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2023 Supreme(SC) 5

S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA, V. RAMASUBRAMANIAN, B. V. NAGARATHNA
Kaushal Kishor – Appellant
Versus
State of Uttar Pradesh – Respondent


Advocates appeared:
For the Appellant :Ms. Aparjitha Singh,Sr.Advocate, (A.C.) Ms. Uttara Babbar, Advocate, Ms. Shipra Jain, Advocate, Mr. Kaleeswaram Raj, Advocate, Mrs. Thulasi K. Raj, Advocate, Mr. Suvidutt M.S., Advocate, Ms. Somlagna Biswas, Advocate, Mr. Rishesh Sikarwar, Advocate, Mr. Aman Khullar, Advocate, Ms. Renu Yadav, Advocate, Mr. Samer Jit Singh Chaudhry, Advocate, Mr. Hitesh Kumar Sharma, Advocate, Mr. Akhileshwar Jha, Advocate, Ms. Niharika Dewivedi, Advocate, Mr. E.Vinay Kumar, Advocate, Mr. Amit Kumar Chawla, Advocate, Mr. Mr. Nitin Sharma, Advocate, Mr. Ravish Kumar Goyal, Advocate, Mr. Narendra Pal Sharma, Advocate, Ms. Shweta Sand, Advocate, Ms. Mirdula Singh Chauhan, Advocate, Ms. Manju Jetley, Advocate
For the Respondent:Mr. R.Venkataramani, AG, Mr. Tushar Mehta, SG, Mr. Balbir Singh, ASG, Ms. Madhavi Divan, ASG, Mr. R.Bala,Sr. Advocate, Mr. Naman Tandon, Advocate, Mr. Samarvir Singh, Advocate, Mr. Presenjeet Mohapatra, Advocate, Mr. Rajat Nair, Advocate, Mr. Ankur Talwar, Advocate, Mr. Kanu Agrawal, Advocate, Mr. Anirudh Bhatt, Advocate, Mr. Shyam Gopal, Advocate, Ms. Monica Benjamin, Advocate, Ms. Sujatha Bagadhi, Advocate, Ms. Shraddha Deshmukh, Advocate, Mr. Udai Khanna, Advocate, Ms. Anu S., Advocate, Mr. Mayank Pandey, Advocate, Mr. Vinayak Mehrotra, Advocate, Mr. Chitvan Singhal, Advocate, Ms. Sonali Jain, Advocate, Mr. Abhishek Kumar Pandey, Advocate, Mr. Arvind Kumar Sharma, Advocate, Mr. Mukesh Kumar Maroria, Advocate, Mrs. Garima Prasad, A.A.G., Mr. Ajay Vikram Singh, Advocate, Mr. Vikas Bansal, Advocate, Mrs. Priyanka Singh, Advocate, Mr. Sharjheel Ahmad, Advocate, Mrs. Swarupama Chaturvedi, Advocate, Mr. Pradeep Misra, Advocate, Mr. Abhishek, Advocate, Mr. Lakshmi Raman Singh, Advocate, Mr. Renjith B.Marar, Advocate, Ms. Lakshmi N. Kaimal, Advocate, Mr. Arun Poomuli, Advocate, Ms. Ashu jain, Advocate, Mr. Davesh Kumar Sharma, Advocate

Judgement Key Points

The issues framed in this case are as follows:

  1. Whether the grounds specified in Article 19(2) of the Constitution, which list the permissible restrictions on the right to free speech, are exhaustive, or whether restrictions can be imposed on grounds not enumerated therein by invoking other fundamental rights (!) (!) .

  2. Whether a fundamental right under Article 19 or 21 can be claimed or enforced against persons other than the State or its instrumentalities, i.e., whether such rights have a horizontal effect in relations between private individuals or entities (!) (!) .

  3. Whether the State has an affirmative constitutional duty to protect the rights of citizens under Article 21, even against threats or acts by private individuals or agencies, especially when inaction could result in deprivation of life or personal liberty (!) (!) .

  4. Whether statements made by public functionaries, such as Ministers, can be vicariously attributed to the Government when they reflect the official stance or are made in official capacity, and whether such statements alone constitute a violation of constitutional rights or a constitutional tort (!) (!) .

  5. Whether a statement by a Minister, even if inconsistent with constitutional rights, automatically amounts to a violation or constitutional tort, or whether it only does so if it results in acts or omissions causing harm or loss to others (!) (!) .

  6. Whether the principle of collective responsibility of Ministers extends to vicarious liability for individual statements or acts that are not officially endorsed or reflect the Government’s position (!) (!) .

  7. Whether there is a need for a comprehensive legal framework to define and address acts or omissions constituting constitutional torts, and whether courts can develop remedies on a case-by-case basis in the absence of such legislation (!) (!) .

  8. Whether fundamental rights, such as the right to life and personal liberty, are inalienable rights that pre-exist the Constitution and are not solely created or confined by it, and how they are to be protected against violations by both State and private actors (!) (!) .

  9. Whether fundamental rights under Part III are primarily enforceable against the State, and the extent to which similar rights may operate horizontally between private individuals or entities, with appropriate remedies available under other legal avenues (!) [p_113_].

  10. Whether privacy is a fundamental right, its scope, and its importance as an aspect of human dignity and personal autonomy, as well as how it should be balanced with other rights and societal interests (!) [p_112_].

These issues collectively cover the scope, limitations, enforceability, and scope of fundamental rights, including free speech, privacy, and the responsibilities of the State and private actors.


JUDGMENT

V. Ramasubramanian, J. –

PRELUDE

Said the Tamil Poet-Philosopher 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 burn injury may heal, but not the one left behind by an offensive 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.

    lR; c~:;kr~ fi~j;a c~:;kUu c~:;kr~ lR;fi~j;Ek~A

    fi~j;a p uku`ra Ck~:;kns"k /keZ% lukru%AA

    satyam bruyat priyam bruyan na bruyat satyam apriyam |

    priyam ca nanrtam bruyad esa dharmah sanatanah ||

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


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