said

common order, the petitioner in one of those public interest writ

petitions has come up with Special Leave Petition (Diary) No.34629

7 of 2017. Since the questions raised by the petitioner in the Special

Leave Petition overlapped with the questions raised in the Writ

Petition, they have been tagged together.

III. Contentions

8. We have heard Shri R. Venkataramani, learned Attorney

General for India, Ms. Aparajita Singh, learned senior counsel who

assisted us as amicus curiae, Shri Kaleeswaram Raj, learned

counsel for the petitioner in the special leave petition and Shri

Ranjith B. Marar, learned counsel appearing for the person who

sought to intervene/implead.

III.A. Preliminary note submitted by learned Attorney General for India

9. The learned Attorney General for India submitted a

preliminary note containing his submissions question­wise, which

can be summed up as follows:­

Question No.1

(i) On question No.1 it is his submission that as a matter of constitutional principle, any addition, alteration or change in the norms or criteria for imposition of restrictions on any fundamental right has to come up through a legislative 8 process. The restrictions already enumerated in clauses (2) and (6) of Article 19 have to be taken to be exhaustive. Therefore, the Court cannot, under the guise of invoking any other fundamental right such as the one in Article 21, impose restrictions not found in Article 19(2). Under the Constitutional scheme, there can be no conflict between two different fundamental rights or freedoms.

Question No. 2

(ii) The Constitution itself sets out the scheme of claims of fundamental rights against the State or its instrumentalities and it has also enacted in respect of breaches or violations of fundamental rights by persons other than State or its instrumentalities. Any proposition, to add or insert subjects or matters in respect of which claims can be made against persons other than the State, would amount to Constitutional change. The concept of State action propounded and applied in US Constitutional Law and the enactment of 42 US Code § 1983 have to be seen in the context of peculiar state of affairs dealing with governmental and official immunities from legal proceedings. In view of specific provisions in Articles 15(2), 17, 23 and 24 of the Indian Constitution, there may not be a strict need to take recourse to the law obtaining in the USA. Claims against persons other than the State, either through enacted law or otherwise must be confined to constitutionally enacted subjects or matters.

9 Question No. 3

(iii) There are sufficient Constitutional and legal remedies available for a citizen whose liberty is threatened by any person. Beyond the Constitutional and legal remedy and protection available, there may not be any other additional duty to affirmatively protect the right of a citizen under Article 21. Cases of infringement of fundamental rights are taken care of under Articles 32 and 226.

Question No. 4

(iv) Conduct of public servants like a Minister, if it is traceable to the discharge of public duty or the duties of the office, is subject to scrutiny of the law. Sanction for prosecution can be granted if misconduct is committed under colour of office. Such misconduct including statements that may be made by a Minister cannot be linked to the principles of collective responsibility. The concept of vicarious liability is incapable of being applied to situations and no government can ever be vicariously liable for malfeasance or misconduct of Minister not traceable to statutory duty or statutory violations for the purpose of legal remedies. Ministerial misdemeanors, which have nothing to do with the discharge of public duty and not traceable to the affairs of the State, will have to be treated as acts of individual violation and individual wrong. To extend in the abstract, the liability of the State to such situations or instances without necessary limitations can be problematic. 10 Post M/s. Kasturi Lal Ralia Ram Jain vs. The State of Uttar Pradesh1 and following Rudul Sah vs. State of Bihar2, this Court has treated misconduct of public servants or officers and consequent infringement of Constitutional rights as ground for grant of compensation. However, there is need for clarity and certainty as far as the conceptual basis is concerned. This may be better resorted through enacted law. Question No. 5

(v) While the principle of Constitutional tort has been conceived in Nilabati Behera (Smt.) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) vs. State of Orissa3, and subsequently applied to provide in regard to the constitutional remedies, the matter pre­eminently deserves a proper legal framework in order that the principles and procedures are coherently set out without leaving the matter open­ended or vague.

III.B. Notes of submissions by Amicus

10. Ms. Aparajita Singh, learned senior counsel and amicus curiae

submitted a written note question­wise, which can be summed up

as follows:­

Question No. 1 1 AIR 1965 SC 1039 2 (1983) 4 SCC 141 3 (1993) 2 SCC 746 11

(i) The right to free speech under Article 19(1)(a) is subject to clearly defined restrictions under Article 19(2). Therefore, any law seeking to limit the right under Article 19(1)(a) has to necessarily fall within the limitations provided under Article 19(2). Whenever two fundamental rights compete, the Court will balance the two to allow the meaningful exercise of both. This conundrum is not new, as the rights under Article 21 and under Article 19(1)(a) have been interpreted and balanced on numerous occasions. Take for instance the Right to Information Act, 2005. The Act balances the citizen’s right to know under Article 19(1)(a) with the right to fair investigation and right to privacy under Article 21. This careful balancing was explained by this Court in Thalappalam Service Cooperative Bank Ltd. vs. State of Kerala4. The decision of this Court in R. Rajagopal alias R.R. Gopal vs. State of T.N.5 is another example of reading down the restrictions (in the form of defamation) on the right to free speech under Article 19(2), in its application to public officials and public figures in larger public interest. Again, in People’s Union for Civil Liberties (PUCL) vs. Union of India6, the right to privacy of the spouse of the candidate contesting the election was declared as subordinate to the citizens’ right to know under Article 19(1)(a). In Jumuna Prasad Mukhariya vs.

4 (2013) 16 SCC 82 5 (1994) 6 SCC 632 6 (2003) 4 SCC 399 12 Lachhi Ram7, a challenge to Sections 123(5) and 124(5) of the Representation of the People Act, 1951 (as they prevailed at that time) was rejected, on the ground that false personal attacks against the contesting candidate was not violative of the right to free speech. But when it comes to private citizens who are not public functionaries, the right to privacy under Article 21 was held to trump the right to know under Article 19(1)(a). This was in the case of Ram Jethmalani vs. Union of India8, which concerned the right to privacy of account holders. In Sahara India Real Estate Corporation Limited vs. Securities and Exchange Board of India 9, this Court struck a balance between the right of the media under Article 19(1)(a) with the right to fair trial under Article 21. The argument that free speech under Article 19(1)(a) was a higher right than the right to reputation under Article 21 was rejected by this Court in Subramanian Swamy vs. Union of India, Ministry of Law10in which Section 499 IPC was under

challenge. The right to free speech was balanced with the right to pollution free life in Noise Pollution (V.), in Re11 and the right to fair trial of the accused was balanced with the right to fair trial of the victim in Asha Ranjan vs. State of Bihar12.

7(1955) 1 SCR 608 8(2011) 8 SCC 1 9(2012) 10 SCC 603 10(2016) 7 SCC 221 11(2005) 5 SCC 733 12(2017) 4 SCC 397 13 Question No. 2

(ii) There are some fundamental rights which are specifically granted against non­State actors. Article 15(2)(a) – access to shops, public restaurants, hotels and places of public entertainment, Article 17 – untouchability, Article 23 – forced labour and Article 24­ prohibition of employment of children in factories, mines etc., are rights which are enforceable against private citizens also. Some aspects of Article 21 such as the right to clean environment have been enforced against private parties as well. The State is also under a Constitutional duty to ensure that the rights of its citizens are not violated even by non­State actors and ensure an environment where each right can be exercised without fear of undue encroachment. In People’s Union for Democratic Rights vs. Union of India13, while rejecting the contention of the State that it was the obligation of the private party i.e., the contractor to follow the mandate of Article 24 of the Constitution and the relevant laws, it was clarified that the primary obligation to protect fundamental rights was that of the State even in the absence of an effective legislation. In Bodhisattwa Gautam vs. Subhra Chakraborty (Ms.)14, interim compensation was awarded holding that fundamental rights under Article 21 can be enforced even against private bodies and individuals. Public law remedy has been repeatedly resorted to even against non­

13(1982) 3 SCC 235 14(1996) 1 SC 490 14 State actors when their acts have violated the fundamental rights of other citizens. Award of damages against non­State actors for violation of the right to clean environment under Article 21 was laid down in M.C. Mehta vs. Kamal Nath15.

Similarly, the majority and concurring opinion in Justice K.S. Puttaswamy vs. Union of India16, while elaborating on the duty of the State and non­State actors to protect the rights of citizens, pointed out that recognition and enforcement of claims qua non­State actors may require legislative intervention. However, when it comes to Article 19, a Constitution Bench in P.D. Shamdasani vs. Central Bank of India Ltd.17, has held it to be inapplicable against private persons.

Question No. 3

(iii) Fundamental rights of citizens enshrined in the Constitution are not only negative rights against the State but also constitute a positive obligation on the State to protect those rights. The Constitution Bench in State of West Bengal vs. Committee for Protection of Democratic Rights, West Bengal18, while upholding the power of the Constitutional Court to transfer an investigation to the CBI without the consent of the concerned State, emphasized the duty of the

15(2000) 6 SCC 213 16(2017) 10 SCC 1 171952 SCR 391 18(2010) 3 SCC 571 15 State to conduct a fair investigation which is a fundamental right of the victim under Article 21. The majority judgment in Justice K.S. Puttaswamy (supra), defines the positive obligation of the State to ensure the meaningful exercise of the right of privacy. In S. Rangarajan vs. P. Jagjivan Ram19, this Court has categorically laid down that the State cannot plead its inability to protect the fundamental rights of the citizens. In Union of India vs. K.M. Shankarappa20, Section 6(1) of the Cinematograph Act, 1952 which granted the Central Government, the power to review the decision of the quasi­ judicial Tribunal under the Act, was sought to be defended on the ground of law and order. The contention was rejected holding that it was the duty of the Government to ensure law and order. In Indibly Creative Private Limited vs. Government of West Bengal21, the negative restraint and positive obligation under Article 19(1) (a) has been explained. In Pt. Parmanand Katara vs. Union of India22, it was held that even the doctors in Government hospitals are duty bound to fulfil the constitutional obligation of the State under Article

21.

Question No. 4

19(1989) 2 SCC 574 20(2001) 1 SCC 582 21(2020) 12 SCC 436 22(1989) 4 SCC 286 16

(iv) The Minister being a functionary of the State, represents the State when acting in his official capacity. Therefore, any violation of the fundamental rights of the citizens by the Minister in his official capacity, would be attributable to the State. The State also has a positive obligation to protect the rights of citizens under Article 21, whether the violation is by its own functionaries or a private person. It would be preposterous to suggest that while the State is under an obligation to restrict a private citizen from violating the fundamental rights of other citizens, its own Minister can do so with impunity. However, the factum of violation would need to be established on the facts of a given case. It would involve a detailed inquiry into questions such as (a) whether the statement by the Minister was made in his personal or official capacity; (b) whether the statement was made on a public or private issue; (c) whether the statement was made on a public or private platform. In Amish Devgan vs. Union of India23, while dealing with hate speech, the impact of the speech of “a person of influence” such as a Government functionary, was explained. State of Maharashtra vs. Sarangdharsingh Shivdassingh Chavan24, provides a clear instance of direct interference with the investigation by a Chief Minister. The Court held the action of the Chief Minister to be "wholly unconstitutional" and contrary to the oath of allegiance to the Constitution and imposed costs on the State. The concurring opinion emphasizes the responsibility that the oath of office casts on the Minister under the Constitution. In Secretary, Jaipur Development Authority, Jaipur vs. Daulat Mal 23(2021) 1 SCC 1 24(2011) 1 SCC 577 17 Jain25, while dealing with a case involving the misuse of public office by a Minister, this Court elaborated on the responsibility and liability of the Ministerial office under the Constitution. The importance of the Oath of Office under the Constitution was also emphasized by the Constitution Bench in Manoj Narula vs. Union of India26. However, the Ministerial code of conduct was held to be not enforceable in a court of law in R. Sai Bharathi vs. J. Jayalalitha27, as it does not have any statutory force. An argument can be made that the Minister is personally bound by the oath of his office to bear true faith and allegiance to the Constitution of India under Articles 75(4) and 164(3) of the Constitution. The Constitution imposes a solemn obligation on the Minister as a Constitutional functionary to protect the fundamental rights of the citizens. The code of conduct for Ministers (Both for Union and States) specifically lays down that the Code is in addition to the “. . . observance of the provisions of the Constitution, the Representation of the People Act, 1951”. Therefore, a Constitutional functionary is duty bound to act in a manner which is in consonance with this constitutional obligation of the State.

Question No. 5

(v) The State acts through its functionaries. Therefore, the official act of a Minister which violates the fundamental rights of the citizens, would make the State liable under constitutional tort. The principle of sovereign immunity of the

25(1997) 1 SCC 35 26(2014) 9 SCC 1 27(2004) 2 SCC 9 18 State for the tortious acts of its servant, has been held to be inapplicable in the case of violation of fundamental rights. The principle of State liability under Constitutional tort was expounded in Nilabati Behera (supra). In Common Cause, A Registered Society vs. Union of India.28, the position in the case of a public functionary was explained.

III.C. Written submissions of Shri Kaleeswaram Raj, Advocate for the SLP petitioner

11. Shri Kaleeswaram Raj, learned counsel appearing for the

petitioner in the special leave petition submitted an elaborate note.

This note is divided into several chapters dealing with the nature

and extent of the freedom of speech, the restrictions on the same,

the horizontality of fundamental rights, constitutional rights and

constitutional values, statements made by Ministers and collective

responsibility, self­regulation as the best mode of regulation, hate

speech not being a protected speech and the way forward. The

contents of this note are summarized as follows:­

(i) The Constitutional mandate of freedom of expression and free speech is to be preserved without imposing unconstitutional restrictions. It is a right available to everyone including political personalities. 28(1999) 6 SCC 667 19

(ii) But even while upholding such a right, efforts should be taken to frame a voluntary code of conduct for Ministers etc., to ensure better accountability and transparency;

(iii) There is an imperative need to evolve a device such as Ombudsman to act as a Constitutional check on the misuse of the freedom of expression by public functionaries using the apparatus of the State;

(iv) The right under Article 19(1)(a) is limited by restrictions expressly indicated in Article 19(2), under which the restrictions should be reasonable and must be provided for by law, by the State. Therefore this Court cannot provide for any additional restriction by an interpretative exercise or otherwise;

(v) It is too remote to suggest that the right of a victim under Article 21 stands violated if there is a statement by someone that the case was born out of political conspiracy. Therefore, there is actually no conflict of any other right with Article 21;

(vi) Unlike Article 25 which makes the right thereunder subject to public order, morality and health, Article 19(1)(a) does not contain such restrictions. As held by this Court in Sakal Papers (P) Ltd. vs. The Union of India29, freedom of speech can be restricted only in the interest of security of

29(1962) 3 SCR 842 20 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. It cannot be curtailed, in the interest of the general public, as in the case of freedom to carry on business;

(vii) Restricting speech by public figures, such as politicians, on serious crimes will have great impact on the freedom of speech. Such criticism which calls out true conspiracies and true miscarriage of justice, plays an important role in a democracy;

(viii) In so far as the enforcement of fundamental rights against non­State actors is concerned, the vertical approach is giving way to the concept of horizontal application. The vertical approach connotes a situation where the enforceability is only against the Government and not against private actors. But with Nation States gradually moving from laissez faire governance to welfare governance, the role of the State is ever expanding, which justifies the shift.

(ix) While the South African Constitution has adopted a horizontal application by providing in Section 9(4) of the Bill of Rights of Final Constitution of 1996 that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of sub­Section (3) which

21 sets out the grounds that bind the State, the judiciary itself has adopted a direct horizontal effect, in Ireland as could be seen from the decisions in John Meskell vs. Córas Iompair Éireann30and Murtagh Properties Limited vs. Cleary31. In John Meskell (supra), the Irish Supreme Court granted damages against the employer who dismissed the employee for not joining a particular union after serving a due notice to persuade him. In Murtagh Properties Limited (supra), the High Court recognized and enforced the right to earn livelihood without any discrimination based on sex against a private employer. Countries like Canada and Germany have developed indirect horizontal application, meaning thereby that the rights regulate the laws and statutes, which in turn regulate the conduct of citizens;

(x) In the Indian context, direct horizontal effect has limited application as can be seen from Articles 15(2), 17 and 24;

(xi) Paradigm cases of horizontality should be distinguished from ordinary cases. For instance, the U.S. Supreme Court held in Shelly vs. Kraemer32 a covenant contained in a contract prohibiting the sale of houses in a neighbourhood to African­Americans, as unenforceable, for they have the effect of denying equal protection under the laws. The 301973 IR 121 311972 IR 330 32334 U.S. 1 (1948) 22 Federal Constitutional Court of Germany took a similar view in Lϋth33 case (1958) where a call for boycott of a film directed by a person who had worked on anti­semitic Nazi propaganda was challenged. The German Court held that there was an objective order of values that must affect all spheres of law;

(xii) It has been repeatedly held by this Court that the power under Article 226 is available not only against the Government and its instrumentalities but also against “any person or authority”. A reference may be made in this regard to two decisions namely Praga Tools Corporation vs. Shri C.A. Imanual34 and Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotasav Smarak Trust vs.V.R. Rudani35;

(xiii) There are several instances where this Court has issued writs under Article 32 against non­State actors. Broadly those cases fall under two categories, namely, (i) private players performing public duties/functions; and (ii) non­ State actors performing statutory activities that impact the rights of citizens. Cases which fall under these two categories have been held by this Court to be amenable to writ jurisdiction as seen from several decisions including

33Luth (1958) BVerfGE 7, 198 34(1969) 1 SCC 585 35(1989) 2 SCC 691 23 M.C. Mehta vs. Union of India36. Absent any of these parameters, the Court has refused to exercise writ jurisdiction as seen from Binny Ltd. vs. V. Sadasivan.37;

(xiv) Even in jurisdictions where socio economic rights have been elevated in status to that of constitutional rights, the enforcement of those rights were made available only against the State and not against private actors, as held by this Court in Society for Unaided Private Schools of Rajasthan vs. Union of India38;

(xv) On the issue of potential conflict of rights, it is important to bear in mind the distinction between constitutional rights and constitutional values. On a formal level, values are understood teleologically as things to be promoted or maximized. Rights, on the other hand, are not to be promoted but rather to be respected. It would not show proper concern for a right to allow the violation of one right in order to prevent the violation of other rights. This would promote the non­violation of rights, but it would not respect rights39;

(xvi) Instead of values whose satisfaction is to be maximized, rights act as constraints on the actions of the state. They confer individuals with a sphere of liberty that is inviolable.

36 AIR 1987 SC 1086 37 (2005) 6 SCC 657 38 (2012) 6 SCC 1 39 Frances Kamm, Morality, Mortality Vol.2, Oxford University Press, 1996 24 Rights thereby act as restrictions on the government on how to pursue values, including constitutional values. It is, therefore, crucially important that we draw a distinction between the constitutional rights and constitutional values. Not every increase in liberty or every improvement in leading a dignified life is a constitutional right. This position has been accepted by this Court;

(xvii) As held by this Court in Justice K.S. Puttaswamy, the Court will strike a balance, wherever a conflict between two sets of fundamental rights is projected. Strictly speaking, what is actually conceived by some and noted in several decisions including Justice K.S. Puttaswamy, is not the conflict of rights in abstractum, at a doctrinal level, but the conflict in the notion/invocation/practice of rights;

(xviii) On the issue of statements made by Ministers and collective responsibility, a reference has to be made to Articles 75(3) and 164(2). Both these Articles speak of collective responsibility of the Council of Ministers. Though the language employed in these Articles indicate that such a collective responsibility is to the House of the People/ Legislative Assembly, it is actually a responsibility to the people at large. Since every utterance by a Minister will have a direct bearing on the policy of the Government, there is an imperative need for a voluntary code of conduct. As pointed out by this Court in Common Cause 25 (supra), collective responsibility has two meanings, namely,

(i) that all members of the Council of Ministers are unanimous in support of its policies and exhibit such unanimity in public; and (ii) that they are personally and morally responsible for its success and failure;

(xix) Individual aberrations on the part of Ministers are serious threats to constitutional governance and as such the head of the Council of Ministers has a duty to ensure that such breaches do not happen;

(xx) A code of conduct to self­regulate the speeches and actions of Ministers is constitutionally justifiable and this Court can definitely examine its requirement. Ideally, a Minister is not supposed to breach his collective responsibility towards the Cabinet and the Legislature and hence, it is advisable to have a cogent code of conduct as occurring in advanced democracies;

(xxi) While it is not possible to impose additional restrictions on the freedom of speech, it is certainly desirable to have a code of conduct for public functionaries, as followed in other jurisdictions. The Court may keep in mind the fact that this Court in Sahara India Real Estate Corporation Limited (supra) cautioned against framing guidelines across the board to restrict the freedom of Press;

26 (xxii) Coming to hate speeches, there has been a steep increase in the number of hate speeches since 2014. From May­ 2014 to date, there have been 124 reported instances of derogatory speeches by 45 politicians. Social media platforms have connived the proliferation of targeted hate speech. Such speeches provide fertile ground for incitement to violence;

(xxiii) On the role of the Court in dealing with the question of hate speech, the decisions in Pravasi Bhalai Sangathan vs. Union of India40; Kodungallur Film Society vs. Union of India41and Amish Devgan (supra) lay down broad parameters;

(xxiv) At the international level, the definition of hate speech was formulated in the UN Strategy and Plan of Action on Hate Speech, to mean “… any kind of communication in speech, writing or behavior, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”

The Role and Responsibilities of Political Leaders in Combating Hate Speech and Intolerance (Provisional version) dated 12 March 2019, was submitted by the

40 (2014) 11 SCC 477 41 (2018) 10 SCC 713 27 Committee on Equality and Non­Discrimination to the Parliamentary Assembly of the Council of Europe. The Assembly passed the resolution adopting the text proposed by rapporteur Ms. Elvira Kovacs, Serbia;

(xxv) Finally, the way forward is, (i) for the legislature to adopt a voluntary model code of conduct for persons holding public offices, which would reflect Constitutional morality and values of good governance; and (ii) the creation of an appropriate mechanism such as Ombudsman, in accordance with the Venice principles and Paris principles. Till such an Ombudsman is constituted, the National and State Human Rights Commissions have to take pro­active measures, in terms of the provisions of Protection of Human Rights Act, 1993.

IV. Discussion and Analysis

Question No. 1

12. Question No.1 referred to us, is as to whether the grounds

specified in Article 19(2) in relation to which reasonable restrictions

on the right to free speech can be imposed by law are 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?

28 History of evolution of clause (2) of Article 19

13. For finding an answer to this question, it may be necessary

and even relevant to take a peep into history. Since Dr. B.R.

Ambedkar’s original draft in this regard followed Article 40(6) of the

Irish Constitution, the original draft of the Advisory Committee

included restrictions such as public order, morality, sedition,

obscenity, blasphemy and defamation. Sardar Vallabhbhai Patel

suggested the inclusion of libel also. These restrictions were sought

to be justified by citing the decision in Gitlow vs. New York42.

14. Since the country had witnessed large scale communal riots at

that time, Sir Alladi Krishnaswamy Iyer forcefully argued for the

inclusion of security and defence of the State or national security as

one of the restrictions. Discussion also took place about restricting

speech that is intended to spoil communal harmony and speech

which is seditious in nature. With suggestions, counter suggestions

and objections so articulated, the initial report of the Sub­

Committee on Fundamental Rights underwent a lot of changes. The

evolution of clauses (1) and (2) of Article 19 stage by stage, from the

42 286 US 652 (1925) 29 time when the draft report was submitted in April 1947, upto the

time when the Constitution was adopted, can be presented in a

tabular form43 as follows:

Draft Provision Draft Report of the 9. There shall be liberty for the exercise of Subcommittee on the following rights subject to public order Fundamental Rights, April and morality:

1947 (BSR II, 139) (a) The right of every citizen to freedom of speech and expression. The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law.

Final Report of the Sub­ 10. There shall be liberty for the exercise of Committee on Fundamental the following rights subject to public order Rights, April 1947 (BSR II, and morality or to the existence of grave

172) emergency declared to be such by the Government of the Union or the unit concerned whereby the security of the Union or the unit, as the case may be.

Interim Report of the There shall be liberty for the exercise of the Advisory Committee, April following rights subject to public order and 30, 1947 morality or to the existence of grave emergency declared to be such by the Government of the Union or the Unit concerned whereby the security of the Union or the Unit, as the case may be, is threatened:

(a) The right of every citizen to freedom of speech and expression:

Provision may be made by law to make the publication or utterance of seditious, obscene, blasphemous, slanderous, libellous or defamatory matter actionable or punishable.

Draft Constitution prepared 15. (1) There shall be liberty for the exercise

43 Sourced from the article “Arguments from Colonial Continuity­ the Constitution (First Amendment) Act, 1951” (2008) of Burra, Arudra, Assistant Professor, Department of Humanities and Social Sciences , IIT (Delhi), 30 by B. N. Rau, October 1947 of the following rights subject to public order (BSR III, 8­9) and morality, namely:

(a) the right of every citizen to freedom of speech and expression;

… (2) Nothing in this section shall restrict the power of the State to make any law or to take any executive action which under this Constitution it has power to make or to take, during the period when a Proclamation of Emergency issued under sub­section (I) of section 182 is in force, or, in the case of a unit during the period of any grave emergency declared by the Government of the unit whereby the security of the unit is threatened.

Draft Constitution prepared 13. (1) Subject to the other provisions of this by the Drafting Committee Article, all citizens shall have the right – and submitted to the (a) to freedom of speech and expression;

President of the Constituent … Assembly, February 1948 (2) Nothing in sub­clause (a) of clause (1) of (BSR III, 522) this Article shall affect the operation of any existing law, or prevent the State from

making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundation of the State.

Proposal introduced in the 13. (1) Subject to the other provisions of this Constituent Assembly in Article, all citizens shall have the right – October 1948 (BSR IV, 39) (a) to freedom of speech and expression;

… (2) Nothing in sub­clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the security of, or tends to overthrow, the State.

31 Revised Draft Constitution, 19. (1) All citizens shall have the right ­­­ introduced and adopted in (a) to freedom of speech and expression;

November 1949 (BSR IV, … 755) (2) Nothing in sub­clause (a) of clause (1)

shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.

15. Immediately after the adoption of the Constitution, this Court

had an occasion to deal with a challenge to an order passed by the

Government of Madras in exercise of the powers conferred by

Section 9(1­A) of the Madras Maintenance of Public Order Act,

194944, banning the entry and circulation of a weekly journal called

‘Cross Roads’ printed and published in Bombay. The ban order was

challenged on the ground that it was violative of Article 19(1)(a).

The validity of the statutory provision under which the ban order

was issued, was also attacked on the basis of Article 13(1) of the

Constitution. A Seven Member Constitution Bench of this Court,

while upholding the challenge in Romesh Thappar vs. State of

Madras45 held as follows: ­

44 1949 Act 45 AIR 1950 SC 124 32 “[12] We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Art. 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. …”

16. An argument was advanced in Romesh Thappar (supra) that

Section 9(1­A) of the 1949 Act could not be considered wholly void,

as the securing of public safety or maintenance of public order

would include the security of the State and that therefore the said

provision, as applied to the latter purpose was covered by Article

19(2). However, the said argument was rejected on the ground that

where a law purports to authorise the imposition of restrictions on

a fundamental right, in language wide enough to cover restrictions,

both within or without the limits of Constitutionally permissible

legislative action affecting such right, it is not possible to uphold it

even so far as it may be applied within the Constitutional limits, as

it is not severable.

17. On the same date on which the decision in Romesh Thappar

was delivered, the Constitution Bench of this Court also delivered

another judgment in Brij Bhushan vs. The State of Delhi46. It also 46 AIR 1950 SC 129 33 arose out of a writ petition under Article 32 challenging an order

passed by the Chief Commissioner of Delhi in exercise of the powers

conferred by Section 7(1)(c) of the East Punjab Public Safety Act,

1949, requiring the Printer and the Publisher as well as the Editor

of an English weekly by name ‘Organizer’, to submit for scrutiny,

before publication, all communal matters and news and views

about Pakistan including photographs and cartoons, other than

those derived from the official sources. Following the decision in

Romesh Thappar, the Constitution Bench held that the imposition

of pre­censorship on a journal is a restriction on the liberty of the

Press, which is an essential part of the right to freedom of speech

and expression. The Bench went on to hold that Section 7(1)(c) of

the East Punjab Public Safety Act, 1949 does not fall within the

reservation of clause (2) of Article 19.

18. After aforesaid two decisions, the Parliament sought to amend

the Constitution through the Constitution (First Amendment) Bill,

1951. In the Statement of Objects and Reasons to the First

Amendment, it was indicated that the citizen's right to freedom of

speech and expression guaranteed by Article 19(1)(a) has been held

34 by some Courts to be so comprehensive as not to render a person

culpable, even if he advocates murder and other crimes of violence.

Incidentally, the First Amendment also dealt with other issues,

about which we are not concerned in this discussion. Clause (2) of

Article 19 was substituted by a new clause under the Constitution

(First Amendment) Act, 1951. For easy appreciation of the

metamorphosis that clause (2) of Article 19 underwent after the first

amendment, we present in a tabular column, Article 19(2) pre­first

amendment and post­first amendment as under: ­

Pre­First Amendment – Article Post­First Amendment – Article 19(2) 19(2) (2) Nothing in sub­clause (a) of clause (2) Nothing in sub­clause (a) of (1) shall affect the operation of any clause (1) shall affect the operation existing law in so far as it relates to, of any existing law, or prevent the or prevents the State from making State from making any law, in so far any law relating to, libel, slander, as such law imposes reasonable defamation, contempt of court or any restrictions on the exercise of the matter which offends against decency right conferred by the said sub­ or morality or which undermines the clause in the interests of the security of, or tends to overthrow, the security of the State, friendly State. relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

19. It is significant to note that Section 3(1)(a) of the Constitution

(First Amendment) Act, 1951, declared that the newly substituted

35 clause (2) of Article 19 shall be deemed always to have been

enacted in the amended form, meaning thereby that the

amended clause (2) was given retrospective effect.

20. Another important feature to be noted in the amended clause

(2) of Article 19 is the inclusion of the words ‘reasonable

restrictions’. Thus, the test of reasonableness was introduced by the

first amendment and the same fell for jural exploration within no

time, in State of Madras vs. V.G. Row47. The said case arose out

of a judgment of the Madras High Court quashing a Government

Order declaring a society known as ‘People’s Education Society’ as

an unlawful association and also declaring as unconstitutional,

Section 15(2)(b) of the Indian Criminal Law Amendment Act, 1908,

as amended by the Indian Criminal Law Amendment (Madras) Act,

1950. While upholding the judgment of the Madras High Court, this

Court indicated as to how the test of reasonableness has to be

expounded. The relevant portion of the judgment reads as follows: ­

“23. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of

47(1952) 1 SCC 410 36 reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self­restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable.”

21. After the First Amendment to the Constitution, the country

witnessed cries for secession, with parochial tendencies showing

their ugly head, especially from a southern State. Therefore, a

National Integration Conference was convened in September­

October, 1961 to find ways and means to combat the evils of

communalism, casteism, regionalism, linguism and narrow

mindedness. This Conference decided to set up the National

Integration Council. Accordingly, it was constituted in 1962. The

constitution of the Council assumed significance in the wake of the

37 Sino­India war in 1962. This National Integration Council had a

Committee on national integration and regionalism. This Committee

recommended two amendments to the Constitution, namely, (i) the

amendment of clause (2) of Article 19 so as to include the words

“the sovereignty and integrity of India” as one of the restrictions; and

(ii) the amendment of 8 Forms of oath or affirmation contained in

the Third Schedule. Until 1963, no one taking a constitutional oath

was required to swear that they would “uphold the sovereignty and

integrity of India”. But, the Constitution (Sixteenth Amendment) Act,

1963 expanded the forms of oath to ensure that “every candidate

for the membership of a State Legislature or Parliament, and every

aspirant to, and incumbent of, public office” – to quote its Statement

of Objects and Reasons – “pledges himself . . . to preserve the

integrity and sovereignty of the Union of India.” Thus, by the

Constitution (Sixteenth Amendment) Act, 1963, “the sovereignty

and integrity of India”, was included as an additional ground of

restriction on the right guaranteed under Article 19(1)(a).

22. Having seen the history of evolution of clause (2) of Article 19,

let us now turn to the first question.

38 Two parts of Question No.1

23. Question No.1 is actually in two parts. The first part raises a

poser as to whether reasonable restrictions on the right to free

speech enumerated in Article 19(2) could be said to be exhaustive.

The second part of the Question raises a debate as to whether

additional restrictions on the right to free speech can be imposed on

grounds not found in Article 19(2), by invoking other fundamental

rights.

First part of Question No.1

24. The judicial history of the evolution of clause (2) of Article 19

which we have captured above shows that lot of deliberations went

into the articulation of the restrictions now enumerated. The draft

Report of the Sub­Committee on Fundamental Rights itself

underwent several changes until the Constitution was adopted in

November, 1949. In the form in which the Constitution was adopted

in 1949, the restrictions related to (i) libel; (ii) slander; (iii)

defamation; (iv) contempt of court; (v) any matter which offends

39 against decency or morality; and (vi) any matter which undermines

the security of the State or tends to overthrow the State.

25. After the 1st and 16th Amendments, the emphasis is on

reasonable restrictions relating to, (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.

26. A careful look at these eight heads of restrictions would

show that they save the existing laws and enable the State to

make laws, restricting free speech with a view to afford

protection to (i) individuals (ii) groups of persons (iii) sections

of society (iv) classes of citizens (v) the Court (vi) the State and

(vii) the country. This can be demonstrated by providing in a table,

the provisions of the Indian Penal Code that make some speech or

expression a punishable offence, thereby impeding the right to free

speech, the heads of restriction under which they fall and the

40 category/class of person/persons sought to be protected by the

restriction:

Table of Provisions under IPC restricting freedom of speech and expression

Laws restricting free Heads of Restriction Person/Class of Person speech traceable to Article 19(2) sought to be protected and the nature of protection.

Section 117 of the IPC 1. Public Order Individual Persons ­ ­Abetting commission of 2. Incitement to an Offence Protection from offence by the public or by incitement to commit more than ten persons. offence. There is an illustration under the section which forms part of the statute. This illustration seeks to restrict freedom of expression Illustration: A affixes in a public place a placard instigating a sect consisting of more than ten members to meet at a certain time and place, for the purpose of attacking the members of an adverse sect, while engaged in a procession. A has committed the offence defined in this section. Section 124A of the IPC ­ 1. Public Order State – Protection against Sedition48 2. Decency and Morality disaffection

Section 153A(1)(a) of the 1.Public Order Groups of Persons ­ IPC ­ Promoting enmity 2. Decency and Morality Protection from between different groups on disrupting harmony ground of religion, race, among different sections place of birth, residence, of society. language, etc., and doing acts prejudicial to maintenance of harmony

48 Subject matter of challenge pending before this Court.

41 Section 153B of the IPC ­ 1. Sovereignty and 1. Nation Imputations, assertions Integrity of the State 2. Group of persons prejudicial to the national­ 2. Public Order belonging to different integration 3. Decency and Morality religions, races, languages, etc,.

Section 171C of the IPC 1. Public Order Candidates contesting ­Undue Influence at the Election and Voters – Elections To ensure free and fair election and to keep the purity of the democratic process Section 228 of the IPC ­ Contempt of Court Court –To prevent people Intentional insult or from undermining the interruption to public authority of the court. servant sitting in judicial proceedings Section 228A of the IPC­ 1. Public Order Individual persons Disclosure of identity of the 2. Decency and Morality (Victims of offences u/s victim of certain offences 376)­ Protection of etc. identity of women and minors. Section 295A of the IPC ­ 1. Public order, Sections of society Deliberate and malicious 2. Decency and morality professing and practicing acts, intended to outrage different religious religious feelings of any beliefs/sentiments. class by insulting its religion or religious beliefs.

Section 298 of the IPC­ 1. Public order, Sections of society Uttering words, etc., with 2. Decency and morality professing and practicing deliberate intent to wound different religious religious feelings. beliefs/sentiments. Section 351 of the IPC – 1. Public Order Individual Persons – Assault. The definition of 2. Decency and morality Protection from Criminal assault includes some Force. utterances, as seen from the Explanation under the Section.

Explanation: Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning

42 as may make those gestures or preparations amount to an assault. Section 354 of the IPC­ 1. Public Order Individual Persons – Assault to woman with 2. Decency and morality Protection of Modesty of intent to outrage her 3. Defamation a Woman. modesty

Note: The Definition of Assault includes the use of words. Section 354A of the IPC – 1. Public Order Individuals – Protection Sexual Harassment (It 2. Decency and morality of Modesty of a Woman. includes sexually colored 3. Defamation remarks). Section 354C of the IPC – 1. Public Order Individuals – Protection Voyeurism 2. Decency and morality of Modesty of a Woman. 3. Defamation Section 354D of the IPC – 1. Decency and Morality Individuals – Protection Stalking 2. Defamation of Modesty of a Woman.

Section 354E of the IPC – 1. Public Order Individual Persons – Sextortion 2. Decency and morality Protection of Modesty of 3. Defamation a Woman. Section 355 of the IPC ­ 1. Public Order Individual Persons – Assault or criminal force 2. Decency and morality Protection of reputation. with intent to dishonour 3. Defamation person, otherwise than on grave provocation.

Note: The Definition of Assault includes use of words. Section 383 of the IPC – 1. Public Order Individuals – Protection

Extortion (The illustration 2. Decency and Morality from fear of injury/ under the Section includes Protection of Property.

threat to publish defamatory libel).

Illustration: A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give

43 him money. A has committed extortion.

Section 390 of the IPC – 1. Public Order Individuals – Protection Robbery 2. Decency and Morality from fear of injury/ Protection of Property. Note: In all robbery there is either theft or extortion. Section 499 of the IPC – Defamation Individual Persons and Defamation Group of People – Reputation sought to be protected. Section 504 of the IPC – 1. Incitement to an offense The public – Protection of Intentional insult with 2. Public Order Peace.

intent to provoke breach of 3. Decency and morality peace.

Section 505(1)(b) of the IPC 1. Sovereignty and Integrity State – Protection from – Statement likely to cause of the State the commission of fear or alarm to the public 2. Incitement to an offense offences against the State whereby any person may be 3. Public Order and protection of public induced to commit an tranquility.

offence against the State or against the public tranquility. Section 505(1)(c) of the IPC­ Public Order Class/community of Statement intended to incite people. any class or community of Protection from persons to commit any incitement to commit offence against any other violence against class or class or community. community. Section 509 of the IPC – 1. Defamation Individual persons – Word, Gesture or Act 2. Decency or Morality Protection of Modesty of intended to insult the a Woman. modesty of a woman.

27. We have taken note of, in the above Table, only the provisions

of the Indian Penal Code that curtail free speech. There are also

other special enactments such as The Scheduled Castes and The

44 Scheduled Tribes (Prevention of Atrocities) Act, 1989, The

Prevention of Insults to National Honour Act, 1971 etc., which also

impose certain restrictions on free speech. From these it will be

clear that the eight heads of restrictions contained in clause (2) of

Article 19 are so exhaustive that the laws made for the purpose of

protection of the individual, sections of society, classes of citizens,

court, the country and the State have been saved.

28. The restrictions under clause (2) of Article 19 are

comprehensive enough to cover all possible attacks on the

individual, groups/classes of people, the society, the court, the

country and the State. This is why this Court repeatedly held that

any restriction which does not fall within the four corners of Article

19(2) will be unconstitutional. For instance, it was held by the

Constitution Bench in Express Newspapers (Private) Ltd. vs. The

Union of India49, that a law enacted by the legislature, which does

not come squarely within Article 19(2) would be struck down as

unconstitutional. Again, in Sakal Papers (supra), this Court held

that the State cannot make a law which directly restricts one

freedom even for securing the better enjoyment of another freedom. 491959 SCR 12 45

29. That the Executive cannot transgress its limits by imposing an

additional restriction in the form of Executive or Departmental

instruction was emphasised by this Court in Bijoe Emmanuel vs.

State of Kerala50. The Court made it clear that the reasonable

restrictions sought to be imposed must be through “a law” having

statutory force and not a mere Executive or Departmental

instruction. The restraint upon the Executive not to have a

back­door intrusion applies equally to Courts. While Courts

may be entitled to interpret the law in such a manner that the

rights existing in blue print have expansive connotations, the Court

cannot impose additional restrictions by using tools of

interpretation. What this Court can do and how far it can afford to

go, was articulated by B. Sudharshan Reddy, J., in Ram

Jethmalani (supra) as follows:

“85. An argument can be made that this Court can make exceptions under the peculiar circumstances of this case, wherein the State has acknowledged that it has not acted with the requisite speed and vigour in the case of large volumes of suspected unaccounted for monies of certain individuals. There is an inherent danger in making exceptions to fundamental principles and rights on the fly. Those exceptions, bit by bit, would then eviscerate the content of the main right itself.

50(1986) 3 SCC 615 46 Undesirable lapses in upholding of fundamental rights by the legislature, or the executive, can be rectified by assertion of constitutional principles by this Court. However, a decision by this Court that an exception could be carved out remains permanently as a part of judicial canon, and becomes a part of the constitutional interpretation itself. It can be used in the future in a manner and form that may far exceed what this Court intended or what the constitutional text and values can bear. We are not proposing that Constitutions cannot be interpreted in a manner that allows the nation­State to tackle the problems it faces. The principle is that exceptions cannot be carved out willy­nilly, and without forethought as to the damage they may cause.

86.One of the chief dangers of making exceptions to principles that have become a part of constitutional law, through aeons of human experience, is that the logic, and ease of seeing exceptions, would become entrenched as a part of the constitutional order. Such logic would then lead to seeking exceptions, from protective walls of all fundamental rights, on grounds of expediency and claims that there are no solutions to problems that the society is confronting without the evisceration of fundamental rights. That same logic could then be used by the State in demanding exceptions to a slew of other fundamental rights, leading to violation of human rights of citizens on a massive scale.”

30. Again, in Secretary, Ministry of Information &

Broadcasting, Govt. of India vs. Cricket Association of

Bengal51, this Court cautioned that the restrictions on free speech

can be imposed only on the basis of Article 19(2). In Ramlila

Maidan Incident, in re.52, this Court developed a three­pronged

51(1995) 2 SCC 161 52 (2012) 5 SCC 1 47 test namely, (i) that the restriction can be imposed only by or under

the authority of law and not by exercise of the executive power; (ii)

that such restriction must be reasonable; and (iii) that the

restriction must be related to the purposes mentioned in clause (2)

of Article 19.

31. That the eight heads of restrictions contained in clause (2) of

Article 19 are exhaustive can be established from another

perspective also. The nature of the restrictions on free speech

imposed by law/judicial pronouncements even in countries where a

higher threshold is maintained, are almost similar. To drive home

this point, we are presenting in the following table, a comparative

note relating to different jurisdictions:

Jurisdiction The Document The Document Nature of from which the from which the Restrictions Right to Freedom restrictions on of Speech and the right to Expression flows freedom of Speech and Expression flow

India Article 19(1)(a) ­ Article 19(2) ­ 1. Sovereignty and Constitution of Constitution of integrity of the India India State,

2. Security of the State,

3. Friendly relations

48 with foreign countries,

4. Public order,

5. Decency and morality,

6. Contempt of court,

7. Defamation,

8. Incitement to an offense.

UK Article 10(1) of the Article 10(2) of the 1. National security, Human Rights Act, Human Rights Act, 2. Territorial integrity 1998 1998 or public safety,

3. For the prevention of disorder or crime, for the protection of health or morals,

4. For the protection of the reputation or rights of others,

5. For preventing the disclosure of information received in confidence, or

6. For maintaining the authority and impartiality of the judiciary.

USA First Amendment No restriction is Recognised forms of to the US specifically Unprotected Speech:

Constitution provided in the Constitution. But 1. Obscenity as held Judicial Review by in Roth v. United the Supreme Court States, 354 U.S. 476, has admitted 483 (1957).

certain restrictions 2.Child Pornography as held in Ashcroft v.

Free Speech Coalition, 435 U.S. 234 (2002).

3. Fighting Words

49 and True Threat as held in Chaplinsky v.

New Hampshire, 315 U.S. 568 (1942) and Virginia v. Black, 538 U.S. 343, 363 (2003), respectively.

Australia Australian 1. Article 19(3), 20 Under International Constitution does of the ICCPR Treaties:

not expressly contains speak about mandatory 1. Rights of freedom of limitations on Reputation of expression. freedom of Others,

However, the High expression, and 2. National Security, Court has held requires countries, 3. Public Order, that an implied subject to 4. Public Health, or freedom of political reservation/declar 5. Public Morality communication ation, to outlaw exists as an vilification of Under the Criminal indispensible part persons on Code Act, 1995 of the system of national, racial or representative and religious grounds. 1.Offences relating to responsible Australia has urging by force or government made a declaration violence the overthrow created by the in relation to of the Constitution or Constitution. It Article 20 to the the lawful authority of operates as a effect that existing the Government; and freedom from Commonwealth government and state 2. Offences relating to restraint, rather legislation is the use of a than a right regarded as telecommunications conferred directly adequate, and that carriage service in a on individuals. the right is way which is Australia is a party reserved not to intentionally to seven core introduce any menacing, harassing international further legislation or offensive, and human rights imposing further using a carriage treaties. The right restrictions on service to to freedom of these matters. communicate content opinion and which is menacing, expression is 2. Criminal Code harassing or contained in Act 1995 offensive.

Articles 19 and 20 of the International 3. Racial Covenant on Civil Discrimination and Political Act 1975 Speech or Rights (ICCPR)and Expression Articles 4 and 5 of amounting to Racial

50 the Convention on Discrimination the Elimination of under the Racial All Forms of Racial Discrimination Act, Discrimination 1975 (CERD) , Articles 12 and 13 of the Convention on the Rights of the Child (CRC) and Article 21 of the Convention on the Rights of Persons with Disabilities (CRPD).

European Article 10(1), Article 10(2), 1. In the interests of Union European European national security, Convention on Convention on territorial integrity Human Rights, Human Rights, or public safety, 1950 1950 2. For the prevention of disorder or crime,

3. For the protection of health or morals,

4. For the protection of the reputation or rights of others,

5. For preventing the disclosure of information received in confidence, or

6. For maintaining the authority and impartiality of the judiciary.

Republic of Bill of Rights, Bill of Rights, 1. Propaganda for South Africa Article 16(1) of the Article 16(2) of the war, Constitution of the Constitution of the Republic of South Republic of South 2. Incitement of Africa, 1996 Africa, 1996 imminent violence,

3. Advocacy of hatred that is based on race, ethnicity, gender, religion, and that

51 constitutes incitement to cause harm.

32. Since the eight heads of restrictions contained in clause (2) of

Article 19 seek to protect:

(i) the individual – against the infringement of his dignity, reputation, bodily autonomy and property;

(ii) different sections of society professing and practicing, different religious beliefs/sentiments ­ against offending their beliefs and sentiments;

(iii) classes/groups of citizens belonging to different races, linguistic identities etc.­ against an attack on their identities;

(iv) women and children – against the violation of their special rights;

(v) the State ­ against the breach of its security;

(vi) the country ­ against an attack on its sovereignty and integrity;

(vii) the Court – against an attempt to undermine its authority,

we think that the restrictions contained in clause (2) of Article 19

are exhaustive and no further restriction need to be incorporated.

33. 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 52 the Court. The role envisaged in the Constitutional scheme for

the Court, is to be a gate­keeper (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.

Clause (2) of Article 19 saves (i) the operation of any existing law;

and (ii) the making of any law by the State. Therefore, it is not for

us to add one or more restrictions than what is already found.

Second part of Question No.1

34. The second part of Question No.1 is as to whether additional

restrictions on the right to free speech can be imposed on grounds

not found in Article 19(2) by invoking other fundamental rights.

35. This part of Question No.1 already stands partly answered

while dealing with the first part of Question No.1. The decisions of

this Court in Express Newspapers (Private) Ltd. (supra), the

Cricket Association of Bengal (supra) and Ramlila Maidan

53 Incident, in re. (supra), provide a complete answer to the question

whether additional restrictions on the right to free speech can be

imposed on grounds not found in Article 19(2).

36. The question whether additional restrictions can peep into

Article 19(2), by invoking other fundamental rights, also stands

answered by this Court in Sakal Papers. In Sakal Papers, the

Central Government issued an order called Daily Newspaper (Price

and Page) Order, 1960 in exercise of the power conferred under the

Newspaper (Price and Page) Act, 1956, fixing the maximum number

of pages that might be published by a newspaper according to the

price charged. Therefore, the publisher of a Marathi Newspaper

challenged the constitutionality of both the Act and the Order. One

of the arguments raised on behalf of the State in the said case was

that there are two aspects of the activities of newspapers namely,

(i) the dissemination of news and views; and (ii) the commercial

aspect. While the former would fall under Article 19(1)(a), the latter

would fall under Article 19(1)(g).

37. Since these two rights are independent and since the

restrictions on the right under Article 19(1)(g) can be placed in the 54 interest of the general public under Article 19(6), it was contended

by the State in Sakal Papers that the Act and the Order are saved

by clause (6) of Article 19. But the said argument of the State was

rejected by the Constitution Bench in Sakal Papers, in the

following words:

“It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgement on the same grounds as are set out in cl. (6) of Art. 19. Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged it is no answer that the restrictions enacted by it are justifiable under cls. (3) to (6). For, the scheme of Art. 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and cl. (1) does not prefer one freedom to another.

That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore, for holding that 55 the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom.”

38. We are conscious of the fact that Sakal Papers was a case

where the petitioner before the Court had two different fundamental

rights and the law made by the State fell within the permitted

restrictions upon the exercise of one of those two fundamental

rights. However, the restriction traceable to clause (6) of Article 19

was not available in clause (2) of Article 19. It is in such

circumstances that this Court held that the restriction validly

imposed upon the exercise of one fundamental right cannot

automatically become valid while dealing with another fundamental

right of the same person, the restriction of which stands

Constitutionally on different parameters.

39. In Sakal Papers the conflict was neither between one

individual’s fundamental right qua another individual’s

fundamental right nor one fundamental right qua another

fundamental right of the same individual. It was a case where a

restriction validly made upon a fundamental right was held invalid

qua another fundamental right of the same individual. In the cases

56 on hand, what is sought to be projected is a possible conflict arising

out of the exercise of a fundamental right by one individual, in a

manner infringing upon the free exercise of the fundamental right of

another person. But this conflict is age old.

40. The exercise of all fundamental rights by all citizens is possible

only when each individual respects the other person’s rights. As

acknowledged by the learned Attorney General and Ms. Aparjita

Singh, learned Amicus, this Court has always struck a balance

whenever it was found that the exercise of fundamental rights by an

individual, caused inroads into the space available for the exercise

of fundamental rights by another individual. The emphasis even in

the Preamble on “fraternity” is an indication that the survival of all

fundamental rights and the survival of democracy itself depends

upon mutual respect, accommodation and willingness to co­exist in

peace and tranquility on the part of the citizens. Let us now see a

few examples. The Fundamental Duty enjoined upon every citizen of

the country under Article 51­A (e) to “promote harmony and the

spirit of common brotherhood amongst all the people of India

transcending religious, linguistic and regional or sectional diversities

57 and to renounce practices derogatory to the dignity of women”, is

also an indicator that no one can exercise his fundamental right in

a manner that infringes upon the fundamental right of another.

41. As articulated by Jeevan Reddy, J. in Cricket Association of

Bengal, no one can exercise his right of speech in such a manner

as to violate another man’s right. In paragraph 152 of the decision

in Cricket Association of Bengal, Jeevan Reddy, J. said : “Indeed

it may be the duty of the State to ensure that this right is

available to all in equal measure and that it is not hijacked

by a few to the detriment of the rest. This obligation flows

from the Preamble to our Constitution, which seeks to secure

all its citizens liberty of thought, expression, belief and

worship………...Under our Constitutional scheme, the State is

not merely under an obligation to respect the fundamental

rights guaranteed by Part­III but under an equal obligation to

ensure conditions in which those rights can be meaningfully

and effectively enjoyed by one and all.”

58

42. The above passage from the opinion of Jeevan Reddy, J., in

Cricket Association of Bengal, was quoted with approval by the

Constitution Bench in Sahara India Real Estate Corporation

Limited case.

43. There are several instances where this Court either struck a

balance or placed on a slightly higher pedestal, the fundamental

right of one over that of the other. Interestingly, the competing

claims arose in many of those cases, in the context of Article 19(1)

(a) right of one person qua Article 21 right of another. Let us now

take a look at some of them.

(i) In R. Rajagopal (supra), the rights pitted against one another were the freedom of expression under Article 19(1)(a) and the right to privacy of the Officers of the Government under Article

21. This Court propounded:

“26. We may now summarise the broad principles flowing from the above discussion:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child­bearing and education among other matters. None can publish anything concerning the above matters without his consent — whether truthful or otherwise and whether laudatory or critical. If he does so, he would be 59 violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.

(3) There is yet another exception to the rule in (1) above — indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament 60 and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

(4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.

(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.”

(ii) In People’s Union for Civil Liberties (PUCL) (supra), the rights that were perceived as competing with each other were the right to privacy of the spouse of a candidate contesting election qua the voter’s right to information. In his separate but near concurring opinion, P. Venkatarama Reddi, J.

articulated the position thus:

“121. …

…When there is a competition between the right to privacy of an individual and the right to information of the citizen, the former right has to be subordinated to the latter right as it serves the larger public interest. …”

(iii) In Noise Pollution (V.), in Re (supra), the rights that competed with one another, were the rights enshrined in Article 19(1)(a) and Article 21. The clash was between

61 individuals and the persons in the neighborhood. This Court held:

“11. Those who make noise often take shelter behind Article 19(1)(a) pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable and pollution­free life guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21. …”

(iv) In Ram Jethmalani the right to know, inhering in Article 19(1)(a) and the right to privacy under Article 21, were seen to be in conflict. Right to privacy was asserted by individuals holding bank accounts in other countries. The court had to balance the same with the citizens’ right to know. This Court propounded as follows:

“84. The rights of citizens, to effectively seek the protection of fundamental rights, under clause (1) of Article 32 have to be balanced against the rights of citizens and persons under Article 21. The latter cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems such as unaccounted for monies, for it would lead to 62 dangerous circumstances, in which vigilante investigations, inquisitions and rabble rousing, by masses of other citizens could become the order of the day. The right of citizens to petition this Court for upholding of fundamental rights is granted in order that citizens, interalia, are ever vigilant about the functioning of the State in order to protect the constitutional project. That right cannot be extended to being inquisitors of fellow citizens. An inquisitorial order, where citizens’ fundamental right to privacy is breached by fellow citizens is destructive of social order. The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is enjoined from derogating from them. It also includes the responsibility of the State to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others.”

(v) In Sahara India Real Estate Corporation Limited freedom of press and the right to fair trial were the competing rights. In this case, the Constitution Bench was dealing with a question whether an order for postponement of publication of the proceedings pending before a Court, would constitute a restriction under Article 19(1)(a) and as to whether such restriction is saved under Article 19(2). This question was answered by the Constitution Bench in para 42 as follows:

“42. At the outset, we must understand the nature of such orders of postponement. Publicity postponement orders should be seen in the context of Article 19(1)(a) not being an absolute right. The US clash model based on collision between freedom of expression (including free press) and the right to a fair trial will not apply to the Indian Constitution. In certain cases, even the accused seeks publicity (not in the pejorative sense) as openness and transparency is the basis of a fair trial in which all the stakeholders who are a party to a 63 litigation including the Judges are under scrutiny and at the same time people get to know what is going on inside the courtrooms. These aspects come within the scope of Article 19(1) and Article 21. When rights of equal weight clash, the Courts have to evolve balancing techniques or measures based on recalibration under which both the rights are given equal space in the constitutional scheme and this is what the “postponement order” does, subject to the parameters mentioned hereinafter. But, what happens when the courts are required to balance important public interests placed side by side. For example, in cases where presumption of open justice has to be balanced with presumption of innocence, which as stated above, is now recognised as a human right. These presumptions existed at the time when the Constitution was framed [existing law under Article 19(2)] and they continue till date not only as part of rule of law under Article 14 but also as an Article 21 right. The constitutional protection in Article 21 which protects the rights of the person for a fair trial is, in law, a valid restriction operating on the right to free speech under Article 19(1)(a), by virtue of force of it being a constitutional provision. Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is “the end and purpose of all laws”. However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours non­ publication for a limited period. …”

64

(vi) In Thalapplam Service Cooperative Bank Ltd. (supra), the right to know held as part of Article 19(1)(a) and the right to privacy being part of Article 21 were perceived as competing with each other, in a matter between holders of accounts in cooperative banks and members of the public who wanted details. This Court in paragraph 64 held:

“64. Recognising the fact that the right to privacy is a sacrosanct facet of Article 21 of the Constitution, the legislation has put a lot of safeguards to protect the rights under Section 8(j), as already indicated. If the information sought for is personal and has no relationship with any public activity or interest or it will not subserve larger public interest, the public authority or the officer concerned is not legally obliged to provide those information. Reference may be made to a recent judgment of this Court in Girish Ramchandra Deshpande v. Central Information Commr., (2013) 1 SCC 212, wherein this Court held that since there is no bona fide public interest in seeking information, the disclosure of said information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the Act. Further, if the authority finds that information sought for can be made available in the larger public interest, then the officer should record his reasons in writing before providing the information, because the person from whom information is sought for, has also a right to privacy guaranteed under Article 21 of the Constitution.”

(vii) In Subramanian Swamy (supra), the right to freedom of speech of an individual guaranteed under Article 19(1)(a) qua the right to dignity and reputation of another individual guaranteed under Article 21 were the competing rights. In this case, the Court held as follows:

65 “98. Freedom of speech and expression in a spirited democracy is a highly treasured value. Authors, philosophers and thinkers have considered it as a prized asset to the individuality and overall progression of a thinking society, as it permits argument, allows dissent to have a respectable place, and honours contrary stances. There are proponents who have set it on a higher pedestal than life and not hesitated to barter death for it. Some have condemned compelled silence to ruthless treatment. William Dougles has denounced regulation of free speech like regulating diseased cattle and impure butter. The Court has in many an authority having realised its precious nature and seemly glorified sanctity has put it in a meticulously structured pyramid. Freedom of speech is treated as the thought of the freest who has not mortgaged his ideas, may be wild, to the artificially cultivated social norms; and transgression thereof is not perceived as a folly. Needless to emphasise, freedom of speech has to be allowed specious castle, but the question is: should it be so specious or regarded as so righteous that it would make reputation of another individual or a group or a collection of persons absolutely ephemeral, so as to hold that criminal prosecution on account of defamation negates and violates right to free speech and expression of opinion…”

(viii) In Asha Ranjan (supra), the right to free trial, of an accused vis­à­vis the victim, came up for consideration. The Court propounded in paragraph 61:

“61. Be it stated, circumstances may emerge that may necessitate for balancing between intra­fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra­conflict between the same fundamental right. To elaborate, as in this case, the accused has a fundamental right to have a fair trial under Article 21 of the Constitution. Similarly, the

66 victims who are directly affected and also form a part of the constituent of the collective, have a fundamental right for a fair trial. Thus, there can be two individuals both having legitimacy to claim or assert the right. The factum of legitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and it can have limitations in certain circumstances. Thus, permissible limitations are imposed by the State. The said limitations are to be within the bounds of law. However, when there is intra­conflict of the right conferred under the same article, like fair trial in this case, the test that is required to be applied, we are disposed to think, it would be “paramount collective interest” or “sustenance of public confidence in the justice dispensation system”. An example can be cited. A group of persons in the name of “class honour”, as has been stated in Vikas Yadav v. State of U.P., (2016) 9 SCC 541: (2016) 3 SCC (Cri) 621], cannot curtail or throttle the choice of a woman. It is because choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of “class honour” or “group thinking”. It is because the sense of class honour has no legitimacy even if it is practised by the collective under some kind of a notion. Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. There can be no denial of the fact that the rights of the victims for a fair trial is an inseparable aspect of Article 21 of the Constitution and when they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes “Rule of Law”. …” 67

(ix) In Railway Board representing the Union of India vs. Niranjan Singh53, a trade union worker was charged of the misconduct of addressing meetings within the railway premises, in contravention of the directions issued by the employer. When he sought protection under clauses (a), (b) and (c) of Article 19(1), this Court rejected the same by holding “that the exercise of those freedoms will come to an end as soon as the right of someone else to hold his property

intervenes.” This Court went on to state that “the validity of that limitation is not to be judged by the test prescribed in sub­Articles (2) and (3) of Article 19”.

(x) In Life Insurance Corporation of India vs. Prof. Manubhai D. Shah54, two fundamental rights were not competing or in conflict with each other. But the right to free speech and the right to propagate one’s ideas, in the context of censorship under the Cinematograph Act, 1952 and in the context of a State institution refusing to publish an Article in an in­house magazine were in question. In Paragraph 23 of the Report, this Court said: “every right has a corresponding duty or obligation and so is the fundamental right of speech and expression. The freedom conferred by Article 19(1((a) is therefore not absolute as perhaps in the case of the US First Amendment: it carries with it certain responsibilities towards fellow citizens and society at

53(1969) 1 SCC 502 54 (1992) 3 SCC 637 68 large. A citizen who exercises this right must remain conscious that his fellow citizen too has a similar right.

Therefore, the right must be so exercised as not to come in direct conflict with the right of another citizen.”

44. The series of decisions discussed above shows that whenever

two or more fundamental rights appeared either to be on a collision

course or to be seeking preference over one another, this Court has

dealt with the same by applying well­established legal tools.

Therefore, we are of the view that 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.

45. In fine, we answer Question No.1 in the following manner:

“The grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive. Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual.”

69 Question No.2

46. The second question referred to us is as to whether a

fundamental right under Article 19 or 21 can be claimed against

anyone other than the State or its instrumentalities. Actually, the

question is not about “claim” but about “enforceability”.

47. To use the phraseology adopted by the philosophers of Law,

the question on hand is as to whether Part III of the

Constitution has a “vertical” or “horizontal” effect. Wherever

Constitutional rights regulate and impact only the conduct of the

Government and Governmental actors, in their dealings with private

individuals, they are said to have “a vertical effect”. But wherever

Constitutional rights impact even the relations between private

individuals, they are said to have “a horizontal effect”.

48. In his scholarly article, “The ‘Horizontal Effect’ of

Constitutional Rights”, published in Michigan Law Review (Volume

2. Issue 3, 2003) Stephen Gardbaum, states that the horizontal

position has been adopted to varying degrees in Ireland, Canada,

Germany, South Africa and European Union. According to the

70 learned author, this issue has also been the topic of sustained

debate in the United Kingdom following the enactment of the

Human Rights Act of 199855.

49. No jurisdiction in the world appears to be adopting, at least as

on date, a purely vertical approach or a wholly horizontal approach.

A vertical approach provides weightage to individual autonomy,

choice and privacy, while the horizontal approach seeks to imbibe

Constitutional values in all individuals. These approaches which

appear to be bipolar opposites, raise the age­old question of

‘individual vs. society’.

50. Even in countries where the individual reigns supreme, as in

the United States, the Thirteenth Amendment making slavery and

involuntary servitude a punishable offence, has actually made

inroads into individual autonomy. Therefore, some scholars think

that the Thirteenth Amendment provided a shift from the ‘purely

vertical’ approach in a direct way. Subsequently, an indirect effect

of the horizontality was found in certain decisions of the U.S.

Supreme Court, two of which are of interest.

55Interestingly The Protection of Human Rights Act, 1993 was enacted in India five years before a similar Act came in United Kingdom.

71

51. After the American Civil War (1861­1865), the Reconstruction

Era began in the United States. During this period, the Fourteenth

Amendment came (1866­1868) followed by the Civil Rights Act,

1875 (also called Enforcement Act or Force Act). This Civil Rights

Act, 1875 entitled everyone, to access accommodation, public

transport and theaters regardless of race or color. Finding that

despite the Act, they were excluded from “whites only” facilities in

hotels, theaters etc., the victims of discrimination (African­

Americans) filed cases. All those five cases were tagged together and

the U.S. Supreme Court held in (year 1883) what came to be known

as “Civil Rights Cases”56 that the Thirteenth and Fourteenth

Amendments did not empower Congress to outlaw racial

discrimination by private individuals. But after nearly 85 years, this

decision was overturned in Jones vs. Alfred H. Mayer Co57

wherein it was held that Congress could regulate sale of private

property to prevent racial discrimination. This was done in terms of

42 U.S. Code § 1982 which entitled all citizens of the United States

to have the same right, in every State and Territory, as is enjoyed by

56109 US 3 (1883) 57392 US 409 (1968) 72 white citizens thereof to inherit, purchase, lease, sell, hold, and

convey real and personal property.

52. But a good 20 years before the decision in Jones (supra) was

delivered, the U.S. Supreme Court had an occasion to consider a

clash between contractual rights and Constitutional rights. It was

in Shelly (supra) where an African­American family (Shellys) who

purchased a property in a neighbourhood in St. Louis, Missouri was

sought to be restrained from taking possession, because of a

racially restrictive covenant contained in an Agreement of the year

1911 to which a majority of property owners in the neighbourhood

were parties. The covenant restricted the sale of any property or

part thereof for a term of 50 years to African­Americans and Asian­

Americans. The Missouri Supreme Court upheld the racially

restricted covenant. But the U.S. Supreme Court reversed it holding

that the enforcement of such covenants violated the Equal

Protection Clause of the Fourteenth Amendment. In other words

the contractual rights were trumped by the Constitutional

obligations.

73

53. Then came the decision in New York Times vs. Sullivan58. It

was a case where the City Commissioner in Montgomery, Alabama

filed an action for libel against the New York Times for publishing

an allegedly defamatory statement in a paid advertisement. The jury

awarded damages and the judgment was affirmed by the Supreme

Court of Alabama. However, the U.S. Supreme Court reversed the

decision and held that the First Amendment which prohibited a

public official from recovering damages for a defamatory falsehood

relating to the public official’s official conduct except in the case of

actual malice, bound the plaintiff from exercising his private right.

54. The above decisions of the U.S. Supreme Court were seen by

scholars as indicating a shift from a ‘purely vertical approach’ to a

‘horizontal approach’.

55. While the U.S. Constitution represented (to begin with) a

purely vertical approach, the Irish Constitution was found to be on

the opposite side of the spectrum, with the rights provided therein

having horizontal effect. Article 40 of the Irish Constitution deals

with Personal Rights under the Chapter “Fundamental Rights”. Sub­

58376 U.S. 254 (1964) 74 Article (3) of Article 40 states that “The State guarantees in its laws

to respect, and, as far as practicable, by its laws to defend and

vindicate the personal rights of the citizen”. In other words, two

rights are guaranteed namely (i) respect for the personal rights of

the citizen; and (ii) to defend and vindicate the personal rights of its

citizen.

56. The second clause of sub­Article (3) of Article 40 of the Irish

Constitution states that “The State shall, in particular, by its laws

protect as best it may from unjust attack and, in the case of injustice

done, vindicate the life, person, good name, and property rights of

every citizen”.

57. The above provisions have been interpreted by the Irish

Supreme Court as imposing a positive obligation on all State actors,

including the Courts to protect and enforce the rights of individuals.

It appears that full horizontal effect was given by the Irish Supreme

Court to Constitutional rights such as freedom of association,

freedom from sex discrimination and the right to earn a livelihood.

For instance, the Irish Supreme Court had an occasion to consider

75 in John Meskell, the Constitutional rights of citizens to form

associations and unions guaranteed by Article 40.6.1. This case

arose out of an agreement reached between certain trade unions

and the employer to terminate the services of all workers and to

reemploy them on condition that they agree to be members of the

specified trade unions at all times. One employee whose services

were terminated was not reemployed, as he refused to accept the

special condition. Therefore, he sued the company for damages and

claimed a declaration that his dismissal was a violation of the

Constitutional rights. Holding that the Constitutional right of

citizens to form associations and unions necessarily

recognized a correlative right to abstain from joining

associations and unions, the Irish Supreme Court awarded

damages on the ground that the non­State actors actually violated

the Constitutional right of the plaintiff. In other words, the

Constitutional rights were considered to have horizontal effect.

58. The Constitution of the Republic of South Africa, 1996 also

provides horizontal effect to certain rights. Section 8.2 of the said

Constitution states: “A provision of the Bill of Rights binds a 76 natural or a juristic person if, and to the extent that, it is

applicable, taking into account the nature of the right and the nature

of any duty imposed by the right.”

59. The manner in which Section 8.2 has to be applied is spelt out

in Section 8.3. The same reads thus:

“8. Application

…..

3. When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court

a. in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

b. may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).”

60. Section 9 of the Constitution of the Republic of South Africa

guarantees equality before law and equal protection and the benefit

of the law to everyone. Section 9.3 mandates the State not to

unfairly discriminate directly or indirectly against anyone, on

one or more grounds including race, gender, sex, pregnancy,

77 marital status, ethnic or social origin, colour, sexual

orientation, age, disability, religion, conscience, belief,

culture, language, and birth. If Section 9.3 is a mandate against

the State, what follows in Section 9.4 is a mandate against every

person. Section 9.4 reads as follows:

“9. Equality

…..

4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of sub­section (3). National legislation must be enacted to prevent or prohibit unfair discrimination.”

61. Again, Section 10 recognises the right to human dignity.

While doing so, it employs a language, which applies to non­

State actors also. Section 10 states that “Everyone has inherent

dignity and the right to have their dignity respected and protected”.

62. During the period from April 1994 to February 1997, when the

Republic of South Africa had an Interim Constitution, the

Constitutional Court of South Africa had an occasion to deal with a

defamation action in Du Plessis and Others vs. De Klerk and

78 Another59. The defamation action was instituted by an Airline

company, against a newspaper for publishing an article implicating

the Airline in the unlawful supply of arms to UNITA (National Union

for the Total Independence of Angola). After the Interim Constitution

came into force, the defendant­newspaper raised a defence that

they were insulated against the defamation action, under Section

15 of the Constitution which protected the freedom of the press.

The Transvaal Provincial Division of the Supreme Court referred two

issues to the Constitutional Court. One of the issues was

whether Chapter 3 (fundamental rights) of the Constitution

was applicable to legal relationships between private parties.

The majority (11:2) of the Court held that Chapter 3 could not be

applied directly to the common law in actions between private

parties. But they left open the question whether there were

particular provisions of the Chapter that could be so applied.

However, the Court held that in terms of Section 35(3) of the

Interim Constitution, Courts were obliged in the application and

development of common law, to have due regard to the spirit,

purport and objects of Chapter 3. The majority held that it was the 59 1996 ZACC 10 79 task of the Supreme Court to apply and develop the common law as

required by Section 35(3).

63. Interestingly, the dissenting opinion given by Kriegler, J.

became the subject matter of lot of academic debate. To begin with,

Kriegler, J. rejected the idea that the debate was one of “verticality

versus horizontality”. He said that Chapter 3 rights do not operate

only as against the State but also horizontally as between

individuals where Statutes are involved. Calling “direct

horizontality” as a bogeyman, Kriegler, J. said as follows:

“The Chapter has nothing to do with the ordinary relationships between private persons or associations. What it does govern, however, is all law, including that applicable to private relationships. Unless and until there is a resort to law, private individuals are at liberty to conduct their private affairs exactly as they please as far as the fundamental rights and freedoms are concerned. As far as the Chapter is concerned a landlord is free to refuse to let a flat to someone because of race, gender or whatever; a white bigot may refuse to sell property to a person of colour; a social club may black­ball Jews, Catholics or Afrikaners if it so wishes. An employer is at liberty to discriminate on racial grounds in the engagement of staff; a hotelier may refuse to let a room to a homosexual; a church may close its doors to mourners of a particular colour or class. But none of them can invoke the law to enforce or protect their bigotry. One cannot claim rescission of a contract or specific performance thereof if such claim, albeit well­founded at common law, 80 infringes a Chapter 3 right. One cannot raise a defence to a claim in law if such defence is in conflict with a protected right or freedom. The whole gamut of private relationships is left undisturbed. But the state, as the maker of the laws, the administrator of laws and the interpreter and applier of the law, is bound to stay within the four corners of Chapter 3. Thus, if a man claims to have the right to beat his wife, sell his daughter into bondage or abuse his son, he will not be allowed to raise as a defence to a civil claim or a criminal charge that he is entitled to do so at common law, under customary law or in terms of any statute or contract. That is a far cry from the spectre of the state placing its hand on private relationships. On the contrary, if it were to try to do so by legislation or administrative action, sections 4, 7(1) and the whole of Chapter 3 would stand as a bastion of personal rights.”

64. After the Final Constitution was adopted and it came into force

on February 4, 1997, the first case to come up on this issue was

Khumalo vs. Holomisa60. In this case, Bantu Holomisa, the leader

of the South African opposition political party sued a newspaper for

publishing an article alleging as though he was under a police

investigation for his involvement with a gang of bank robbers.

Heavy reliance was placed in this case on the majority decision of

the Constitutional Court of South Africa in Du Plessis (supra). But

as pointed out earlier, Du Plessis was a case which was decided at

a time when South Africa had only an Interim Constitution.

60 (2002) ZACC 12 81 Therefore, while dealing with Khumalo (supra), the Constitutional

Court of South Africa applied the Final Constitution, as it had come

into force by then. What is relevant for our purpose is the opinion of

the Constitutional Court in paragraph 33 which dealt with the

enforcement of the rights against non­State actors. Paragraph 33

reads thus:

“[33] In this case, the applicants are members of the media who are expressly identified as bearers of constitutional rights to freedom of expression. There can be no doubt that the law of defamation does affect the right to freedom of expression. Given the intensity of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the state or organs of state, it is clear that the right to freedom of expression is of direct horizontal application in this case as contemplated by section 8(2) of the Constitution. The first question we need then to determine is whether the common law of defamation unjustifiably limits that right. If it does, it will be necessary to develop the common law in the manner contemplated by section 8(3) of the Constitution.”

65. The horizontal effect was taken to another extreme by the

Constitutional Court of South Africa in Governing Body of the

Juma Musjid Primary School & Others vs. Essay N.O. and

Others61 wherein it was held that an eviction order obtained by the

61(CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) 82 owner of a private land on which a public school was located, could

not be enforced as it would impact the students’ right to basic

education and the best interests of the child under the South

African Constitution (Sections 28 and 29). The Court held that a

private landowner and non­State actor has a Constitutional

obligation not to impair the right to basic education under Section

29 of the Constitution. The relevant portion reads thus:

“[57] In order to determine whether the right to a basic education in terms of section 29(1)(a) binds the Trust, section 8(2) requires that the nature of the right of the learners to a basic education and the duty imposed by that right be taken into account. From the discussion in the previous paragraphs of the general nature of the right and the MEC’s obligation in relation to it, the form of the duty that the right to a basic education imposed on the Trustees emerges. It is clear that there is no primary positive obligation on the Trust to provide basic education to the learners. That primary positive obligation rests on the MEC. There was also no obligation on the Trust to make its property available to the MEC for use as a public school. A private landowner may do so, however, in accordance with section 14(1) of the Act which provides that a public school may be provided on private property only in terms of an agreement between the MEC and the owner of the property.

[58] This Court, in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, made it clear that socio­economic rights (like the right to a basic education) may be negatively protected from improper invasion. Breach of this obligation occurs directly when there is a failure to respect the right, or indirectly, when there is a failure to 83 prevent the direct infringement of the right by another or a failure to respect the existing protection of the right by taking measures that diminish that protection. It needs to be stressed however that the purpose of section 8(2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the state in protecting the Bill of Rights. It is rather to require private parties not to interfere with or diminish the enjoyment of a right. Its application also depends on the intensity of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the State or organs of State. ”

66. Coming to the United Kingdom, they ratified the European

Convention on Human Rights in 1951. But the rights conferred by

the Convention had to be enforced by British citizens only in the

European Court of Human Rights, for a long time. Finding that it

took an average of five years to get an action in the European Court

of Human Rights after all domestic remedies are exhausted and also

finding that on an average, the same costed £30,000, a white paper

was submitted in 1997 under the title “Rights Brought Home”. This

led to the enactment of the Human Rights Act, 1998 by the

Parliament of the United Kingdom. It came into force on 2.10.2000

(coincidentally Gandhi Jayanti Day). This Act sought to incorporate

into the domestic law, the rights conferred by the European

84 Convention, so that the citizens need not go to the European Court

of Human Rights in Strasbourg. After the enactment of the Human

Rights Act, the horizontal effect of Convention Rights became the

subject matter of debate in several cases.

67. For instance, Douglas vs. Hello! Ltd.62 was a case where the

right to privacy of an individual was pitted against the right of free

speech and expression. In that case, a magazine called OK! was

given the exclusive right to publish the photographs of the wedding

reception of a celebrity couple that took place at New York. On the

day of the wedding, certain paparazzo had infiltrated the venue and

took few unauthorized photographs which were shared with

potential competitor viz. Hello! Ltd. (another magazine). Hello!

published the photographs in the next issue of their magazine even

before Ok! could publish it. The question before the Court of Appeal

(Civil Division) was whether there was violation of right to privacy,

among others and whether it could be enforced against a private

person. The Court said:

“49. It follows that the ECtHR has recognised an obligation on member states to protect one

62[2001] QB 967 85 individual from an unjustified invasion of private life by another individual and an obligation on the courts of a member state to interpret legislation in a way which will achieve that result.

50. Some, such as the late Professor Sir William Wade, in Wade & Forsyth Administrative Law (8th Ed.) p 983, and Jonathan Morgan, in Privacy, Confidence and Horizontal Effect:" Hello" Trouble (2003) CLJ 443, contend that the Human Rights Act should be given 'full, direct, horizontal effect'. The courts have not been prepared to go this far.…

…

102. To summarise our conclusion at this stage:

disregarding the effect of the OK! contract, we are satisfied that the Douglases' claim for invasion of their privacy falls to be determined according to the English law of confidence. That law, as extended to cover private and personal information, protected information about the Douglases' wedding.”

68. In X vs. Y63, the Court of Appeals dealt with the case of an

employee X, who was cautioned by the Police for committing a sex

offence with another man in a public bathroom. The offence

occurred when X was off duty. On finding about the incident, the

employer Y suspended X and dismissed him after a disciplinary

hearing. The dismissal was challenged as violative of Convention

Rights. An argument was raised that these rights are not

enforceable against private parties. Though on facts, the claim of

63[2004] EWCA Civ 662 86 the dismissed employee was dismissed, the legal issue was

articulated by the Court thus:

“55. The applicant invoked articles 8 and 14 of the Convention in relation to his cause of action in private law.

(1) As appears from the authorities cited in section C above, article 8 is not confined in its effect to relations between individuals and the state and public authorities. It has been interpreted by the Strasbourg court as imposing a positive obligation on the state to secure the observance and enjoyment of the right between private individuals. (2) If the facts of the case fall within the ambit of article 8, the state is also under a positive obligation under article 14 to secure to private individuals the enjoyment of the right without discrimination, including discrimination on the ground of sexual orientation.

(3) A person's sexual orientation and private sex life fall within the scope of the Convention right to respect for private life (see ADT v. UK [2000] 2 FLR 697) and the right to non­discrimination in respect that right.

Interference with the right within article 8.1 has to be justified under article 8.2.”

69. In Plattform "Ärzte Für Das Leben" vs. Austria64, a question

arose as to the enforceability of the right to freedom of assembly

against non­State actors, who obstructed the assembly. The case

arose out of these facts. On 28 December 1980, the anti­

abortion NGO "Ärzte für das Leben" (Physicians for Life) organised a

religious service and a march to the clinic of a doctor who carried

64[1988] ECHR 15 87 out abortions in Stadl­Paura. A number of counter­demonstrators

disrupted the march to the hillside by mingling with the marchers

and shouting down their recitation. At the end of the ceremony,

special riot­control units – which had until then been standing by –

formed a cordon between the opposing groups. One person caught

in the act of throwing eggs was fined. The association lodged a

disciplinary complaint against police for failing to protect the

demonstration, which was refused. When the matter was taken to

the Constitutional Court, it held that it had no jurisdiction over the

case. Therefore, the association applied to the European

Commission on 13 September 1982, alleging violation of

Articles 9 (conscience and religion), 10 (expression), 11 (association)

and 13 (effective remedy) of the European Convention on Human

Rights. The European Court on Human Rights held:

“32. A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter­ demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.

88 Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 (art. 11). Like Article 8 (art. 8), Article 11 (art. 11) sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, §

23)”

70. In X and Y vs. The Netherlands65, a privately­run home for

children with mental disabilities was sued on the ground that a 16­

year­old inmate was subjected to sexual assault. When the case

was dismissed by the domestic court on a technical plea, the father

of the victim approached the European Court of Human Rights.

ECHR outlined the extent of State obligation on the protection of

the right to life even against private persons as follows:

“23. The Court recalls that although the object of Article 8 (art. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see the Airey judgment of 9 October 1979, Series A no. 32, p. 17, para. 32). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.” 65[1985] ECHR 4 89

71. Having taken an overview of the theoretical aspect of

“verticality vs horizontality” and the approach of Constitutional

Courts in other jurisdictions, let us now come back to the Indian

context.

72. Part­III of the Indian Constitution begins with Article 12 which

defines the expression “the State” to include the Government and

the Parliament of India and the Government and the Legislature of

each of the States and all local or other authorities within the

territory of India or under the control of the Government of India.

73. After defining the expression “the State” in Article 12 and after

declaring all laws inconsistent with or in derogation of the

fundamental rights to be void under Article 13, Part­III of the

Constitution proceeds to deal with rights. There are some Articles

in Part­III where the mandate is directly to the State and

there are other Articles where without injuncting the State,

certain rights are recognized to be inherent, either in the

citizens of the country or in persons. In fact, there are two sets

of dichotomies that are apparent in the Articles contained in Part 90 III. One set of dichotomy is between (i) what is directed against the

State; and (ii) what is spelt out as inhering in every individual

without reference to the State. The other dichotomy is between

(i) citizens; and (ii) persons. This can be illustrated easily in the

form of a table as follows:

Sl. Provisions containing a Provisions declaring on whom the Nos. mandate to the State the rights of the right is individuals without conferred reference to “the State”

1. Article 14 mandates the State ­ Any person not to deny to any person equality before law or the equal protection of the laws within the territory of India.

2. Article 15(1) mandates the ­ Any citizen State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

3. ­ Article 15(2) mandates Citizen that no citizen shall be subject to any disability, liability, restriction or condition, with regard to— (i) access to shops, public restaurants, hotels and places of public entertainment; or (ii) the use of wells, tanks, bathing ghats, roads and places of 91 public resort maintained wholly or partly out of State funds or dedicated to the use of general public, only on grounds of religion, race, caste, sex, place of birth or any of them.

4. Article 16(1) declares that ­ Only citizens there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

5. Article 16(2) states that no ­ Citizen citizen shall on grounds of only religion, race, caste, sex, descent, place of birth, resident or any of them be ineligible for or discriminated against in respect of any employment or office under the State.

6. ­ Article 17 abolishes Neither the untouchability and word “citizen” forbids the practice of nor the word the same in any form “person” is and declares it to be a mentioned in punishable offence. Article 17. It means that what is abolished is the practice and any violation of this injunction is punishable.

7. ­ Six types of rights are Citizens listed in Article 19(1), as available to all

92 citizens.

8. Article 20 confers three ­ Persons different rights namely (i) not to be convicted except by the application of a law in force at the time of the commission of offence; (ii) not to be prosecuted and punished for the same offence more than once; and (iii) right against self­incrimination.

9. ­ Article 21 protects life Persons and liberty of all persons.

10. Article 21A mandates the ­ Children State to provide free and compulsory education to all children of the age of six to fourteen years.

11. Article 22 provides protection ­ All persons against arrest and detention except an generally and saves preventive enemy alien detention with certain (Article 22(3) limitations. (a) makes the provision inapplicable to an enemy alien).

12. ­ Article 23(1) prohibits Any person traffic in human beings and begar and other similar forms of forced labour. Any contravention is made a punishable offence.

13. ­ Article 24 prohibits Children the employment of children below the age of fourteen years in any factory or mine.

14. ­ Article 25(1) declares Persons the right of all persons to freedom of

93 conscience and the right freely to profess, practice and propagate religion.

15. ­ Article 26 confers four Religious different types of denomination rights upon every religious denomination or any section thereof.

16. Article 27 confers right not to ­ Person be compelled to pay any taxes, for the promotion of any particular religion.

17. ­ Article 28(1) forbids Person religious instructions being provided in any educational institution wholly maintained out of State funds, with the exception of those established under any endowment or trust.

18. ­ A right not to take Person part in any religious instruction imparted in an educational institution recognised by the State or receiving aid out of State funds, is conferred by Article 28(3).

19. ­ A right to conserve the Citizens language, script or culture distinct to any part of the territory of India is conferred by Article 29(1).

20. A right not to be denied This applies to Citizen admission into any institutions

94 educational institution maintained by the maintained by the State or State or even to receiving aid out of State institutions receiving funds, on grounds only of aid out of State funds.

religion, race, caste, language or any of them is conferred by Article 29(2).

21. (i) A right to establish and ­ Religious and administer educational linguistic institutions of their choice is minorities conferred by Article 30(1) upon the religious as well as linguistic minorities.

(ii) The State is mandated under Article 30(2) not to discriminate against any educational institution while granting aid. 22. ­ The right to move the The words Supreme Court for the “State”, enforcement of the “citizen” or rights conferred by “person” are Part III is guaranteed not mentioned under Article 32. in Article 32, indicating thereby that the right is available to one and all, depending upon which right is sought to be enforced.

74. The above table would show that some of the Articles of Part­

III are in the form of a directive to the State, while others are not.

This is an indication that some of the rights conferred by Part­III

are to be honored by and also enforceable against, non­State actors. 95

75. For instance, the rights conferred by Articles 15(2)(a) and (b),

17, 20(2), 21, 23, 24, 29(2) etc., are obviously enforceable against

non­State actors also. The owner of a shop, public restaurant, hotel

or place of entertainment, though a non­State 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 non­State actors

under Article 17. The right against double jeopardy, and the right

against self­incrimination available under sub­Articles (2) and (3) of

Article 20 may also be available even against non­State actors in

the case of prosecution on private complaints. We need not

elaborate more, as the table given above places all rights in

perspective.

76. That takes us to the question as to how the Courts in India

have dealt with cases where there were complaints of infringement

by non­State actors, of fundamental rights, other than those

96 covered in column 2 of the Table in para 73 above. To begin with,

this Court was weary of extending the enforcement of fundamental

rights against private individuals. But this reluctance changed over

a period of time. Let us now see how the law evolved:

(i) In P.D. Shamdasani (supra), a Five Member Bench of this Court was dealing with a writ petition under Article 32, filed by a person who lost a series of proceedings both civil and otherwise, against the Central Bank of India Limited, which was at that time a company incorporated under Companies Act. The grievance of the petitioner in that case was that the shares held by him in the company were sold by the bank in exercise of its right of lien for recovery of a debt. Therefore, the petitioner pitched his claim under Article 19(1)(f) and Article 31(1)(which was available at that time). But while making a comparison between Article 31(1) (as it stood at that time) and Article 21, both of which contained a declaration in the same negative form, this Court observed in P.D. Shamdasani as follows: “There is no express reference to the State in

Article 21. But could it be suggested on that account that that Article was intended to afford protection to life and personal liberty against violation by private individuals?

The words “except by procedure established by law” plainly exclude such a suggestion”.

97

(ii) The aforesaid principle in P.D. Shamdasani was reiterated by another Five Member Bench of this Court in Smt. Vidya Varma vs. Dr. Shiv Narain Varma66holding that the language of Article 31(1) and Article 21 are similar and that they do not apply to invasions of a right by a private individual and that consequently no writ will lie in such cases.

(iii) In Sukhdev Singh vs. Bhagatram Sardar Singh Raghuvanshi67 two questions arose before a Constitution Bench of this Court. One of the questions was whether an employee of a statutory corporation is entitled to protection of Articles 14 and 16 against the corporation on the premise that these statutory corporations are authorities within the meaning of Article 12. In his separate but concurring opinion, Mathew, J. pointed out that the concept of State has undergone drastic changes in recent years and that today State cannot be conceived of simply as a coercive machinery wielding the thunderbolt of authority. The learned Judge quoted the decision of the US Supreme Court in Marsh vs. Alabama68, where a person who was a Jehovah’s witness was arrested for trespassing and distributing pamphlets, in a company town owned by a corporation. Though the property in question was private, the Court said that the operation of a town was a public function and that therefore, the private

66AIR 1956 SC 108 67(1975) 1 SCC 421 68326 US 501 (1946) 98 rights of the corporation must be exercised within constitutional limitations. After quoting the decision in Marsh, K.K. Mathew, J. went on to hold as follows:

“95. But how far can this expansion go? Except in very few cases, our Constitution does not, through its own force, set any limitation upon private action. Article 13(2) provides that no State shall make any law which takes away or abridges the rights guaranteed by Part III. It is the State action of a particular character that is prohibited. Individual invasion of individual right is not, generally speaking, covered by Article 13(2). In other words, it is against State action that fundamental rights are guaranteed. Wrongful individual acts unsupported by State authority in the shape of laws, customs, or judicial or executive proceeding are not prohibited. Articles 17, 23 and 24 postulate that fundamental rights can be violated by private individuals and that the remedy under Article 32 may be available against them. But, by and large, unless an act is sanctioned in some way by the State, the action would not be State action. In other words, until some law is passed or some action is taken through officers or agents of the State, there is no action by the State…”

(iv) In People’s Union for Democratic Rights (supra) this Court pointed out that the fundamental right guaranteed under Article 24 is enforceable against everyone, including the contractors. The Court went a step further by holding that the Union of India, the Delhi Administration and the Delhi Development Authority have a duty to ensure that this Constitutional obligation is obeyed by the contractors. Going further, this Court held that certain fundamental rights such as those found in Articles 17, 23 and 24 are enforceable against the whole world.

99 (v) S. Rangarajan (supra) was a case where a division Bench of the Madras High Court revoked the ‘U’ certificate issued to a Tamil feature film, on the ground that it offended the reservation policy. The Government of Tamil Nadu supported the decision of the High Court on the ground that several organizations in Tamil Nadu were agitating that the film should be banned as it hurt the sentiments of people belonging to the reserved categories. After pointing out that this Court was amused and troubled by the stand taken by the State Government, this Court indicated that it is the duty of the State to protect the freedom of expression since it is a liberty granted against the State and that the State cannot plead its inability to handle the hostile audience problem. Holding that the State cannot negate the rule of law and surrender to blackmail and intimidation, this Court said that it the obligatory duty of the Court to prevent it and protect the freedom.

(vi) In Smt. Nilabati, this Court made a distinction between,

(i) the decision in Kasturi Lal upholding the State’s plea of sovereign immunity for tortious acts of its servants, which was confined to the sphere of liability in tort; and

(ii) the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme. In paragraph

100 34, which contains the separate but concurring opinion of Dr. A.S. Anand, J., the law was summarised as follows:­

“34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting “compensation” in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

(vii) In Lucknow Development Authority vs. M.K. Gupta69 this Court pointed out that the administrative law of accountability 69(1994) 1 SCC 243 101 of public authorities for their arbitrary and even ultra vires actions has taken many strides and that it is now accepted by both by this Court and English Courts that the State is liable to compensate for the loss or injury suffered by a citizen due to arbitrary actions of its employees.

(viii) The decision in Bodhisattwa Gautam (supra), arose under special circumstances. A girl student of a college lodged a complaint against a Lecturer for alleged offences under Sections 312, 420, 493, 496 and 498­A IPC. The Lecturer moved the High Court under Section 482 Cr.P.C. for quashing the complaint. The High Court dismissed the quash petition. When the Lecturer filed a special leave petition, this Court not only dismissed the SLP but also issued notice suo motu on the question as to why he should not be asked to pay reasonable monthly maintenance during the pendency of the prosecution. Finally, this Court ordered payment of a monthly interim compensation after holding that what was violated was the fundamental right of the women under Article 21 and that therefore a remedy can be provided by this Court under Article 32 even against the non­state actor (namely the accused). This decision was cited with approval in Chairman, Railway Board & Ors. vs. Chandrima Das (Mrs.) &Ors.70.

70(2000) 2 SCC 465 102

(ix) As rightly highlighted by the learned amicus, this Court has awarded damages against non­State actors under the environmental law regime, whenever they were found to have violated the right under Article 21. For instance this Court was concerned with a case in M.C. Mehta vs. Kamal Nath 71 where a company built a club on the banks of River Beas, partly taken on lease from the Government and partly by encroaching into forest land and virtually turning the course of the River. Invoking the “polluter pays principle” and “precautionary principle” landscaped in Vellore Citizens’ Welfare Forum vs. Union of India72and also applied in Indian Council for Enviro­Legal Action vs. Union of India73, this Court held the owner of the private motel to be liable to pay compensation towards the cost of restoration of the ecology of the area. Thereafter, a show cause notice was issued to the motel as to why they should not be asked to pay compensation to reverse the degraded environment and as to why a pollution fine should not be imposed. In response, the motel contended before this Court that though in proceedings under Article 32 it was open to this Court to grant compensation to the victims whose fundamental rights were violated or who are victims of arbitrary Executive action or victims of atrocious behavior of public authorities, the Court cannot impose any fine on those who are guilty of that action. 71(1997) 1 SCC 388 72(1996) 5 SCC 647 73(1996) 3 SCC 212 103 The motel also contended that fine is a component of criminal jurisprudence and hence the imposition of fine would be violative of Articles 20 and 21. This Court, even while accepting the said argument in so far as the component of fine is concerned, directed the issue of fresh notice to the motel to show cause why exemplary damages be not awarded, in addition to the damages already awarded. Thereafter, this Court held in M.C. Mehta vs. Kamal Nath (supra at footnote no.15) as follows:­

“10. In the matter of enforcement of fundamental rights under Article 21, under public law domain, the Court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the “POLLUTER­PAYS PRINCIPLE” which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment.”

(x) In Consumer Education & Research Centre & Ors. vs. Union of India &Ors.74, this Court held that in appropriate cases the Court could give appropriate directions to the employer, be it the State or its undertaking or private employer, to make the right to life meaningful, to prevent pollution of work place, protection of environment, protection of the health of the workmen and to preserve free and

74(1995) 3 SCC 42 104 unpolluted water for the safety and health of the people. The Court was dealing in that case with the occupational health hazards and diseases afflicting the workmen employed in asbestos industries. In paragraph 29 of the Report, this Court said, “…It is therefore settled law that in public law claim for compensation is a remedy available under Article 32 or Article 226 for the enforcement and protection of fundamental and human rights. … It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law.”

(xi) In Vishaka vs. State of Rajasthan.75, this Court laid down guidelines, in the absence of a legislation, for the enforcement of the right to gender equality of working women, in a class action petition that was filed to enforce fundamental rights of working women and to prevent sexual harassment of women in workplace. The guidelines imposed an obligation upon both public and private employers not to violate the fundamental rights guaranteed to working women under Article 14, 15, 19(1)(g) and 21. In Medha Kotwal Lele & Ors. vs. Union of 75(1997) 6 SCC 241 105 India76,this Court noted that even after 15 years of the judgment in Vishaka (supra), many States had not made the necessary amendments or failed to effectively implement the guidelines. This Court issued a direction in Paragraph 44.4 :

“44.4 The State functionaries and private and public sector undertakings/organisations/bodies/ institutions, etc. shall put in place sufficient mechanism to ensure full implementation of Vishaka [Vishaka v. State of Rajasthan, (1997) 6 SCC 241 :

1997 SCC (Cri) 932] guidelines and further provide that if the alleged harasser is found guilty, the complainant victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.”

(xii) In Githa Hariharan (Ms.) & Anr. vs. Reserve Bank of India & Anr.77, this Court was dealing with a challenge to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890 which declared the father to be the natural guardian of the person and property of a minor son and unmarried daughter. The mother was recognised as the natural guardian under these provisions “after the father”. These provisions resulted in hardship to spouses separated from each other while dealing with the wards. Reading the obligations of the State under certain International Conventions like CEDAW into the right to

76(2013) 1 SCC 297 77(1999) 2 SCC 228 106 dignity of women and gender equality, traceable to Article 21 and 14, this Court read down the word “after” to mean “in the absence of”. By such interpretation, this Court invoked fundamental rights to interpret a word in the sphere of family law.

(xiii) In Indian Medical Association vs. Union of India.78, the policy of an Army College of Medical Sciences to admit only those who are wards of army personnel, based on scores obtained in an entrance test, was under challenge. The question that came up for consideration was whether this discriminatory practice by a private entity would be in violation of Article 15 of the Constitution. This Court in Paragraph 187 stated:

“187. Inasmuch as education, pursuant to T.M.A. Pai [(2002) 8 SCC 481], is an occupation under sub­clause

(g) of clause (1) of Article 19, and it is a service that is offered for a fee that takes care of all the expenses of the educational institution in rendering that service, plus a reasonable surplus, and is offered to all those amongst the general public, who are otherwise qualified, then such educational institutions would also be subject to the discipline of clause (2) of Article

15. In this regard, the purport of the above exposition of clause (2) of Article 15, when read in the context of egalitarian jurisprudence inherent in Articles 14, 15, 16 and Article 38, and read with our national aspirations of establishing a society in which equality of status and opportunity, and justice, social, economic and political, would imply that the private sector which offers such facilities ought not to be conducting their affairs in a manner which promote existing discriminations and disadvantages.”

78 (2011) 7 SCC 179 107

(xiv) In Society for Unaided Private Schools of Rajasthan (supra), the constitutionality of Section 12 of the Right of Children to Free and Compulsory Education Act, 2009 was challenged on the ground that it violated Articles 19(1)(g) and 30 of those who had established schools in the private sector.

While upholding the Constitutionality of the provision, which required all schools, private and State­funded, to reserve 25% of its intake for students from disadvantaged background, this Court held:

“222. The provisions referred to above and other provisions of international conventions indicate that the rights have been guaranteed to the children and those rights carry corresponding State obligations to respect, protect and fulfil the realisation of children's rights. The obligation to protect implies the horizontal right which casts an obligation on the State to see that it is not violated by non­State actors. For non­State actors to respect children's rights casts a negative duty of non­violation to protect children's rights and a positive duty on them to prevent the violation of children's rights by others, and also to fulfil children's rights and take measures for progressive improvement. In other words, in the spheres of non­State activity there shall be no violation of children's rights.”

(xv) In Jeeja Ghosh vs. Union of India79, the petitioner, a disabled person suffering from cerebral palsy, was unceremoniously ordered off a SpiceJet aircraft by the flight crew on account of the disability. The petition was filed for putting in place a system to ensure such a violation of human 79(2016) 7 SCC 761 108 dignity and inequality is not meted out to similarly placed persons. This Court observed as follows:

“10. It is submitted by the petitioner that the Union of India (Respondent 1) has an obligation to ensure that its citizens are not subject to such arbitrary and humiliating discrimination. It is a violation of their fundamental rights, including the right to life, right to equality, right to move freely throughout the territory of India, and right to practise their profession. The State has an obligation to ensure that these rights are protected — particularly for those who are disabled. …”

This Court awarded compensation to the petitioner against the private Airline on the ground that the airline, though a private enterprise, ought not to have violated her fundamental right.

(xvi) In Zee Telefilms Ltd. vs. Union of India80, this Court held

that though BCCI does not fall within the purview of the term

“State”, it discharges public duties and that therefore even if a

remedy under Article 32 is not available, the aggrieved party can

always seek a remedy before the ordinary courts of law or by way of

a writ petition under Article 226. This Court pointed out that the

violator of a constitutional right could not go scot­free merely

because it is not a State. The said logic was extended by this Court

to a “Deemed to be University” in Janet Jeyapaul vs. SRM

80(2005) 4 SCC 649 109 University81, on the ground that though it is a private university, it

was discharging “public functions”, by imparting education.

77. All the above decisions show that on a case­to­case basis, this

Court applied horizontal effect, considering the nature of the right

violated and the extent of obligation on the part of the violator. But

to enable the courts to have certain basic guidelines in place, for

dealing with such cases, this Court developed a tool in Justice K.S.

Puttaswamy. While affirming the right to privacy as a fundamental

right, this Court laid down the landscape as follows:

“397. Once we have arrived at this understanding of the nature of fundamental rights, we can dismantle a core assumption of the Union's argument: that a right must either be a common law right or a fundamental right. The only material distinctions between the two classes of right—of which the nature and content may be the same—lie in the incidence of the duty to respect the right and in the forum in which a failure to do so can be redressed. Common law rights are horizontal in their operation when they are violated by one's fellow man, he can be named and proceeded against in an ordinary court of law. Constitutional and fundamental rights, on the other hand, provide remedy against the violation of a valued interest by the “State”, as an abstract entity, whether through legislation or otherwise, as well as by identifiable public officials, being individuals clothed with the powers of the State. It is perfectly possible for an

81(2015) 16 SCC 530 110 interest to simultaneously be recognised as a common law right and a fundamental right. Where the interference with a recognised interest is by the State or any other like entity recognised by Article 12, a claim for the violation of a fundamental right would lie. Where the author of an identical interference is a non­State actor, an action at common law would lie in an ordinary court.

398. Privacy has the nature of being both a common law right as well as a fundamental right. Its content, in both forms, is identical. All that differs is the incidence of burden and the forum for enforcement for each form.”

78. Thus, the answer to Question No. 2 is partly found in the 9­

Judge Bench decision in Justice K.S. Puttaswamy itself. We have

seen from the line of judicial pronouncements listed above that

after A.K. Gopalan vs. State of Madras82 lost its hold, this Court

has expanded the width of Article 21 in several areas such as

health, environment, transportation, Education and Prisoner’s life

etc. As Vivian Bose, J., put it in a poetic language in S. Krishnan

vs State of Madras83“Brush aside for a moment the

pettifogging of the law and forget for the nonce all the

learned disputations about this and that, and "and" or "or ",

or "may" and "must ". Look past the mere verbiage of the 82AIR 1950 SC 27 83 AIR 1951 SC 301 111 words and penetrate deep into the heart and spirit of the

Constitution.”. The original thinking of this Court 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”84 to the “nature of the duties/functions performed” 85.

Therefore, we would answer Question No. 2 as follows:

“A fundamental right under Article 19/21 can

be enforced even against persons other than

the State or its instrumentalities”

Question No. 3

79. “Whether the State is under a duty to affirmatively protect the

rights of a citizen under Article 21 of the Constitution of India even

against a threat to the liberty of a citizen by the acts or omissions of

another citizen or private agency?” is the third question referred to

us.

84 R.D. Shetty vs International Airport Authority (1979) 3 SCC 489 85 Andi Mukta vs V.R. Rudani (1989) 2 SCC 691 112

80. Before we proceed further, it is necessary to make a small

correction. Article 21 right is available not only to citizens but to all

persons. Therefore, the word ‘citizen’ mentioned in Question No.3

has to be read as ‘person’.

81. As we have pointed out in the Table under paragraph 73

above, the expression “the State” is not used in Article 21. This

Article 21 guarantees every person that he shall not be deprived of

his life and liberty except according to the procedure established by

law. Going by the scheme of Part­III which we have outlined both in

the preceding paragraphs and in the Table in paragraph 73, it is

clear that the State has two obligations, (i) not to deprive a person

of his life and liberty except according to procedure established by

law; and (ii) to ensure that the life and liberty of a person is not

deprived even otherwise. Article 21 does not say “the State shall

not deprive a person of his life and liberty”, but says that “no

person shall be deprived of his life or personal liberty”.

82. When the Constitution was adopted, our understanding of the

words “life” and “personal liberty” was not as it has evolved over the

113 past seven decades. Similarly, it was not imagined or conceived at

that time that anyone other than the State is capable of depriving

the life and personal liberty of a person, except by committing a

punishable offence. But with the expanding horizons of our

philosophical understanding of law, life and liberty and the

advancement of science and technology, we have come to realize

that “life is not an empty dream” and “our hearts are not muffled

drums beating funeral marches to the grave” 86, nor is “life a tale told

by an idiot, full of sound and fury signifying nothing”87.

83. Over a period of time, this Court has interpreted ‘the right to

life’ to include, (i) livelihood; (ii) all those aspects of life which go to

make a man’s life meaningful, complete and worth living; (iii)

something more than mere survival or animal existence; (iv) right to

live (and die) with human dignity; (v) right to food, water, decent

environment, medical care and shelter etc.; (vi) all that gives

meaning to a man’s life, such as his tradition, culture, heritage and

protection of that heritage in its full measure; and (vii) the right to

Privacy. There are certain jurisdictions which have taken this right 86 From H.W. Longfellow in “A Psalm of life” 87 From Shakespeare in Macbeth 114 to include “the right to be forgotten” or the “right not to be

remembered”.

84. When the word “life” was understood to mean only physical

existence, the deprivation of the same was generally conceived to be

possible only by the State, except in cases where someone

committed an offence punishable under the Penal Code. But the

moment the right to life under Article 21 was developed into a

bouquet of rights and science and technology intruded into all

spheres to life, the deprivation of the right by non­State actors also

became possible. Another development that has taken place in the

past 3 to 4 decades is that several of the functions of the

Government have either been out­sourced to non­State actors or

been entrusted to public­private partnerships. This is why, the High

Courts and this Court modulated the tests to be applied for finding

out the maintainability of an action under Article 226 or Article 32.

Once upon a time, the maintainability of a petition under Article

32/226 depended upon “who the respondent was”. Later, the focus

shifted to “the nature of the duties/functions performed” by the

115 respondent, for finding out his amenability to the jurisdiction under

Article 226.

85. Life and personal liberty are two different things, even while

being an integral part of a whole and they have different

connotations. Question No. 3 is so worded that the focus is not on

‘deprivation of life’ but on (i) ‘deprivation of personal liberty’ and that

too by the acts or omissions of another person or private agency;

and (ii) the duty of the State to affirmatively protect it. Therefore, we

shall, in our discussion, focus more on two aspects, namely,

(i) deprivation of personal liberty by non­State actors; and (ii) the

duty of the State. An elaborate exposition of the expression

“personal liberty” and its origin in Greek civilization may be found

in the judgment of this Court in Siddharam Satlingappa Mhetre

vs. State of Maharashtra88. Suffice it to say for our purpose that

in this judgment, this Court identified in paragraph 53 of the

Report that Article 21 guarantees two rights, namely, (i) right to life;

and (ii) right to personal liberty. Therefore, because of the manner

in which Question No. 3 is framed, we shall try to confine our

88 (2011) 1 SCC 694 116 discussion to personal liberty, though at times both may overlap or

get interchanged.

86. The expression “personal liberty” appearing in Article 21 was

held by this Court in A.K. Gopalan (supra) to mean freedom from

physical restraint of a person by incarceration or otherwise. However, the understanding of the expression “personal liberty” got

enlarged in Kharak Singh vs. State of U.P.89 It was a case where

a person who was originally charged for the offence of dacoity and

later released for lack of evidence, was put under surveillance by

the Police, and his name included in the history­sheet under the

U.P. Police Regulations. As a result, he was required to make

frequent visits to the Police Station. Sometimes the Police made

domiciliary visits at night to his house. They would knock at the

door, disturb his sleep and ask to report to the Police, whenever he

went out of the village. Though by a majority, the Constitution

Bench held in Kharak Singh (supra) that the regulation permitting

domiciliary visits is unconstitutional, the majority upheld the Police

surveillance on the ground that (at that time) right to privacy had

89AIR 1963 SC 1295 117 not become part of the fundamental rights. But K. Subba Rao, J.

speaking for himself and J.C. Shah, J. held that the concept of

personal liberty in Article 21 is comprehensive enough to include

privacy. The thinking reflected in A.K. Gopalan that physical

restraint was necessary to constitute infringement of personal

liberty, was completely changed by K. Subba Rao, J. in his minority

opinion in Kharak Singh. Giving a completely new dimension to

personal liberty, K. Subba Rao, J. said:

“(31) …The expression is wide enough to take in a right to be free from restrictions placed on his movements. The expression “coercion” in the modern age cannot be construed in a narrow sense. In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man's mind are in a real sense physical restraints, for they engender physical fear channelling one's actions through anticipated and expected grooves. So also creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies

118 domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in (1948) 338 US 25, pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Art. 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. It so understood, all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Art. 21 of the Constitution.”

As pointed out by Rohinton Nariman, J., in Mohd. Arif alias

Ashfaq vs. Registrar, Supreme Court of India & Ors.90 “The

minority judgment of Subba Rao and Shah, JJ. eventually became

law in Rustom Cavasjee Cooper vs. Union of India91(Bank

Nationalisation case), where the 11­Judge Bench finally discarded

the view expressed in A.K. Gopalan and held that various

90(2014) 9 SCC 737 91(1970) 1 SCC 248 119 fundamental rights contained in different articles are not mutually

exclusive …”.

87. If U.P. Police Regulations were challenged in Kharak Singh,

identical Regulations issued by the State of Madhya Pradesh were

challenged in Gobind vs. State of Madhya Pradesh92. Though this

Court upheld the impugned Regulations, K.K. Mathew, J. pointed

out:

“25. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality, and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. “Liberty against Government” a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.

*** *** ***

27. There are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might be engaging in such activities and that such ‘harm’ is not constitutionally protectible by the State.The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than

92(1975) 2 SCC 148 120 the realities of their natures.[See 26 Stanford Law Rev. 1161, 1187]”

88. Thus, the understanding of this Court in A.K. Gopalan, that

deprivation of personal liberty required a physical restraint,

underwent a change in Kharak Singh and Gobind (supra). From

there, the law marched to the next stage in Satwant Singh

Sawhney vs. D. Ramarathnam, Assistant Passport Officer, New

Delhi93 where a Constitution Bench of this Court held by a

majority, that the right to personal liberty included the right of

locomotion and right to travel abroad. It was held in the said

decision that “liberty" in our Constitution bears the same

comprehensive meaning as is given to the expression "liberty"

by the 5th and 14th Amendments to the U.S. Constitution and

the expression "personal liberty" in Article 21 only excludes

the ingredients of "liberty" enshrined in Article 19 of the

Constitution. The Court went on to hold that “the expression

"personal liberty" in Art. 21 takes in the right of loco­motion

and to travel abroad, but the right to move throughout the

93 AIR 1967 SC 1836 121 territories of India is not covered by it inasmuch as it is

specially provided in Art. 19.”

89. Satwant Singh (supra) was the case of a businessman, who

was directed to surrender his passport, with a view to prevent him

from travelling out of India, on account of an investigation pending

against him under the Export and Import Control Act. It must be

noted that this case was before the enactment of The Passports Act,

1967.

90. After The Passports Act came into force, the decision of the

7­Judge Bench in Maneka Gandhi vs. Union of India94 came. It

was held therein that the right to travel abroad is part of the right

to personal liberty and that the same cannot be deprived except

according to the procedure established by law.

91. Next came the decision in Bandhua Mukti Morcha vs. Union

of India & Ors.95. It was a case where a letter addressed by an

NGO to the Court exposing the plight of persons working in stone

quarries under inhuman conditions, was treated as a public

94 (1978) 1 SCC 248 95(1984) 3 SCC 161 122 interest litigation. Some of those workers were actually bonded

labourers. After this Court issued notice to the State Governments

and the lessees of the quarries, a preliminary objection was raised

as to the maintainability of the writ petition. While rejecting the

preliminary objection, this Court broadly indicated how the

fundamental rights of those bonded labourers were violated and

what were the duties of the State and the Court in cases of that

nature. The relevant portion of the decision reads thus:

“9. … We should have thought that if any citizen brings before the Court a complaint that a large number of peasants or workers are bonded serfs or are being subjected to exploitation by a few mine lessees or contractors or employers or are being denied the benefits of social welfare laws, the State Government, which is, under our constitutional scheme, charged with the mission of bringing about a new socio­ economic order where there will be social and economic justice for everyone and equality of status and opportunity for all, would welcome an enquiry by the Court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act, 1976 but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such a situation can be set right by the State Government. Even if the State Government is on its own enquiry satisfied that the workmen are not bonded and are not compelled to provide forced labour and are living and working in decent conditions with all the basic necessities of life provided to them, the State Government should not baulk an enquiry by the Court when a complaint is brought by a citizen, but it should be anxious to satisfy the Court and through the Court, 123 the people of the country, that it is discharging its constitutional obligation fairly and adequately and the workmen are being ensured social and economic justice. …”

92. Therefore, three major breakthroughs happened, the first in

Kharak Singh, the second in Satwant Singh and Maneka

Gandhi (supra) and the third in Bandhua Mukti Morcha (supra).

The first breakthrough was the opinion, though of a minority, that

physical restraint was not a necessary sine qua non for the

deprivation of personal liberty and that even a psychological

restraint may amount to deprivation of personal liberty. The second

breakthrough was the opinion in Satwant Singh and Maneka

Gandhi that the right of locomotion and to travel abroad are part of

the right to personal liberty. The third breakthrough was the

opinion in Bandhua Mukti Morcha that the State owed an

obligation to take corrective measures when there was an infraction

of Article 21.

93. In National Human Rights Commission vs. State of

Arunachal Pradesh & Anr.96, this Court was confronted with a

situation where private citizens, namely, the All Arunachal Pradesh 96(1996) 1 SCC 742 124 Students’ Union held out threats to forcibly drive chakmas, out of

the State. The National Human Rights Commission itself filed a writ

petition under Article 32. While allowing the writ petition and

issuing directions, this Court indicated the role of the State in the

following words:

“20. …Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty­bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well­being of Chakmas residing in the State without being inhibited by local politics. …”

94. In Mr. ‘X’ vs. Hospital ‘Z’97, the appellant had accompanied a

patient to the hospital for treatment and offered to donate blood, for

the purpose of surgery. Before allowing him to donate blood,

samples were taken from “X”. It was detected that he was HIV

positive. The fact that Mr. “X” tested positive was disclosed by the

97(1998) 8 SCC 296 125 hospital to the fiancée of Mr. “X”. Therefore, the proposal for

marriage was called off and Mr. “X” was ostracised by the

community. Mr. “X” sued the hospital for damages, pitching his

claim on the right to privacy and the duty of confidentiality that the

hospital had in their relationship with him. Though this Court

partly agreed with Mr. “X” the court found that the disclosure made

by the hospital actually saved the life of a lady. But while dealing

with a right under Article 21 vis­à­vis the hospital (a private

hospital), this Court held as follows :­

“27. Right of privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, doctor­patient relationship, though basically commercial, is, professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of the right of privacy which may sometimes lead to the clash of one person's “right to be let alone” with another person's right to be informed.

28. Disclosure of even true private facts has the tendency to disturb a person's tranquillity. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the right of privacy is an essential component of the right to life envisaged by Article 21. The right, however, is not absolute and 126 may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.”

95. In Pt. Parmanand Katara (supra), a human rights activist

filed a writ petition under Article 32 seeking a direction to the Union

of India that every injured person brought for treatment to a

hospital should instantaneously be given medical aid to preserve life

and that the procedural Criminal Law should be allowed to operate

thereafter. The basis of the said writ petition was a report about a

scooterist who got injured in a road traffic accident, being turned

away by the nearby hospital on the ground that they were not

authorized to handle medico­legal cases. Before the victim could be

taken to an authorized hospital located 20 kilometers away, he

died, which prompted the writ petition. While issuing directions,

this Court expressed an opinion about the affirmative duty of court

in paragraph 8 as follows:­

“8. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasized and reiterated with gradually increasing emphasis that position. A doctor at the government hospital positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor 127 whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.…”

That the State has an obligation to help preserve life, guaranteed

under Article 21 was spelt out clearly in Pt. Parmanand Katara.

What applies to life applies equally to personal liberty. This is

because there may be cases involving both the right to life as well

as liberty.

96. For instance, in Suchita Srivastava & Anr. vs.

Chandigarh Administration98,this Court had an occasion to

consider the reproductive rights of a mentally­challenged woman.

This right was read as part of the right to life and liberty under

Article 21. In Devika Biswas vs. Union of India.99, this Court

considered certain issues concerning the entire range of conduct

and management, under the auspices of State Governments, of

98(2009) 9 SCC 1 99(2016) 10 SCC 726 128 sterilization procedures, either in camps or in accredited centres

and held that the right to health and reproductive rights of a person

are part of the right under Article 21. While doing so, this Court

quoted with approval the decision in Bandhua Mukti Morcha

where the obligation of the State to ensure that the fundamental

rights of weaker sections of society are not exploited, was

underlined.

97. Tapping of telephones in exercise of the power conferred by

Section 5(2) of the Indian Telegraph Act, 1885 became the subject

matter of challenge in People’s Union for Civil Liberties (PUCL)

vs. Union of India100. This Court held that conversation on

telephone is an important facet of a man’s private life and that

tapping of telephone would infringe Article 21. Technological

eavesdropping except in accordance with the procedure established

by law was frowned upon by the Court. This was at a time when

mobile phones had not become the order of the day and the State

monopoly was yet to be replaced by private players such as

intermediaries/service providers. Today, the infringement of the

100(1997) 1 SCC 301 129 right to privacy is mostly by private players and if fundamental

rights cannot be enforced against non­State actors, this right will go

for a toss.

98. In District Registrar and Collector, Hyderabad & Anr. vs.

Canara Bank & Ors.101, what was under challenge was an

amendment made to The Indian Stamp Act, 1899 by the State of

Andhra Pradesh, empowering a public officer to inspect the

registers, books, papers and documents kept in any premises,

including a private place where such registers, books etc., are kept.

Taking cue from the decision in R. Rajagopal and Maneka

Gandhi, this Court held in paragraphs 55 and 56 of the decision as

follows:­

“55. The A.P. Amendment permits inspection being carried out by the Collector by having access to the documents which are in private custody i.e. custody other than that of a public officer. It is clear that this provision empowers invasion of the home of the person in whose possession the documents “tending” to or leading to the various facts stated in Section 73 are in existence and Section 73 being one without any safeguards as to probable or reasonable cause or reasonable basis or materials violates the right to privacy both of the house and of the person. We have already referred to R. Rajagopal case [(1994) 6 SCC 632]

101(2005) 1 SCC 496 130 wherein the learned Judges have held that the right to personal liberty also means life free from encroachments unsustainable in law, and such right flowing from Article 21 of the Constitution.

56. In Maneka Gandhi v. Union of India [(1978) 1 SCC 248] a seven­Judge Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19 (emphasis supplied). Any law interfering with personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21.”

99. In Indian Woman says Gang­raped on orders of village

Court published in Business and Financial News dated

23­1­2014, in Re102, this Court was dealing with a suo motu writ

petition relating to the gang­rape of a women under orders of a

community panchayat as punishment for having a relationship with

a man belonging to a different community. After taking note of two

102(2014) 4 SCC 786 131 earlier decisions, one in Lata Singh vs. State of U.P.103 which

dealt with honour killings of youngsters involved in inter­caste,

inter­religious marriages and the other in Arumugam Servai vs.

State of Tamil Nadu104, which dealt with khap panchayats, this

Court opined in paragraph 16 as follows:­

“16. Ultimately, the question which ought to consider and assess by this Court is whether the State police machinery could have possibly prevented the said occurrence. The response is certainly a “yes”. The State is duty­bound to protect the fundamental rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the State's incapacity or inability to protect the fundamental rights of its citizens.”

In fact, this Court observed in the aforesaid decision that the

obligation of the State does not get extinguished upon payment of

compensation and that the rehabilitation of the victims of such

nature was a must.

100. In Shakti Vahini vs. Union of India & Ors.105, while

dealing with a writ petition seeking a direction to the State

Governments and Central Government to take preventive measures

103(2006) 5 SCC 475 104(2011) 6 SCC 405 105(2018) 7 SCC 192 132 to combat honour crimes and to submit a National/State plan of

action, this Court issued a slew of directions directing the State

Governments to take both punitive and remedial measures, on the

ground that the State has a positive obligation to protect the life

and liberty of persons. In paragraph 49 this Court said, “We are

disposed to think so, as it is the obligation of the State to have an

atmosphere where the citizens are in a position to enjoy their

fundamental rights.” After quoting the previous decision in S.

Rangarajan (supra), which arose out of the infringement of the

freedom of expression in respect of a cinematograph film, this Court

said in Shakti Vahini (supra) as follows:­

“49. … We are absolutely conscious that the aforesaid passage has been stated in respect of a different fundamental right, but the said principle applies with more vigour when the life and liberty of individuals is involved. We say so reminding the States of their constitutional obligations to comfort, nurture the sustenance of fundamental rights of the citizens and not to allow any hostile group to create any kind of trench in them.”

101. At last, while dealing with the right to privacy, in Justice

K.S. Puttaswamy, this Court made it clear that, “it is a right

133 which protects the inner sphere of the individuals from

interference by both the State and non­State actors”.

102. Before we conclude this chapter, we must point out that some

academics feel that the same level of justification for infringement

by the State, for all rights recognized by the Court, end up being

problematic106 and that the idea of a hierarchy of rights, as

articulated by Das, J. in A.K. Gopalan may have to be examined.

In fact, Rohinton Nariman, J. articulated this idea in Mohd. Arif

(supra) where the question was as to whether a petition for review

in the Supreme Court should be heard in open Court at least in

death penalty cases. The learned Judge said:

“36. If a pyramidical structure is to be imagined, with life on top, personal liberty (and all the rights it encompasses under the new doctrine) immediately below it and other fundamental rights below personal liberty it is obvious that this judgment will apply only to death sentence cases. In most other cases, the factors mentioned by Krishna Iyer, J. in particular the Supreme Court’s overcrowded docket, and the fact that a full oral hearing has preceded judgment of a criminal appeal on merits, may tilt the balance the other way.”

106Anup Surendranath in his Article “Life and Personal Liberty” in The Oxford Handbook of the Indian Constitution (South Asia Edition), 2016 134 Therefore, 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 over­emphasized.

103. Therefore, our answer to Question No.3 would be that 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.

Question No.4

104. Question No.4 referred to us is this: “Can a statement made

by a Minister, traceable to any affairs of the State or for protecting

the Government, be attributed vicariously to the Government itself,

especially in view of the principle of Collective Responsibility?”

105. The above question revolves around the role and

responsibility of a Minister and the vicarious liability/responsibility

of a Government to any statement made by him. For answering the

said question, we may need to understand the role of a Minister

under our Constitutional scheme.

135

106. Part V of the Constitution providing for matters connected

with “The Union” contains five chapters, dealing respectively with,

(i) the Executive; (ii) Parliament; (iii) Legislative powers of the

President; (iv) the Union Judiciary; and (v) Comptroller and Auditor

General of India. Part VI of the Constitution dealing with “The

States” contains six chapters, dealing respectively with, (i) general

provision containing the definitions; (ii) the Executive; (iii) the State

Legislature; (iv) Legislative power of the Governor; (v) the High

Courts in the States; and (vi) Subordinate Courts.

107. While Articles 74 and 75 provide for, (i) ‘Council of Ministers

to aid and advise the President’; and (ii) ‘Other provisions as to

Ministers’, insofar as the Union is concerned, Articles 163 and 164

provide for, (i) ‘Council of Ministers to aid and advise the Governor’;

and (ii) ‘Other provisions as to Ministers’, insofar as the States are

concerned. Similarly, Article 77 provides for the conduct of business

of the Government of India and Article 166 provides for the conduct

of business of the Government of a State. The duties of the Prime

136 Minister are dealt with in Article 78 and the duties of Chief

Ministers are dealt with in Article 167.

108. 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”.

109. Generally, all executive action of the Government of India

shall be expressed to be taken in the name of the President under

Article 77(1). However, for more convenient transaction of the

business of the Government of India, the President shall make

Rules. These Rules shall also provide for the allocation of the

business among Ministers. This is under Article 77(3). Similar

provisions are found in sub­Articles (1) and (3) of Article 166.

110. There are special duties assigned to the Prime Minister and

the Chief Ministers, under Articles 78 and 167 respectively.

111. While dealing with the scheme of Article 166(3), the

Constitution Bench of this Court pointed out in A. Sanjeevi Naidu

137 vs. State of Madras107, that under our Constitution, the Governor

is essentially a constitutional head and the administration of the

State is run by the Council of Ministers. Since it is impossible for

the Council of Ministers to deal with each and every matter that

comes before the Government, the Governor is authorized under

Article 166(3) to make Rules for the more convenient transaction of

the business of the Government of the State and for allocation

amongst its Ministers the business of the Government. In

paragraph 10 of the said decision, the Constitution Bench

spoke about “joint responsibility” and not about collective

responsibility. The relevant portion of paragraph 10 reads as

follows:

“10. The cabinet is responsible to the Legislature for every action taken in any of the Ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Council of Ministers to discharge all or any of the Governmental functions. Similarly an individual Minister is responsible to the Legislature for every action taken or omitted to be taken in his ministry. This again is a political

107 (1970) 1 SCC 443 138 responsibility and not personal responsibility. …”

112. The expression “collective responsibility” can be traced to some

extent, to Article 75(3) insofar as the Union is concerned and to

Article 164(2) insofar as the States are concerned. But in both the

Articles, it is the Council of Ministers who are stated to be

collectively responsible to the House of the People/Legislative

Assembly of the State. 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.

113. In State of Karnataka vs. Union of India.108, a Seven

Member Constitution Bench of this Court, while dealing with a

challenge made by the State of Karnataka in the form of a civil suit

under Article 131, to the appointment by the Central Government, of

a commission of enquiry against the Chief Minister of Karnataka,

had an occasion to consider the exposition of the words “collective 108 (1977) 4 SCC 608 139 responsibility” appearing in Article 164(2). After indicating that

collective responsibility is basically political in origin and

mode of operation, Beg, C.J. opined in the said case as follows:

“46. The object of collective responsibility is to make the whole body of persons holding Ministerial office collectively, or, if one may so put it, “vicariously” responsible for such acts of the others as are referable to their collective volition so that, even if an individual may not be personally responsible for it, yet, he will be deemed to share the responsibility with those who may have actually committed some wrong. …

47. Each Minister can be and is separately responsible for his own decisions and acts and omissions also.

But, inasmuch as the Council of Ministers is able to stay in office only so long as it commands the support and confidence of a majority of members of the Legislature of the State, the whole Council of Ministers must be held to be politically responsible for the decisions and policies of each of the Ministers and of his department which could be presumed to have the support of the whole Ministry. Hence, the whole Ministry will, at least on issues involving matters of policy, have to be treated as one entity so far as its answerability to the Legislative Assembly representing the electors is concerned. This is the meaning of the principle underlying Article 164(2) of the Constitution. The purpose of this provision is not to find out facts or to establish the actual responsibility of a Chief Minister or any other Minister or Ministers for particular decisions or Governmental acts. That can be more suitably done, when wrongful acts or decisions are complained of, by means of inquiries under the Act. As already indicated above, the procedure of Parliamentary Committees to inquire into every legally or ethically wrong act was found to be unsatisfactory and unsound. The principle of individual as well as 140 collective ministerial responsibility can work most efficiently only when cases requiring proper sifting and evaluation of evidence and discussion of questions involved have taken place, where this is required, in proceedings before a Commission appointed under Section 3 of the Act.

48. Text­book writers on Constitutional Law have indicated how collective ministerial responsibility to Parliament, which has essentially a political purpose and effects, developed later than individual responsibility of Ministers to Parliament which was also political in origin and operation. It is true that an individual Minister could, in England, where the principle of individual and collective responsibility of Ministers was evolved, be responsible either for wrongful acts done by him without the authority of the whole cabinet or of the monarch to support them, or under orders of the King who could, in the eye of law, do no wrong. But, apart from an impeachment, which has become obsolete, or punishment for contempts of a House, which constitute only a limited kind of offences, the Parliament does not punish the offender. For establishing his legal liability recourse to ordinary courts of law is indispensable.”

114. Quoting from Wade and Phillips on Constitutional Law, this

Court pointed out in the State of Karnataka (supra) that

“responsibility to Parliament only means that the Minster may

be compelled by convention to resign.”

115. The extent to which the enforcement of collective responsibility

can be taken was also indicated in the above decision as follows:

“50. The whole question of responsibility is related to the continuance of a Minister or a 141 Government in office. A Minister's own acts or omissions or those of others in the department in his charge, for which he may feel morally responsible, or, for which others may hold him morally responsible, may compel him to resign. By an extension of this logic, applied to individual Ministers at first, emerged the principle of “collective responsibility” which we find enacted in Articles 75(2) and 164(2) of our Constitution. The only sanction for its enforcement is the pressure of public opinion expressed particularly in terms of withdrawal of political support by members of Parliament or the State Legislature as the case may be.”

116. In other words, this Court indicated that while a Minister may

be compelled to resign for his individual acts of omission or

commission, the only sanction for the enforcement of collective

responsibility is the “pressure of public opinion”.

117. In R.K. Jain vs. Union of India109, this Court was concerned

with a public interest litigation relating to the functioning of the

Customs, Excise and Gold Control Appellate Tribunal. At that time

the office of the President of the Tribunal was lying vacant for over

six months. But after rule nisi was issued in the first writ petition,

the Government appointed someone as the President of the

Tribunal. Immediately, a second writ petition was filed challenging

the appointment and also some of the recruitment rules relating to

109(1993) 4 SCC 119 142 the appointment.The file relating to the appointment was produced

in a sealed cover and the Government claimed privilege in terms of

Section 123 of the Indian Evidence Act, 1872 and Article 74(2) of

the Constitution. While dealing with the executive power of the

President and the role of the Council of Ministers, K.Ramasamy, J.,

said “The principle of ministerial responsibility has a variety

of meanings precise and imprecise, authentic and vague”. Paragraphs 29 and 30 of the report in R.K. Jain (supra) may be

usefully extracted as follows:

“29. It would thus be held that the Cabinet known as Council of Ministers headed by Prime Minister under Article 75(3) is the driving and steering body responsible for the governance of the country. They enjoy the confidence of the Parliament and remain in office so long as they maintain the confidence of the majority. They are answerable to the Parliament and accountable to the people. They bear collective responsibility and shall be bound to maintain secrecy. Their executive function comprises of both the determination of the policy as well as carrying it into execution, the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, direction of foreign policy. In short the carrying on or supervision of the general administration of the affairs of Union of India which includes political activity and carrying on all trading activities, the acquisition, holding and disposal of property and the making of contracts for any purpose. In short the primary function of the Cabinet is to formulate the policies of the Government in conformity with the directive principles of the Constitution for the governance of the nation; place the same before the Parliament for 143 acceptance and to carry on the executive function of the State as per the provisions of the Constitution and the laws.

30. Collective responsibility under Article 75(3) of the Constitution inheres maintenance of confidentiality as enjoined in oaths of office and of secrecy set forth in Schedule III of the Constitution that the Minister will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under his/her consideration or shall become known to him/her as Minister except as may be required for the “due discharge of his/her duty as Minister”. The base and basic postulate of its significance is unexceptionable. But the need for and effect of confidentiality has to be nurtured not merely from political imperatives of collective responsibility envisaged by Article 75(3) but also from its pragmatism.”

118. In paragraph 33 of the report in R.K. Jain, this Court

indicated that the Cabinet as a whole is collectively responsible for

the advice tendered to the President and for the conduct of business

of each of his/her department. The question as to what happens

when an individual Minister is in total disagreement with the

collective decision of the Cabinet was also spelt out in R.K. Jain in

the following words:

“33. ...Each member of the Cabinet has personal responsibility to his conscience and also responsibility to the Government. Discussion and persuasion may diminish disagreement, reach unanimity, or leave it unaltered. Despite persistence of disagreement, 144 it is a decision, though some members like it less than others. Both practical politics and good government require that those who like it less must still publicly support it. If such support is too great a strain on a Minister's conscience or incompatible to his/her perceptions of commitment and he/she finds it difficult to support the decision, it would be open to him/her to resign. So the price of the acceptance of Cabinet office is the assumption of the responsibility to support Cabinet decisions. The burden of that responsibility is shared by all.”

119. In Secretary, Jaipur Development Authority, Jaipur

(supra), the abuse of official position by the Minister of Urban

Development and Housing Department and the officers working in

the Jaipur Development Authority in the matter of allotment of

plots became the subject matter. While dealing with the question of

individual and collective accountability and responsibility of

Ministers, this Court said in paragraph 10 as follows:

“10. ...The Governor runs the Executive Government of a State with the aid and advice of the Chief Minister and the Council of Ministers which exercise the powers and performs its duties by the individual Ministers as public officers with the assistance of the bureaucracy working in various departments and corporate sectors etc. Though they are expressed in the name of the Governor, each Minister is personally and collectively responsible for the actions, acts and policies. They are accountable and answerable to the people. Their powers and duties are regulated by the law and the rules. The legal and moral responsibility

145 or liability for the acts done or omissions, duties performed and policy laid down rest solely on the Minister of the Department. Therefore, they are indictable for their conduct or omission, or misconduct or misappropriation. The Council of Ministers are jointly and severally responsible to the Legislature. He/they is/are also publicly accountable for the acts or conducts in the performance of duties.”

120. Again, in paragraph 11, this Court outlined the responsibility

of the Ministers as follows:

“11. The Minister holds public office though he gets constitutional status and performs functions under the Constitution, law or executive policy. The acts done and duties performed are public acts or duties as the holder of public office. Therefore, he owes certain accountability for the acts done or duties performed. In a democratic society governed by rule of law, power is conferred on the holder of the public office or the authority concerned by the Constitution by virtue of appointment. The holder of the office, therefore, gets opportunity to abuse or misuse the office. The politician who holds public office must perform public duties with the sense of purpose, and a sense of direction, under rules or sense of priorities. The purpose must be genuine in a free democratic society governed by the rule of law to further socio­economic democracy. The Executive Government should frame its policies to maintain the social order, stability, progress and morality. All actions of the Government are performed through/by individual persons in collective or joint or individual capacity. Therefore, they should morally be responsible for their actions.”

121. In Vineet Narain vs. Union of India.110, this Court was

concerned with a public interest litigation under Article 32

110(1998) 1 SCC 226 146 complaining about the inaction on the part of the Central Bureau of

Investigation in a matter relating to the disclosures contained in

what came to be known as “Jain Diaries”. After taking note of the

Report of Lord Nolan on “Standards in Public Life”, this Court

issued certain directions, though confined only to the Central

Bureau of Investigation, Enforcement Directorate and Prosecution

Agency. But Lord Nolan’s Report dealt mainly with principles of

public life and code of conduct.

122. The decision in Common Cause was little peculiar and

riddled with some problems. The allotment of petroleum outlets by

the then Minister of State for Petroleum and Natural Gas, under

what was claimed to be a discretionary quota, was first set aside by

this Court by a judgment reported in (1996) 6 SCC 530.

Simultaneously, a show­cause notice was issued to the then

Minister Capt. Satish Sharma as to why a criminal complaint

should not be lodged against him and why he should not be

directed to pay damages for his malafide action in wrongfully

allotting the petrol outlets. After the Minister responded to the

show­cause notice, an order was passed, reported in (1996) 6 SCC

147 593, directing the Minister to pay exemplary damages and also

directing the initiation of prosecution. Later, a petition for review

was filed by the Minister for recalling the order which directed

payment of exemplary damages and also the registration of a case

by the Central Bureau of Investigation. The decision in the petition

for review, reported in (1999) 6 SCC 667, dealt with the question of

collective responsibility in the context of the contention raised. It

was argued by the delinquent Minister in the said case that under

the business rules of the Cabinet, the act of a Minister is to be

treated as the act of the President or the Governor as the case may

be and that therefore the allotment made by him should be treated

to have been made while acting only on behalf of the President. As

an extension of this argument, it was also contended that the

Minister having acted as a part of the Council of Ministers, his act

should be treated to be the act of the entire Cabinet on the principle

of collective responsibility. While rejecting the said contention, this

Court held in Common Cause that the immunity available to the

President under Article 361 of the Constitution cannot be extended

to the orders passed in the name of the President under Article

148 77(1) or 77(2). Dealing with the concept of collective responsibility,

this Court held in paragraph 31 as follows:

“31. The concept of “collective responsibility” is essentially a political concept. The country is governed by the party in power on the basis of the policies adopted and laid down by it in the Cabinet meeting. “Collective responsibility” has two meanings:

the first meaning which can legitimately be ascribed to it is that all members of a Government are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure.”

123. After having dealt with the concept of collective

responsibility, this Court carved out an exception in paragraph 34

as follows:

“34. From the above, it will be seen that in spite of the fact that the Council of Ministers is collectively responsible to the House of the People, there may be an occasion where the conduct of a Minister may be censured if he or his subordinates have blundered and have acted contrary to law.”

124. Again in paragraph 36 this Court held as follows:

“36. Even in England, all Ministers and servants of the Crown are accountable to the courts for the legality of their actions, and may be held civilly and criminally liable, in their individual capacities, for tortious or criminal acts. This liability may be enforced either by 149 means of ordinary criminal or civil proceedings or by means of impeachment, a remedy which is probably obsolete. They are also subject to the judicial review jurisdiction of the courts. [See: Halsbury's Laws of England, Fourth Edn., (Re­issue), Vol. 8(2), para 422.]”

125. In State (NCT of Delhi) vs. Union of India111, the

Constitution Bench of this Court was concerned with the

interpretation of Article 239AA of the Constitution. The concept of

collective responsibility was dealt with extensively by Dipak Misra,

C.J., as he then was, from paragraphs 82 to 85. In his independent

but concurring opinion Dr. D.Y. Chandrachud, J. also dealt with

the question of collective responsibility from paragraphs 318

onwards.

126. What follows from the above discussion is, (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. It is not possible to extend this

111(2018) 8 SCC 501 150 concept of collective responsibility to any and every statement orally

made by a Minister outside the House of the People/Legislative

Assembly.

127. Shri Kaleeswaram Raj, learned counsel appearing for the

special leave petitioner drew our attention to the code of conduct for

Ministers of the Government of Australia, code of conduct for

Ministers of the Government of India and the Ministerial Code of the

United Kingdom. However, attractive such prescriptions may be, it

is not possible to enforce such code of conduct in a court of law.

Government servants stand on a different footing, as any

misconduct on their part with reference to the Government

Servants (Conduct) Rules, may attract disciplinary action under the

Civil Services (Discipline and Appeal) Rules. Even in the case of

Government servants, it may not be possible to justify a

dismissal/removal from service on the basis of a statement uttered

by a Government servant, as it may not pass the proportionality

test, viz­a­viz the gravity of the misconduct.

128. The suggestion made by Shri Kaleeswaram Raj that the

Prime Minister, in the case of a Minister of the Union of India and 151 the Chief Minister, in the case of a Minister of the State should be

allowed to take appropriate action, against the erring Minister, is

just fanciful. 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 multi­party 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.

129. Governments which survive on wafer­thin majority (of which

we have seen quite a bit), sometimes have individual Ministers who

are strong enough to decide the very survival of such Governments.

This problem is not unique to our country.

130. We have followed the Westminster Model but the

Westminster Model itself became shaky after the United Kingdom

saw the first coalition Government in 2010, since the Churchill

Caretaker Ministry of 1945. It is interesting to note that in a Report 152 submitted by the Constitution Committee (UK) in the year 2014,

under the title, “Constitutional Implications of Coalition Government”

it was pointed out that “collective ministerial responsibility has

been the convention most affected by coalition Government”.

The Report proceeds to state that the coalition Government formed

in 2010 (in UK) set out five specific issues on which the parties

would agree to differ. But, in reality the number of areas of

disagreement has been greater resulting on one occasion, in

Ministers being whipped to vote in opposite lobbies and on another,

in MPs on the Treasury Benches attempting to amend the Address

on the Queen’s speech.

131. In the “Briefing Paper” (Number 7755, 14 November 2016) on

“Collective responsibility” by Michael Everett available in the House

of Commons Library, (i) the early origins and development of the

concept of collective responsibility; (ii) what is collective

responsibility; (iii) the conventions of collective responsibility; and

(iv) departures from collective responsibility are dealt with. This

Paper traces early beginnings of the doctrine of collective

responsibility to the reign of George III (1760­1820). According to 153 the Briefing Paper, the development of today’s concept of collective

responsibility arose during the Victorian golden age of

Parliamentary Government. In fact, the Briefing Paper quotes some

commentators who have questioned whether the convention of

collective responsibility remains appropriate for the Government of

today. The Briefing Paper quotes Barry Winetrobe, a Research

Fellow at the Constitution Unit who said that the doctrine of

collective responsibility was developed at a time when a sense

of coherence was required to be maintained among disparate

ministerial forces in the face of the Monarch and that it is not

necessarily appropriate in an age, not just of democracy, but

of greater and more direct participative democracy.

132. It will be useful to quote a portion of Chapter 2.3 under the

heading “Enforcing collective responsibility” from the Briefing Paper

as follows:

“…Dr Felicity Matthews, Senior Lecturer in Governance and Public Policy at the University of Sheffield, has also argued that the respect accorded to the doctrine of collective responsibility “has varied”, with its maintenance and disregard “owing as much to politics as to propriety”.

154 An interesting example of this occurred in 2003 during the build­up to the Iraq war. Robin Cook, the Leader of the House of Commons, resigned in protest in March 2003 over the then Labour Government’s policy toward Iraq, being unable to maintain the official Government position. His actions were therefore consistent with the doctrine of collective responsibility. However, Clare Short, the Secretary of State for International Development, was allowed to stay in the Cabinet despite her own vocal opposition to military intervention and despite publicly denouncing the then Prime Minister as “deeply reckless” in March 2003.

According to Felicity Matthews, despite her “extraordinary breach” of collective responsibility, Clare Short was persuaded and allowed to retain her ministerial portfolio. She then remained in the Cabinet for a further two months, until she decided to resign on 12 May 2003, following perceived mistakes in the US/UK coalition after the invasion. This example, according to Matthews, “underlines the extent to which Prime Ministers have proven unwilling or unable to enforce a strict interpretation of collective responsibility, even when their personal credibility has been besmirched”.

133. Thus, the convention developed in the United Kingdom for

Ministers, itself appears to have gone for a toss and hence, it is not

possible to draw any inspiration from the UK Model.

134. We are 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. We

are only on the question of collective responsibility and the

vicarious liability of the Government.

155

135. As all the literature on the issue shows, collective

responsibility is that of the Council of Ministers. Each individual

Minister is responsible for the decisions taken collectively by the

Council of Ministers. In other words, the flow of stream in collective

responsibility is from the Council of Ministers to the individual

Ministers. The flow is not on the reverse, namely, from the

individual Ministers to the Council of Ministers.

136. Our attention was also drawn to the decision of this Court in

Amish Devgan. Though the said decision considered extensively

the impact of the speech of “a person of influence”, we are not, in

this reference dealing with the same. This is for the reason that the

said decision concerned “hate speech”. None of the questions

referred to us, including Question No.4 with which we are presently

concerned, relates to hate speech, and understandably so. The writ

petition as well as the special leave petition out of which this

reference arose, concerned speeches made by the Ministers of the

State of Uttar Pradesh and the State of Kerala. The speech made by

the Minister of the State of Uttar Pradesh attempted to paint a case

of robbery and gang­rape as a political conspiracy. The speech of

156 the Minister of the State of Kerala portrayed women in a

disrespectful way. Since the statements concerned in both the cases

were attributed to the Ministers, Question No.4 referred to us,

specifically relates to “statement made by a Minister”. Amish

Devgan did not deal with the statement of a Minister traceable to

any affairs of the State, though a Minister would fall under the

category of “person of influence”. Moreover, the statements

attributed to the Ministers in the cases on hand may not come

under the category of hate speech. Therefore, we do not wish to

enlarge the scope of this reference by going into the questions

which were answered in Amish Devgan.

137. Therefore, our answer to Question No.4 would be 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.

Question No.5 157

138. Question No.5 referred to us for consideration is “whether a

statement by a Minister, inconsistent with the rights of a citizen

under Part­III of the Constitution, constitutes a violation of such

constitutional rights and is actionable as ‘Constitutional Tort’?”

139. To begin with, we have some difficulty with the words

“a statement by a Minister”, appearing in Question No.5.

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. All such statements need not necessarily

give rise to an action in tort or in constitutional tort.

140. Take for instance a case where a Minister makes a statement

that women are unfit to be employed in a particular avocation. It 158 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.

141. A tort is a civil wrong, that causes a claimant to suffer loss or

harm resulting in legal liability for the person who commits the

tortious act. Halsbury’s Law of England states: “Those civil rights of

action which are available for the recovery of unliquidated damages

by persons who have sustained injury or loss from acts, statements

or omissions of others in breach of duty or contravention of right

imposed or conferred by law rather than by agreement are rights of

action in tort.”

159

142. If Crown Proceedings Act, 1947 changed the course of the law

relating to tort in England, the Federal Tort Claims Act, 1946

changed in America, the course of law relating to the liability of the

State for the tortious acts of its servants. Nevertheless, the claims

for damages continued to be resisted for a long time both here and

elsewhere on the principle of sovereign immunity. It is interesting to

note that on the initiative of the President of India, the Law Ministry

took up for consideration the question whether legislation on the

lines of the Crown Proceedings Act, 1947 of the United Kingdom is

needed and if so, to what extent. After the constitution of the Law

Commission, the Law Ministry referred the matter to the

Commission for consideration and report. In its First Report

submitted on 11.5.1956 on “Liability of the State in Tort”, the Law

Commission took note of (i) the existing law in India; (ii) law in

England; (iii) law in America; (iv) law in Australia; (v) law in France;

(vi) rule of statutory construction; and (vii) conclusions and

proposals.

143. In Chapter VIII containing the conclusions and proposals, the

First Report of the Law Commission suggested: (i) that in the 160 context of a welfare State, it is necessary to establish a just relation

between the rights of the individual and the responsibilities of the

State; (ii) that when the Constitution was framed, the question to

what extent, if any, the Union and the States should be made liable

for the tortious acts of their servants or agents was left for future

legislation; (iii) that the question of demarcating the line up to

which the State should be made liable for the tortious acts, involves

a nice balancing of considerations, so as not to unduly restrict the

sphere of the activities of the State and at the same time to afford

sufficient protection to the citizen; (iv) that it is necessary that the

law should, as far as possible, be made certain and definite, instead

of leaving it to courts to develop the law according to the views of

the judges; and (v) that the old distinction between sovereign and

the non­sovereign functions or Governmental and the non­

Governmental functions should no longer be invoked to determine

the liability of the State.

144. Paragraph 66 of the First Report of the Law Commission

contained the principles on which appropriate legislation should

proceed. It will be useful to extract paragraph 66 of the First Report 161 of the Law Commission, to understand the sweep of constitutional

tort, as it was conceived within a few years of the adoption of the

Constitution. In fact, it has laid down the road map very clearly

with lot of foresight. Paragraph 66 reads thus:

“66. The following shall be the principles on which legislation should proceed:—

I. Under the general law:

Under the general law of torts i.e., the English Common Law as imported into India on the principle of justice, equity and good conscience, with statutory modifications of that law now in force in India (vide the Principles of General Law, Appendix VI)—

(i) The State as employer should be liable for the torts committed by its employees and agents while acting within the scope of their office or, employment.

(ii) The State as employer should be liable in respect of breach of those duties which a person owes to his employees or agents under the general law by reason of being their employer.

(iii) The State should be liable for torts committed by an independent contractor only in cases referred to in Appendix VI.

(iv) The State also should be liable for torts where a corporation owned or controlled by the State would be liable.

(v) The State should be liable in respect of breach of duties attached under the general law to the ownership, occupation, possession or control of immoveable properly from the moment

162 the State occupies or takes possession or assumes control of the property.

(vi) The State should be subject to the general law liability for injury caused by dangerous things (chattels).

In respect of (i) to (vi) the State should be entitled to raise the same defences, which a citizen would be entitled to raise under general law.

II. In respect of duties of care imposed by statute:

(i) If a statute authorises the doing of an act which is in itself injurious, the State should not be liable.

(ii) The State should be liable, without proof of negligence, for breach of a statutory duty imposed on it or its employees which causes damage.

(iii) The State should be liable if in the discharge of statutory duties imposed upon it or its employees, the employees act negligently or maliciously, whether or not discretion is involved in the exercise of such duty.

(iv) The State should be liable if in the exercise of the powers conferred upon it or its employees the power is so exercised as to cause nuisance or trespass or the power is exercised negligently or maliciously causing damage.

N.B.—Appendix V shows some of the Acts which contain protection clauses. But under the General Clauses Act a thing is deemed to be done in good faith even if it is done negligently. Therefore, by suitable legislation the protection should be made not to extend to negligent acts however honestly done and for this purpose the relevant clauses in such enactments should be examined.

(v) The State should be subject to the same duties and should have the same rights as

163 a private employer under a statute, whether it is specifically binding on the State or not.

(vi) If an Act negatives or limits the compensation payable to a citizen who suffered damage, coming within the scope of the Act, the liability of the State should be the same as under that Act and the injured person should be entitled only to the remedy, if any, provided under the Act.

III. Miscellaneous:

Patents, Designs and Copyrights: The provisions of Sec. 3 of the Crown Proceedings Act may be adopted.

IV. General Provisions:

(i) Indemnity and contribution: To enable the State to claim indemnity or contribution, a provision on the lines of Sec. 4 of the Crown Proceedings Act may be adopted.

(ii) Contributory negligence: In England, the Law Reform (Contributory Negligence) Act,1945 was enacted amending the law relating to contributory negligence and in view of the provisions of the Crown Proceedings Act the said Act also binds the Crown. In India, the trend of judicial opinion is in favour of holding that the rule in Merryweather v. Nixan [(1799) 8 T.R. 186] does not apply and that there is no legal impediment to one tortfeasor recovering compensation from another.

But the law should not be left in an uncertain state and there should be legislation on the lines of the English Act.

(iii) Appropriate provision should be made while revising the Civil Procedure Code to make it obligatory to implead as party to a suit in which a claim for damages against the State is made, the employee, agent or independent contractor for whose act the State is sought to

164 be made liable. Any claim based on indemnity or contribution by the State may also be settled in such proceeding as all the parties will be before the court.

V. Exceptions:

(i)Acts of State: The defence of “Act of State” should be made available to the State for any act, neglect or default of its servants or agents. “Act of State” means an act of the sovereign power directed against another sovereign power or the subjects of another sovereign power not owning temporary allegiance, in pursuance of sovereign rights.

(ii) Judicial acts and execution of judicial process:The State shall not be liable for acts done by judicial officers and persons executing warrants and orders of judicial officers in all cases where protection is given to such officers and persons by Sec. 1 of the Judicial Officers Protection Act, 1850.

(iii) Acts done in the exercise of political functions of the State such as acts relating to:

(a) Foreign Affairs (entry 10, List I, Seventh Schedule of the Constitution);

(b) Diplomatic, Consular and trade representation (entry 11);

(c) United Nations Organisation(entry 12);

(d)Participation in international

conferences, associations and other bodies and implementing of decisions made thereat (entry 13);

(e) entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries (entry

14);

(f) war and peace (entry 15);

165 (g) foreign jurisdiction (entry 16);

(h) anything done by the President, Governor or Rajpramukh in the exercise of the following functions:

Power of summoning, proroguing and dissolving the Legislature, vetoing of laws and anything done by the President in the exercise of the powers to issue Proclamations under the Constitution;

(i) Acts done under the Trading with the Enemy Act, 1947;

(j) Acts done or omitted to be done under a Proclamation of Emergency when the security of the State is threatened.

(iv) Acts done in relation to the Defence Forces:

(a) Combatant activities of the Armed Forces during the time of war;

(b) Acts done in the exercise of the powers vested in the Union for the purpose of training or maintaining the efficiency of the Defence Forces;

The statutes relating to these already provide for payment of compensation and the machinery for determining the compensation: See Manoeuvres, Field Firing and Artillery Practice Act, 1948; Seaward Artillery Practice Act, 1949;

(c) The liability of the State for personal injury or death caused by a member of the Armed Forces to another member while on duty shall be restricted in the same manner as in England (Sec.

10 of the Crown Proceedings Act)

(v) Miscellaneous:

166 (a) any claim arising out of defamation, malicious prosecution and malicious arrest,

(b) any claim arising out of the operation of quarantine law,

(c) existing immunity under the Indian Telegraph Act, 1885 and Indian Post Offices Act, 1898,

(d) foreign torts. (The English provision may be adopted.)”

145. It appears that based on the First Report of the Law

Commission, a Bill known as the Government (Liability in Torts) Bill

was introduced in 1967, but the same did not become the law. As a

consequence, a huge burden was cast on the Courts to develop the

law through judicial precedents, some of which we shall see now.

146. The judicial journey actually started off on a right note with

the decision in The State of Bihar vs. Abdul Majid112, where a

Government servant who was dismissed but later reinstated, filed a

suit for recovery of arrears of salary. Though the State raised a

defence on the basis of the doctrine of pleasure, this Court rejected

the same on the ground that said doctrine based on the Latin

112 AIR 1954 SC 245 167 phrase “durante bene placito” (during pleasure) has no application

in India. This decision was followed in State of Rajasthan vs. Mst.

Vidhyawati113, which involved a claim for compensation by the

widow of a person who was fatally knocked down by a jeep owned

and maintained by the State. When sovereign immunity was

pleaded, this Court observed in Vidhyawati (supra): “when the

rule of immunity in favour of the Crown, based on common

law in the United Kingdom has disappeared from the land of

its birth, there is no legal warrant for holding that it has any

validity in this country, particularly after the Constitution.”

147. On the question of the liability of the State, for the tortious

acts of its servants, this Court opined in Vidhyawati, as follows:

“(10) This case also meets the second branch of the argument that the State cannot be liable for the tortious acts of its servants, when such servants are engaged on an activity connected with the affairs of the State. In this connection it has to be remembered that under the Constitution we have established a welfare state, whose functions are not confined only to maintaining law and order, but extend to engaging in all activities including industry, public transport, state trading, to name only a few of them. …”

113 AIR 1962 SC 933 168

148. But despite the decisions in Abdul Majid (supra) and

Vidhyawati, this Court fell into a slippery slope in Kasturi Lal. It

was a case where the partner of a firm dealing in bullion and other

goods was arrested and detained in police custody and the gold and

silver that he was carrying was seized by the police. When he was

released later, the silver was returned but the Head Constable who

effected the arrest misappropriated the gold and fled away to

Pakistan in October, 1947. The suit filed by Kasturi Lal for

recovery of the value of the gold, was resisted on the ground that

this was not a case of negligence of the servants of the State and

that even if negligence was held proved against the police officers

the State could not be held liable. While upholding the contention of

the State, this Court said “if a tortious act is committed by a public

servant and it gives rise to a claim for damages, the question to ask

is: was the tortious act committed by the public servant in discharge

of statutory functions which are referable to, and ultimately based

on, the delegation of the sovereign powers of the State to such public

servant? If the answer is in the affirmative, the action for damages

for loss caused by such tortious act will not lie. On the other hand, if

169 the tortious act has been committed by a public servant in discharge

of duties assigned to him not by virtue of the delegation of any

sovereign power, an action for damages would lie. The act of the

public servant committed by him during the course of his employment

is in this category of cases, an act of a servant who might have been

employed by a private individual for the same purpose.”

149. In fact, it was suggested by this Court in Kasturi Lal that

the Legislatures in India should seriously consider making

legislative enactments to regulate and control their claim for

immunity. Before proceeding further with the journey in the

chronological sequence, it must be mentioned that the decision in

Kasturi Lal was diluted to some extent after nearly 30 years which

we shall take note of at the appropriate stage.

150. In Khatri (II) vs. State of Bihar.114, which came to be

popularly known as Bhagalpur blinding case, this Court was dealing

with a brutal incident of Police atrocity which resulted in twenty­

four prisoners being blinded. Though an opportunity was provided 114 (1981) 1 SCC 627 170 to this Court to signal the arrival of Constitutional tort in the said

case and though the petitioners sought compensation for the

violation of their Article 21 right, this Court simply postponed the

decision to a future date by holding that they are issues of the

gravest Constitutional importance, involving the exploration of new

dimension of the right to life and personal liberty.

151. But within a couple of years, another opportunity arose in

Rudul Sah (supra), which related to the unlawful detention of a

prisoner for fourteen years even after his acquittal. This shook the

conscience of this Court. Therefore, this Court awarded

compensation in an arbitrary sum of money, even while reserving

the right of the petitioner to bring a suit for recovery of appropriate

damages. This Court said that the order of compensation passed by

this Court was in the nature of palliative. When it is suggested by

the State that the appropriate remedy would be only to file a suit for

damages, this Court said that by refusing to order anything

(towards compensation), this Court would be doing mere lip­service

to the fundamental right to liberty and that one of the telling ways

171 in which the violation of the right by the State can be reasonably

prevented, is to mulct its violators with monetary compensation.

152. After Rudul Sah, there was no looking back. Instead of

providing elaborate details, we think it is sufficient to provide in a

tabular form, details of the cases where this Court awarded

compensation in public law, invoking the principle of constitutional

tort, either expressly or impliedly.

Sr. Case Laws Decision No.

1. Sebastian M.Hongray vs.  Two men who were taken for questioning Union of India by 21st Sikh Regiment never returned (1984) 3 SCC 82 home.

 When a writ of habeas corpus was filed by a JNU student, this Court directed that the missing men be produced before the Court. This order could not be complied with.

 Court awarded compensation of Rs.1lac to the wives of the missing men on account of mental agony suffered by them.

2. Bhim Singh, MLA vs. State  An MLA was illegally arrested and of J&K. detained to prevent him from attending a (1985) 4 SCC 677 session of the Jammu & Kashmir State Legislative Assembly.

 FIR was registered u/s 153A, IPC and order of remand was obtained from the Magistrate without producing the MLA before Court.

 In a writ for habeas corpus filed by his wife, this Court observed that there had been a violation of his fundamental rights under Articles 21 and 22(2) of the Constitution and accordingly directed the State of Jammu and Kashmir to pay

172 Bhim Singh a sum of Rs.50,000/­ as compensation.

3. Peoples’ Union for  A public interest litigation was filed Democratic Rights vs. State against the illegal shooting by police officers against members of a peaceful of Bihar &Ors.

assembly.

(1987) 1 SCC 265  Several were injured and 21 died (including children) due to this incident.

 While the State had paid a compensation of Rs.10,000 each to heirs of the deceased, this Court found it insufficient and directed payment of Rs.20,000 to dependants of each deceased and Rs.5,000 to each injured person.

4. Saheli, a Women’s Resources  Two women were forcefully evicted from Centre through Ms. Nalini their homes. The landlord was aided by the SHO and SI in the assault that led to Bhanot & Ors. vs. demise of the nine­year­old son of one of Commissioner of Police, the women.

Delhi Police Headquarters &  This Court awarded compensation of Ors. Rs.75,000 to the mother of the deceased (1990) 1 SCC 422 child.

5. Supreme Court Legal Aid  A person injured in a train robbery, was Committee through its taken to the nearest hospital by the Police by tying him to the footboard of a Hony. Secretary vs. State of vehicle. This led to his death. Bihar & Ors.  This Court observed that had timely care (1991) 3 SCC 482 been given to the victim he might have been saved.  The State of Bihar was directed to pay Rs.20,000 to the legal heirs of the deceased.

6. Nilabati Behera (Smt.) alias  Petitioner was a mother whose son had Lalita Behera (Through the died in police custody.  This Court directed the State to pay Supreme Court Legal Aid compensation of Rs.1.5 lacs. Committee) vs. State of Orissa & Ors. (1993) 2 SCC 746 7. Arvinder Singh Bagga vs.  A married woman was detained and State of U.P. & Ors. physically assaulted in a police station (1994) 6 SCC 565 with a view to coerce her to implicate her husband and his family in a case of abduction and forcible marriage.  After taking her statement, her husband 173 and his family were also harassed by the police.  This Court observed that the police had exhibited high­handedness and uncivilized behaviour and awarded the woman a compensation of Rs.10,000 and members of her family Rs.5,000 each.

8. N. Nagendra Rao & Co. vs.  Appellant was in the business of food State of A.P. grains and fertiliser. On an inspection by (1994) 6 SCC 205 the concerned authorities, his stocks were seized.  As was the practice, the food grains in custody were sold and the proceeds deposited in the Treasury, but the

fertilisers were not dealt with in the same manner causing great loss to the Petitioner.

 In a suit for negligence and misfeasance of public authorities, this Court further developed the concept of Constitutional Tort and limited the scope of sovereign immunity laid down in Kasturilal. The State was held vicariously liable for the actions of the authorities.

9. Inder Singh vs. State of  A Deputy Superintendent of Police along Punjab & Ors. with his subordinates abducted and (1995) 3 SCC 702 killed seven persons due to personal vengeance.

 This Court ordered an inquiry by the CBI.After CBI filed a report, this court directed the State to pay Rs.1.5 lacs to the legal heirs (to be recovered from guilty policemen later) and State to pay costs quantified at Rs.25,000.

10. Paschim Banga Khet  The callous attitude on the part of the Mazdoor Samity & Ors. vs. medical authorities at various Government­run hospitals in Calcutta in State of W.B. & Anr.

providing treatment to a train accident (1996) 4 SCC 37 victim was highlighted in this case.

 This Court directed the State to pay Rs.25,000 for the denial of its constitutional obligations of care.

174

11. D.K. Basu vs. State of W.B.  In a public interest litigation involving (1997) 1 SCC 416 incidents of custodial violence in West Bengal, this Court issued guidelines for law enforcement agencies to follow when arresting and detaining any person.

 This Court also discussed the award of compensation as a remedy for violation of fundamental rights as a punitive measure against State action.

12. People’s Union for Civil  Two persons alleged to be terrorists were Liberties vs. Union of India killed by the police in a false encounter.

 This Court directed the State of Manipur & Anr.

to pay Rs.1 lac to the family of the (1997) 3 SCC 433 deceased and Rs.10,000 to PUCL for pursuing the case for many years.

13. Municipal Corporation of  A fire in a cinema hall resulted in injury Delhi, Delhi vs. Uphaar to over 100 persons and death of 59 cinemagoers.

Tragedy Victims Association  & Ors.  The fire was caused by a transformer (2011) 14 SCC 481 installed by Delhi Vidyut Board (DVB).

 HC had found the Municipal Corporation, Delhi Police, and the DVB responsible for the accident.

 This Court held only DVB and theatre owner liable to pay compensation in the ratio of 15:85.

 While doing so, this Court dealt extensively with the concept of Constitutional Tort.

153. It will be clear from the decisions listed in the Table above

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. But as rightly pointed out by the

learned Attorney General in his note, the matter pre­eminently 175 deserves a proper legal framework so that the principles and

procedure are coherently set out without leaving the matter open

ended or vague. In fact, the First Report of the Law Commission

submitted a draft bill way back in 1956. This Court recommended a

legislative measure in Kasturi Lal in 1965 and a bill called

Government (Liability in Torts) Bill was introduced in 1967. But

nothing happened in the past 55 years. In such circumstances,

courts cannot turn a blind eye but may have to imaginatively

fashion the remedy to be provided to persons who suffer injury or

loss, without turning them away on the ground that there is no

proper legal frame work.

154. Therefore, our answer to Question No. 5 is as follows:

“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

176 by the officers resulting in harm or loss to a person/citizen,

then the same may be actionable as a constitutional tort”.

SUMMING UP

155. To sum up, our answers to the five questions referred to the

Bench, are as follows:

QUESTIONS ANSWERS 1. Are the grounds specified in The grounds lined up in Article 19(2) in relation to Article 19(2) for restricting which reasonable restrictions the right to free speech are on the right to free speech can exhaustive. Under the guise be imposed by law, exhaustive, of invoking other or can restrictions on the right fundamental rights or under to free speech be imposed on the guise of two fundamental grounds not found in Article rights staking a competing 19(2) by invoking other claim against each other, fundamental rights? additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual.

2. Can a fundamental right under A fundamental right under Article 19 or 21 of the Article 19/21 can be enforced Constitution of India be even against persons other claimed other than against the than the State or its ‘State’ or its instrumentalities? instrumentalities.

3. Whether the State is under a The State is under a duty to duty to affirmatively protect the affirmatively protect the rights rights of a citizen under Article of a person under Article 21, 21 of the Constitution of India 177 even against a threat to the whenever there is a threat to liberty of a citizen by the acts personal liberty, even by a or omissions of another citizen non­State actor. or private agency?

4. Can a statement made by a A statement made by a Minister, traceable to any Minister even if traceable to affairs of State or for protecting any affairs of the State or for the Government, be attributed protecting the Government, vicariously to the Government cannot be attributed itself, especially in view of the vicariously to the Government principle of Collective by invoking the principle of Responsibility? collective responsibility.

5. Whether a statement by a A mere statement made by a Minister, inconsistent with the Minister, inconsistent with the rights of a citizen under Part rights of a citizen under Part­ Three of the Constitution, III of the Constitution, may constitutes a violation of such not constitute a violation of constitutional rights and is the constitutional rights and actionable as ‘Constitutional become actionable as Tort”? 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.

178

156. Now that we have answered the questions, the writ petition

and the special leave petition are directed to be listed before the

appropriate bench after getting orders from Hon’ble the Chief

Justice of India.

…..…………....................J. (S. Abdul Nazeer)

…..…………....................J. (B.R. Gavai)

…..…………....................J. (A.S. Bopanna)

.…..………......................J. (V. Ramasubramanian)

New Delhi;

January 03, 2023

179 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL/CIVIL APPELLATE JURISDICTION

WRIT PETITION (CRL.) NO. 113 OF 2016

Kaushal Kishor …..Petitioner(s)

Versus

State of Uttar Pradesh & Ors. ….. Respondent(s)

With

SLP (C) @ Diary No.34629 of 2017

Sl.No. Particulars Page Nos.

1. Introduction 2-10

2. Submissions 10-17

3. Preface 17-18

4. Article 19(1)(a) and 19 (2) – An Overview 18-26

5. Wesley Hohfeld’s analysis of the form of 26-30 rights

6. The content of Article 19 (1)(a) 30-40

7. ‘Hate speech’ 40-54

8. Human dignity as a value as well as a 54-63 right under the Constitution of India

9. The preambular goals of ‘Equality’ and 63-72 ‘Fraternity’

10. Re: Question No.2 72-101

11. Re: Question No.3 101-106

12. Re: Question No.4 106-107

13. Re: Question No.5 107-120

14. Conclusions 120-121 2

JUDGMENT

NAGARATHNA, J.

I have had the benefit of reading the erudite judgment proposed

by His Lordship V. Ramasubramanian, J. While I agree with the

reasoning and conclusions arrived at by his Lordship on certain

questions referred to this Constitution Bench, I wish to lend a different

perspective to some of the issues by way of my separate opinion.

2. In the words of one of the Indian philosophers, Basaveshwara:

“NuDidare muttina haaradantirabeku, NuDidare maanikyada deeptiyantirabeku, NuDidare spatikada shalaakeyantirabeku, NuDidare Lingamecchi ahudenabeku.”

One should speak only when the words uttered are as pure as pearls strung on a thread;

Like the lustre shed by a ruby;

Like a crystal’s flash that cleaves the blue; And such that the Lord, on listening to such speech, must say “yes, yes, that is true!”

Introduction:

3. The concern of the petitioners in these cases is the misuse of the

right to freedom of speech and expression under Article 19(1)(a) of the

Constitution, particularly, by those persons holding political offices,

public servants, public functionaries or others holding responsible

positions in Indian polity and society. The concern of the petitioners is

with regard to the manner in which public functionaries make

disparaging and insulting remarks against certain sections of the 3

society, against countrymen and against certain individuals such as

women who may be victims of crime. Such indiscreet speech is a cause

of concern in recent times as it is thought to be hurtful and insulting.

The questions raised in these matters are with regard to remedies

available in law so as to counter such kind of hurtful or disparaging

speech made, particularly, by public functionaries.

4. The facts giving rise to the present petitions may be encapsulated

as under:

4.1. Writ Petition (Crl.) No. 113 of 2016, relates to the unsavory public

comments made by a former Uttar Pradesh Cabinet Minister, in

the context of an alleged gang rape of a woman and her minor

daughter that took place on 29th July, 2016 on the Noida-

Shahjahanpur National Highway (NH 91). Relying on certain

news articles, the petitioner in Writ Petition (Crl.) No. 113 of 2016

has brought to the notice of this Court the remarks made by the

said public functionary, terming the alleged incident as an

“opposition conspiracy,” which was proliferated merely because

“elections were near, and the desperate opposition could stoop to

any level to defame the government.”

4.2. In relation to such statements, a First Information Report, being

FIR No. 0838 of 2016 was registered against the said Minister on

30th July, 2016 by the Kotwali Police Station, Dehat, 4

Bulandshahr, Uttar Pradesh, for offences under Sections 395,

397, 376-D, 342 of the Indian Penal Code, 1860 (hereinafter

referred to as ‘IPC’ for the sake of convenience).

4.3. In the above background, the Writ Petition has been preferred,

praying as follows:

“P R A Y E R : -

In view of the above stated submissions, it is therefore, most humbly prayed that this Hon’ble Court; may in the interests of justice, be pleased to :-

a. Issue a writ of mandamus and / or any other appropriate writ and / or direction against the respondents directing them to stop the infringement of the fundamental rights of the petitioner to live a lawful life; in addition to passing other appropriate directions to the respondents.

b. Direct the state to pay the appropriate compensation to the petitioner, other victims and the family members as per Law.

c. Direct the state to provide and ensure respectable and appropriate free of cost and safe education arrangements till the attainments of the highest degree in the interest of justice.

d. Direct the state to provide and ensure sufficient life security and appropriate job security to the petitioner, other victims and family members.

e. Summon the status report from the investigation agency in the interests of justice.

f. Monitor the investigation of FIR No.0838/2016 under Section 154 Cr. P.C. 395, 397, 376-D and POCSO Act,

342.

g. Transfer the trial of the FIR No.0838/2016 to Delhi from Bulandshahar in the interest of justice. h. Pass directions to Respondent No.1 to register F.I.R.

against Sh. Azam Khan, Minister for Urban Development, Govt. of UP; for making statements being outrageous to the modesty of the petitioner in the matters of the present case.

i. Direct to the Respondent No.1 for registration of F.I.R.

No.0838/2016 against erring police officials for disobeying the directions of law in the present case. 5

j. Pass any other or further orders as this Hon’ble Court may deem fit and proper in the light of the facts and circumstances of the present case in favour of the petitioners and against the respondents.”

4.4. Special Leave Petition bearing Diary No. 34629 of 2017 has been

filed impugning the common order dated 31st May, 2017 passed

by the High Court of Kerala, at Ernakulam dismissing Writ

Petition (C) No. 15869 and Writ Petition (C) No. 14712 of 2017.

The said Writ Petitions were filed before the High Court alleging

inaction on the part of Government of Kerala in connection with

the derogatory statements made on separate occasions, by the

then Minister of Electricity, Government of Kerala, against a

woman Principal of a polytechnic college in Kerala, the mother of

a student who allegedly committed suicide due to the alleged

harassment by the college authorities and against women

labourers of a tea plantation. Aggrieved by the dismissal of the

said Writ Petition, SLP bearing Diary No. 34629 of 2017 came to

be filed before this Court, which was directed to be tagged with

Writ Petition (Crl.) No. 113 of 2016.

5. The questions raised for the consideration of this Constitution

Bench are enumerated as under:

“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 6 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 citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen 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’?”

6. His Lordship, Ramsubramanian, J. has answered the questions

referred to this Constitution Bench in the scholarly judgment proposed

by him. My view on each of such questions, as contrasted with those of

His Lordship’s have been expressed in a tabular form hereinunder, for

easy reference.

Questions His Lordship’s views My views 1) Are the grounds The grounds lined up I respectfully agree with specified in Article 19(2) in Article 19(2) for the reasoning and in relation to which restricting the right to conclusion of His reasonable restrictions free speech are Lordship, in so far as on the right to free exhaustive. Under the Question No. 1 is speech can be imposed guise of invoking other concerned. by law, exhaustive, or fundamental rights or can restrictions on the under the guise of two 7

Questions His Lordship’s views My views right to free speech be fundamental rights imposed on grounds not taking a competing

found in Article 19(2) by claim against each invoking other other, additional fundamental rights? restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual.

2) Can a fundamental A fundamental right The rights in the realm right under Article 19 or under Article 19/21 of common law, which 21 of the Constitution of can be enforced even may be similar in their India be claimed other against persons other content to the than against the ‘State’ than the State or its Fundamental Rights or its instrumentalities? instrumentalities. under Article 19/21, operate horizontally;

However, the Fundamental Rights under Articles 19 and 21, do not except those rights which have also been statutorily recognised. Therefore, a fundamental right under Article 19/21 cannot be enforced against persons other than the State or its instrumentalities. 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 8

Questions His Lordship’s views My views 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.

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. This is primarily because such matters would involve disputed questions of fact. 3) Whether the State is The State is under a The duty cast upon the under a duty to duty to affirmatively State under Article 21 is affirmatively protect the protect the rights of a negative duty not to rights of a citizen under a person under deprive a person of his Article 21 of the Article 21, whenever life and personal liberty Constitution of India there is a threat to except in accordance even against a threat to personal liberty even with law. the liberty of a citizen by by a private actor. The State however has an the acts or omissions of affirmative duty to carry another citizen or out obligations cast upon private agency? it under constitutional and statutory law. Such obligations may require interference by the State where acts of a private party may threaten the life or liberty of another individual. Hence, failure to carry out the duties enjoined upon 9

Questions His Lordship’s views My views the State under constitutional and 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 liberty, the State would have breached the negative duty cast upon it under Article 21. 4) Can a statement A statement made by A statement made by a made by a Minister, a Minister even if Minister if traceable to traceable to any affairs traceable to any any affairs of the State

of State or for protecting affairs of the State or or for protecting the the Government, be for protecting the Government, can be attributed vicariously to Government, cannot attributed vicariously the Government itself, be attributed to the Government by especially in view of the vicariously to the invoking the principle principle of Collective Government by of collective Responsibility? invoking the responsibility, so long principle of as such statement collective represents the view of responsibility. the Government also. If such a statement is not consistent with the view of the Government, then it is attributable to the Minister personally.

5) Whether a statement A mere statement A proper legal framework by a Minister, made by a Minister, is necessary to define the inconsistent with the inconsistent with the acts or omissions which rights of a citizen under rights of a citizen would amount to Part Three of the under Part-III of the constitutional torts, and Constitution, Constitution, may the manner in which the constitutes a violation not constitute a same would be redressed 10

Questions His Lordship’s views My views of such constitutional violation of or remedied on the basis rights and is actionable constitutional rights of judicial precedent.

as ‘Constitutional Tort’ and become It is not prudent to treat actionable as a all cases where a Constitutional tort. statement made by a But if as a public functionary consequence of such resulting in harm or loss a statement, any act to a person/citizen, as of omission or constitutional torts. commission is done by the officers Public functionaries resulting in harm or could be proceeded loss to a against personally if their person/citizen, then statement is inconsistent the same may be with the views of the actionable as a Government. If, however, constitutional tort. such views are consistent with the views of the Government, or are endorsed by the Government, then the same may be vicariously attributed to the State on the basis of the principle of collective responsibility and appropriate remedies may be sought before a court of law.

Submissions:

7. We have heard learned Senior Counsel, Sri Kaleeswaram Raj, for

the Petitioners and learned Attorney General for the Respondents, and

learned Senior Counsel Ms. Aparajita Singh, amicus curiae. 11

Arguments on behalf of the petitioners:

8. The submissions of learned Senior Counsel, Sri Kaleeswaram Raj,

appearing on behalf of the Petitioners may be epitomized as under:

8.1. That while upholding the constitutional right to freedom of

speech and expression of Ministers, efforts should be made to

frame a voluntary code of conduct for Ministers and public

officials, which would ensure better accountability and

transparency in their political activities and also place a check on

the misuse of freedom of speech and expression exercised by

public functionaries using the apparatus of the State.

8.2. That while the state’s duty to protect life and liberty broadly falls

within the right under Article 21, it is difficult to chain the State

with responsibility in every instance where speech by a public

functionary strikes at the dignity of another person. That in the

absence of such a provision to vicariously attribute responsibility

to the State, every instance of such speech cannot be actionable

and remediable through the judiciary. That no duty

corresponding to Article 21 is imposed on individual Ministers

nor such duty is imposed on any government machinery to

regulate the conduct of individual Ministers warranting judicial

intervention. Therefore, even though no actionable breach of

public duty can be said to have taken place when statements are 12

made by people in power, this in turn, postulates the desirability

to have a voluntary code of conduct in the better interest of the

government as well as the governed.

8.3. Reliance was placed on Article 75 (3) of the Constitution to

contend that Ministers have a collective responsibility towards

the legislature and thus, a code of conduct to self-regulate the

speech and actions of Ministers is constitutionally justifiable.

That a Minister is not supposed to breach her/his collective

responsibility towards the Cabinet and the Legislature, hence, it

is advisable to have a cogent code of conduct as available in

advanced democracies.

8.4. Learned Senior Counsel lastly submitted that the instant cases

do not involve a question as to conflict of any other right with

Article 19. That the question herein, in sum and substance, is,

whether, any restraint justifiable under the Constitution, can be

placed on Ministers and public functionaries, to regulate their

speech.

Arguments on behalf of the Respondent-Union of India:

9. Submissions of Learned Attorney General for India, Sri R.

Venkataramani and Learned Solicitor General of India, Sri Tushar

Mehta, appearing on behalf of the Respondent-Union of India, may be

summarized as under:

13

9.1. At the outset, Sri R. Venkataramani, Learned Attorney General

fairly submitted that restrictions on the freedom of speech

enumerated under Article 19 (2) have to be taken to be exhaustive

and thus, the court cannot invoke any other fundamental right,

namely, Article 21 to impose restrictions on grounds which are

not enumerated under Article 19(2). Further, that as a matter of

constitutional principle, any addition, alteration or change in the

norms or criteria for imposition of restrictions, on any

fundamental right has to come through a legislative process. That

the balancing of fundamental rights, either to avoid overlapping

or to ensure mutual enjoyment, is different from treating one

right as a restriction on another right.

9.2. It was next submitted that the Constitution of India sets out the

scheme of claims of fundamental rights against the State or its

instrumentalities and such scheme also addresses breaches or

violations of fundamental rights by persons other than the State

or its instrumentalities. Thus, any proposition to add or insert

subjects or matters in respect of which claims can be made

against persons other than the State, would amount to a

constitutional change. That any enlargement of such

constitutional principles would have the consequence of opening

a flood gate of constitutional litigation.

14 9.3. It was further contended that there are sufficient constitutional

and legal remedies available to a citizen whose liberty is

threatened by any person and beyond the constitutional and legal

remedies, there may not be any other additional duty to

affirmatively protect the right of a citizen under Article 21.

9.4. Learned Attorney General urged that Ministerial misdemeanors,

which have nothing to do with the discharge of public duty and

are not traceable to the affairs of the State will have to be treated

as acts of individual violation and individual wrongs. Thus, the

state cannot be vicariously liable for the same. That the conduct

of a public servant like a Minister in the government, if was

traceable to the discharge of a public duty or duties of the office,

was subject to the scrutiny of law. However, such misconduct

including statements that may be made by a Minister, cannot be

linked to the principles of collective responsibility.

Submissions of learned amicus curiae, Ms. Aparajita Singh, Senior Advocate:

10. The submissions of learned amicus curiae, Ms. Aparajita Singh,

may be summarized as under:

10.1. At the outset she submitted that the right to freedom of speech

and expression under Article 19(1)(a) is subject to clearly defined

restrictions under Article 19(2). Therefore, any law seeking to 15

limit the right under Article 19(1)(a) has to fall within the

limitation provided under Article 19(2).

10.2. That the right to freedom of speech and expression of a public

functionary who represents the state has to be balanced with a

citizen’s right to fair investigation under Article 21 and if the

exercise of a Minister’s right under Article 19(1)(a) violates a

citizen’s right under Article 21 then the same would have to be

read down to protect the right of the citizen. Thus, a Minister

cannot claim the protection of Article 19(1)(a) to violate Article 21

rights of citizens.

10.3. Ms. Aparajita Singh next contended that a Minister, being a

functionary of the State represents the State when acting in his

official capacity. Therefore, any violation of the fundamental

rights of citizens by the Minister in his official capacity, would be

attributable to the State. Thus, it would be preposterous to

suggest that while the State is under an obligation to restrict a

private citizen from violating the fundamental rights of other

citizens, its own Minister can do so with impunity. However,

learned amicus curiae qualified such submission by stating that

the factum of violation would need to be established on the facts

of a given case and hence the law has to evolve from case to case.

It would involve a detailed inquiry into questions such as i)

whether the statement by the Minister was made in his personal 16

or official capacity; ii) whether the statement was made on a

public or private issue; iii) whether the statement was made on a

public or private platform.

10.4. It was submitted that a Minister is personally bound by the oath

of office to bear true faith and allegiance to the Constitution of

India under Articles 75(4) and 164(3) of the Constitution. That

the code of conduct for Ministers (both for Union and States)

specifically lays down that the Code is in addition to the

“…observance of the provisions of the Constitution, the

Representation of the People Act, 1951”. Therefore, a

constitutional functionary is duty bound to act in a manner

which is in consonance with the constitutional obligations.

10.5. It was lastly submitted that the State acts through its

functionaries. Therefore, an official act of a Minister which

violates the fundamental rights of the citizens, would make the

State liable by treating the said act of the Minister as a

constitutional tort. However, the principle of sovereign immunity

of the state for the tortious acts of its servants, has been held to

be inapplicable in the case of violation of fundamental rights.

Question No. 1 referred to this Constitution Bench reads as under:

“Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed 17

by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking fundamental rights?”

Preface:

11. In my view, these cases call for an analysis of the content of Article

19(1)(a) of the Constitution of India which grants to all citizens of India

the right to freedom of speech and expression. Before proceeding to

analyse the relevant constitutional provisions, it may be appropriate to

preface the discussion with the thought that freedom of speech is not

contingent only upon the laws of a nation. The compulsion of social

relations and the informal pressures of conformity, exerted in a

pervasive manner, determine to a great extent, the content and limits of

permissible speech in society. It is the laws, however, through their own

unique methods, which reinforce social sanctions. Therefore, the

Constitution, which is the fundamental law of the land, as well as the

other laws which are measured on the touchstone of the Constitution,

are to be interpreted, having regard, inter-alia, to the content and

permissible limits of free speech in a peaceful society.

It is necessary to observe that freedom of speech and expression

has always been closely linked with certain socio-political ideals that

constitute the foundation of democracy: respect for individual dignity

and equality; fraternity; ideals of tolerance; cultural and religious

sensitivity. Many of these ideals are written into the text of our 18

Constitution and permeate its structure through the very Preamble to

the Constitution. These ideals form the philosophical foundations of the

discourse on free speech and therefore, any analysis of the same should

be compatible with these ideals. It is in that background that one must

set out to examine whether additional accountability and thus, a legal

obligation can be cast upon public functionaries with respect to the

permissible extent of free speech. Further, it is also necessary to

examine the difference between restraints on the exercise of freedom of

speech and expression, vis-à-vis restrictions thereon, and in that

background examine the degree of self-restraint that needs to be

exercised by every citizen, whether a public functionary or not, in

exercising his/her right to freedom of speech and expression in a

Country like ours which is so unique because of its diversity and

pluralism.

Article 19(1)(a) and Article 19(2): An overview

12. At this stage, it would be useful to dilate on Article 19(1)(a) and

Article 19(2) as under:

12.1. Article 19(1)(a) to (f) of the Constitution guarantees certain

fundamental rights to the citizens of India. These fundamental

rights are however, subject to reasonable restrictions as

enumerated in Articles 19(2) to (6) thereof which could be

imposed by the State. These fundamental rights are in the nature

of inalienable rights of man or basic human rights which inhere 19

in all citizens of a free country. Yet, these rights are not

unrestricted or absolute, and are regulated by restrictions, which

may be imposed by the State, which have to be reasonable. The

object of prescribing restraints or reasonable restrictions on the

fundamental freedoms is to avoid anarchy or disorder in society.

Hence, the founding fathers of our Constitution while

enumerating the fundamental rights, have alongside prescribed

reasonable restrictions in clauses (2) to (6) of Article 19 and the

laws enacted within the strict limits of such restrictions are

constitutionally permissible.

12.2. Since, these cases involve the freedom of speech and expression,

it is unnecessary to analyse the nature of the other fundamental

rights in Article 19(1) of the Constitution. Articles 19(1) (a) and

19(2) of the Constitution read as under:

“19. Protection of certain rights regarding freedom of speech, etc.-

(1) All citizens shall have the right –

(a) to freedom of speech and expression;

xxx xxx xxx (2) Nothing in sub-clause (a) of clause (a) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-

clause 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.” 20

12.3. The freedom of speech and expression as envisaged under Article

19(1)(a) of the Constitution means the right to free speech and to

express opinions through various media such as by word of

mouth, through the print or electronic media, through

pictographs, writings, graphics or any other manner that can be

discerned by the mind. The right includes the freedom of press.

The content of this right also includes propagation of ideas

through publication and circulation, the right to seek

information and to acquire or impart ideas. In short, the right to

free speech would include every nature of right that would come

within the scope and ambit of free speech. Hence, Article 19(1)(a)

in very broad and in wide terms states that all citizens shall have

the right to freedom of speech and expression. The said right can

be curtailed only by reasonable restrictions which are

enumerated in Article 19(2) thereof which can be imposed by the

State under the authority of law but not by exercise of executive

power in the absence of any law. Further, the nature of

restrictions on right to free speech must be reasonable, and in

the interest of the sovereignty and integrity of India, 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. (Article 19(2)).

12.4. For a country like ours which is a Parliamentary Democracy,

freedom of speech and expression is a necessary right as well as 21

a concomitant for the purpose of not only ensuring a healthy

democracy but also to ensure that the citizens could be well

informed and educated on governance. The dissemination of

information through various media, including print and

electronic media or audio visual form, is to ensure that the

citizens are enlightened about their rights and duties, the

manner in which they should conduct themselves in a democracy

and for enabling a debate on the policies and actions of the

Governments and ultimately for the development of the Indian

society in an egalitarian way.

12.5. The right to freedom of speech and expression in Article 19(1)(a)

of the Constitution has its genesis in the Preamble of the

Constitution which, inter alia, speaks of liberty of thought,

expression, belief. Since, India is a sovereign democratic republic

and we follow a parliamentary system of democracy, liberty of

thought and expression is a significant freedom and right under

our constitutional setup.

12.6. This Court has, since the enforcement of the Constitution, been

zealously upholding the right to freedom of speech and

expression in innumerable judgments which may be highlighted

with reference to a few of them.

i) In Romesh Thappar vs. State of Madras, AIR 1950 SC

124, 1950 SCC 436, (“Romesh Thappar”) while

highlighting that the freedom of speech is the foundation of 22

all democratic organisations, held that said freedom would

also include the right to freedom of the press. This judgment

highlighted that the free flow of opinion and ideas is

necessary to sustain collective life of the well informed

citizenry which is a sine qua non for effective governance.

ii) In S. Khushboo vs. Kanniammal, (2010) 5 SCC 600,

(“Khushboo”) this Court held that the freedom under Article

19(1)(a) envisaged dissemination of all kinds of views, both

popular as well as unpopular.

iii) Recently in Shreya Singhal vs. Union of India, (2015) 5

SCC 1, (“Shreya Singhal”) this Court speaking through

Nariman, J. highlighted on the differences between the US

First Amendment and Article 19(1)(a) read with Article 19(2)

in the following words:

“15. It is significant to notice first the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2). The first important difference is the absoluteness of the US First Amendment—Congress shall make no law which abridges the freedom of speech. Second, whereas the US First Amendment speaks of freedom of speech and of the press, without any reference to “expression”, Article 19(1)(a) speaks of freedom of speech and expression without any reference to “the press”. Third, under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such restrictions have to be in the interest of eight designated subject-matters— that is, any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject- matters set out in Article 19(2).” 23

It was further observed that insofar as the first apparent

difference is concerned, the United States Supreme Court

has never given effect to the declaration that Congress shall,

under some circumstances, make any law abridging the

freedom of speech. Insofar as the second apparent difference

is concerned, para 17 of Shreya Singhal is extracted as

under:

“17. So far as the second apparent difference is concerned, the American Supreme Court has included “expression” as part of freedom of speech and this Court has included “the press” as being covered under Article 19(1)(a), so that, as a matter of judicial interpretation, both the US and India protect the freedom of speech and expression as well as press freedom. Insofar as abridgement and reasonable restrictions are concerned, both the US Supreme Court and this Court have held that a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary. It is only when it comes to the eight subject-matters that there is a vast difference. In the US, if there is a compelling necessity to achieve an important governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such law cannot pass muster if it is in the interest of the general public. Such law has to be covered by one of the eight subject-matters set out under Article 19(2). If it does not, and is outside the pale of Article 19(2), Indian courts will strike down such law.”

In Shreya Singhal, there was a challenge to Section 66-A

of the Information Technology Act, 2000, which was struck down

as being violative of Article 19(1)(a) and was not saved under 24 Article 19(2) on the ground of vagueness and not providing

manageable standards and clear guidance for citizens,

authorities and courts for drawing a precise line between

allowable and forbidden speech, expression or information.

When a law uses vague expressions capable of misuse or abuse

without providing notice to persons of common intelligence to

guess their meaning, it leaves them in a boundless sea of

uncertainty, conferring wide, unfettered powers on authorities to

curtail freedom of speech and expression arbitrarily.

12.7. The present cases, however, are not really concerned with

restrictions on the right to freedom of speech being imposed by

the State. These cases are concerned with the content of Article

19(1)(a) of the Constitution, inasmuch as the grievance sought

to be ventilated by the petitioners is, whether, there could be an

inherent constitutional restriction on freedom of speech and

expression on the citizens vis-à-vis other citizens. These cases

are not with regard to reasonable restrictions that could be

imposed by the State on the freedom of speech and expression,

rather, what would be the content of free speech that should not

be exercised as a right by an individual citizen which would not

in any way give rise to a cause of action to another citizen to seek

a remedy.

25 13. The content of a free speech right, as described hereinabove, is

to be understood in terms of the structural elements or components

of a free speech right. Only when a free speech right is understood as

such, deductions can be made as to the precise boundaries thereof

and the basis on which such right can be limited or restrained.

Stephen Gradbaum, in his essay titled “The Structure of a Free Speech

Right,” in the Oxford Handbook of Freedom of Speech has discussed

six components of a free speech right, in the following words:

“The first is the 'force' of a free speech right. This includes what type of legal right to free speech is formally recognized or at issue: for example, common law, statutory, or constitutional. This in turn helps to determine whether and how easily a free speech right can be legally superseded. Another aspect of force is whether and how the right is judicially enforceable. The second component is the 'subject' of free speech rights, or who are the rights-holders: for example, all persons within a jurisdiction or only citizens; legal persons including corporations or only natural persons? The third is the ‘scope’ of a free speech right: a right to say or do what exactly? Does it include falsehoods, hate speech, or baking a cake? The fourth, as a distinct structural element concerning content, addresses whether the right includes not only negative prohibitions on relevant others but also positive obligations, such as a duty to affirmatively protect the free speech of rights-holders from third-party threats? The fifth component is the 'object' of a free speech right:

who are these 'relevant others' that are bound by the holder's rights? Against whom can the right be validly asserted? Finally, there is the 'limitation’ of a free speech right. If the prior questions have all been answered to the effect that a free speech right is implicated and infringed in a particular situation, when, if ever, might there be a legally justified limitation of that right? Is the right an absolute bar or ‘trump’ against inconsistent action and, if not, what presumptive weight attaches to it? How, when, and why can the presumption be rebutted? Collectively, by constituting and expressing 26

the underlying structure of the right to free speech, the answers to these six questions help to define the nature and extent of any particular such right in a given legal system.” (Emphasis by me)

Referring to the aspect of limitation of a free speech right, the

learned author has observed that the teleology of a Constitutional order,

can also play a role in fashioning the contours of free speech

protections. That is to say, a free speech right may be fashioned to serve

Constitutional commitments.

14. According to Wesley Hohfeld’s analysis of the form of rights, every

right has a complex internal structure, and such structure determines

what the rights mean for those who hold them. Such rights are ordered

arrangements of basic components. One of the components of a right,

is a correlative duty. That is to say, if X has a right, he is legally

protected from interference in respect of such right and such right

carries with it the duty of the State, not to interfere with such right. If

the State (or any other person) is under no corelative duty to abstain

from interfering with the exercise of a right, then such a right is not a

‘right’ in the strict Hohfeldian sense. The boundaries of the protective

perimeter within which a person can exercise their rights, depend on

the degree to which the State is duty bound to protect the right.

14.1. What emerges from the Hohfeldian conception of rights and

corelative duties, qua the right to freedom of speech and

expression may be summed up as follows:

27 a) The Constitution of India confers under Article 19(1)(a), the

right to freedom of speech and expression to all its citizens.

The State has a corelative duty to abstain from interference

with such right except as provided in Article 19(2) of the

Consitution which are reasonable restrictions on the right

conferred under Article 19(1)(a). The extent of such duty

depends upon the content of speech. For instance, in respect

of speech that is likely to be adverse to the interests of

sovereignty and integrity of India, the security of the State,

friendly relations with foreign States, public order, decency

or morality; or speech that constitutes contempt of court,

defamation or is of such nature as would be likely to incite

the commission of an offence, the duty of the State to abstain

from interference, is nil. This principle is Constitutionally

reflected under Article 19(2) which enables the State to enact

law which would impose reasonable restrictions on such

speech as described under the eight grounds listed

hereinabove which are the basis for reasonable restrictions.

b) Per contra, in respect of speech and expression which

constitutes an exchange of ideas, including dissent or

disagreement, and such ideas are expressed in a manner

compatible with the ethos cultivated in a civilised society,

the duty of the State to abstain from interference, is high. 28

c) Similarly, in respect of commercial speech, the State is

completely free to recall or curb commercial speech which is

false, misleading, unfair or deceptive. Therefore, the

threshold of tolerance towards commercial speech or

advertisements depends on the content of such speech and

the object of the material sought to be

propagated/circulated. The duty of the State to abstain from

interference would also depend upon the nature and effect

of the commercial speech.

d) As is evident from the above illustrations, the extent of

protection of speech would depend on whether, such speech

would constitute a ‘propagation of ideas’ or would have any

social value. If the answer to the said question is in the

affirmative, such speech would be protected under Article

19(1)(a); if the answer is in the negative, such speech would

not be protected under Article 19(1)(a). In respect of speech

that does not form the content of Article 19(1)(a), the State

has no duty to abstain from interference having regard to

Article 19(2) of the Constitution and only the grounds

mentioned therein.

e) Having noted that the protective perimeter within which a

person can exercise his/her rights depends on the degree to

which the State is duty bound to protect the right, it may

also be said as a corollary that in respect of speech that does 29

not form the content of Article 19(1)(a), the State has no duty

to abstain from interference and therefore, speech such as

hate speech, defamatory speech, etc. would lie outside the

protective perimeter within which a person can exercise his

right to freedom of speech. Such speech can be subjected to

restrictions or restraints. While restrictions on the right to

freedom of speech and expression are required to be made

only under the grounds listed under Article 19(2), by the

State, restraints on the said right, do not gather their

strength from Article 19(2). Restraints on the right to

freedom of speech and expression are governed by the

content of Article 19(1)(a) itself; i.e., any kind of speech,

which does not conform to the content of the right under

Article 19(1)(a), may be restrained. Questions pertaining to

the voluntary or binding nature of such restraint, the force

behind the same, the persons on whom such restraints are

to be imposed, the manner in which compliance thereof

could be achieved, etc., are aspects left to be deliberated

upon and answered by the Parliament. However, the finding

made hereinabove is only to the extent of clarifying that any

kind of speech, which does not form the content of Article

19(1)(a), may be restrained as such speech does not

constitute an exchange of ideas, in a manner compatible

with the ethos cultivated in a civilised society. Such 30

restraints need not be traceable only to Article 19(2), which

exhaustively lists eight grounds on which restrictions may

be imposed on the right to freedom of speech and expression

by the state.

The Content of Article 19(1)(a):

15. The freedom of speech and expression under Article 19(1)(a) is a

right with diverse facets, both with regard to the content of speech and

expression, and the medium through which communication takes place.

It is also a dynamic concept that has evolved with time and advances in

technology. In short, Article 19(1)(a) covers the right to express oneself

by word of mouth, through writing, pictorial form, graphics, or in any

other manner. It includes the freedom of communication and the right

to propagate or publish one's views and opinions. The communication

of ideas may be through any medium such as a book, newspaper,

magazine or movie, including electronic and audio-visual media.

15.1. Right to Circulate:

Freedom of the press takes within its fold a number of rights

and one such right is the freedom of publication. Publication also

means dissemination and circulation; indeed, without

circulation, publication would be of little value, vide Romesh

Thappar; Sakal Papers (P) Ltd. vs. Union of India, A.I.R.

1962 SC 305 (“Sakal Papers (P) Ltd.”).

31 In Life Insurance Corporation vs. Prof. Manubhai D.

Shah, (1992) 3 SCC 637 (“Prof. Manubhai D. Shah”) this

Court reiterated that the freedom of speech and expression under

Article 19(1)(a) must be understood to take within its ambit the

freedom to circulate one’s view. That such circulation could be

by word of mouth, in writing or through audio-visual media. The

freedom to ‘air one’s view’ was declared as a “lifeline of any

democratic institution” and the Court expressed strong criticism

at any attempt aimed at stifling or suffocating the right to

circulation. In the said case, the appeals concerned separate

instances of state-controlled entities (LIC and Doordarshan)

refusing to publish or broadcast work that criticized the

government. The Court reasoned that government-controlled

means of publication have a greater burden to recognize an

individual’s right to defend themselves and if a state censors

content, then it is obligated to provide reasons valid in law. That

when a state-controlled entity refuses to circulate through its

magazine or other platform, one’s views, including one’s defence,

the right to circulate is violated.

This Court has therefore, on several occasions recognised

the right to circulation, as a facet of the right to freedom of

speech. The right to circulation includes, the right to

optimise/maximise the volume of such circulation and also

determine the content and reach thereof.

32 15.2. Right to dissent:

Article 19(1)(a) serves as a vehicle through which dissent

can be expressed. The right to dissent, disagree and adopt

varying and individualistic points of view inheres in every

citizen of this Country. In fact, the right to dissent is the

essence of a vibrant democracy, for it is only when there is

dissent that different ideas would emerge which may be of help

or assist the Government to improve or innovate upon its

policies so that its governance would have a positive effect on

the people of the country which would ultimately lead to

stability, peace and development which are concomitants of

good governance.

15.3. The following judgments of this Court on the right to dissent

are noteworthy:

(i) In Romesh Thappar, this Court recognised that criticism

or dissent directed against the Government, was not to be

curtailed and any attempt to do so could not be justified as

a reasonable restriction under Article 19 (2) of the

Constitution. This declaration by this Court cemented the

idea that the freedom of speech and expression covers the

right to dissent or criticise, even when such right is

employed with respect to criticism of governmental policy

or action or inaction. It is now recognised that the right to 33

dissent is an essential pre-requisite of a healthy democracy

and a facet of free speech.

(ii) In Kedar Nath Singh vs. State of Bihar, A.I.R. 1962 SC

955 (“Kedar Nath Singh”) this Court considered a

challenge to Sections 124-A and 505 of the IPC, which

criminalised attempts targeted at exciting disaffection

towards the Government, by words, or through writing and

publications which may disturb public tranquillity.

Although this Court dismissed the challenge to the vires of

the aforestated provisions, it was clarified that criticism of

measures adopted by the government, would be within the

limits of, and consistent with the freedom of speech and

expression.

(iii) Subsequently, in Directorate General of Doordarshan

vs. Anand Patwardhan, (2006) 8 SCC 433 (“Anand

Patwardhan”) this Court observed that the State cannot

prevent open discission, even when such discussion was

highly critical of governmental policy.

(iv) The right of an individual to hold unpopular or

unconventional views was once again upheld in Khushboo

wherein this Court quashed First Information Reports

(FIRs) registered pertaining to offences under Sections 292,

499, 500, 504, 505, 509 of the IPC, based on complaints

regarding the unpopular comments made by the appellant 34

therein, an actor, in a news magazine on the subject of pre-

marital sex wherein she had urged women and girls to take

necessary precautions to avoid the transmission of

venereal diseases. In doing so, this Court observed that

criminal law could not be set into motion in a manner as

would interfere with the domain of personal autonomy. The

Court upheld the appellant’s freedom of speech and

expression and quashed the FIRs, expressing the need for

tolerance even qua unpopular views.

15.4. Right to advertise (commercial speech):

As per the dictionary meaning, the expression "advertise"

means, to draw attention to, or describe goods for sale, services

offered, etc., through any medium, such as newspaper,

television or other electronic media, etc., in order to encourage

people to buy or use them. In other words, it is to draw attention

to any product or service. "Advertisement" is a public notice,

announcement, picture in a newspaper or on a wall or hoarding

in the street etc., which advertises something. In short, it is to

advert attention to something and in the commercial sense, to

draw attention to goods for sale or services offered. In that

sense, an advertisement is commercial speech.

A glimpse of the following cases would be useful:

35 (i) In Hamdard Dawakhana (Wakf) Lal Kuan vs. Union of

India, A.I.R 1960 SC 554 (“Hamdard Dawakhana”) this

Court held that an advertisement is a form of speech, but its

true character is reflected by the object for the promotion of

which it is employed. However, this Court qualified its

observations with the caveat that when advertisement takes the

form of commercial advertisement which has an element of

trade or commerce, it no longer falls within the concept of

freedom of speech, for, the object is not propagation of ideas -

social, political or economic or furtherance of literature or

human thought; but the commendation of the efficacy, value

and importance of the product it seeks to advertise. In the said

case, this Court did not recognize commercial speech on par

with other forms of speech by holding that it did not have the

same value as political or creative expression. That broadly, the

right to publish and distribute commercial advertisements

advertising an individual's personal business is a part of

freedom of speech guaranteed by the Constitution, but not

every advertisement is a matter which comes within the scope

of freedom of speech, nor can it be said that it is an expression

of ideas. In every case, one has to see what is the nature of

advertisement and what is the business/commercial activity

falling under Article 19(1)(g) it seeks to further. 36

In the aforesaid case, what was challenged was the Drugs

and Magic Remedies (Objectionable Advertisements) Act, 1954.

It was held that the object of the Act was the prevention of self-

medication and self-treatment by prohibiting advertisements,

which may be used to advocate the same or which tended to

spread the evil. It was further held that the advertisements of

Hamdard Dawakhana, appellant in the said case, were relating

to commerce or trade and not propagation of ideas. Such

advertising of prohibited drugs or commodities the sale of which

was not in the interest of the general public, cannot be "speech"

within the meaning of freedom of speech and would not fall

within Article 19(1)(a).

It is therefore evident that this Court in the said case placed

weight on the aspect as to whether, the advertisement sought

to be protected, did in fact constitute ‘propagation of ideas.’ The

true content and object of the material sought to be

propagated/circulated was to be assessed, in order to declare

whether such content would enjoy the protection of Article

19(1)(a).

(ii) Subsequently, in Indian Express Newspaper (Bombay)

Pvt. Ltd. vs. Union of India, (1985) 1 SCC 641 (“Indian

Express Newspaper (Bombay) Pvt. Ltd.”), this Court

considered the decision in Hamdard Dawakhana and 37

observed that the main plank of said decision was the type of

advertisement or the content thereof and that particular

advertisement did not carry with it the protection of Article

19(1)(a). It was further clarified that the observations made in

Hamdard Dawakhana are too broadly stated. That all

commercial advertisements cannot be denied the protection of

Article 19(1)(a) of the Constitution merely because they are

issued by businessmen.

(iii) Subsequently, in Tata Press Limited vs. Mahanagar

Telephone Nigam Limited, (1995) 5 SCC 139 (“Tata Press

Limited”), this Court clarified that commercial speech, which

is entitled to protection under the First Amendment in USA is

also protected under Article 19(1)(a) of the Indian Constitution.

However, in the USA, the State was completely free to recall

commercial speech which is false, misleading, unfair, deceptive

and which proposes illegal transactions in USA. But, under the

Indian Constitution, commercial speech which is deceptive,

unfair, misleading and untruthful, would be hit by Article 19(2)

of the Constitution and can be regulated/prohibited by the

State.

15.5. Compelled Speech:

Compelled or forced speech is speech which compels a

person to state a thing. It is in the form of a "must carry"

38 provision in a statute. An example of compelled speech is a

provision mandating printing of the ingredients, its measure

and such other details on a food product or pharmaceutical

item. The object is to inform and, in some cases, warn a

potential consumer about the nature of the product. Such

compelled speech cannot be a violation of the freedom of speech

and expression. But if the State compels a citizen to carry out

propaganda or a point of view contrary to his wish then it may

be a restriction on his freedom of speech and expression, which

must be justified as per Article 19(2) of the Constitution. But,

if the “must carry” provision furthers informed decision making,

which is the essence of free speech and expression, then it will

not amount to a violation of Article 19(1)(a). The following

judgments could be cited in the aforesaid context:

(i) In Union of India vs. Motion Picture Association, A.I.R.

1999 SC 2334 (“Motion Picture Association”), this Court

held that whether compelled speech will or will not amount

to a violation of the freedom of speech and expression, would

depend upon the nature of a "must carry" provision. It

observed that, if a "must carry" provision further informed

decision-making, which is the essence of the right to free

speech and expression, it will not amount to any violation of

the fundamental freedom of speech and expression.

However, if such a provision compels a person to carry out 39

propaganda or project a partisan or distorted point of view,

contrary to his wish, it may amount to a restraint on his

freedom of speech and expression. It may also violate other

fundamental rights such as Article 19 (1) (g) or right against

self-incrimination which is protected under Article 20 (3) of

the Constitution.

(ii) Therefore, this Court, in the said case, once again laid stress

on the ideas and information sought to be communicated,

by way of compelling the transmission of such ideas. The

content of the information which is compelled to be carried

was found to be highly relevant.

Thus, the right under Article 19(1)(a) is a multi-faceted

freedom and includes within its expanse, inter-alia, the right to

gender identity as a facet of freedom of expression, vide

National Legal Services Authority vs. Union of India,

(2014) 5 SCC 438 (“National Legal Services Authority”); the

right of the press to conduct interviews, vide Prabha Dutt vs.

Union of India, (1982) 1 SCC 1 (“Prabha Dutt”); the right to

attend proceedings in Court and report the same, vide Swapnil

Tripathi vs. Supreme Court of India, (2018) 10 SCC 639

(“Swapnil Tripathi”); the right to fly the national flag vide

Union of India vs. Naveen Jindal, (2004) 2 SCC 510

(“Naveen Jindal”). The right to silence, often regarded as the

very converse of ‘speech,’ is also implicit in the freedom of 40

speech under Article 19(1)(a), as recognised in Bijoe

Emmanuel vs. State of Kerala, (1986) 3 SCC 615 (“Bijoe

Emmanuel”).

16. ‘Hate Speech’:

16.1. The various nuances of what has come to be termed as ‘hate

speech’ could be discussed with reference to judgments of this

Court as under:

Learned counsel appearing for the petitioner, Sri

Kaleeswaram Raj submitted that, the contention of the

petitioners in these cases is that the right to free speech which is

a right against the State would also bring within its fold, a duty

vis-à-vis not only the State but other citizens also in the matter

of exercising the said freedom. In other words, what is sought to

be addressed in these cases is what are the components or

elements of the fundamental right of free speech and whether

there could be limits on the right to free speech de hors Article

19(2) of the Constitution, with a view to check, what has

ubiquitously come to be known as ‘hate speech’ or ‘disparaging

speech’. By this I do not restrict the scope of consideration in the

instant cases only to speech made by public functionaries, but

the same shall also extend to speech by ordinary citizens,

especially on social media.

41 16.2. This Court, in Pravasi Bhalai Sangathan vs. Union of India,

(2014) 11 SC 477 (“Pravasi Bhalai Sangathan”) speaking

through Dr. B.S. Chauhan, J., has dealt with ‘hate speech’ as

having an innate relationship with the idea of discrimination.

That the impact of such speech is not measured by its abusive

value alone, but rather by how successfully and systematically

it marginalises people. The definition of ‘hate speech’ as

propounded by this Court in the aforesaid case, is extracted

hereinunder:

“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on [the] vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.” (Emphasis by me)

This Court referred to the judgment of the Supreme Court of

Canada in Saskatchewan Human Rights Commission vs.

William Whatcott, 2013 SCC 11 (“Saskatchewan”) (Canada)

wherein it was held that human rights obligations form the basis

for the control of publication of "hate speeches." The Canadian 42

Supreme Court further declared that the repugnancy of the ideas

being expressed is not sufficient to justify restricting the

expression, and whether or not the author of the expression

intended to incite hatred or discriminatory treatment, is

irrelevant. That the key is to determine the likely effect of the

expression on its audience, keeping in mind the legislative

objectives to reduce or eliminate discrimination. Placing reliance

on the observations of the Canadian Supreme Court, this Court

in Pravasi Bhalai Sangathan observed that the offence of hate

speech is not limited to causing individual distress but would

target persons who are members of certain groups or sections of

society which breeds discrimination and consequently, hostility.

16.3. In India, human dignity is not only a value but a right that is

enforceable. In a human-dignity-based democracy, freedom of

speech and expression must be exercised in a manner that would

protect and promote the rights of fellow-citizens. But hate

speech, whatever its content may be, denies human beings the

right to dignity. In this regard, it may be apposite to refer to a

recent decision of this Court in Amish Devgan vs. Union of

India, (2021) 1 SCC 1 (“Amish Devgan”) wherein this Court

speaking through Sanjeev Khanna, J. undertook an analysis of

‘hate speech’ as being antithetical to, and incompatible with the

foundations of human dignity. Protection of ‘Dignity’ as a 43

justification for criminalization of ‘hate speech’ was discussed as

follows:

“46. […] Dignity, in the context of criminalisation of speech with which we are concerned, refers to a person's basic entitlement as a member of a society in good standing, his status as a social equal and as bearer of human rights and constitutional entitlements. It gives assurance of participatory equality in inter-personal relationships between the citizens, and between the State and the citizens, and thereby fosters self-worth. Dignity in this sense does not refer to any particular level of honour or esteem as an individual, as in the case of defamation which is individualistic.

47. Preamble to the Constitution consciously puts together fraternity assuring dignity of the individual and the unity and integrity of the nation. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual's obligation to others to ensure unity and integrity of the nation. The unity and integrity of the nation cannot be overlooked and slighted, as the acts that 'promote' or are 'likely' to 'promote' divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law. The purpose is not to curtail right to expression and speech, albeit not gloss over specific egregious threats to public disorder and in particular the unity and integrity of the nation. Such threats not only insidiously weaken virtue and superiority of diversity, but cut-back and lead to demands depending on the context and occasion, for suppression of freedom to express and speak on the ground of reasonableness. Freedom and rights cannot extend to create public disorder or armour those who challenge integrity and unity of the country or promote and incite violence. Without acceptable public order, freedom to speak and express is challenged and would get restricted for the common masses and law-abiding citizens. This invariably leads to State response and, therefore, those who indulge in promotion and incitement of violence to challenge unity and integrity of the nation or public 44

disorder tend to trample upon liberty and freedom of others.”

(Emphasis by me)

Further, referring to the views of Alice E. Marwick and Ross

Millers in the report titled “Online Harassment, defamation, and

Hateful Speech: A Primer of the Legal Landscape,” this Court in

Amish Devgan elucidated as follows on three distinct elements

that legislatures and courts can use to define and identify ‘hate

speech’:

“72.1. The content-based element involves open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society. It can include use of certain symbols and iconography. By applying objective standards, one knows or has reasonable grounds to know that the content would allow anger, alarm or resentment in others on the basis of race, colour, creed, religion or gender.

72.2. The intent-based element of 'hate speech' requires the speaker's message to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message. This requires subjective intent on the part of the speaker to target the group or person associated with the class/group.

72.3. The harm or impact-based element refers to the consequences of the ‘hate speech’, that is, harm to the victim which can be violent or such as loss of self-

esteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena.

72.4. Nevertheless, the three elements are not watertight silos and do overlap and are interconnected and linked. Only when they are present that they 45

produce structural continuity to constitute 'hate speech'.”

It was further clarified that the effect of the words must be

judged from the standard of “reasonable, strong-minded, firm

and courageous men and not those who are weak and ones with

vacillating minds, nor those who scent danger in every hostile

point of view.” That in order to ensure maximisation of free

speech, the assessment should be from the perspective of a

reasonable member of the public.

16.4. Further, in a landmark Judgment of the United States’ Supreme

Court in the matter of Chaplinsky vs. State of New

Hampshire, 315 U.S. 568 (1942) (“Chaplinsky”) “hate speech”

was defined by Murphy J. to mean “fighting words, which by their

very utterance inflict injury or tend to incite an immediate breach

of peace. It has been observed that such utterances are no

essential part of any exposition of ideas, and are of slight social

value as a step to truth that any benefit that may be derived from

them is clearly outweighed by the social interest in order and

morality.”

16.5. The term ‘hate speech’ does not find a specific place in Article

19(2) of the Constitution and it appears that it does not constitute

a specific exception to the freedom of speech and expression

under Article 19(1)(a). Possibly the framers of the Constitution 46

did not find the same to be of relevance in the Indian social

mosaic considering that the other cherished values of our

Constitution such as fraternity and dignity of the individual

would be strong factors which would negate any form of hate

speech to be uttered in our Country. This may be having regard

to our social and cultural values. However, with the passage of

time, a wide range of Indian statutes have been enacted with a

view to control hate speech. It may be useful to refer to a few of

such provisions, with a view to examine the sufficiency of the

existing framework in checking ‘hate speech’ although, the said

term has not yet been precisely defined till date by the Parliament.

i) The Indian Penal Code (“IPC”) contains provisions which

prohibit hate speech. Section 153-A penalises the promotion

of class hatred. Section 153-B penalises “imputations,

assertions prejudicial to national integration". Section 295-

A penalises insults to religion and to religious beliefs.

Section 298 makes it a penal offence to utter words, makes

sounds or gestures with the deliberate intention of wounding

the religious feelings of another. Section 505 makes it a

penal offence to incite any class or community against

another. Chapter XXII, IPC punishes criminal intimidation.

ii) Section 95 of the Code of Criminal Procedure, 1973

(“CrPC”) empowers the State Government to forfeit 47

publications that are punishable under Sections 124-A,

153-A, 153-B, 292, 293 or 295-A of the IPC. Section 107

empowers the Executive Magistrate to prevent a person from

committing a breach of peace or disturbing public

tranquillity or doing any wrongful act that may cause breach

of peace or disturb public tranquillity. Section 144

empowers the District Magistrate, a Sub-divisional

Magistrate or any other Executive Magistrate specially

empowered by the State Government in this behalf to issue

orders in urgent cases of nuisance or apprehended danger.

The above offences are cognizable.

iii) Section 7 of the Protection of Civil Rights Act, 1955

penalises incitement to, and encouragement of

untouchability through words, either spoken or written, or

by signs or by visible representations or otherwise.

iv) Section 3(g) of the Religious Institutions (Prevention of

Misuse) Act, 1988 prohibits religious institutions to allow

the use of any premises belonging to, or under their control

for promoting or attempting to promote disharmony, feelings

of enmity, hatred, ill-will between different religious, racial,

linguistic or regional groups or castes or communities.

v) Section 3(1)(x) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 punishes an

intentional insult or intimidation with intent to humiliate a 48

member of a Scheduled Caste or Tribe in any place within

public view.

vi) Section 8 of the Representation of the People Act, 1951

disqualifies a person from contesting elections if he is

convicted for indulging in acts amounting to illegitimate use

of freedom of speech and expression. Section 123(3-A) of the

same Act declares "the promotion of, or attempt to promote,

feelings of enmity or hatred between different classes of the

citizens of India on grounds of religion, race, caste,

community, or language, by a candidate or his agent or any

other person with the consent of a candidate or his election

agent for the furtherance of the prospects of the election of

that candidate or for prejudicially affecting the election of

any candidate", a "corrupt practice".

vii) The Cable Television Networks (Regulation) Act, 1995

requires that all programmes and advertisements telecast on

television conform to the Programme Code and the

Advertisement Code. Rule 6, Cable Television Networks

Rules, 1994 lays down the Programme Code and prohibits

the carrying of any programme on the cable service which:

(a) contains an attack on religion or communities or

contains visuals or words contemptuous of religious

groups or which promotes communal attitudes;

49 (b) is likely to encourage or incite violence or contains

anything against maintenance of law and order or which

promotes anti-national attitudes;

(c) criticises, maligns or slanders any individual in person

or certain groups, segments of social, public and moral

life of the country;

(d) contains visuals or words which reflect a slandering,

ironical and snobbish attitude in the portrayal of certain

ethnic, linguistic and regional groups.

Similarly, the Advertising Code under Rule 7 of the

Cable Television Networks Rules, 1994 prohibits the

carriage of advertisements on the cable service which hurt

the religious susceptibilities of subscribers, which derides

any race, caste, colour, creed or nationality, or incite

violence or disorder or breach of law.

The Cable Television Networks (Regulation) Act,

1995 empowers the authorised officer appointed under the

Act to prohibit the transmission of a programme or channel,

if it is not in conformity with the Programme Code or the

Advertisement Code; or if it is likely to promote disharmony

or feelings of enmity, hatred or ill-will between different

religious, racial, linguistic or regional groups; or is likely to

disturb public tranquillity. Further, the Central Government

is empowered to prohibit the transmission or 50

re-transmission of any channel or programme in the interest

of the sovereignty, integrity or security of India or of public

order.

viii) Under the Cinematograph Act, 1952, a film can be denied

certification on various grounds, including on the ground

that it is likely to incite the commission of an offence or that

it is against the interests of the sovereignty and integrity of

India or public order.

ix) The Information Technology Act, 2000 (IT Act) allows the

interception of information by the authorities in the interest

of public order, or the sovereignty and integrity of India, or

for the purpose of preventing incitement to the commission

of a cognizable offence. Section 66-A of the same Act which

sought to penalise information that is "grossly offensive" or

of "menacing character" or despite knowledge that it is false,

is sent to cause annoyance, inconvenience, danger,

obstruction, insult, criminal intimidation, enmity, hatred or

ill-will, was struck down in Shreya Singhal on the ground

of, inter alia, vagueness.

x) Norms of Journalistic Conduct, 2010 issued by the Press

Council of India (constituted under the Press Council Act,

1978) contain extensive guidelines on the reporting of

communal incidents.

51

The content of speech is sought to be controlled in all the

aforesaid statutes when the same is made not only by public

functionaries but any ordinary citizen also through whatever

medium of dissemination.

16.6. One of the recommendations of the 267th Law Commission was

to insert Sections 153C and 505A and associated provisions in

the CrPC to deal with ‘Hate Speech’. As per the Law Commission

report, the proposed provisions would read as under:

“153-C- Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe–

(a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”

“505-A- Causing fear, alarm, or provocation of violence in certain cases: Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i)within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence, against that person or another, shall be 52

punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.

The proposed provision under Section 505-A, seeks to

control not only speech that could potentially incite violence or

hurt the feelings of a community or dampen national integrity,

but also seeks to check threatening or derogatory remarks, made

on grounds of religion, race, caste or community, sex, gender,

sexual orientation, place of birth, residence, language, disability

or tribe, and which cause fear or alarm. While speech of the

former category has been traditionally regarded as ‘hate speech,’

generally vitriolic or ‘derogatory’ statements, which are made on

the grounds of religion, race, caste or community, sex, gender,

sexual orientation, place of birth, residence, language, disability

or tribe, have traditionally not been considered to qualify as ‘hate

speech,’ no matter how unwarranted or disparaging such

statements may be.

16.7. Traditionally, ‘hate speech’ is the term used to describe speech

that can potentially cause actual material harm through

potential social, economic and political marginalisation of a

community as declared by this Court in Pravasi Bhalai

Sangathan. However, in the present case, in my opinion, we are

concerned with a more overarching area of derogatory, vitriolic

and disparaging speech, which is actually not ‘hate speech’

simplicitor as has been traditionally sought to be defined 53

and understood. I am concerned with speech that may not be

linked to systematic discrimination and eventual political

marginalisation of a community, but which may nonetheless

have insidious effects on the societal perception of human

dignity, values of social cohesion, fraternity and equality

cherished by “We the people” of India.

16.8. Andrew F. Sellars, in his essay published by Harvard University,

titled 'Defining Hate Speech,’ has examined the concept of ‘hate

speech’ in different democratic jurisdictions. The author has

identified that certain remarks, which, although may not be ‘hate

speech’ in the strict sense of the term, border on the said term.

That even tacit elements of intent of the speaker to cause harm,

may constitute some species of hate speech. Intent may refer to

non-physical aspects like to demean, vilify, humiliate, or being

persecutorial, disregarding or hateful. The author has also

recognised that in some contexts, “at home speeches” may

themselves amount to hate speeches as such speech can now be

uploaded and circulated in the virtual world through internet etc.

The only pre-requisite is that the speech should have no

redeeming purpose, which means that “the speech primarily

carries no meaning other than hatred, hostility and ill-will.” 54

Beyond ‘hate speech’:

17. The expansive scope of ‘hate speech’ as set out above, would

include within its sweep not only ‘hate speech’ simplicitor which is

defined as speech aimed at systematic discrimination and eventual

political marginalisation of a community, but also other species of

derogatory, vitriolic and disparaging speech.

18. A philosophical justification to control and restrain derogatory,

vitriolic and disparaging speech has been very poignantly conveyed by

Lau Tzu, a celebrated Chinese philosopher and writer, in the following

words:

"Watch your thoughts; they become words. Watch your words; they become actions.

Watch your actions; they become habit.

Watch your habits; they become character. Watch your character; it becomes your destiny.”

19. Theoretical and doctrinal underpinnings justifying restraints on

derogatory and disparaging speech, may be traced to two primary

factors: human dignity as a value as well as a right; the Preambular

goals of ‘equality’ and ‘fraternity.’

Human dignity as a value as well as a right under the Constitution

of India:

20. As discussed supra, human dignity is not only a value but a right

that is enforceable under Article 21 of the Constitution of India. In a

human-dignity-based democracy, freedom of speech and expression 55

must be exercised in a manner that would protect and promote the

rights of fellow-citizens.

International practice:

21. In attempting to justify restraints on free speech, on the argument

founded on considerations of autonomy, dignity and self-worth of the

person(s) against whom derogatory statements are made, reference may

be made to international practice in this regard.

i) Canada: Canadian jurisprudence on the subject proceeds on the

basis of inviolability of human dignity as its paramount value and

specifically limits the freedom of expression when necessary to

protect the right to personal honour. The Canadian approach

emphasises on multiculturalism and group equality, as it places

greater emphasis on cultural diversity and promotes the idea of an

ethnic mosaic. Interestingly, the Canadian position, as discernible

from the Canadian Supreme Court’s verdict in R vs. James

Keegstra, (1990) 3 SCR 697 (“Keegstra”) (Canada) considers the

likely impact of hate speech on both the targeted groups and non-

targeted groups. The former are likely to be degraded and

humiliated and experience injuries to their sense of self-worth and

acceptance in the larger society and may well, as a consequence,

avoid contact with members of the other group within the polity.

The non-targeted members of the group, sometimes representing

society at large, on the other hand, may gradually become de- 56

sensitised and may in the long run start accepting and believing

the messages of hate directed towards racial and religious groups.

These insidious effects pose serious threats to social cohesion in

the long run rather than merely projecting immediate threats to

violence.

Further, Dixon C.J. of the Canadian Supreme Court in

Canada Human Rights Commission vs. Taylor, (1990) 3 SCR

892 (“Taylor”) (Canada) has observed as follows, as regards the

interrelationship between messages of hate propaganda and the

values of dignity and equality:

“...messages of hate propaganda undermine the dignity and self-worth of targeted group members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open mindedness that must flourish in a multicultural society which is committed to the idea of equality.”

ii) Australia: The position of law in Australia is substantially aligned

with that in Canada. The Australian Federal Court, in the case of

Pat Eatock vs. Andrew Bolt, (2011) FCA 1103 (“Pat Eatock”)

(Australia) followed the dictum in Keegstra in holding that the

right to freedom of expression could be restricted vide legislation

which made racial hatred a criminal offence. The Australian

Federal Court stated that the rationale for a legislation restraining

free speech was as follows:

57 “(a) The justification from pursuit of truth does not support the protection of hate propaganda, and may even detriment our search for truth. The more erroneous or mendacious a statement, the less its value in the quest of truth. We must not overemphasise that rationality will overcome all falsehoods.

(b) Self-fulfilment and autonomy, in a large part, come from one's ability to articulate and nurture an identity based on membership in a cultural or religious group.

The extent to which this value furthers free speech should be modulated insofar as it advocates an intolerant and prejudicial disregard for the process of individual self- development and human flourishing.

(c) The justification from participation in democracy shows a shortcoming when expression is employed to propagate ideas repugnant to democratic values, thus undermining the commitment to democracy. Hate propaganda argues for a society with subversion of democracy and denial of respect and dignity to individuals based on group identities.”

iii) South Africa: The position which regards dignity as a paramount

constitutional value has been recognised in South Africa. The

Constitutional Court has expressed willingness to subjugate

freedom of expression when the same sufficiently undermines

dignity. The constitutional provision, therefore, enjoins the

legislature and the court to limit free speech rights and the exercise

of those rights which deprive others of dignity.

iv) Germany: The German law on the subject posits that freedom of

expression is one amongst several rights which is limited by

principles of equality, dignity and multiculturalism. Further, value

of personal honour always triumphs over the right to utter untrue

statements or facts made with the knowledge of their falsity. Also, 58

if true statements of fact invade the intimate personal sphere of an

individual, the right to personal honour triumphs over the freedom

of speech. If the expression of opinion as opposed to a fact

constitutes a serious affront to the dignity of a person, the value of

dignity triumphs over the speech. Therefore, German application

strikes a balance between rights and duties, between the individual

and the community on the one hand and between the self-

expression needs of the speaker and the self-respect and dignity of

the listeners on the other. It recognises the content-based speech

regulation and also recognises the difference between fact and

opinion.

The inalienability of ‘human dignity’ under the Constitution of India vis-à-vis the right to freedom of speech and expression:

22. In Charu Khurana vs. Union of India, (2015) 1 SCC 192

(“Charu Khurana”), this Court declared that dignity is the

quintessential quality of personality and a basic constituent of the

rights guaranteed and protected under Article 21. Dignity is a part of

the individual rights that form the fundamental fulcrum of collective

harmony and interest of a society. That while the right to speech and

expression is absolutely sacrosanct, dignity as a part of Article 21 has

its own significance. That dignity of an individual cannot be overridden

and blotched by malice and vile and venal attacks to tarnish and destroy 59

the reputation of another by stating that the same curbs and puts

unreasonable restriction on the freedom of speech and expression.

Further, in In Re. Noise Pollution (V), (2005) 5 SCC 733 it was

observed that Article 19(1)(a) cannot be cited as a justification for

defeating the fundamental right guaranteed by Article 21. That a person

speaking cannot violate the rights of others to enjoy a peaceful,

comfortable and (noise) pollution free environment, guaranteed by

Article 21.

Having regard to the unequivocal declaration of this Court, to the

effect that Article 21 could not be sacrificed at the altar of securing the

widest amplitude of free speech rights, this premise can serve as a

theoretical justification for prescribing restraints on derogatory and

disparaging speech. Human dignity, being a primary element under the

protective umbrella of Article 21, cannot be negatively altered on

account of derogatory speech, which marks out persons as unequal and

vilifies them leading to indignity.

23. Rule of Law, includes certain minimum requirements without

which a legal system cannot exist. Professor Lon L. Fuller, a renowned

American legal philosopher, has described these requirements

collectively as the 'inner morality of law'. Such an understanding of the

concept of Rule of Law places much emphasis on the centrality of

individual dignity in a society governed by the Rule of Law. Justice 60

Aharon Barak, former Chief Justice of Israel, has lucidly explained this

facet of Rule of law in the following manner:

“The Rule of law is not merely public order, the Rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to live in dignity and develop himself. The human being and human rights underlie this substantive perception of the Rule of law, with a proper balance among the different rights and between human rights and the proper needs of society. The substantive Rule of law "is the Rule of proper law, which balances the needs of society and the individual". This is the Rule of law that strikes a balance between society's need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. The Judge must protect this rich concept of the Rule of law.”

(Emphasis by me)

24. As recognised by this Court in K.S. Puttaswamy (Retd.) vs.

Union of India, (2019) 1 SCC 1 (“Puttaswamy”), a substantive aspect

of the Rule of Law is the balance between the individual and society. In

that background, this Court discussed the scope of Constitutional

rights under our Constitutional scheme and the extent of their

protection. While emphasising that there are no absolute constitutional

rights, this Court laid down, in the following words that one of the only

rights which is treated as "absolute" is the right to human dignity:

“62. It is now almost accepted that there are no absolute constitutional rights [Though, debate on this vexed issue still continues and some 61

constitutional experts claim that there are certain rights, albeit very few, which can still be treated as "absolute". Examples given are:(a) Right to human dignity which is inviolable,(b) Right not to be subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts of the States have been thwarted by the judiciary.] and all such rights are related. As per the analysis of Aharon Barak [Aharon Barak,Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press 2012).], two key elements in developing the modern constitutional theory of recognising positive constitutional rights along with its limitations are the notions of democracy and the Rule of law. Thus, the requirement of proportional limitations of constitutional rights by a sub-constitutional law i.e. the statute, is derived from an interpretation of the notion of democracy itself. Insofar as the Indian Constitution is concerned, democracy is treated as the basic feature of the Constitution and is specifically accorded a constitutional status that is recognised in the Preamble of the Constitution itself. It is also unerringly accepted that this notion of democracy includes human rights which is the cornerstone of Indian democracy. Once we accept the aforesaid theory (and there cannot be any denial thereof), as a fortiori, it has also to be accepted that democracy is based on a balance between constitutional rights and the public interests. In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in Clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others.

This phenomenon--of both the right and its limitation in the Constitution--exemplifies the inherent tension between democracy's two fundamental elements. On the one hand is the right's element, which constitutes a fundamental component of substantive democracy; on the other hand is the people element, limiting those very rights through their representatives. These two constitute a fundamental component of the notion of 62

democracy, though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is not resolved by eliminating the "losing" facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles. This is one of the expressions of the multi-faceted nature of democracy. Indeed, the inherent tension between democracy's different facets is a "constructive tension". It enables each facet to develop while harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balancing enables each facet to develop alongside the other facets, not in their place. This tension between the two fundamental aspects-- rights on the one hand and its limitation on the other hand--is to be resolved by balancing the two so that they harmoniously coexist with each other. This balancing is to be done keeping in mind the relative social values of each competitive aspects when considered in proper context.” [Emphasis by me]

25. It is clarified that at this juncture that it is not necessary to engage

in the exercise of balancing our concern for the free flow of ideas and

the democratic process, with our desire to further equality and human

dignity. This is because no question would arise as to the conflict of two

seemingly competing rights, being the right to freedom of speech and

expression, vis-à-vis the right to human dignity and equality. The

reason for the same is because, the restraint that is called for, is only in

relation to unguided, derogatory, vitriolic speech, which in no way can

be considered as an essential part of exposition of ideas, which has little

social value. This discourse, in no way seeks to pose a potential danger

to peaceful dissenters, who exercise their right to freedom of speech and

expression in a critical, but measured fashion. 63

The present cases pertain specifically to derogatory, disparaging

speech, which closely resembles hate speech. Such speech does not fall

within the protective perimeter of Article 19(1)(a) and does not

constitute the content of the free speech right. Therefore, when such

speech has the effect of infringing the fundamental right under Article

21 of another individual, it would not constitute a case which requires

balancing of conflicting rights, but one wherein abuse of the right to

freedom of speech by a person has attacked the fundamental rights of

another.

The Preambular goals of ‘equality’ and ‘fraternity’:

26. Equality, liberty and fraternity are the foundational values

embedded in the Preamble of our Constitution. ‘Hate speech’, in the

sense discussed hereinabove, strikes at each of these foundational

values, by marking out a society as being unequal. It also violates

fraternity of citizens from diverse backgrounds, the sine-qua-non of a

cohesive society based on plurality and multi-culturalism such as in

India that is, Bharat.

27. Fraternity is based on the idea that citizens have reciprocal

responsibilities towards one another. The term takes within its sweep,

inter-alia, the ideals of tolerance, co-operation, and mutual aid.

27.1. The meaning of the term fraternity, in the context of criminal

defamation and restraints on the freedom of speech and 64

expression has been examined by this Court in Subramanian

Swamy vs. Union of India, (2016) 7 SCC 221 (“Subramanian

Swamy”) wherein it was observed that fraternity under the

Constitution expects every citizen to respect the dignity of the

other. Mutual respect is the fulcrum of fraternity that assures

dignity. This Court qualified its observations with the caveat that

‘fraternity’ does not mean that there cannot be dissent or

difference, more so because all citizens have the right to freedom

of speech and expression. However, it was unequivocally declared

that a constitutional value which is embedded in the idea of

fraternity is dignity of the individual, which is required to be

respected by fellow citizens. That the Preamble consciously

chooses to assure the dignity of the individual, in the context of

fraternity and therefore, rights enshrined in Part III have to be

exercised by individuals against the backdrop of the ideal of

fraternity. This Court observed that the fraternal ideal also finds

resonance in Part IVA of the Constitution. In upholding the

permissibility of the law on criminal defamation, on the

touchstone of the concept of constitutional fraternity, this Court

speaking through Dipak Misra, J. (as his Lordship then was)

observed in paragraphs 155 and 163, as follows:

“155. It is a constitutional value which is to be cultivated by the people themselves as a part of their social behavior. There are two schools of thought; one canvassing individual liberalization and the other advocating for protection of an individual as 65

a member of the collective. The individual should have all the rights under the Constitution but simultaneously he has the responsibility to live upto the constitutional values like essential brotherhood- the fraternity-that strengthens the societal interest. Fraternity means brotherhood and common interest. Right to censure and criticize does not conflict with the constitutional objective to promote fraternity. Brotherliness does not abrogate and rescind the concept of criticism. In fact, brothers can and should be critical. Fault finding and disagreement is required even when it leads to an individual disquiet or group disquietude. Enemies Enigmas Oneginese on the part of some does not create a dent in the idea of fraternity but, a significant one, liberty to have a discordant note does not confer a right to defame the others.”

“163. We have referred to two concepts, namely, constitutional fraternity and the fundamental duty, as they constitute core constitutional values. Respect for the dignity of another is a constitutional norm. It would not amount to an overstatement if it is said that constitutional fraternity and the intrinsic value inhered in fundamental duty proclaim the constitutional assurance of mutual respect and concern for each other's dignity. The individual interest of each individual serves the collective interest and correspondingly the collective interest enhances the individual excellence. Action against the State is different than an action taken by one citizen against the other. The constitutional value helps in structuring the individual as well as the community interest. Individual interest is strongly established when constitutional values are respected. The Preamble balances different and divergent rights. Keeping in view the constitutional value, the legislature has not repealed Section 499 and kept the same alive as a criminal offence. The studied analysis from various spectrums, it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression. As a prescription, it neither invites the frown of any of the Articles of the Constitution nor its very existence can be regarded as an unreasonable restriction.” (Emphasis by me) 66

27.2. The decision of this Court in Subramanian Swamy establishes

precedent of justifying a restraint on free speech, on the ground

of promotion of fraternity. It has been recognized that the

constitutional value of fraternity imputes an obligation on all

citizens to subserve collective interest and respect the dignity and

equality of fellow citizen. Restraints on free speech prescribed to

secure these ends, have been held to be justified, as being aimed

at preserving the Preambular ideal of fraternity. It is also to be

noted that this Court in the said case recognized that fraternity

as a value is to be cultivated by citizens themselves as a part of

their social behavior by refraining from uttering defamatory

statements. This chord of the said judgment, acknowledges the

idea of self-restraint or inherent restraints as being read into the

right to freedom of speech and expression.

27.3. Democracy, being one of the basic features of our Constitution,

it is implicit that in a rule by majority there would be a sense of

security and inclusiveness. Further, the Preamble of the

Constitution which envisages, inter alia, fraternity, assures that

the dignity of individuals cannot be dented by means of

unwarranted speech being made by fellow citizens, including

public functionaries. Thus, the Preamble of the Constitution and

the values thereof assuring the people of India not only justice, 67

liberty, equality but also fraternity and unity and integrity of the

nation, must remind every citizen of this Country irrespective of

the office or position or power that is held, of the sublime ideals

of the Constitution and to respect them in their true letter and

spirit. There is an inbuilt constitutional check to ensure that the

values of the Constitution are not in any way undermined or

violated. It is high time that we, as a society in general and as

individuals in particular, re-dedicate ourselves to the sacred

values of the Constitution and promote them not only at our

individual level but at the macro level. Any kind of speech which

undermines the values for which our Constitution stands would

cause a dent on our social and political values.

Employing the Fundamental Duties under Part IV-A of the Constitution as a means to check disparaging, unwarranted speech:

28. Every right engulfs and incorporates a duty to respect another’s

right and secure mutual compatibility and conviviality of the individuals

based on collective harmony, resulting in social order. The concept of

fraternity under the Constitution expects every citizen to respect the

dignity of the other. Mutual respect is the fulcrum of fraternity that

assures dignity. In the context of constitutional fraternity, fundamental

duties engrafted under Article 51-A of the Constitution gain significance.

68 Sub-clause (c), (e) and (j) of Article 51-A of the Constitution which are

relevant to these cases read as follows:

“Article 51-A. Fundamental Duties- .—It shall be the duty of every citizen of India—

(a) xxx

(b) xxx

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) xxx

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) xxx

(g) xxx

(h) xxx

(i) xxx

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;”

Fundamental duties also constitute core Constitutional values for

good citizenship in a democracy such as ours. The duties enumerated

above, enjoin all citizens with the obligations of promoting fraternity,

harmony, unity, collective welfare etc. Fundamental duties have a keen

bond of sorority with the Constitutional goals and must therefore be

recognised not merely as Constitutional norms or precepts but as

obligations, corelative to rights. In short, the permissible content of the

right to freedom of speech and expression, ought to be tested on the

touchstone of fraternity and fundamental duties as envisaged under our

Constitution.

69 29. Although the questions for consideration before the Constitution

bench, were with specific regard to the possible restraints on

unwarranted and disparaging speech by public functionaries, the

observations made hereinabove, will apply with equal force to public

functionaries, celebrities/influencers as well as all citizens of India,

more so because technology is being used as a medium of

communication which has a wide spectrum of impact across the globe.

30. The internet represents a communication revolution and has

enabled us to communicate with millions of people worldwide, with no

more difficulty than communicating with a single person, at a click or

by touch on a screen. Ironically, the very qualities of the internet that

have revolutionised communication are amenable to misuse. The

internet, through various social media platforms has accelerated the

pace as well as the reach of messages, comments and posts to such an

extent that the difference between a celebrity and a common man, has

been practically negated, in so far as the reach of their speech is

concerned.

31. However, given the specific submission of the petitioners herein

that disparaging and vitriolic speech expressed at various levels of

political authority have exacerbated a climate bordering on intolerance

and tension in the society, which perhaps may lead to insecurity, it may

be appropriate to sound a strong word of warning in this regard. 70

32. It may be appropriate at this juncture to refer to the writings of

Michael Rosenfeld, on the key variables which determine the impact of

hate speech. One of the key variables highlighted by the learned author

in his paper titled “Hate Speech in Constitutional Jurisprudence: A

Comparative Analysis,” published in Cardozo Law Review, is the

question as to “who” the speaker is. The learned author notes that

speech made by a person of influence, such as a top government or

executive functionary, opposition leader, political or social leader of

following, or a credible anchor on a TV show carries far more credibility

and impact than a statement made by a common person.

Public functionaries and other persons of influence and celebrities,

having regard to their reach, real or apparent authority and the impact

they wield on the public or on a certain section thereof, owe a duty to

the citizenry at large to be more responsible and restrained in their

speech. They are required to understand and measure their words,

having regard to the likely consequences thereof on public sentiment

and behaviour, and also be aware of the example they are setting for

fellow citizens to follow.

33. While there are no infallible rules that can be formulated by the

Court to define the precise threshold of acceptable speech, every

citizen’s conscious attempt to abide by the Constitutional values, and to

preserve in letter and spirit the culture contemplated under the

Constitution will significantly contribute in eliminating instances of 71

societal discord, friction and disharmony, on account of disparaging,

vitriolic and derogatory speech, particularly when made by public

functionaries and/or public figures. This does not in any way imply that

ordinary citizens who form the great mass of the citizenry of this Country

can shun responsibility for vitriolic, unnecessarily critical, diabolical

speech, bordering on all those aspects mentioned under Article 19 (2)

either against public functionaries / figures or against other citizens in

general or against particular individuals.

34. Every citizen of India must consciously be restrained in speech,

and exercise the right to freedom of speech and expression under Article

19(1)(a) only in the sense that it was intended by the framers of the

Constitution, to be exercised. This is the true content of Article 19(1)(a)

which does not vest with citizens unbridled liberty to utter statements

which are vitriolic, derogatory, unwarranted, have no redeeming

purpose and which, in no way amount to a communication of ideas.

Article 19(1)(a) vests a multi-faceted right, which protects several

species of speech and expression from interference by the State.

However, 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 72

built, do not permit such rights to be employed in a manner so as to

attack the rights of another.

Verse 15 of Chapter 17 of the Srimad Bhagavad Gita describes

what constitutes discipline of speech or ‘vāṅ-maya tapas:’

अनद्व ु े गकरं वाक्यं सत्यं प्रियहितं च यत ् | स्वाध्यायाभ्यसनं चैव वाङ्मयं तप उच्यते ||

Anudvega-karaṁ vākyaṁ satyaṁ priya-hitaṁ cha yat Svādhyāyābhyasanaṁ chaiva vāṅ-mayaṁ tapa uchyate

Words that do not cause distress, are truthful, inoffensive, pleasing and beneficial, are said to be included within the discipline of speech, and are likened to regular recitation of the Vedic scriptures.

35. The discussion presented hereinabove was with a view to rekindle

some ideas on the content of Article 19 (1) (a) of the Constitution and on

other pertinent issues surrounding the right to free speech guaranteed

under the aforesaid Article. However, as far as the substantial analysis

of Question No. 1 is concerned, I respectfully agree with the reasoning

and conclusions proposed by His Lordship, Ramasubramanian, J.

Re: Question No. 2: Can a fundamental right under Article 19 or 21 of the Constitution be claimed other than against the ‘State’ or its instrumentalities?

36. All human beings are endowed at birth, with certain inalienable

rights and among such rights are right to life and liberty, including

liberty of thought and expression. These rights have been recognized as 73

inalienable rights, having regard to the supreme value of human

personality. Incidentally, some of such rights have come to be

Constitutionally recognized under Part III of the Constitution of India.

Fundamental Rights were selected from what were previously natural

rights and were later termed as common law rights. However, it is to be

noted that Part III of the Constitution, is not the sole repository of such

rights. Even after some of such inalienable rights have come to be

Constitutionally recognised as Fundamental Rights under the

Constitution of India, the congruent rights under common law or

natural law have not been obliterated. It also follows, that the

corresponding remedies available in common law, are also not

obliterated. The object of elevating certain natural and common law

rights, as Fundamental Rights under the Constitution was to make

them specifically enforceable against the State and its agencies through

a Courts of law. These observations gain legitimacy from the judgment

of Mathew, J. in His Holiness Kesavanada Bharati Sripadagalvaru

vs. State of Kerala, (1973) 4 SCC 225 (Kesavanada Bharati)

wherein His Lordship recognized the object of Constitutions to declare

recognised natural rights as applicable qua the state. Adopting the

picturesque language of Roscoe Pound, the following observations were

made:

“1514. While dealing with natural rights, Roscoe Pound states on page 500 of Vol. I of his Jurisprudence:

74 “Perhaps nothing contributed so much to create and foster hostility to courts and law and Constitutions as this conception of the courts as guardians of individual natural rights against the state and against society; this conceiving of the law as a final and absolute body of doctrine declaring these individual natural rights; this theory of Constitutions as declaratory of common- law principles, which are also natural-law principles, anterior to the state and of superior validity to enactments by the authority of the state; this theory of Constitutions as having for their purpose to guarantee and maintain the natural rights of individuals against the government and all its agencies. In effect, it set up the received traditional social, political, and economic ideals of the legal profession as a super-Constitution, beyond the reach of any agency but judicial decision.

1515. I may also in this connection refer to a passage on the inherent and inalienable rights in A History of American Political Theories by C. Marriam: By the later thinkers the idea that men possess inherent and inalienable rights of a political or quasi-political character which are independent of the state, has been generally given up. It is held that these natural rights can have no other than an ethical value, and have no proper place in politics. There never was, and there never can be,' says Burgess, 'any liberty upon this earth and among human beings, outside of state organization'. In speaking of natural rights, therefore, it is essential to remember that these alleged rights have no political force whatever, unless recognized and enforced by the state. It is asserted by Willoughby that 'natural rights' could not have even a moral value in the supposed 'state of nature'; they would really be equivalent to force and hence have no ethical significance. (see p. 310).”

x x xx x x x

“1522. I am also of the view that the power to amend the provisions of the Constitution relating to the fundamental rights cannot be denied by describing 75

the fundamental rights as natural rights or human rights. The basic dignity of man does not depend upon the codification of the fundamental rights nor is such codification a prerequisite for a dignified way of living. There was no Constitutional provision for fundamental rights before January 26, 1950 and yet can it be said that there did not exist conditions for dignified way of living for Indians during the period between August 15, 1947 and January 26,. 1950. The plea that provisions of the Constitution, including those of Part III, should be given retrospective effect has been rejected by this Court. Article 19 which makes provision for fundamental rights, is not applicable to persons who are not citizens of India. Can it, in view of that, be said that the non-citizens cannot while staying in India lead a dignified life? It would, in my opinion, be not a correct approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings of basic dignity and would result in the extinguishment of essential values of life.”

[Emphasis by me]

37. This proposition was further highlighted in the enlightened

minority opinion of His Lordship, H.R. Khanna, J, in Additional

District Magistrate, Jabalpur vs. Shivakant Shukla, A.I.R. 1976

SC 1207 (“ADM Jabalpur”) wherein while refusing to subscribe to the

view that when the right to enforce Fundamental Right under Article 21

is suspended, the result would be that there would be no remedy

against deprivation of a person's life or liberty by the State even though

such deprivation is without the authority of law, observed, that Article

21 was not the sole repository of the right to life and personal liberty.

That such rights inhered in men even prior to the enactment of 76

the Constitution, and were not created for the first time by enacting the

Constitution. It was also recognised that though the Constitutionally

recognised remedy under Article 32, for infringement of the Right under

Article 21 may not be available as the said rights remained suspended

or notionally surrendered on account of declaration of an Emergency,

remedies under the laws which were in force prior to the coming into

effect of the Constitution would still operate to ensure that no person

could be deprived of his life or liberty except in accordance with law. In

that context, it was held that the rights Constitutionally recognised

under Article 21, represented ‘higher values’ which were elementary to

any civilised State and therefore the sanctity of life and liberty was not

traceable only to the Constitution. The relevant portions of His

Lordship’s judgment can be usefully extracted hereinunder:

“152. The effect of the suspension of the right to move any court for the enforcement of the right conferred by Article 21, in my opinion, is that when a petition is filed in a court, the court would have to proceed upon the basis that no reliance can be placed upon that Article for obtaining relief from the court daring the period of emergency. Question then arises as to whether the rule that no one shall be deprived of ins life or personal liberty without the authority of law stiff survives during the period: of emergency despite the Presidential order suspending the right to move any court for the enforcement of the-right contained in Article 21. The answer to this question is linked with the answer to the question as to whether Article 21 is, the sole repository of the right to life and personal liberty. After giving the matter my earnest consideration, I am of the opinion that Article 21 cannot be considered" to be the sole repository of the right to life and; personal liberty. The right to life, and personal: liberty is the most precious 77

right of human beings in civilised societies governed by the rule of law. Many modern constitutions incorporate certain fundamental rights, including the one relating to personal freedom.”

xxx

“155. Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence. Likewise, the principle that no one shall be deprived of ins life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force, of the Constitution. The idea about the sanctity of life and liberty as well as the principle that no one shall be deprived of his life and liberty without the authority of law are essentially two facets of the same concept. This concept grew and acquired dimensions in response to the inner urges and nobler impulses with the march of civilisation. Great writers and teachers, philosophers and political thinkers nourished and helped in the efflorescence of the concept by rousing the conscience of mankind and by making it conscious of the necessity of the concept as necessary social discipline in self-interest and for orderly existence. According even to the theory of social compact many aspects of which have now been discredited, individuals have surrendered a part of their theoretically unlimited freedom in return or the blessings of the government. Those blessings include governance in accordance with certain norms in the matter of life and liberty of the citizens. Such norms take the shape of the rule of law. Respect for law, we must bear in mind, has a mutual relationship with respect for government. Erosion of the respect for law, it has accordingly been said, affects the respect for the government. Government under the law means, as observed by Macdonald, that the power to govern shall be exercised only, under conditions laid down in constitutions and laws approved by either the people or their representatives. Law thus emerges as a norm limiting the application of power by the government 78

over the citizen or by citizens over their fellows. Theoretically all men are equal before the law and are equally bound by it regardless of their status, class, office or authority. At the same time that the law enforces duties it also protects rights, even against the sovereign.”

xxx

158. I am unable to subscribe to the view that when right to enforce the right under Article 21 is suspended, the result would be that there would be no remedy against deprivation of a person's life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law. The right not to be deprived of one's life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making Article 21 to be the sole repository of that right. Its real effect was to ensure that a law under which a person can be deprived of ins life or personal liberty should prescribe a procedure for such deprivation or, according to the dictum laid down by Mukherjea, J. in Gopalan's case, such law should be a valid law not violative of fundamental rights guaranteed by Part III of the Constitution. Recognition as fundamental right of one aspect of the pre-Constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had not been recognised as fundamental right because, of the vulnerability of fundamental rights accruing from Article 359. I am also unable to agree that in view of the Presidential Order in the matter of sanctity of life and liberty, things would be worse off compared to the state of law as it existed before the coining into force of the Constitution.”

xxx 79

“162. It has been pointed out above that even before the coming into force of the Constitution, the position under the common law both in England and in India was that the State could not deprive a person of ins life and liberty without the authority of law. The same was the position under the penal laws of India. It was an offence under the Indian Penal Code, as already mentioned, to deprive a person of ins life or liberty unless such a course was sanctioned by the laws of the land. An action was also maintainable under the law of torts for wrongful confinement in case any person was deprived of ins personal liberty without the authority of law. In addition to that, we had Section 491 of the CrPC which provided the remedy of habeas corpus against detention without the authority of law. Such laws continued to remain in force in view of Article 372 after the coming into force of the Constitution. According to that article, notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.

The law in force, as observed by the majority of the Constitution Bench in the case of Director of Rationing and Distribution v. The Corporation of Calcutta and Ors. 1960 CriLJ 1684, include not only the statutory law but also custom or usage haying the force of law as also the common law of England which, was adopted as the law of the country before the coming into force of the Constitution. The position thus seems to be firmly established that at the time, the Constitution came into force, the legal position was that no one could be deprived of ins life or liberty without the- authority of law.

163. It is difficult to accede to the contention that because of Article 21 of the Constitution, the law which was already in force that no one could be deprived of ins life or liberty without the authority of law was obliterated and ceased to remain in force. No rule of construction interpretation warrants such an inference. Section 491 of the CrPC continued to remain an integral part of that Code despite the fact that the High Courts were 80

vested with the power of issuing writs of habeas corpus under Article 226. No submission was ever advanced on the score that the said provision had become a dead letter of enforceable because of the fact that Article 226 was made a part of the Constitution, indeed, in the case of Makhan Singh (supra) Gajendragadkar J. speaking for the majority stated that after the coming into force of the Constitution, a party could avail of either the remedy of Section 491 of the CrPC or that of Article 226 of the Constitution. The above observations clearly go to show that constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus. Section 491 of the CrPC continued to be part of that Code till that Code was replaced by the new Code. Although the remedy of writ of habeas corpus is not now available under the new CrPC, 1973, the same remedy is still available under Article 226 of the Constitution.”

[Emphasis by me]

In holding thus, H.R. Khanna, J. refused to subscribe to the

majority view in the said case that once a right is recognised and

embodied in the Constitution and forms part of it, it could not have any

separate existence apart from the Constitution, unless it were also

enacted as a statutory principle by some positive law of the State. His

Lordship rejected the proposition that the intention of the Constitution

was not to preserve something concurrently in the field of natural law

or common law; it was to exclude all other control or to make the

Constitution the sole repository of ultimate control over those aspects

of human freedom which were guaranteed therein.

38. The strength of H.R. Khanna, J’s minority opinion was

subsequently acknowledged and affirmed by this Court in 81

Puttaswamy, wherein it was held that the rights to life and personal

liberty were ‘primordial rights’ and were not bounties which were

conferred by the State and created by the Constitution. That the right

to life existed even before the advent of the Constitution and in

recognising such right, the Constitution did not become the sole

repository of such rights. That every constitutional democracy including

our country, is rooted in an undiluted assurance that the Rule of law

will protect their rights and liberties against any invasion by the State

and that judicial remedies would be available when a citizen has been

deprived of most precious inalienable rights. Dr. D.Y. Chandrachud. J.

(as His Lordship then was) enunciated the aforesaid principles in the

following words:

“119. The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to 82

the Constitution and continued in force Under Article 372 of the Constitution. Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the Rule of law which imposes restraints upon the powers vested in the modern state when it deals with the liberties of the individual. The power of the Court to issue a Writ of Habeas Corpus is a precious and undeniable feature of the Rule of law.

120. A constitutional democracy can survive when citizens have an undiluted assurance that the Rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions.”

[Emphasis by me]

39. What emerges from the aforesaid decisions of this Court, may be

culled out as follows:

i) That some natural/primordial rights of man have been accorded a

secure position under the Constitution so as to protect such rights

against undue encroachments by organs of State. The object of

elevation of such common law rights/natural rights to the

Constitutional plane was to make them specifically enforceable

against the State and its agencies through Courts of Law.

83 ii) Notwithstanding that such rights have been placed in Part III of the

Constitution of India, the rights are concurrently preserved in the

field of natural law or common law. Remedies available in common

law for actualising such rights are also preserved. There are

therefore two spheres of rights, and corresponding remedies: first,

relatable to the Fundamental Rights enshrined under Part III the

Constitution of India, which correspond to the remedies under

Article 32 and Article 226 of the Constitution of India; second,

inalienable/natural/common law rights, which are pre-

constitutional rights, and may be protected by having recourse to

common law remedies.

iii) While the content of a certain common law right, may be identical

to a Fundamental Right, the two rights would be distinct in two

respects: first, incidence of the duty to respect such right; and

second, the forum which would be called upon to adjudicate on the

failure to respect such right. While the content of the right violated

may be identical, the status of the violator, is what is relevant.

With that primer, I shall proceed to consider whether the

Fundamental Rights under Article 19 or 21 of the Constitution of India

can be claimed against any person other than the State or its

instrumentalities.

40. With historical and political changes and the advent of democracy

and of Constitutional government, the “State” was created under and 84

by a constitution and placed at a position which renders it capable of

interfering with natural and common law rights. On the other hand, as

is evident from the text of the Preamble of the Constitution of India, the

“We the People of India created the State as an entity to serve their

interests. In order to reconcile the competing effects of creation of the

State, certain common law rights were elevated to the constitutional

plane by accommodating them in Part III of the Constitution of India to

make them specifically enforceable against the State and its agencies

through the Courts. Part III of the Constitution was therefore enacted

to dictate the relationship between citizens and the State- this is the

true character and utility of Part III. This idea has also found resonance

in Puttaswamy, wherein it was observed as follows:

“251. Constitutions address the rise of the new political hegemon that they create by providing for a means by which to guard against its capacity for invading the liberties available and guaranteed to all civilized peoples. Under our constitutional scheme, these means - declared to be fundamental rights - reside in Part III, and are made effective by the power of this Court and the High Courts Under Articles 32 and 226 respectively. This narrative of the progressive expansion of the types of rights available to individuals seeking to defend their liberties from invasion - from natural rights to common law rights and finally to fundamental rights - is consistent with the account of the development of rights that important strands in constitutional theory present.”

Therefore, the primary object of Part III of the Constitution was to

forge a new relationship between the citizens and the State, which was

the new site of Governmental power. The realm of interaction between 85

citizens inter-se, was governed by common law prior to the enactment

of the Constitution and continued to be so governed even after the

commencement of the Constitution because as recognised hereinabove,

the common rights and remedies were not obliterated even after the

Constitution was enacted. These inalienable rights, although

subsequently placed in Part III of the Constitution, retained their

identity in the arena of common law and continued to regulate

relationships between citizens and entities, other than the State or its

instrumentalities. It is therefore observed that the incidence of the duty

to respect Constitutional and Fundamental Rights of citizens is on the

State and the Constitution provides remedies against violation of

Fundamental Rights by the State. These observations are in consonance

with the recognition by this Court in People’s Union for Civil Liberties

vs. Union of India, (2005) 2 SCC 436 (“People’s Union for Civil

Liberties”) that the objective of Part III is to place citizens at centre

stage and make the state accountable to them.

41. On the other hand, common law rights, regulate the relationship

between citizens inter-se. Although the content of a common law right

may be similar to a Fundamental Right, the two rights are distinct in so

far as, the incidence of duty to respect a common law right is on citizens

or entities other than State or its instrumentalities; while the incidence

of duty to respect a Fundamental Right, except where expressly

otherwise provided, is on the State. Remedies against violation of 86

Fundamental Rights by the State are Constitutionally prescribed under

Articles 32 and 226; while common law remedies, some of which are

statutorily recognised, are available against violation of common law

rights. Such remedies are available even as against fellow citizens or

entities other than State or its instrumentalities. To this extent,

horizontality is recognised in common law. Further to some extent

certain Fundamental Rights are recognised statutorily and some others

are expressly recognised in the Constitution as being applicable as

horizontal rights between citizens inter se such as Articles 15(2), 17, 23,

24. A similar declaration as regards the right to privacy is found in the

decision of this Court in Puttaswamy. The relevant excerpts from the

said decision have been reproduced hereinunder:

“253. Once we have arrived at this understanding of the nature of fundamental rights, we can dismantle a core assumption of the Union's argument: that a right must either be a common law right or a fundamental right. The only material distinctions between the two classes of right - of which the nature and content may be the same - lie in the incidence of the duty to respect the right and in the forum in which a failure to do so can be redressed. Common law rights are horizontal in their operation when they are violated by one's fellow man, he can be named and proceeded against in an ordinary court of law. Constitutional and fundamental rights, on the other hand, provide remedy against the violation of a valued interest by the 'state', as an abstract entity, whether through legislation or otherwise, as well as by identifiable public officials, being individuals clothed with the powers of the state. It is perfectly possible for an interest to simultaneously be recognized as a common law right and a fundamental right. Where the interference with a recognized interest is by the state or any other like entity recognized by Article 87

12, a claim for the violation of a fundamental right would lie. Where the author of an identical interference is a non-state actor, an action at common law would lie in an ordinary court.

254. Privacy has the nature of being both a common law right as well as a fundamental right. Its content, in both forms, is identical. All that differs is the incidence of burden and the forum for enforcement for each form.”

[Emphasis by me]

It has therefore been unequivocally declared by this Court that

while the content of a right recognised under Part III of the Constitution

may coincide or overlap with a common law right, the remedies available

against violation of the respective form of right, operate in different

spheres of law. That is, although the content of a common law right

and a fundamental right may be almost identical, the remedy against

violation of a common law right, shall lie under common law and not

under the Constitution; similarly, the remedy against violation of a

Fundamental Right is provided for under the Constitution itself

expressly against the State under Article 19(2) thereof.

42. The status of the violator of the right, is also an essential

parameter for distinction between the two rights and corresponding

remedies. Where the interference with a recognized right is by the State

or any other entity recognized under Article 12, a claim for the violation

of a fundamental right would lie under Articles 32 and 226 of the

Constitution before this Court or before the High Court respectively.

Where interference is by an entity other than State or its 88

instrumentalities, an action would lie under common law and to such

extent, the legal scheme recognises horizontal operation of such rights.

43. Though the content of the Fundamental Right may be identical

under the Constitution with the common law right, it is only the

common law right that operates horizontally except when those

Fundamental Rights have been transformed into statutory rights under

specific enactments or where horizontal operation has been expressly

recognised under the Constitution. This is because, the following

difficulties would surface if the Fundamental Rights enshrined under

Article 19 and 21 are permitted to operate horizontally so as to seek the

remedy by way of a writ petition before a Constitutional Court:

i) No recognition that Fundamental Rights enshrined under Article

19 and 21 are permitted to operate horizontally can be made except

by ignoring the elementary differences between a Fundamental

Right and the congruent common law right. Such a recognition

could proceed 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 89

forum which would be called upon to adjudicate on the failure to

respect each of such rights.

ii) The following decisions of this Court are demonstrative of its

disinclination or reluctance in recognising that Fundamental

Rights enshrined under Article 19 and 21 are permitted to operate

horizontally:

a) In P.D. Shamdasani vs. Central Bank of India Ltd., A.I.R.

1952 SC 59, a Constitution Bench of this Court refused to

entertain a Writ Petition filed under Article 32 of the

Constitution, wherein a prayer was made to enforce the right

under Article 19(1)(f) and Article 31(1), as they then stood,

against a private entity. In that context, it was held that the

language and structure of Article 19 and its setting in Part III

of the Constitution clearly show that the Article was intended

to protect those freedoms against State action. This Court

declared that violation of rights of property by individuals or

entities other than the State and its instrumentalities, was not

within the purview of Article 19(1)(f).

Further, this Court made a comparison between Article

31(1), as it then stood, and Article 21 as both Articles cast a

negative duty on the State. In that context it was held that

although there is no express reference to the State in Article

21, it could not be suggested that the Article was intended to 90

afford protection to life and liberty against violation by private

individuals. That the words “except by procedure established

by law” exclude such suggestion that Article 21 would operate

horizontally.

The aforesaid decision is illustrative of this Court’s

reluctance to hold that the Fundamental Rights under Articles

19 or 21 of the Constitution, would operate horizontally. It is

also to be noted that in the aforesaid case, this Court has

acknowledged that a suitable remedy exists under statutory

law to redress the infraction complained of. Therefore, while

this Court was mindful that the rights in the realm of common

law, some of which have gained statutory recognition, operate

horizontally, the Fundamental Rights under Articles 19 and

21, do not, except in the case of seeking a writ in the nature of

habeas corpus.

(b) In Zoroastrian Cooperative Housing Society Limited vs.

District Registrar, Cooperative Societies (Urban), (2005) 5

SCC 632, the Petitioner society was a registered society with

its own bye-laws, under its parent legislation, the Bombay

Cooperative Societies Act. As per bye-law 7, only members of

the Parsi community were eligible to become members of the

Society. The effect of this was that since housing shares could

be transferred only to members, effectively, only Parsis could 91

buy plots under the aegis of the Cooperative Society. This

restrictive covenant in the bye-laws became the subject matter

of challenge before this Court, inter-alia, on the ground that it

violated the right to equality enshrined in the Constitution.

This Court refused to accept such a challenge and held that

the Society’s bye-laws were in the nature of Articles of

Association of a company and were not like a statute. The bye-

laws were only “binding between the persons affected by them.”

That a private contractual agreement is not subject to general

scrutiny under Part III of the Constitution. This Court further

distinguished between a discriminatory legislation passed by

the State and a discriminatory bye-laws of a society or

association, which is not ‘State’. Accordingly, it held that while

a legislation may be subject to a challenge on the touchstone

of Part III of the Constitution, bye-laws of a society or

association, could not.

This decision is also demonstrative of this Court’s

disapproval of horizontal operation of fundamental rights,

making them directly applicable to interactions, whether

contractual or otherwise, between private parties.

iii) I am however mindful of the fact that over the years, the

conception of “State” as defined under Article 12 of the

Constitution has undergone significant metamorphosis. 92

Through its jurisprudential labour, this Court has devised

several principles and doctrines, so as to enable citizens to

enforce their fundamental rights not only against “State” as

defined in the strict sense to mean “agency of the Government,”

but also against entities imbued with public character, or

entitles which perform functions which closely resemble

governmental functions. [See: Pradeep Kumar Biswas vs.

Indian Institute of Chemical Biology, (2002) 5 SCC 111;

Zee Telefilms Ltd. vs. Union of India, (2005) 4 SCC 649;

Janet Jeyapaul vs. S.R.M. University, (2015) 16 SCC 530]

This Court has progressively expanded the scope of Article

12 of the Constitution so as to ensure that a private entity,

which performs a public duty/function and therefore informs

our national life, does not get away scott-free merely because

it is not “State” stricto sensu. Such entitles are imbued with

constitutional obligations on account of the public or statutory

functions performed by them. At this juncture, it is necessary

to reflect on the difference between holding that Fundamental

Rights may be enforced against a private entity on account of

the public nature of its functions, as contrasted with universal

operation of fundamental rights claims against all persons. A

private body, acting in private capacity, fulfilling a private 93

function, cannot be axiomatically amenable to the claims of

fundamental rights violations.

The decision of this Court in Ramakrishna Mission vs.

Kago Kunya, (2019) 16 SCC 303 is also highly instructive on

the issue of amenability of actions of private entities, to judicial

review under Article 226 of the Constitution of India. In the

said case, the issue before this Court was whether the Hospital

run by the Petitioner Mission performed a public function that

made it amenable to writ jurisdiction under Article 226. This

Court found that the Hospital and the Mission were not

amenable to writ jurisdiction under Article 226 since running

a hospital would not constitute a public function. This Court

further highlighted that even when a private entity performs a

public function, the Court would be required to enquire as to

whether the grant in aid received by the said entity covers a

significant portion of its expenditure. This Court went on to

declare that regulation of a private body by a statute does not

give it the colour of a public function. A public function was

held to be one which is “closely related to functions which are

performed by the State in its sovereign capacity.”

Accordingly, it was held that the Hospital was not performing

a public function since the functions it performed were not

“akin to those solely performed by State authorities.” It was 94

held that medical services were provided by private as well as

State entities and therefore, the nature of medical services was

not such that they could be carried out solely by State

authorities.

Thus, according to the decision of this Court in

Ramakrishna Mission, regulation by the State either through

a statute or otherwise; receipt of a meagre amount of aid from

the State; receipt of concessions by the State; do not make a

private entity amenable to the writ jurisdiction of Courts under

Article 226 of the Constitution.

Thus, 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 this 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, this Court would

not have engaged in evolving and refining tests to determine

the true meaning and scope of “State” as defined under Article

12. This Court 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. Although this Court has 95

significantly expanded the scope of “State” as defined under

Article 12, such expansion 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.

iv) Another aspect that needs consideration is that a Writ Court,

does not ordinarily adjudicate to issue Writs in cases where

alternate and efficacious remedies exist under common law or

statutory law particularly against private persons. Therefore,

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. Therefore, on the ground that there

exists an alternate and efficacious remedy in common law, the 96

horizontal claim for fundamental rights violations would fail

before a Writ Court.

This may be better understood by way of an illustration.

Let me assume for the purpose of argument that the

Fundamental Right under Article 19(1)(a) read with Article 21

is allowed to operate horizontally. A person would then be

eligible to file a writ petition, against another private individual

or entity for violation of such right. The violation may for

instance be a verbal attack at the aggrieved person, which may

have the effect of undermining such person’s dignity or

reputation. Dignity and reputation are essential facets of the

right to life under Article 21; at the same time, they are also

recognised as common law rights as they are fundamental

attributes of human personality which is regarded as a

supreme value in common law. Common law remedies,

including declarations, injunctions and damages, are available

to redress any injury to common law rights, including the right

to dignity and reputation. Such remedies are also statutorily

recognised under the Specific Relief Act, 1963 and the Indian

Penal Code. Therefore, on account of availability of an

alternate remedy under common law, the Courts would be

reluctant to entertain a writ petition under Articles 226 or 32,

as the case may be.

97

v) Further, it is trite that Writ Courts do not enter into

adjudication of disputed questions of fact. But, questions

regarding infringement of the fundamental rights under Article

19/21, by a private entity, would invariably involve disputed

questions of fact. Therefore, this is another difficulty that must

be borne in mind while determining the horizontal operation of

such rights in a writ proceeding.

However, there is another aspect of the matter that requires to be

discussed. A writ of habeas corpus is an order directing the person who

has detained another to produce the detainee before the court in order

for the court to ascertain on what ground or for what reason he has

been confined, and to release him if there is no legal justification for the

detention. A writ of habeas corpus is granted ex debito justiae and the

applicant must only demonstrate prima-facie, unlawful detention of

himself or any other person. If there is no justification for the detention

and the same is unlawful, a writ is issued as of right vide Union of

India vs. Paul Manickam, (2003) 8 SCC 342. The importance of a writ

of habeas corpus is the duty being cast on a Constitutional Court to

issue the writ to safeguard the freedom of a citizen against illegal and

arbitrary detention. In my humble view, an illegal detention is a

violation of Article 21 of the Constitution, irrespective of whether the

detention is by the State or by a private person. 98

A petition under Article 226 of the Constitution would therefore lie

before the High Court, not only when the person has been detained by

the State but also when he/she is detained by a private individual vide

Mohd. Ikram Hussain vs. State of Uttar Pradesh, A.I.R. 1964 SC

1625 at 1630. In my view, such a petition under Article 32 of the

Constitution would also lie before this Court for seeking a writ of habeas

corpus in terms of Article 32 (2). Such a writ could be issued not just

against the State which may have illegally detained a person, but even

as against a private person. Hence, in the context of illegal detention,

Article 21 would operate horizontally against private persons also. Such

a departure has to be made although Fundamental Rights are normally

enforced against the State under Article 32 of the Constitution.

Otherwise, the remedy by way of a writ of habeas corpus would be

rendered incomplete if the said remedy is not available against a private

person under Article 32 of the Constitution. Hence in the context of

illegal detention, even by a private person, I would opine that Article 21

would operate horizontally and the writ of habeas corpus could be

issued against a private person just as under Article 226 of the

Constitution, the High Court can issue such a writ against any person

or authority. But even in the context of Article 32(2) of the Constitution,

it may not be proper to restrict the said remedy only as against the State

but the same may be made available even as against private persons, in

which event the power exercised by this Court could be in accordance 99

with Article 142 (1) of the Constitution to do complete justice in the

matter. For ease of reference Article 142(1) may be extracted as under:

vi) “142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc. - ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”

Therefore, a writ of habeas corpus could be issued by this Court

under Article 32 of the Constitution, not only against the ‘State’ as

defined under Article 12 of the Constitution but also against a private

individual. This is because illegal detention by a private person is a tort

and of a nature similar to a constitutional tort. The reason for saying so

is because an illegal detention whether by a State or a private person

has a direct and identical effect on the detainee. The detainee loses his

liberty and there may be a threat to his life.

Directions in the nature of writs of habeas corpus have been issued

by this Court on previous occasions, against private individuals,

particularly in cases of kidnapping, child custody etc. [See for instance:

Nirmaljit Kaur (2) vs. State of Punjab, (2006) 9 SCC 364] In such

cases, resorting to the process of instituting a criminal case before a

police station, may prove to be futile because the need of the hour in

such cases is swift action. The writ of habeas corpus under Article 226 100

as well as Article 32 of the Constitution, is festium remidium, i.e., a

speedy remedy, and such remedy needs to be made available even as

against a private individual.

It is appropriate that the High Court concerned under whose

jurisdiction the illegal detention has occurred should be approached

first. In order to invoke jurisdiction of this Court under Article 32 of the

Constitution by approaching this Court directly, it has to be shown by

the Petitioner as to why the concerned High Court has not been

approached. In cases where it would be futile to approach the High

Court, and where satisfactory reasons are indicated in this regard, a

petition seeking issuance of a writ of habeas corpus, may be

entertained. However, in the absence of such circumstances, filing a

petition under Article 32 of the Constitution is not to be encouraged,

vide Union of India vs. Paul Manickam, (2003) 8 SCC 342.

The judicial precedent referred to above are aligned with the

aforesaid discussion.

In light of the aforesaid discussion, Question No. 2 is answered as

follows:

“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 101

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.”

Re: Question No. 3: Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?

44. In order to answer this question, it may be prudent to consider

the circumstances under which this Court has previously observed that

the State is bound to protect the life and liberty of every human being,

from the following judgments:

i) In Pt. Parmanand Katara vs. Union of India, A.I.R. 1989 SC

2039, this Court was confronted with the question as to whether a

doctor has the professional obligation to instantaneously extend

his services to a person brought for medical treatment, without any

delay on the pretext of compliance with procedural criminal law.

This court declared that the obligation of a doctor to extend his

services with due expertise, for protecting life was paramount and

absolute and any laws of procedure which would interfere with the

discharge of this obligation, would be antithetical to Article 21 of

the Constitution. It was further observed that where there is delay 102

on the part of medical professionals to administer treatment in

emergencies, state action can intervene.

ii) In National Human Rights Commission vs. State of Arunachal

Pradesh, (1996) 1 SCC 742, this Court considered a writ petition

filed under Article 32 of the Constitution, pertaining to the threats

held out by the All Arunachal Pradesh Students’ Union, to force

Chakmas out of the State of Arunachal Pradesh. It was the case of

the Petitioner therein that a large number of Chakmas from

erstwhile East Pakistan (now Bangladesh) were displaced by the

Kaptai Hydel Power Project in 1964. They had taken shelter in

Assam and Tripura. Most of them were settled in these States and

became Indian citizens in due course of time. Since a large number

of refugees had taken shelter in Assam, the State Government had

expressed its inability to rehabilitate all of them and requested

assistance in this regard from certain other States. As a result of

such consultations between the North Eastern States, some

population of Chakmas began residing in Arunachal Pradesh. It

was also stated that many of such persons had made

representations for the grant of citizenship under Section 5(1)(a) of

the Citizenship Act, 1955, however, no decision was communicated

in this regard. In the interim, relations between citizens residing in

Arunachal Pradesh and the Chakmas deteriorated and the latter

were being subjected to repressive measures with a view to

forcibly expel them from the State. In that background, a writ 103

petition came to be filed, alleging, inter-alia, unwillingness on the

part of the State to contain the hostile situation. In that

background, this Court issued a writ of mandamus, inter-alia,

directing the State of Arunachal Pradesh to ensure that the life and

liberty of every Chakma residing in the State is protected, and any

attempt by organised groups to evict or drive them out of the State

is repelled, if necessary, by requisitioning the service of para-

military or police force. It was also directed that the application

made by Chakmas for the grant of citizenship under Section

5(1)(a) of the Citizenship Act, 1955 be considered, and pending

such consideration, no Chakma shall be evicted from the State.

It is to be noted that in the said case, this Court cited the

Fundamental Rights of persons under Article 21 in directing the

State to protect the rights of Chakmas from threats by private

actors. The said directions were issued in the backdrop of the

State’s inaction to mobilise the available machinery to contain the

hostile situation and such inaction had or could have had the effect

of depriving Chakmas of their right to life and personal liberties. It

was in that context that this Court declared that the State is bound

to protect the life and liberty of every human being, be he a citizen

or otherwise.

iii) In Gaurav Kumar Bansal vs. Union of India, (2015) 2 SCC 130,

this Court, in directing the respondents therein to provide ex gratia 104

monetary compensation to the families of the deceased who have

succumbed to the pandemic of Covid-19, in view of Section 12 of

the Disaster Management Act, 2005, relied on Article 21 of the

Constitution.

iv) Similarly, in Swaraj Abhiyan vs. Union of India, (2016) 7 SCC

498, this Court relied on Article 21 of the Constitution, in issuing

a writ of mandamus to the Union of India, to effectively implement

the National Food Security, 2013 in certain parts of the country

which had been affected due to drought.

The aforesaid cases illustrate that this Court has observed that

the State is bound to protect the life and liberty of every human being,

in the following contexts:

a) Where inaction on the part of the State, to contain a hostile

situation between private actors, could have had the effect of

depriving persons of their right to life and liberty;

b) Where the State had failed to carry out its obligations under a

statute or a policy or scheme, and such failure could have had the

effect of depriving persons of their right to life and liberty.

c) It is therefore clear that the acknowledgement of this Court of the

duty of the State under Article 21, only pertains to a negative duty

not to deprive a person of his right to life and personal liberty,

except in accordance with law. This Court has not recognised an

affirmative duty on the part of the State under Article 21 of the 105

Constitution to protect the rights of a citizen, against a threat to

the liberty of a citizen by the acts or omissions of another citizen or

private agency. Of course, there exist a plethora of statutes which

cast an obligation on the State and its machinery to contain hostile

situations between private actors; to repel any action by private