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SUPREME COURT OF INDIA
S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, B.V. Nagarathna, JJ.
Kaushal Kishor – Appellant
Versus
State of Uttar Pradesh & Ors. – Respondents
Writ Petition (Criminal) No. 113 of 2016 with SLP @ (Diary) No. 34629 of 2017
Decided on : 03-01-2023
Per V. Ramasubramanian,J. (With S. Abdul Nazeer, (B.R. Gavai & A.S. Bopanna, JJ.)(Majority View)
(A) Constitution of India – Articles 19(2) and 21 – Right to free speech and personal liberty – Exercise of all fundamental rights by all citizens is possible only when each individual respects other person’s rights – No one can exercise his right of speech in such a manner as to violate another man’s right – Whenever two or more fundamental rights appeared either to be on a collision course or to be seeking preference over one another, Supreme Court has dealt with the same by applying well-established legal tools – Wherever Constitutional rights regulate and impact only 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 relations between private individuals, they are said to have a horizontal effect – No jurisdiction in 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 horizontal approach seeks to imbibe Constitutional values in all individuals. (Paras 40, 41, 44, 47 and 49)
(B) Constitution of India – Articles 19(2) and 21 – Right to free speech and personal liberty – Grounds lined up in Article 19(2) for restricting right to free speech are exhaustive – Under guise of invoking other fundamental rights or under guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on exercise of right conferred by Article 19(1)(a) upon any individual – Fundamental right under Article 19/21 can be enforced even against persons other than State or its instrumentalities – State is under duty to affirmatively protect rights of a person under Article 21, whenever there is a threat to personal liberty, even by a non-State actor – Statement made by a Minister even if traceable to any affairs of State or for protecting Government, cannot be attributed vicariously to Government by invoking principle of collective responsibility – Mere statement made by a Minister, inconsistent with rights of a citizen under Part III of Constitution, may not constitute a violation of constitutional rights and become actionable as Constitutional tort – But if as a consequence of such a statement, any act of omission or commission is done by officers resulting in harm or loss to a person/citizen, then same may be actionable as a constitutional tort. (Para 155)
Result : Reference answered.
The issues framed in this case are as follows:
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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_].
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 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 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 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"?"
II. A brief backdrop
4. Without a brief reference to the factual matrix, the questions to be answered by us may look abstract. Therefore,
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Freedom of speech is not absolute and inherently excludes harmful communication. Courts must apply the 'vagueness avoidance' doctrine, narrowly construing penal statutes to require proof of specific ....
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Point of law: Whenever a fundamental right is violated, and damages suffered, a writ court under Article 226 of the Constitution of India shall not hesitate to order payment of adequate compensation.....
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