Holding

The grounds for restricting free speech under Article 19(2) are exhaustive, and additional restrictions cannot be imposed by invoking other fundamental rights; fundamental rights under Articles 19 and 21 can be enforced against non-State actors; the State has a duty to protect Article 21 rights even from private threats; a Minister's statement is not vicariously attributable to the government; and a mere statement inconsistent with Part III rights is not a constitutional tort unless it leads to harm.

Summary

Writ Petition (Criminal) No. 113 of 2016 and Special Leave Petition (Diary) No. 34629 of 2017 were referred to a Constitution Bench to answer five questions concerning the scope of freedom of speech under Article 19(1)(a) and the enforceability of fundamental rights against non-State actors. The petitions arose from statements made by Ministers in Uttar Pradesh and Kerala that were alleged to be derogatory and violative of victims' rights. The majority opinion, authored by V. Ramasubramanian, J., held that the grounds for imposing reasonable restrictions on free speech under Article 19(2) are exhaustive and cannot be supplemented by invoking other fundamental rights. It further held that fundamental rights under Articles 19 and 21 can be enforced against persons other than the State, and the State has an affirmative duty to protect Article 21 rights even from threats by private actors. The majority also ruled that a Minister's statement cannot be vicariously attributed to the government through collective responsibility, and a mere statement inconsistent with Part III rights does not constitute a constitutional tort unless it leads to harm. Justice B.V. Nagarathna, in a partly dissenting opinion, disagreed on the horizontal enforceability of Articles 19 and 21, except for habeas corpus, and on the nature of the State's duty under Article 21. The Court answered the reference and directed the matters to be listed before an appropriate bench.

Issues considered

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?
Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?
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?
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?
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’?

Legislation cited

Cable Television Networks (Regulation) Act, 1995
Cinematograph Act, 1952
Code of Criminal Procedure, 1973s. 107, s. 144, s. 95
Constitution of Indias. 12, s. 14, s. 15(2), s. 164(2), s. 17, s. 19(1)(a), s. 19(2), s. 21, s. 226, s. 23, s. 24, s. 32, s. 51-A, s. 75(3)
Indian Penal Code, 1860s. 124-A, s. 153-A, s. 153-B, s. 292, s. 293, s. 295-A, s. 298, s. 499, s. 500, s. 505
Information Technology Act, 2000s. 66-A
Protection of Children from Sexual Offences Act, 2012
Representation of the People Act, 1951s. 123(3-A), s. 8
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 3(1)(x)

Subjects

freedom of speech and expressionreasonable restrictionsArticle 19(2)fundamental rightshorizontal effectcollective responsibilityconstitutional torthate speechright to life and personal libertyState action

Judgment

[2023] 8 S.C.R. 581 581

KAUSHAL KISHOR A
v.
STATE OF UTTAR PRADESH & ORS.
(Writ Petition (Criminal) No. 113 of 2016)
JANUARY 03, 2023 B
[S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA,
V. RAMASUBRAMANIAN AND B. V. NAGARATHNA, JJ.]
Constitution of India – Arts. 19(1)(a) and 19(2) – Are the
grounds specified in Article 19(2) in relation to which reasonable
C
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 – Held: The grounds lined up in Art.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 D
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.
Constitution of India – Arts. 19 and 21 – Can a fundamental E
right under Article 19 or 21 be claimed other than against the ‘State’
or its instrumentalities – Held (per V. Ramasubramanian, J.) (for S.
Abdul Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself): A
fundamental right under Article 19/21 can be enforced even against
persons other than the State or its instrumentalities – Held (per
F
B.V. Nagarathna, J.): 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 Arts. 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 G
applicable law – 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 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
H
Court. 581
582 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Constitution of India – Art. 21 – Whether the State is under a
duty to affirmatively protect the rights of a citizen under Art.21
even against a threat to the liberty of a citizen by the acts or omissions
of another citizen or private agency – Held (per V.
Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S.
Bopanna, JJ., and himself): The State is under a duty to affirmatively
B
protect the rights of a person under Article 21, whenever there is a
threat to personal liberty, even by a non-State actor – Held (per
B.V. Nagarathna, J.): The duty cast upon the State under Article 21
is a negative duty not to deprive a person of his life and personal
liberty except in accordance with law – The State has an affirmative
C duty to carry out obligations cast upon it under statutory and
constitutional law, which are based on the Fundamental Right
guaranteed under Article 21 of the Constitution – Such obligations
may require interference by the State where acts of a private actor
may threaten the life or liberty of another individual –Failure to
carry out the duties enjoined upon the State under statutory law to
D
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 liberties, the State would
have breached the negative duty cast upon it under Art.21.
Doctrines / Principles – Principle of Collective Responsibility
E – 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 – Held (per V. Ramasubramanian, J.) (for S. Abdul
Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself) : A statement
F 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
– Held (per B.V. Nagarathna, J.): A statement made by a Minister if
traceable to any affairs of the State or for protecting the
Government, can be attributed vicariously to the Government by
G invoking the principle of collective responsibility, so long as such
statement represents the view of the Government also – If such a
statement is not consistent with the view of the Government, then it
is attributable to the Minister personally.

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KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 583

Tort – Constitutional Tort – Whether a statement by a Minister, A
inconsistent with the rights of a citizen under Part III of the
Constitution, constitutes a violation of such constitutional rights
and is actionable as ‘Constitutional Tort” – Held (per V.
Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S.
Bopanna, JJ., and himself) : A mere statement made by a Minister,
B
inconsistent with the rights of a citizen under Part III of the
Constitution, may not constitute a violation of the constitutional
rights and become actionable as Constitutional tort – But if as a
consequence of such a statement, any act of omission or commission
is done by the officers resulting in harm or loss to a person/citizen,
then the same may be actionable as a constitutional tort – Held C
(Per B.V. Nagarathna, J.): A proper legal framework is necessary
to define the acts or omissions which would amount to constitutional
tort and the manner in which the same would be redressed or
remedied on the basis of judicial precedent.
Answering the Reference, the Court D
Per V. Ramasubramanian, J. (For S. Abdul Nazeer, B.R.
Gavai, and A.S. Bopanna, JJ. and himself) (Majority opinion)
HELD: 1. 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 E
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. [Para 28][635-E-F]
2. That the Executive cannot transgress its limits by
imposing an additional restriction in the form of Executive or F
Departmental instruction was emphasised by this Court in Bijoe
Emmanuel vs. State of Kerala. 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 G
to have a back-door 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. [Para 29][635-H; 636-A-B]
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584 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 3. 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
B
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
C to undermine its authority, and therefore the restrictions
contained in clause (2) of Article 19 are exhaustive and no further
restriction need to be incorporated. [Para 32][639-D-G]
4. 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
D by the Court. The role envisaged in the Constitutional scheme
for the Court, is to be a gate-keeper (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
E saves (i) the operation of any existing law; and (ii) the making of
any law by the State. Therefore, it is not for the court to add one
or more restrictions than what is already found. [Para 33][639-H;
640-A-B]
5. The exercise of all fundamental rights by all citizens is
F possible only when each individual respects the other person’s
rights. 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
G 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 co-exist in peace and tranquility on the part of the citizens.
The Fundamental Duty enjoined upon every citizen of the country
under Article 51-A(e) to “promote harmony and the spirit of
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KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 585

common brotherhood amongst all the people of India transcending A
religious, linguistic and regional or sectional diversities 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. [Para
40][640-B-E]
B
6. 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 C
individual. [Para 45][652-B-D]
7. 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 D
relations between private individuals, they are said to have “a
horizontal effect”. [Para 47][652-E-F]
8. 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, Part -III of E
the Constitution proceeds to deal with rights. There are some
Articles in Part- III 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 F
dichotomies that are apparent in the Articles contained in Part
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. The Articles of Part-III are in the
form of a directive to the State, while others are not. This is an G
indication that some of the rights conferred by Part -III are to be
honored by and also enforceable against, non--State actors. [Para
73, 74][664-C-D; 667-A]

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586 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 9. 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
B
control” to the “nature of the duties/functions performed”.
Therefore “A fundamental right under Article 19/21 can be
enforced even against persons other than the State or its
instrumentalities “. [Para 78][678-F-G; 679-A]
10. The expression “the State” is not used in Article 21.
C 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 Part -III 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
D 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”. [Para
81][679-D, E]
E 11. 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 . From there,
the law marched to the next stage in Satwant Singh Sawhney vs.
D. Ramarathnam, Assistant Passport Officer, New Delhi where a
Constitution Bench of this Court held by a majority, that the right
F 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
G 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 loco-motion and to travel abroad, but the right to move
throughout the territories of India is not covered by it inasmuch
as it is specially provided in Art. 19. [Para 88][683-F-H; 684-A]
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 587

12. Technological eavesdropping except in accordance with A
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 right to privacy is mostly by private players
B
and if fundamental rights cannot be enforced against non--State
actors, this right will go for a toss. [Para 97][688-D, E]
13. 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 C
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 D
made by every individual Minister. [Para 112][693-F, G]
14. What follows from the 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 E
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 concept of collective responsibility to any and every
statement orally made by a Minister outside the House of the
People/Legislative Assembly. A statement made by a Minister F
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. [Para 126,
137][701-A, B; 704-E]
15. This Court and the High Courts have been consistent G
in invoking Constitutional tort whenever an act of omission and
commission on the part of a public functionary, including a

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588 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Minister, caused harm or loss. But the matter pre-eminently
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
B
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
C legal frame work. Therefore, “A mere statement made by a
Minister, inconsistent with the rights of a citizen under Part -III of
the Constitution, may not constitute a violation of the constitutional
rights and become actionable as Constitutional tort. But if as a
consequence of such a statement, any act of omission or commission
is done by the officers resulting in harm or loss to a person/citizen,
D
then the same may be actionable as a constitutional tort”. [Para
153, 154][715-F-H; 716-A, B]
Sahara India Real Estate Corporation Limited v.
Securities and Exchange Board of India (2012) 10 SCC
603 : [2012] 12 SCR 256; Justice K.S. Puttaswamy v.
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4 SCR 971; R. Rajagopal alias R. R. Gopal v. State of

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 589

T.N (1994) 6 SCC 632 : [1994] 4 Suppl. SCR 353; A
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B
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D
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distinguished. F
Romesh Thappar v. State of Madras AIR 1950 SC 124
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590 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 742 : [1996] 1 SCR 278; Mr. ‘X’ v. Hospital ‘Z’ (1998)
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B
v. Mst. Vidhyawati AIR 1962 SC 933 : [1962] Suppl.
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D
1 Suppl. SCR 389; P. D. Shamdasani v. Central Bank
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S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574 :
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F
SCR 1145; Manoj Narula v. Union of India (2014) 9
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Praga Tools Corporation v. Shri C.A. Imanual (1969) 1
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G Shree Muktajee Vandas Swami Suvarna Jayanti
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SCR 421; Society for Unaided Private Schools of
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KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 591

Rajasthan v. Union of India (2012) 6 SCC 1 : [2012] 2 A
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B
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D
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F
(2016) 7 SCC 761 : [2016] 4 SCR 638; Zee Telefilms
Ltd. v. Union of India (2005) 4 SCC 649 : [2005] 1
SCR 913; Janet Jeyapaul v. SRM University (2015) 16
SCC 530 76; A. K. Gopalan v. State of Madras AIR
1950 SC 27 : [1950] SCR 88; R. D. Shetty v.
International Airport Authority (1979) 3 SCC 489 : G
[1979] 3 SCR 1014; Andi Mukta v. V. R. Rudani (1989)
2 SCC 691 : [1989] 2 SCR 697; Siddharam Satlingappa
Mhetre v. State of Maharashtra (2011) 1 SCC 694 :
[2010] 15 SCR 201; Kharak Singh v. State of U.P. AIR
1963 SC 1295 : [1964] 1 SCR 332; Mohd. Arif Alias
H
592 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Ashfaq v. Registrar, Supreme Court of India & Ors.
(2014) 9 SCC 737 : [2014] 11 SCR 1009; Gobind v.
State of Madhya Pradesh (1975) 2 SCC 148 : [1975] 3
SCR 946; Suchita Srivastava & Anr. v. Chandigarh
(2009) 9 SCC 1 : [2009] 13 SCR 989; Devika Biswas
v. Union of India (2016) 10 SCC 726; District Registrar
B
and Collector, Hyderabad & Anr. v. Canara Bank &
Ors. (2005) 1 SCC 496 : [2004] 5 Suppl. SCR 833;
Indian Woman says Gang-raped on orders of village
Court published in Business and Financial News dated
23-1-2014, in Re (2014) 4 SCC 786 : [2014] 4
C SCR 264; Lata Singh v. State of U.P. (2006) 5 SCC
475 : [2006] 3 Suppl. SCR 350; Arumugam Servai v.
State of Tamil Nadu (2011) 6 SCC 405 : [2011] 5
SCR 488; The State of Bihar v. Abdul Majid AIR 1954
SC 245 : [1954] SCR 786 and Khatri (II) vs. State of
Bihar (1981) 1 SCC 627 : [1981] 2 SCR 408 – referred
D
to.
John Meskell v. Córas Iompair Éireann 1973 IR 121
1972 IR 330; Murtagh Properties Limited v. Cleary 121
1972 IR 330; Shelly v. Kraemer 334 U.S. 1 (1948);
Lûth Luth (1958) BVerfGE 7, 198; Gitlow v. New York
E 286 US 652 (1925); “Civil Rights Cases” 109 US 3
(1883); Jones v. Alfred H. Mayer Co 392 US 409 (1968);
New York Times v. Sullivan 376 U.S. 254 (1964); Du
Plessis and Others v. De Klerk and Another 1996 ZACC
10; Khumalo v. Holomisa (2002) ZACC 12; Governing
F Body of the Juma Musjid Primary School & Others v.
Essay N.O. and Others (CCT 29/10) [2011] ZACC 13;
2011 (8) BCLR 761 (CC); Douglas v. Hello! Ltd. [2001]
QB 967; X v. Y [2004] EWCA Civ 662; Plattform “Ärzte
Für Das Leben” v. Austria [1988] ECHR 15 X and Y
v. The Netherlands [1985] ECHR 4 Marsh v. Alabama
G 326 US 501 (1946) – referred to.
Anup Surendranath - Article on “Life and Personal
Liberty” in The Oxford Handbook of the Indian
Constitution (South Asia Edition), 2016 and Frances
Kamm, Morality, Mortality Vol.2, Oxford University
H Press, 1996 – referred to.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 593

Per B.V. Nagarathna, J. (Partly dissenting) A
HELD: 1. 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 B
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 C
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 D
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)). For a country like E
ours which is a Parliamentary Democracy, freedom of speech and
expression is a necessary right as well as 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 F
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. The right to freedom G
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 H
594 SUPREME COURT REPORTS [2023] 8 S.C.R.

A significant freedom and right under our constitutional setup. [Para
12.3, 12.4, 12.5][730-E-H; 731-A-F]
2. 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
B such right except as provided in Article 19(2) of the Constitution
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
C 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
D would impose reasonable restrictions on such speech as described
under eight grounds which are the basis for reasonable
restrictions. [Para 14.1][736-A-D]
3. The extent of protection of speech would depend on
whether, such speech would constitute a ‘propagation of ideas’
E 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)
F of the Constitution and only the grounds mentioned therein. [Para
14.1][736-G-H; 737-A]
4. 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
G said as a corollary that in respect of speech that does 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.
H Such speech can be subjected to restrictions or restraints. While
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 595

restrictions on the right to freedom of speech and expression A
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
B
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 C
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 restraints need not be
D
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. [Para 14.1][737-
B-H]
5. Article 19(1)(a) serves as a vehicle through which dissent
can be expressed. The right to dissent, disagree and adopt varying E
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 F
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. [Para 15.2][739-C-D]
6. Equality, liberty and fraternity are the foundational values
embedded in the Preamble of our Constitution. ‘Hate speech’, G
in the sense discussed, 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

H
596 SUPREME COURT REPORTS [2023] 8 S.C.R.

A as in India that is, Bharat. 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,
B
including public functionaries. Thus, the Preamble of the
Constitution and the values thereof assuring the people of India
not only justice, 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
C 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
D
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. [Para 26,
27.3][762-C, D; 764-G-H; A-D]
7. The status of the violator of the right, is also an essential
E 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
F this Court or before the High Court respectively. Where
interference is by an entity other than State or its instrumentalities,
an action would lie under common law and to such extent, the
legal scheme recognises horizontal operation of such rights.
Though the content of the Fundamental Right may be identical
under the Constitution with the common law right, it is only the
G 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. [Para 42, 43][780-
F-H; 781-A-B]
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 597

8. Recognising a horizontal approach of Fundamental Rights A
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
B
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. C
Although this Court has 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
D
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. Another aspect that needs consideration is that a
Writ Court, does not ordinarily adjudicate to issue Writs in cases E
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
F
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 horizontal claim for
fundamental rights violations would fail before a Writ Court. [Para G
43][785-A-G]
9. The duty cast upon the State under Article 21 is a negative
duty not to deprive a person of his life and personal liberty except
in accordance with law. The State has an affirmative duty to carry
out obligations cast upon it under statutory and constitutional H
598 SUPREME COURT REPORTS [2023] 8 S.C.R.

A law, which are based on the Fundamental Right guaranteed under
Article 21 of the Constitution. Such obligations may require
interference by the State where acts of a private actor may
threaten the life or liberty of another individual. Failure to carry
out the duties enjoined upon the State under statutory law to
protect the rights of a citizen, could have the effect of depriving a
B
citizen of his right to life and personal liberty. When a citizen is
so deprived of his right to life and personal liberties, the State
would have breached the negative duty cast upon it under Article
21. [Para 44][792-D-G]
10. A statement made by a Minister if traceable to any affairs
C of the State or for protecting the Government, can be attributed
vicariously to the Government by invoking the principle of
collective responsibility, so long as such statement represents
the view of the Government also. If such a statement is not
consistent with the view of the Government, then it is attributable
D to the Minister personally. [Para 45][793-D-E]
11. A proper legal framework is necessary to define the
acts or omissions which would amount to constitutional tort and
the manner in which the same would be redressed or remedied
on the basis of judicial precedent. Particularly, it is not prudent
E to treat all cases where a statement made by a public functionary
resulting in harm or loss to a person/citizen, as a constitutional
tort, except in the context of the answer given to Question No. 4
. It is for the Parliament in its wisdom to enact a legislation or
code to restrain, citizens in general and public functionaries, in
particular, from making disparaging or vitriolic remarks against
F fellow citizens, having regard to the strict parameters of Article
19(2) and bearing in mind the freedom under Article 19(1) (a) of
the Constitution of India. [Para 66, 67][801-B-D]
Pravasi Bhalai Sangathan v. Union of India (2014) 11
SC 477 : [2014] 4 SCR 446; K. S. Puttaswamy (Retd.)
G v. Union of India (2019) 1 SCC 1 : [2018] 8 SCR 1;
Subramanian Swamy v. Union of India (2016) 7 SCC
221 : [2016] 3 SCR 865; His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kerala (1973) 4 SCC
225; People’s Union for Civil Liberties v. Union of India
H (2005) 2 SCC 436 : [2005] 1 SCR 494; P. D.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 599

Shamdasani v. Central Bank of India Ltd. A.I.R. 1952 A
SC 59 : [1952] SCR 391; Zoroastrian Cooperative
Housing Society Limited v. District Registrar,
Cooperative Societies (Urban) (2005) 5 SCC 632 :
[2005] 3 SCR 592; Ramakrishna Mission v. Kago
Kunya (2019) 16 SCC 303 : [2019] 5 SCR 452;
B
Parmanand Katara v. Union of India A.I.R. 1989 SC
2039 : [1989] 3 SCR 997; National Human Rights
Commission v. State of Arunachal Pradesh (1996) 1
SCC 742 : [1996] 1 SCR 278; Gaurav Kumar Bansal
v. Union of India (2015) 2 SCC 130 : [2014] 7 SCR 725
and Swaraj Abhiyan v. Union of India (2016) 7 SCC C
498 – relied on.
Romesh Thappar v. State of Madras A.I.R. 1950 SC
124 : [1950] SCR 594; S. Khushboo v. Kanniammal
(2010) 5 SCC 600 : [2010] 5 SCR 322; Shreya Singhal
v. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963; D
Sakal Papers (P) Ltd. v. Union of India A.I.R. 1962
SC 305 : [1962] 3 SCR 842; Life Insurance
Corporation vs. Prof. Manubhai D. Shah (1992) 3 SCC
637 : [1992] 3 SCR 595; Kedar Nath Singh v. State of
Bihar A.I.R. 1962 SC 955 : [1962] Suppl. SCR 769;
Directorate General of Doordarshan v. Anand E
Patwardhan (2006) 8 SCC 433 : [2006] 5 Suppl.
SCR 403; Hamdard Dawakhana (Wakf) Lal Kuan v.
Union of India A.I.R 1960 SC 554 : [1960] 2 SCR
671; Indian Express Newspaper (Bombay) Pvt. Ltd. v.
Union of India (1985) 1 SCC 641 : [1985] 2 SCR 287; F
Tata Press Limited v. Mahanagar Telephone Nigam
Limited (1995) 5 SCC 139 : [1995] 2 Suppl. SCR 467;
Union of India v. Motion Picture Association A.I.R.
1999 SC 2334 : [1999] 3 SCR 875; National Legal
Services Authority v. Union of India (2014) 5 SCC 438
: [2014] 5 SCR 119; Prabha Dutt v. Union of India G
(1982) 1 SCC 1 : [1982] 1 SCR 1184; Swapnil Tripathi
v. Supreme Court of India (2018) 10 SCC 639 : [2018]
11 SCR 57; Union of India v. Naveen Jindal (2004) 2
SCC 510 : [2004] 1 SCR 1038; Bijoe Emmanuel v. State
of Kerala (1986) 3 SCC 615 : [1986] 3 SCR 518; Amish H
600 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Devgan v. Union of India (2021) 1 SCC 1; Charu
Khurana v. Union of India (2015) 1 SCC 192 : [2014]
12 SCR 259; In Re. Noise Pollution (V) (2005) 5 SCC
733 : [2005] 1 Suppl. SCR 624; Additional District
Magistrate, Jabalpur vs. Shivkant Shukla A.I.R. 1976
SC 1207 : [1976] Suppl. SCR 172 ; Pradeep Kumar
B
Biswas v. Indian Institute of Chemical Biology (2002) 5
SCC 111 : [ 2002] 3 SCR 100; Zee Telefilms Ltd. v.
Union of India (2005) 4 SCC 649 : [2005] 1 SCR 913;
Janet Jeyapaul v. S.R.M. University (2015) 16 SCC
530; Union of India v. Paul Manickam (2003) 8 SCC
C 342 : [2003] 4 Suppl. SCR 618; Mohd. Ikram Hussain
v. State of Uttar Pradesh A.I.R. 1964 SC 1625 : [1964]
5 SCR 86; Nirmaljit Kaur (2) v. State of Punjab (2006)
9 SCC 364 : [2005] 5 Suppl. SCR 514; Union of India
v. Paul Manickam (2003) 8 SCC 342 : [2003] 4 Suppl.
SCR 618; Pt. Rudul Sah v. State of Bihar (1983) 4 SCC
D
141 : [1983] 3 SCR 508; Sebastian M. Hongray v.
Union of India (1984) 3 SCC 82 : [1984] 3 SCR 544;
Bhim Singh v. State of J&K (1985) 4 SCC 677; People’s
Union for Democratic Rights v. Police Commissioner
(1989) 4 SCC 730; Saheli v. Commissioner of Police
E (1990) 1 SCC 422 : [1989] 2 Suppl. SCR 488; State of
Maharashtra v. Ravikant S. Patil (1991) 2 SCC 373;
Kumari v. State of Tamil Nadu (1992) 2 SCC 223;
Shakuntala Devi v. Delhi Electric Supply Undertaking
(1995) 2 SCC 369; Tamil Nadu Electricity Board v.
Sumanth (2000) 4 SCC 543 : [2000] 3 SCR 708;
F
Railway Board v. Chandrima Das (2000) 2 SCC 465 :
[2000] 1 SCR 480; Sabastian M. Hongray v. Union of
India A.I.R. 1984 SC 1026 : [1984] 3 SCR 544; Bhim
Singh, MLA v. State of Jammu and Kashmir A.I.R. 1986
SC : 494; Nilabati Behera v. State of Orissa (1993) 2
G SCC 746 : [1993] 2 SCR 581; D. K. Basu v. State of
West Bengal (1997) 1 SCC 416 : [1996] 10 Suppl. SCR
284; Hindustan Paper Corporation Ltd. v. Ananta
Bhattacharjee (2004) 6 SCC 213; Chairman, Railway
Board v. Chandrima Das (2000) 2 SCC 465 : [2000] 1
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 601

SCR 480; Kumari v. State of Tamil Nadu (1992) 2 SCC A
223; Tamil Nadu Electricity Board v. Sumathi Das (2000)
4 SCC 543 : [2000] 3 SCR 708; and Delhi Jal Board v.
National Campaign for Dignity &amp; Rights of
Sewerage & amp; Allied Workers (2011) 8 SCC 568 :
[2011] 12 SCR 34 – referred to.
B
Chaplinsky v. State of New Hampshire 315 U.S.568
(1942); R v. James Keegstra [1990] 3 SCR 697; Canada
Human Rights Commission v. Taylor [1990] 3 SCR 892;
Pat Eatock v. Andrew Bolt (2011) FCA and Peninsular;
Oriental Steam Navigation Co. v. Secy. of State (1868-
69) 5 Bom HCR APP 1 and Saskatchewan Human C
Rights Commission v. William Whatcott 2013 SCC 11 –
referred to.
Case Law Reference
In the judgment of V. Ramasubramanian, J. D
[1965] 1 SCR 375 referred to Para 9 (iv)
[1983] 3 SCR 508 referred to Para 9 (iv)
[1993] 2 SCR 581 referred to Para 9 (v)
[2013] 14 SCR 475 relied on Para 10 (i) E
[1994] 4 Suppl. SCR 353 relied on Para 10 (i)
[2003] 2 SCR 1136 relied on Para 10 (i)
[1955] 1 SCR 608 referred to Para 10 (i)
[2011] 8 SCR 725 relied on Para 10 (i) F
[2012] 12 SCR 256 followed Para 10 (i)
[2016] 3 SCR 865 relied on Para 10 (i)
[2005] 1 Suppl. SCR 624 relied on Para 10 (i)
[2017] 1 SCR 945 relied on Para 10 (i) G

[1983] 1 SCR 456 referred to Para 10 (ii)
[1995] 6 Suppl. SCR 731 referred to Para 10 (ii)
[2000] 1 Suppl. SCR 389 referred to Para 10 (ii)
H
602 SUPREME COURT REPORTS [2023] 8 S.C.R.

A [2017] 10 SCR 569 followed Para 10 (ii)
[1952] SCR 391 referred to Para 10 (ii)
[2010] 2 SCR 979 referred to Para 10 (iii)
[1989] 2 SCR 204 referred to Para 10 (iii)
B
[2000] 5 Suppl. SCR 117 referred to Para 10 (iii)
[2019] 5 SCR 679 referred to Para 10 (iii)
[1989] 3 SCR 997 relied on Para 10 (iii)
C
(2021) 1 SCC 1 distinguished Para 10 (iv)
[2010] 15 SCR 1145 referred to Para 10 (iv)
[1996] 6 Suppl. SCR 584 relied on Para 10 (iv)

D [2014] 9 SCR 965 referred to Para 10 (iv)
[2003] 6 Suppl. SCR 85 referred to Para 10 (iv)
[1999] 3 SCR 1279 relied on Para 10 (v)
[1962] 3 SCR 842 relied on Para 10 (vi)
E
[1969] 3 SCR 773 referred to Para 10 (xii)
[1989] 2 SCR 697 referred to Para 10 (xii)
[1987] 1 SCR 819 referred to Para 10 (xiii)
F [2005] 2 Suppl. SCR 421 referred to Para 10 (xiii)
[2012] 2 SCR 715 referred to Para 10 (xiv)
[2014] 4 SCR 446 referred to Para 10 (xxiii)

G [2018] 12 SCR 695 referred to Para 10 (xxiii)
[1950] SCR 594 referred to Para 15
[1950] SCR 605 referred to Para 17
(1952) 1 SCC 410 referred to Para 20
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 603

[1959] SCR 12 relied on Para 28 A
[1986] 3 SCR 518 relied on Para 29
[1995] 1 SCR 1036 relied on Para 30
[2012] 4 SCR 971 relied on Para 30
B
[1969] 3 SCR 548 relied on Para 43 (ix)
[1992] 3 SCR 595 relied on Para 43 (ix)
[1955] 2 SCR 983 referred to Para 76 (ii)
C
[1975] 3 SCR 619 referred to Para 76 (iii)
[1993] 3 Suppl. SCR 615 referred to Para 76 (vii)
[2000] 1 SCR 480 referred to Para 76 (viii)
[1996] 10 Suppl. SCR 12 referred to Para 76 (ix) D
[1996] 5 Suppl. SCR 241 referred to Para 76 (ix)
[1996] 2 SCR 503 referred to Para 76 (ix)
[1995] 1 SCR 626 referred to Para 76 (x)
E
[1997] 3 Suppl. SCR 404 referred to Para 76 (xi)
[2012] 9 SCR 895 referred to Para 76(xi)
[1999] 1 SCR 669 referred to Para 76 (xii)
[2011] 6 SCR 599 referred to Para 76 (xiii) F

[2016] 4 SCR 638 referred to Para 76(xv)
[2005] 1 SCR 913 referred to Para 76 (xvi)
(2015) 16 SCC 530 referred to Para 76 (xvi) G
[1950] SCR 88 referred to Para 78
[1951] SCR 621 relied on Para 78
[1979] 3 SCR 1014 referred to Para 78
H
[1989] 2 SCR 697 referred to Para 78
604 SUPREME COURT REPORTS [2023] 8 S.C.R.

A [2010] 15 SCR 201 referred to Para 85
[1964] 1 SCR 332 referred to Para 86
[2014] 11 SCR 1009 referred to Para 86
[1970] 3 SCR 530 referred to Para 86
B
[1975] 3 SCR 946 referred to Para 87
[1967] 2 SCR 525 referred to Para 88
[1978] 2 SCR 621 referred to Para 90
C
[1984] 2 SCR 67 referred to Para 91
[1996] 1 SCR 278 referred to Para 93
[1998] 1 Suppl. SCR 723 referred to Para 94

D [2009] 13 SCR 989 referred to Para 96
(2016) 10 SCC 726 referred to Para 96
[1996] 10 Suppl. SCR 321 referred to Para 97
[2004] 5 Suppl. SCR 833 referred to Para 98
E
[2014] 4 SCR 264 referred to Para 99
[2006] 3 Suppl. SCR 350 referred to Para 99
[2011] 5 SCR 488 referred to Para 99
F [2018] 3 SCR 770 relied on Para 100
[1970] 3 SCR 505 followed Para 111
[1978] 2 SCR 1 followed Para 113

G [1993] 3 SCR 802 relied on Para 113
[1997] 6 Suppl. SCR 595 relied on Para 121
[2018] 7 SCR 1 relied on Para 125
[1954] SCR 786 referred to Para 146
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 605

[1962] Suppl. SCR 989 referred to Para 146 A
[1981] 2 SCR 408 referred to Para 146
In the judgment of B. V. Nagarathna, J.
[1950] SCR 594 referred to Para 12.6 (i)
B
[2010] 5 SCR 322 referred to Para 12.6 (ii)
[2015] 5 SCR 963 referred to Para 12.6 (iii)
[1962] 3 SCR 842 referred to Para 15.1
C
[1992] 3 SCR 595 referred to Para 15.1
[1962] Suppl. SCR 769 referred to Para 15.3 (ii)
[2006] 5 Suppl. SCR 403 referred to Para 15.3 (iii)
[1960] 2 SCR 671 referred to Para 15.4 (i) D
[1985] 2 SCR 287 referred to Para 15.4 (ii)
[1995] 2 Suppl. SCR 467 referred to Para 15.4 (iii)
[1999] 3 SCR 875 referred to Para 15.5 (i)
E
[2014] 5 SCR 119 referred to Para 15.5 (ii)
[1982] 1 SCR 1184 referred to Para 15.5 (ii)
[2018] 11 SCR 57 referred to Para 15.5 (ii)
[2004] 1 SCR 1038 referred to Para 15.5 (ii) F

[1986] 3 SCR 518 referred to Para 15.5 (ii)
[2014] 4 SCR 446 relied on Para 16.2
(2021) 1 SCC 1 referred to Para 16.3 G
[1990] 3 SCR 697 referred to Para 21 (i)
[1990] 3 SCR 892 referred to Para 21 (i)
[2014] 12 SCR 259 referred to Para 22
H
606 SUPREME COURT REPORTS [2023] 8 S.C.R.

A [2005] 1 Suppl. SCR 624 referred to Para 22
[2018] 8 SCR 1 relied on Para 24
[2016] 3 SCR 865 relied on Para 27.1
(1973) 4 SCC 225 relied on Para 36
B
[1976] Suppl. SCR 172 referred to Para 37
[2005] 1 SCR 494 relied on Para 39
[1952] SCR 391 relied on Para 43 (ii) (a)
C
[2005] 3 SCR 592 relied on Para 43 (ii) (b)
[2002] 3 SCR 100 referred to Para 43 (iii)
[2005] 1 SCR 913 referred to Para 43 (iii)

D (2015) 16 SCC 530 referred to Para 43 (iii)
[2019] 5 SCR 452 referred to Para 43 (iii)
[2003] 4 Suppl. SCR 618 referred to Para 43 (iii)
[1964] 5 SCR 86 referred to Para 43 (iii)
E
[2005] 5 Suppl. SCR 514 referred to Para 43 (iii)
[2003] 4 Suppl. SCR 618 referred to Para 43 (iii)
[1989] 3 SCR 997 relied on Para 44 (i)
F [1996] 1 SCR 278 relied on Para 44 (ii)
[2014] 7 SCR 725 relied on Para 44 (iii)
(2016) 7 SCC 498 relied on Para 44 (iv)

G [1983] 3 SCR 508 referred to Para 51
[1984] 3 SCR 544 referred to Para 51
(1985) 4 SCC 677 referred to Para 51
(1989) 4 SCC 730 referred to Para 51
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 607

[1989] 2 Suppl. SCR 488 referred to Para 51 A
(1991) 2 SCC 373 referred to Para 51
(1992) 2 SCC 223 referred to Para 51
(1995) 2 SCC 369 referred to Para 51
B
[2000] 3 SCR 708 referred to Para 51
[2000] 1 SCR 480 referred to Para 51
[1983] 3 SCR 508 referred to Para 54
C
[1984] 3 SCR 544 referred to Para 54
A.I.R. 1986 SC 494 referred to Para 54
[1993] 2 SCR 581 referred to Para 55
[1996] 10 Suppl. SCR 284 referred to Para 56 D
(2004) 6 SCC 213 referred to Para 56
[2000] 1 SCR 480 referred to Para 57
(1992) 2 SCC 223 referred to Para 59
E
[2000] 3 SCR 708 referred to Para 60
[2011] 12 SCR 34 referred to Para 63
CRIMINAL ORIGINAL/CIVIL APPELLATE JURISDICTION:
Writ Petition (Criminal) No. 113 of 2016. F
Under Article 32 of The Constitution of India
With
Special Leave Petition @ (Diary) No. 34629 of 2017
Ms. Aparjitha Singh, Sr.Adv. (A.C.) Ms. Uttara Babbar, Ms. Shipra G
Jain, Advs.
Kaleeswaram Raj, Ms. Thulasi K. Raj, Ms. Radhalakshmi R.,
Suvidutt M. S., Ms. Somlagna Biswas, Rishesh Sikarwar, Aman Khullar,

H
608 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Mrs. Renu Yadav, Samerjit Singh Chaudhry, Hitesh Kumar Sharma,
Akhileshwar Jha, Ms. Mirdula Singh Chauhan, Ms. Sandhya Singh for
Ms. Manju Jetley, Advs. for the Petitioner.
R. Venkataramani, AG, Tushar Mehta, SG, Balbir Singh,
Ms. Madhavi Divan, ASGs, R. Bala, Pradeep Rai, Ms. Garima Prasad,
B Sr. Advs., Naman Tandon, Samarvir Singh, Presenjeet Mohapatra, Rajat
Nair, Ankur Talwar, Kanu Agrawal, Anirudh Bhatt, Shyam Gopal, Ms.
Monica Benjamin, Ms. Sujatha Bagadhi, Ms. Shraddha Deshmukh, Udai
Khanna, Ms. Anu S., Mayank Pandey, Vinayak Mehrotra, Chitvan
Singhal, Ms. Sonali Jain, Abhishek Kumar Pandey, Arvind Kumar Sharma,
Mukesh Kumar Maroria, Ajay Vikram Singh, Ms. Rajshree Rai, Vinay
C Kumar, Shashank Rai, Arnav Mittal, Ms. Ritika Gaur, Ms. Banshika
Garg, Vipin Bharti, Amrendra Kumar Singh, Ms. Priyanka Singh, Ms.
Pranjali Goel, Sharjeel Ahamad, Mrs. Swarupama Chaturvedi, Pradeep
Misra, Abhishek, Lakshmi Raman Singh, Advs. for the Respondents.
Ranjith B. Marar, Ms. Lakshmi N. Kaimal, Arun Poomulli,
D Santhosh M. Jose, Keshav Raj Nair, Ashu Jain, Davesh Kumar Sharma,
Ms. Preetha Chandran, Abhijith Sreekumar, Joseph Kurian, Advs. for
the Intervenor.
The Judgments of the Court were delivered by

E V. RAMASUBRAMANIAN, J.
PRELUDE

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

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 609
[V. RAMASUBRAMANIAN, J.]

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

B

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
C
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 D
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 E
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 F
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 G
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,
H
610 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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
C 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
D 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?
E
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
F
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
G 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 376-D 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 611
[V. RAMASUBRAMANIAN, J.]

then Minister for Urban Development of the Government of U.P. for A
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 gang. According to the
B
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 C
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.
D
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 E
of women. Though according to 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 F
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.
G
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
H
612 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 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.
B 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,
C 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 question-wise, which can be summed up
D 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
E
fundamental right has to come up through a legislative
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,
F 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
G 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
H persons other than the State, would amount to Constitutional
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 613
[V. RAMASUBRAMANIAN, J.]

change. The concept of State action propounded and applied A
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,
B
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.
Question No. 3
C
(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 D
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 E
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 F
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 G
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. Post M/s. Kasturi Lal Ralia Ram Jain vs.
The State of Uttar Pradesh1 and following Rudul Sah vs.
1
AIR 1965 SC 1039 H
614 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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.
B
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
C Orissa3, and subsequently applied to provide in regard to
the constitutional remedies, the matter pre-eminently
deserves a proper legal framework in order that the
principles and procedures are coherently set out without
leaving the matter open-ended or vague.
D III.B. Notes of submissions by Amicus
10. Ms. Aparajita Singh, learned senior counsel and amicus curiae
submitted a written note question-wise, which can be summed up as
follows:-
Question No. 1
E
(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,
F 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)
G
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.

2
(1983) 4 SCC 141
3
H (1993) 2 SCC 746
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 615
[V. RAMASUBRAMANIAN, J.]

vs. State of Kerala 4. The decision of this Court in R. A
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
B
(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. Lachhi Ram7,
a challenge to Sections 123(5) and 124(5) of the
Representation of the People Act, 1951 (as they prevailed C
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
D
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 India9, this Court struck a balance between the right of
the media under Article 19(1)(a) with the right to fair trial E
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 Law10 in which
Section 499 IPC was under challenge. The right to free
F
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.
4
(2013) 16 SCC 82
5
(1994) 6 SCC 632 G
6
(2003) 4 SCC 399
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 H
616 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Question No. 2
(ii) There are some fundamental rights which are specifically
granted against non-State actors. Article 15(2)(a) – access
to shops, public restaurants, hotels and places of public
entertainment, Article 17 – untouchability, Article 23 – forced
B 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
C are not violated even by non-State 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
D 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
E 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-State actors when their acts have violated the
fundamental rights of other citizens. Award of damages
F against non-State 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 non-State
actors to protect the rights of citizens, pointed out that
G recognition and enforcement of claims qua non-State actors
may require legislative intervention. However, when it comes
13
(1982) 3 SCC 235
14
(1996) 1 SC 490
15
(2000) 6 SCC 213
16
H (2017) 10 SCC 1
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 617
[V. RAMASUBRAMANIAN, J.]

to Article 19, a Constitution Bench in P.D. Shamdasani A
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 B
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 C
consent of the concerned State, emphasized the duty of the
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 D
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 E
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 F
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.
G
17
1952 SCR 391
18
(2010) 3 SCC 571
19
(1989) 2 SCC 574
20
(2001) 1 SCC 582
21
(2020) 12 SCC 436
22
(1989) 4 SCC 286 H
618 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Question No. 4
(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
B 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
C 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
D 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
E 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
F 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 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
G under the Constitution. The importance of the Oath of Office
under the Constitution was also emphasized by the

23
(2021) 1 SCC 1
24
(2011) 1 SCC 577
25
H (1997) 1 SCC 35
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 619
[V. RAMASUBRAMANIAN, J.]

Constitution Bench in Manoj Narula vs. Union of India26. A
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
B
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 “. C
. . 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.
D
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 E
the 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. F

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 G
note is divided into several chapters dealing with the nature and extent
of the freedom of speech, the restrictions on the same, the horizontality

26
(2014) 9 SCC 1
27
(2004) 2 SCC 9
28
(1999) 6 SCC 667 H
620 SUPREME COURT REPORTS [2023] 8 S.C.R.

A of fundamental rights, constitutional rights and constitutional values,
statements made by Ministers and collective responsibility, self-regulation
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:-
B (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.
(ii) But even while upholding such a right, efforts should be
C 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
D 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
E 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,
F 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
G
speech can be restricted only in the interest of 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. It cannot be
29
H (1962) 3 SCR 842
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 621
[V. RAMASUBRAMANIAN, J.]

curtailed, in the interest of the general public, as in the case A
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 B
democracy;
(viii) In so far as the enforcement of fundamental rights against
non-State 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 C
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 D
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 sub-Section (3) which sets out
the grounds that bind the State, the judiciary itself has
adopted a direct horizontal effect, in Ireland as could be E
seen from the decisions in John Meskell vs. Córas Iompair
Éireann30 and 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 F
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 G
in turn regulate the conduct of citizens;

30
1973 IR 121
31
1972 IR 330 H
622 SUPREME COURT REPORTS [2023] 8 S.C.R.

A (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
B prohibiting the sale of houses in a neighbourhood to African-
Americans, as unenforceable, for they have the effect of
denying equal protection under the laws. The Federal
Constitutional Court of Germany took a similar view in Lûth33
case (1958) where a call for boycott of a film directed by a
person who had worked on anti-semitic Nazi propaganda
C 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
D 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
E Smarak Trust vs.V.R. Rudani35;
(xiii) There are several instances where this Court has issued
writs under Article 32 against non-State actors. Broadly
those cases fall under two categories, namely, (i) private
players performing public duties/functions; and (ii) non-State
F 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 M.C.
Mehta vs. Union of India 36 . Absent any of these
parameters, the Court has refused to exercise writ
G jurisdiction as seen from Binny Ltd. vs. V. Sadasivan.37;
32
334 U.S. 1 (1948)
33
Luth (1958) BVerfGE 7, 198
34
(1969) 1 SCC 585
35
(1989) 2 SCC 691
36
AIR 1987 SC 1086
H 37
(2005) 6 SCC 657
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 623
[V. RAMASUBRAMANIAN, J.]

(xiv) Even in jurisdictions where socio economic rights have been A
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;
B
(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 C
for a right to allow the violation of one right in order to
prevent the violation of other rights. This would promote
the non-violation 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 D
confer individuals with a sphere of liberty that is inviolable.
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. E
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 F
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;
G
(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
38
(2012) 6 SCC 1
39
Frances Kamm, Morality, Mortality Vol.2, Oxford University Press, 1996 H
624 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
is an imperative need for a voluntary code of conduct. As
pointed out by this Court in Common Cause (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;
C 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
D breaches do not happen;

(xx) A code of conduct to self-regulate the speeches and actions
of Ministers is constitutionally justifiable and this Court can
definitely examine its requirement. Ideally, a Minister is not
E 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
F 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;
G
(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

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 625
[V. RAMASUBRAMANIAN, J.]

derogatory speeches by 45 politicians. Social media A
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. B
Union of India40; Kodungallur Film Society vs. Union
of India41 and Amish Devgan (supra) lay down broad
parameters;

(xxiv) At the international level, the definition of hate speech was C
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 D
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 E
Combating Hate Speech and Intolerance (Provisional
version) dated 12 March 2019, was submitted by the
Committee on Equality and Non-Discrimination to the
Parliamentary Assembly of the Council of Europe. The
Assembly passed the resolution adopting the text proposed F
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 G
appropriate mechanism such as Ombudsman, in accordance
with the Venice principles and Paris principles. Till such an

40
(2014) 11 SCC 477
41
(2018) 10 SCC 713 H
626 SUPREME COURT REPORTS [2023] 8 S.C.R.

A Ombudsman is constituted, the National and State Human
Rights Commissions have to take pro-active measures, in
terms of the provisions of Protection of Human Rights Act,
1993.
IV. Discussion and Analysis
B
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
C restrictions on the right to free speech be imposed on grounds not found
in Article 19(2) by invoking other fundamental rights?
History of evolution of clause (2) of Article 19
13. For finding an answer to this question, it may be necessary
D 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
E 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
F 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 time when the draft report was
G submitted in April 1947, upto the time when the Constitution was adopted,
can be presented in a tabular form43 as follows:

42
286 US 652 (1925)
43
Sourced from the article “Arguments from Colonial Continuity- the Constitution
(First Amendment) Act, 1951” (2008) of Burra, Arudra, Assistant Professor,
H Department of Humanities and Social Sciences , IIT (Delhi),
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 627
[V. RAMASUBRAMANIAN, J.]

A

B

C

D

E

F

G

H
628 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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(1-A) of the Madras Maintenance of Public Order Act, 1949 44, 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
B
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: -
C “[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
D been conceived generally in the interests of public order. …”
16. An argument was advanced in Romesh Thappar (supra) that
Section 9(1-A) 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
E 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
F 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 arose out of
a writ petition under Article 32 challenging an order passed by the Chief
G 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
44
1949 Act
45
AIR 1950 SC 124
46
H AIR 1950 SC 129
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 629
[V. RAMASUBRAMANIAN, J.]

‘Organizer’, to submit for scrutiny, before publication, all communal A
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 pre-censorship on a journal is a restriction on the liberty of
the Press, which is an essential part of the right to freedom of speech
B
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 C
was indicated that the citizen’s right to freedom of speech and expression
guaranteed by Article 19(1)(a) has been held 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 D
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)
pre-first amendment and post-first amendment as under: -
E

F

19. It is significant to note that Section 3(1)(a) of the Constitution
(First Amendment) Act, 1951, declared that the newly substituted clause
(2) of Article 19 shall be deemed always to have been enacted in the G
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
H
630 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C reasonableness, wherever prescribed, should be applied to each
individual statute impugned, and no abstract standard, or general
pattern of 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
D 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
E 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 self-restraint and the sobering reflection
F 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.”
G 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,
47
H (1952) 1 SCC 410
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 631
[V. RAMASUBRAMANIAN, J.]

regionalism, linguism and narrow mindedness. This Conference decided A
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 Sino-India 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
B
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 C
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
D
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.
E
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 F
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 G
the articulation of the restrictions now enumerated. The draft Report of
the Sub-Committee 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;
H
632 SUPREME COURT REPORTS [2023] 8 S.C.R.

A (v) any matter which offends against decency or morality; and (vi) any
matter which undermines the security of the State or tends to overthrow
the State.
25. After the 1 st and 16 th Amendments, the emphasis is on
reasonable restrictions relating to, (i) interests of sovereignty and integrity
B 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
C 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
D which they fall and the category/class of person/persons sought to be
protected by the restriction:
Table of Provisions under IPC restricting freedom of speech
and expression

E

F

G

H 48
Subject matter of challenge pending before this Court.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 633
[V. RAMASUBRAMANIAN, J.]

A

B

C

D

E

F

G

H
634 SUPREME COURT REPORTS [2023] 8 S.C.R.

A

B

C

D

E

F

G

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 635
[V. RAMASUBRAMANIAN, J.]

A

B

C

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 Scheduled
Tribes (Prevention of Atrocities) Act, 1989, The Prevention of Insults to D
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 E
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
F
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 G
one freedom even for securing the better enjoyment of another freedom.
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.
49
1959 SCR 12 H
636 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 back-door 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
B
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,
C 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,
D bit by bit, would then eviscerate the content of the main right
itself. 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
E 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
F the nation-State to tackle the problems it faces. The principle
is that exceptions cannot be carved out willy-nilly, 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,
G 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

50
H (1986) 3 SCC 615
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 637
[V. RAMASUBRAMANIAN, J.]

rights, on grounds of expediency and claims that there are no A
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.”
B
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 three-pronged test namely, (i) that the
restriction can be imposed only by or under the authority of law and not C
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 D
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:
E

F

G

51
(1995) 2 SCC 161
52
(2012) 5 SCC 1 H
638 SUPREME COURT REPORTS [2023] 8 S.C.R.

A

B

C

D

E

F

G

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 639
[V. RAMASUBRAMANIAN, J.]

A

B

C

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

(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; F
(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
G
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 the
Court. The role envisaged in the Constitutional scheme for the Court,
is to be a gate-keeper (and a conscience keeper) to check strictly
H
640 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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.
B
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.
C 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 Incident, in re.
(supra), provide a complete answer to the question whether additional
D 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
E 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
F 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
G on the right under Article 19(1)(g) can be placed in the 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:
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 641
[V. RAMASUBRAMANIAN, J.]

“It may well be within the power of the State to place, in the A
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
B
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, C
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
D
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 E
securing the better enjoyment of another freedom. All the
greater reason, therefore, for holding that 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 F
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 G
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 H
642 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 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
B
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
C 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
D willingness to co-exist 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 51-A (e) to “promote harmony
and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional
diversities and to renounce practices derogatory to the dignity of
E 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
F 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,
G belief and worship………...Under our Constitutional scheme, the
State is not merely under an obligation to respect the fundamental
rights guaranteed by Part-III but under an equal obligation to ensure
conditions in which those rights can be meaningfully and effectively
enjoyed by one and all.”

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 643
[V. RAMASUBRAMANIAN, J.]

42. The above passage from the opinion of Jeevan Reddy, J., in A
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 B
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 C
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 D
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, child-bearing and
education among other matters. None can publish E
anything concerning the above matters without his
consent — whether truthful or otherwise and whether
laudatory or critical. If he does so, he would be 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 F
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 G
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
H
644 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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.
B
(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
C 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
D 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
E 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
F that judiciary, which is protected by the power to punish
for contempt of court and Parliament and legislatures
protected as their privileges are by Articles 105 and 104
respectively of the Constitution of India, represent
exceptions to this rule.
G (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
H Secrets Act, 1923, or any similar enactment or provision
having the force of law does not bind the press or media.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 645
[V. RAMASUBRAMANIAN, J.]

(6) There is no law empowering the State or its officials A
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 B
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 C
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 D
competed with one another, were the rights enshrined in
Article 19(1)(a) and Article 21. The clash was between
individuals and the persons in the neighborhood. This Court
held:
“11. Those who make noise often take shelter E
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 F
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 G
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 pollution-free life guaranteed
H
646 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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
C 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 dangerous
D 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
E 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
F 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
G 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
H of the proceedings pending before a Court, would constitute
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 647
[V. RAMASUBRAMANIAN, J.]

a restriction under Article 19(1)(a) and as to whether such A
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) B
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 C
which all the stakeholders who are a party to a 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 D
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 E
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 F
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 G
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 H
648 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C 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. …”
(vi) In Thalapplam Service Cooperative Bank Ltd. (supra),
D theright 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:
E “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
F 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,
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 649
[V. RAMASUBRAMANIAN, J.]

the officer should record his reasons in writing before A
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) B
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:
“98. Freedom of speech and expression in a spirited
democracy is a highly treasured value. Authors, C
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. D
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 E
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 F
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 G
violates right to free speech and expression of opinion…”
(viii) In Asha Ranjan (supra), the right to free trial, of an accused
vis-à-vis the victim, came up for consideration. The Court
propounded in paragraph 61:
H
650 SUPREME COURT REPORTS [2023] 8 S.C.R.

A “61. Be it stated, circumstances may emerge that may
necessitate for balancing between intra-fundamental
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 intra-
B
conflict 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 victims who are directly
affected and also form a part of the constituent of the
C 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
D
are imposed by the State. The said limitations are to be
within the bounds of law. However, when there is intra-
conflict 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
E 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
F
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
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 651
[V. RAMASUBRAMANIAN, J.]

protected. There can be no denial of the fact that the A
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
B
circumstances has to be given primacy, for it furthers
and promotes “Rule of Law”. …”
(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 C
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 D
validity of that limitation is not to be judged by the test
prescribed in sub-Articles (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 E
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 in-house 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 F
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 large. A citizen G
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.”
53
(1969) 1 SCC 502
54
(1992) 3 SCC 637 H
652 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 well-established 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
B
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
C 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.”

D 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”.
E 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
F 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
G
been adopted to varying degrees in Ireland, Canada, Germany, South
Africa and European Union. According to the 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.
55
Interestingly The Protection of Human Rights Act, 1993 was enacted in India five
H years before a similar Act came in United Kingdom.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 653
[V. RAMASUBRAMANIAN, J.]

49. No jurisdiction in the world appears to be adopting, at least as A
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 age-old question of ‘individual vs. society’.
B
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 C
horizontality was found in certain decisions of the U.S. Supreme Court,
two of which are of interest.
51. After the American Civil War (1861-1865), the Reconstruction
Era began in the United States. During this period, the Fourteenth
Amendment came (1866-1868) followed by the Civil Rights Act, 1875 D
(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 E
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 F
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 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 G
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 African-American family (Shellys) who purchased a
56
109 US 3 (1883)
57
392 US 409 (1968) H
654 SUPREME COURT REPORTS [2023] 8 S.C.R.

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 African-Americans and Asian-Americans. The Missouri Supreme
B
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.
C 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
D 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.
E 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
F 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-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
G (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 sub-Article (3) of Article 40 of the Irish
Constitution states that “The State shall, in particular, by its laws protect
58
H 376 U.S. 254 (1964)
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 655
[V. RAMASUBRAMANIAN, J.]

as best it may from unjust attack and, in the case of injustice done, A
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 B
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 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 C
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 D
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 non-State actors actually violated the
Constitutional right of the plaintiff. In other words, the Constitutional E
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 natural
or a juristic person if, and to the extent that, it is applicable, taking F
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:
G
“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 -
H
656 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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
C grounds including race, gender, sex, pregnancy, 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:
D “9. Equality
…..
4. No person may unfairly discriminate directly or indirectly
against anyone on one or more grounds in terms of sub-section
(3). National legislation must be enacted to prevent or prohibit
E 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”.
F
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 Another59. The defamation
action was instituted by an Airline company, against a newspaper for
G 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 defendant-newspaper raised
a defence that they were insulated against the defamation action, under
Section 15 of the Constitution which protected the freedom of the press.
59
H 1996 ZACC 10
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 657
[V. RAMASUBRAMANIAN, J.]

The Transvaal Provincial Division of the Supreme Court referred two A
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
B
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 task of the
Supreme Court to apply and develop the common law as required by C
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 D
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 E
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 F
because of race, gender or whatever; a white bigot may refuse
to sell property to a person of colour; a social club may black-
ball 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 G
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 well-founded at common law, infringes a
H
658 SUPREME COURT REPORTS [2023] 8 S.C.R.

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.
B
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
C 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.”
D 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
E 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. Therefore, while dealing with Khumalo (supra),
the Constitutional Court of South Africa applied the Final Constitution,
F 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 non-State actors. Paragraph 33 reads
thus:
“[33] In this case, the applicants are members of the media
G 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
60
H (2002) ZACC 12
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 659
[V. RAMASUBRAMANIAN, J.]

be occasioned by persons other than the state or organs of A
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
B
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 owner of a private land C
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 non-State actor has a
Constitutional obligation not to impair the right to basic education under D
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 E
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 F
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. G
[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

61
(CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) H
660 SUPREME COURT REPORTS [2023] 8 S.C.R.

A that socio-economic 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 prevent the direct infringement of the
right by another or a failure to respect the existing
B
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
C 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.”
D 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
E 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
F by the European 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
G 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
62
H [2001] QB 967
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 661
[V. RAMASUBRAMANIAN, J.]

unauthorized photographs which were shared with potential competitor A
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:
B
“49. It follows that the ECtHR has recognised an obligation
on member states to protect one 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.
C
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.… D

…
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 E
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 F
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 G
on facts, the claim of the dismissed employee was dismissed, the legal
issue was articulated by the Court thus:

63
[2004] EWCA Civ 662 H
662 SUPREME COURT REPORTS [2023] 8 S.C.R.

A “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
B 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
C 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 non-discrimination
D 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
non-State actors, who obstructed the assembly. The case arose out of
E 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 out abortions in Stadl-Paura.
A number of counter-demonstrators disrupted the march to the hillside
by mingling with the marchers and shouting down their recitation. At the
end of the ceremony, special riot-control units – which had until then
F 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.
G 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:
64
H [1988] ECHR 15
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 663
[V. RAMASUBRAMANIAN, J.]

“32. A demonstration may annoy or give offence to persons A
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
B
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.
Genuine, effective freedom of peaceful assembly cannot,
therefore, be reduced to a mere duty on the part of the C
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 D
(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 privately-run home for
children with mental disabilities was sued on the ground that a 16-year-
old inmate was subjected to sexual assault. When the case was dismissed E
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) F
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. G
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 H
664 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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. Part-III of the Indian Constitution begins with Article 12 which
defines the expression “the State” to include the Government and the
B 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, Part-III of the Constitution
C proceeds to deal with rights. There are some Articles in Part-III 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
D contained in Part 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:
E

F

G

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 665
[V. RAMASUBRAMANIAN, J.]

A

B

C

D

E

F

G

H
666 SUPREME COURT REPORTS [2023] 8 S.C.R.

A

B

C

D

E

F

G

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 667
[V. RAMASUBRAMANIAN, J.]

74. The above table would show that some of the Articles of A
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 Part-III are to
be honored by and also enforceable against, non-State actors.
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 non- B
State actors also. The owner of a shop, public restaurant, hotel or place
of entertainment, though a non-State 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 C
enforced with any disability arising out of untouchability is available against
non-State actors under Article 17. The right against double jeopardy,
and the right against self-incrimination available under sub-Articles (2)
and (3) of Article 20 may also be available even against non-State actors
in the case of prosecution on private complaints. We need not elaborate D
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
non-State actors, of fundamental rights, other than those covered in
column 2 of the Table in para 73 above. To begin with, this Court was E
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, F
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 G
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 H
668 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
exclude such a suggestion”.
(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 Varma66 holding that the
language of Article 31(1) and Article 21 are similar and
C 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
D 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
E 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
F 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 rights of the corporation must be exercised within
constitutional limitations. After quoting the decision in
G 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
66
AIR 1956 SC 108
67
(1975) 1 SCC 421
68
H 326 US 501 (1946)
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 669
[V. RAMASUBRAMANIAN, J.]

force, set any limitation upon private action. Article 13(2) A
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
B
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 C
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
D
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 E
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. F
(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 G
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
H
670 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C (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
34, which contains the separate but concurring opinion of
Dr. A.S. Anand, J., the law was summarised as follows:-
D “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
E 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
F 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,
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 671
[V. RAMASUBRAMANIAN, J.]

under the private law but in the broader sense of A
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
B
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.” C
(vii) In Lucknow Development Authority vs. M.K. Gupta69
this Court pointed out that the administrative law of
accountability 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 D
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 E
Sections 312, 420, 493, 496 and 498-A 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 F
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 G
by this Court under Article 32 even against the non-
state actor (namely the accused). This decision was cited
with approval in Chairman, Railway Board & Ors. vs.
Chandrima Das (Mrs.) & Ors. 70.
69
(1994) 1 SCC 243
70
(2000) 2 SCC 465 H
672 SUPREME COURT REPORTS [2023] 8 S.C.R.

A (ix) As rightly highlighted by the learned amicus, this Court has
awarded damages against non-State 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
Nath71 where a company built a club on the banks of River
B
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 India72 and also
C applied in Indian Council for Enviro-Legal 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
D
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
E 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. 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
F
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
G follows:-
“10. In the matter of enforcement of fundamental rights
under Article 21, under public law domain, the Court, in
71
(1997) 1 SCC 388
72
(1996) 5 SCC 647
73
H (1996) 3 SCC 212
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 673
[V. RAMASUBRAMANIAN, J.]

exercise of its powers under Article 32 of the A
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
B
enforces the “POLLUTER-PAYS 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. C
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 D
of the health of the workmen and to preserve free and
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 E
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 F
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.” G

(xi) In Vishaka vs. State of Rajasthan.75, this Court laid down
guidelines, in the absence of a legislation, for the enforcement
74
(1995) 3 SCC 42
75
(1997) 6 SCC 241 H
674 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
Article 14, 15, 19(1)(g) and 21. In Medha Kotwal Lele &
Ors. vs. Union of 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
C 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
D 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
E 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,
F 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
G 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 dignity of women and gender
76
(2013) 1 SCC 297
77
H (1999) 2 SCC 228
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 675
[V. RAMASUBRAMANIAN, J.]

equality, traceable to Article 21 and 14, this Court read down A
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 B
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: C

“187. Inasmuch as education, pursuant to T.M.A. Pai
[(2002) 8 SCC 481], is an occupation under sub-clause
(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 D
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 E
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 F
offers such facilities ought not to be conducting
their affairs in a manner which promote existing
discriminations and disadvantages.”
(xiv) In Society for Unaided Private Schools of Rajasthan
(supra), the constitutionality of Section 12 of the Right of G
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

78
(2011) 7 SCC 179 H
676 SUPREME COURT REPORTS [2023] 8 S.C.R.

A sector. While upholding the Constitutionality of the provision,
which required all schools, private and State-funded, to
reserve 25% of its intake for students from disadvantaged
background, this Court held:
“222. The provisions referred to above and other
B 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
C violated by non-State actors. For non-State actors to
respect children’s rights casts a negative duty of non-
violation 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
D and take measures for progressive improvement. In
other words, in the spheres of non-State 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
E 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
dignity and inequality is not meted out to similarly placed
persons. This Court observed as follows:

F “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
G practise their profession. The State has an obligation
to ensure that these rights are protected —
particularly for those who are disabled. …”

79
H (2016) 7 SCC 761
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 677
[V. RAMASUBRAMANIAN, J.]

This Court awarded compensation to the petitioner against A
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 B
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 scot-free merely because it C
is not a State. The said logic was extended by this Court to
a “Deemed to be University” in Janet Jeyapaul vs. SRM
University 81, on the ground that though it is a private
university, it was discharging “public functions”, by imparting
education. D
77. All the above decisions show that on a case-to-case 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 E
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 F
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 G
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
80
(2005) 4 SCC 649
81
(2015) 16 SCC 530 H
678 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 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
B
recognised by Article 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.
398. Privacy has the nature of being both a common law right as
C 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
D 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
E 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
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
F 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
G as follows:

82
AIR 1950 SC 27
83
AIR 1951 SC 301
84
R.D. Shetty vs International Airport Authority (1979) 3 SCC 489
85
H Andi Mukta vs V.R. Rudani (1989) 2 SCC 691
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 679
[V. RAMASUBRAMANIAN, J.]

“A fundamental right under Article 19/21 can A
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 B
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.
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. C
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 D
liberty except according to the procedure established by law. Going by
the scheme of Part-III 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
E
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
F
words “life” and “personal liberty” was not as it has evolved over the
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 G
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.
86
From H.W. Longfellow in “A Psalm of life” H
87
From Shakespeare in Macbeth
680 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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 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
C 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
D right by non-State 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 out-sourced to non-State
actors or been entrusted to public-private 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
E 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 respondent, for
finding out his amenability to the jurisdiction under Article 226.
85. Life and personal liberty are two different things, even while
F 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,
G focus more on two aspects, namely, (i) deprivation of personal liberty
by non-State 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
88
H (2011) 1 SCC 694
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 681
[V. RAMASUBRAMANIAN, J.]

that in this judgment, this Court identified in paragraph 53 of the Report A
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 discussion to personal
liberty, though at times both may overlap or get interchanged.
86. The expression “personal liberty” appearing in Article 21 B
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 C
included in the history-sheet 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 D
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 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 E
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 F
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 G
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
89
AIR 1963 SC 1295 H
682 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
fundamental right, but the said right is an essential ingredient of
personal liberty. Every democratic country sanctifies 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
C 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
D
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
E 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.”
F 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 11-Judge Bench finally discarded the view expressed
in A.K. Gopalan and held that various fundamental rights contained
G 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

90
(2014) 9 SCC 737
H 91
(1970) 1 SCC 248
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 683
[V. RAMASUBRAMANIAN, J.]

challenged in Gobind vs. State of Madhya Pradesh92. Though this Court A
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 B
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.
*** *** *** C
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 D
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 the realities of their natures.[See 26 E
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. F
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 G
“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.

92
(1975) 2 SCC 148
93
AIR 1967 SC 1836 H
684 SUPREME COURT REPORTS [2023] 8 S.C.R.

A The Court went on to hold that “the expression “personal liberty”
in Art. 21 takes in the right of loco-motion and to travel abroad, but
the right to move throughout the 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
B 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
C 7-Judge 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
D 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 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
E 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
F 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
G 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
94
(1978) 1 SCC 248
95
H (1984) 3 SCC 161
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 685
[V. RAMASUBRAMANIAN, J.]

if the workers are not bonded in the strict sense of the term as A
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
B
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, the people
of the country, that it is discharging its constitutional obligation C
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 D
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 E
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 F
where private citizens, namely, the All Arunachal Pradesh 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: G
“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

96
(1996) 1 SCC 742 H
686 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
duty-bound 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
B
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 well-being of Chakmas residing
in the State without being inhibited by local politics. …”
94. In Mr. ‘X’ vs. Hospital ‘Z’97, the appellant had accompanied
C 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 hospital to the
fiancée of Mr. “X”. Therefore, the proposal for marriage was called off
D 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 vis-à-vis the hospital (a private hospital),
E 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, doctor-patient relationship, though basically
F 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
G 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,

97
H (1998) 8 SCC 296
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 687
[V. RAMASUBRAMANIAN, J.]

thereafter, have a disturbed life all through. In the face of these A
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 may be lawfully restricted for the
prevention of crime, disorder or protection of health or morals or
B
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 C
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 medico-legal cases.
Before the victim could be taken to an authorized hospital located 20
kilometers away, he died, which prompted the writ petition. While issuing D
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 E
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 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 F
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 G
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. H
688 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 96. For instance, in Suchita Srivastava & Anr. vs. Chandigarh
Administration98,this Court had an occasion to consider the reproductive
rights of a mentally-challenged 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
B
Governments, of 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
C 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
D 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 right to
E privacy is mostly by private players and if fundamental rights cannot be
enforced against non-State 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,
F 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:-
G “55. The A.P. Amendment permits inspection being carried out
by the Collector by having access to the documents which are

98
(2009) 9 SCC 1
99
(2016) 10 SCC 726
100
(1997) 1 SCC 301
H 101
(2005) 1 SCC 496
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 689
[V. RAMASUBRAMANIAN, J.]

in private custody i.e. custody other than that of a public officer. A
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
B
right to privacy both of the house and of the person. We have
already referred to R. Rajagopal case [(1994) 6 SCC 632]
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] C
a seven-Judge 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 D
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 E
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 F
be no procedure at all within the meaning of Article 21.”
99. In Indian Woman says Gang-raped on orders of village
Court published in Business and Financial News dated 23-1-2014,
in Re102, this Court was dealing with a suo motu writ petition relating to
the gang-rape of a women under orders of a community panchayat as G
punishment for having a relationship with a man belonging to a different
community. After taking note of two earlier decisions, one in Lata Singh
vs. State of U.P.103 which dealt with honour killings of youngsters involved
102
(2014) 4 SCC 786
103
(2006) 5 SCC 475 H
690 SUPREME COURT REPORTS [2023] 8 S.C.R.

A in inter-caste, inter-religious 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
B possibly prevented the said occurrence. The response is certainly
a “yes”. The State is duty-bound 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.”
C
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.
D 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 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
E 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
F 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
G 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
104
(2011) 6 SCC 405
H 105
(2018) 7 SCC 192
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 691
[V. RAMASUBRAMANIAN, J.]

to allow any hostile group to create any kind of trench in A
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 which
protects the inner sphere of the individuals from interference by
both the State and non-State actors”. B
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 C
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 D
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 E
oral hearing has preceded judgment of a criminal appeal on
merits, may tilt the balance the other way.”
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 over-emphasized. F
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 non-State actor.
G
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
106
Anup Surendranath in his Article “Life and Personal Liberty” in The Oxford
Handbook of the Indian Constitution (South Asia Edition), 2016 H
692 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B need to understand the role of a Minister under our Constitutional scheme.
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
C 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.
D 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
E Government of India and Article 166 provides for the conduct of business
of the Government of a State. The duties of the Prime 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
F 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
G 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 sub-Articles (1) and
(3) of Article 166.
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 693
[V. RAMASUBRAMANIAN, J.]

110. There are special duties assigned to the Prime Minister and A
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 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 B
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 C
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 D
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 E
or omitted to be taken in his ministry. This again is a political
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 F
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. G
113. In State of Karnataka vs. Union of India. 108, a Seven
Member Constitution Bench of this Court, while dealing with a challenge
107
(1970) 1 SCC 443
108
(1977) 4 SCC 608 H
694 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 responsibility” appearing
in Article 164(2). After indicating that collective responsibility is
basically political in origin and mode of operation, Beg, C.J. opined
B
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,
C 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
D 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
E 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
F 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
G 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 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
H Commission appointed under Section 3 of the Act.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 695
[V. RAMASUBRAMANIAN, J.]

48. Text-book writers on Constitutional Law have indicated how A
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
B
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 C
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 D
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 E
continuance of a Minister or a 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 F
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.” G
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”.
H
696 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
second writ petition was filed challenging the appointment and also some
of the recruitment rules relating to 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
C 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:
D “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
E 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
F 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
G principles of the Constitution for the governance of the nation;
place the same before the Parliament for acceptance and to carry
on the executive function of the State as per the provisions of the
Constitution and the laws.

109
H (1993) 4 SCC 119
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 697
[V. RAMASUBRAMANIAN, J.]

30. Collective responsibility under Article 75(3) of the A
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
B
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 C
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 D
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, E
reach unanimity, or leave it unaltered. Despite persistence
of disagreement, 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 F
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.” G
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 H
698 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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
C by the law and the rules. The legal and moral responsibility 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
D 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:
E “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
F 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
G sense of priorities. The purpose must be genuine in a free
democratic society governed by the rule of law to further socio-
economic 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/
H by individual persons in collective or joint or individual capacity.
Therefore, they should morally be responsible for their actions.”
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 699
[V. RAMASUBRAMANIAN, J.]

121. In Vineet Narain vs. Union of India.110, this Court was A
concerned with a public interest litigation under Article 32 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
B
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 C
to be a discretionary quota, was first set aside by this Court by a judgment
reported in (1996) 6 SCC 530. Simultaneously, a show-cause 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 D
the petrol outlets. After the Minister responded to the show-cause notice,
an order was passed, reported in (1996) 6 SCC 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 E
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 F
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 G
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 77(1) or 77(2). Dealing with the concept of collective
responsibility, this Court held in paragraph 31 as follows:
110
(1998) 1 SCC 226 H
700 SUPREME COURT REPORTS [2023] 8 S.C.R.

A “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
B
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
C 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
D 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:

E “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 means of ordinary criminal or civil proceedings or by means of
impeachment, a remedy which is probably obsolete. They are
F also subject to the judicial review jurisdiction of the courts.
[See: Halsbury’s Laws of England, Fourth Edn., (Re-issue), Vol.
8(2), para 422.]”
125. In State (NCT of Delhi) vs. Union of India 111 , the
Constitution Bench of this Court was concerned with the interpretation
G 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.
111
H (2018) 8 SCC 501
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 701
[V. RAMASUBRAMANIAN, J.]

126. What follows from the above discussion is, (i) that the concept A
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.
B
It is not possible to extend this 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 C
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 D
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, viz-a-
viz the gravity of the misconduct.
E
128. The suggestion made by Shri Kaleeswaram Raj that the Prime
Minister, in the case of a Minister of the Union of India and 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 F
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 multi-party
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. G
129. Governments which survive on wafer-thin 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.
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702 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 submitted by
the Constitution Committee (UK) in the year 2014, under the title,
“Constitutional Implications of Coalition Government” it was pointed
B
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
C 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
D 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 (1760-
1820). According to the Briefing Paper, the development of today’s
E 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
F 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.
G
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
H Public Policy at the University of Sheffield, has also argued that
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 703
[V. RAMASUBRAMANIAN, J.]

the respect accorded to the doctrine of collective responsibility A
“has varied”, with its maintenance and disregard “owing as much
to politics as to propriety”.
An interesting example of this occurred in 2003 during the build-
up to the Iraq war. Robin Cook, the Leader of the House of
Commons, resigned in protest in March 2003 over the then Labour B
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 C
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 D
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”. E
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 F
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.
135. As all the literature on the issue shows, collective responsibility
is that of the Council of Ministers. Each individual Minister is responsible G
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.
H
704 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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,
B
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 gang-rape as a political
C conspiracy. The speech of 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
D
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
E 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
F
138. Question No.5 referred to us for consideration is “whether a
statement by a Minister, inconsistent with the rights of a citizen under
Part-III of the Constitution, constitutes a violation of such constitutional
rights and is actionable as ‘Constitutional Tort’?”

G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 705
[V. RAMASUBRAMANIAN, J.]

touching upon the affairs of the Ministry/ department of which he is in A
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.
B
140. Take for instance a case where a Minister makes a statement
that women are unfit to be employed in a particular avocation. It 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 C
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 D
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 E
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.”
142. If Crown Proceedings Act, 1947 changed the course of the F
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 G
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 H
706 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 context
B 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
C 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
D of the judges; and (v) that the old distinction between sovereign and the
non-sovereign 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
E contained the principles on which appropriate legislation should proceed.
It will be useful to extract paragraph 66 of the First Report 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:
F
“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
G
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
H
scope of their office or, employment.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 707
[V. RAMASUBRAMANIAN, J.]

(ii) The State as employer should be liable in respect of A
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 B
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
the State occupies or takes possession or assumes control of the C
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 D
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. E
(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 F
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 G
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.
H
708 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B have the same rights as 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
C 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.
D
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.
E (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
F
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
G 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 be made liable. Any claim based on indemnity
or contribution by the State may also be settled in such proceeding
H as all the parties will be before the court.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 709
[V. RAMASUBRAMANIAN, J.]

V. Exceptions: A
(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 B
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 C
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); D
(b) Diplomatic, Consular and trade representation (entry
11);
(c) United Nations Organisation(entry 12);
(d) Participation in international conferences, E
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
(f) war and peace (entry 15);
(g) foreign jurisdiction (entry 16);
(h) anything done by the President, Governor or
Rajpramukh in the exercise of the following functions: G
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;
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710 SUPREME COURT REPORTS [2023] 8 S.C.R.

A (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:
B
(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
C 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;
D (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:
E (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
F 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
G 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 Majid 112 , where a
112
H AIR 1954 SC 245
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 711
[V. RAMASUBRAMANIAN, J.]

Government servant who was dismissed but later reinstated, filed a suit A
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 phrase “durante bene
placito” (during pleasure) has no application in India. This decision was
followed in State of Rajasthan vs. Mst. Vidhyawati113, which involved
B
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 C
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, D
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, E
public transport, state trading, to name only a few of them. …”
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 F
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 G
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

113
AIR 1962 SC 933 H
712 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 the tortious act has been committed by a
B
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
C 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
D 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
E with a brutal incident of Police atrocity which resulted in twenty-four
prisoners being blinded. Though an opportunity was provided 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
F 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
G 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
114
H (1981) 1 SCC 627
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 713
[V. RAMASUBRAMANIAN, J.]

anything (towards compensation), this Court would be doing mere lip- A
service to the fundamental right to liberty and that one of the telling
ways 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 B
form, details of the cases where this Court awarded compensation in
public law, invoking the principle of constitutional tort, either expressly
or impliedly.

C

D

E

F

G

H
714 SUPREME COURT REPORTS [2023] 8 S.C.R.

A

B

C

D

E

F

G

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 715
[V. RAMASUBRAMANIAN, J.]

A

B

C

D

E

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. F
But as rightly pointed out by the learned Attorney General in his note,
the matter pre-eminently 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
G
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. H
716 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 Part-III 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
B 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”.
SUMMING UP
155. To sum up, our answers to the five questions referred to the
C Bench, are as follows:
QUESTIONS ANSWERS

1. Are the grounds specified in Article 19(2) in relation The grounds lined up in Article 19(2) for
to which reasonable restrictions on the right to free restricting the right to free speech are exhaustive.
speech can be imposed by law, exhaustive, or can Under the guise of invoking other fundamental
restrictions on the right to free speech be imposed on rights or under the guise of two fundamental rights
grounds not found in Article 19(2) by invoking other staking a competing claim against each other,
D 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 Article 19 or 21 of the A fundamental right under Article 19/21 can be
Constitution of India be claimed other than against enforced even against persons other than the State
the ‘State’ or its instrumentalities? or its instrumentalities.

3. Whether the State is under a duty to affirmatively The State is under a duty to affirmatively protect the
protect the rights of a citizen under Article 21 of the rights of a person under Article 21, whenever there is
E Constitution of India even against a threat to the a threat to personal liberty, even by a non-State actor.
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 A statement made by a Minister even if traceable to
affairs of State or for protecting the Government, be any affairs of the State or for protecting the
attributed vicariously to the Government itself, Government, cannot be attributed vicariously to the
especially in view of the principle of Collective Government by invoking the principle of collective
Responsibility? responsibility.
F 5. Whether a statement by a Minister, inconsistent with
the rights of a citizen under Part Three of the
A mere statement made by a Minister, inconsistent
with the rights of a citizen under Part-III of the
Constitution, constitutes a violation of such Constitution, may not constitute a violation of the
constitutional rights and is actionable as constitutional rights and become actionable as
‘Constitutional 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.

G
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.

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 717

NAGARATHNA, J. A

B

C

1. I have had the benefit of reading the erudite judgment proposed D
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:
E
“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; F
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: G
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
*Ed. Note : Pagination is as per the original Judgment. H
718 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 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
B
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:

C 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
D (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
E 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, Bulandshahr, Uttar Pradesh, for offences under
Sections 395, 397, 376-D, 342 of the Indian Penal Code,
F
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:
G “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 :-

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 719
[B. V. NAGARATHNA, J.]

a. Issue a writ of mandamus and/or any other A
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
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 C
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. D
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. E
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
F
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 G
case.
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.” H
720 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C 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.
D 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
E 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?
F 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
G 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,
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 721
[B. V. NAGARATHNA, J.]

constitutes a violation of such constitutional rights and is A
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 B
easy reference.

C

D

E

F

G

H
722 SUPREME COURT REPORTS [2023] 8 S.C.R.

A

B

C

D

E

F

G

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 723
[B. V. NAGARATHNA, J.]

A

B

C

D

E

\

F

G

H
724 SUPREME COURT REPORTS [2023] 8 S.C.R.

A

B

C

D

E

Submissions:
7. We have heard learned Senior Counsel, Sri Kaleeswaram Raj,
F for the Petitioners and learned Attorney General for the Respondents,
and learned Senior Counsel Ms. Aparajita Singh, amicus curiae.
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:
G
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
H check on the misuse of freedom of speech and expression
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 725
[B. V. NAGARATHNA, J.]

exercised by public functionaries using the apparatus of the A
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 B
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 C
individual Ministers warranting judicial intervention.
Therefore, even though no actionable breach of public duty
can be said to have taken place when statements are made
by people in power, this in turn, postulates the desirability to
have a voluntary code of conduct in the better interest of D
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 E
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.
F
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. G
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
H
summarized as under:
726 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 9.1. At the outset, Sri R. Venkataramani, Learned Attorney
Generalfairly 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).
B
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
C 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
D 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
E the consequence of opening a flood gate of constitutional
litigation.
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
F 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
G 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
H discharge of a public duty or duties of the office, was subject
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 727
[B. V. NAGARATHNA, J.]

to the scrutiny of law. However, such misconduct including A
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, B
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 limit the right under Article 19(1)(a) has C
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 D
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. E
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 F
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 G
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 or official capacity; ii) whether the statement
was made on a public or private issue; iii) whether the
H
statement was made on a public or private platform.
728 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C 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
aconstitutional tort. However, the principle of sovereign
immunity of the state for the tortious acts of its servants,
D 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
E 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 fundamental rights?”
Preface:

F 11. In my view, these casescall 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 speechis not
contingent only upon the laws of a nation. The compulsion of social
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 729
[B. V. NAGARATHNA, J.]

interpreted, having regard, inter-alia, to the content and permissible limits A
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 B
sensitivity. Many of these ideals are written into the text of our
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 C
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 D
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) E
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 F
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 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, G
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
H
730 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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 –
C
(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
D 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,
E
defamation or incitement to an offence.”
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,
F
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
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 731
[B. V. NAGARATHNA, J.]

Article 19(2) there of which can be imposed by the State A
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,
B
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 a concomitant for the purpose of not only ensuring C
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, D
the manner in which they should conduct themselves in a
democracyand 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 E
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. F

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.
G
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 all democratic
organisations, held that said freedom would also
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732 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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.
B 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,
C (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:
D “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
E 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
F 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
G speech can only pass muster if it is proximately
related to any of the eight subject-matters set out
in Article 19(2).”
It was further observed that insofar as the first apparent
difference is concerned, the United States Supreme Court
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 733
[B. V. NAGARATHNA, J.]

has never giveneffect to the declaration that Congress shall, A
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 B
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 C
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 D
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 E
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 F
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 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 G
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
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734 SUPREME COURT REPORTS [2023] 8 S.C.R.

A powers on authorities to curtail freedom of speech and
expression arbitrarily.
12.7. Thepresent 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
B 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
C 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 riseto a cause of action to another citizen to seek
a remedy.
D 13. The content of a fr ee speech r ight, 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
E 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
F 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:
G 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,
H addresses whether the right includes not only negative
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 735
[B. V. NAGARATHNA, J.]

prohibitions on relevant others but also positive obligations, A
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
B
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 C
rebutted? Collectively, by constituting and expressing 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) D
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. E
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 F
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 G
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:
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736 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C 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
D
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
E compatible with the ethos cultivated in a civilised society,
the duty of the State to abstain from interference, is high.
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
F 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
G 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
H affirmative, such speech would be protected under Article
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 737
[B. V. NAGARATHNA, J.]

19(1)(a); if the answer is in the negative, such speech would A
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.
B
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 not form the content of Article 19(1)(a), the State has
no duty to abstain from interference and therefore, speech C
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 D
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 E
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 F
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 restraints G
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.
H
738 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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
C 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.
D 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.”).
In Life Insurance Corporation vs. Prof. Manubhai
E 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
F 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
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 739
[B. V. NAGARATHNA, J.]

its magazine or other platform, one’s views, including one’s A
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 B
and also determine the content and reach thereof.
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 C
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 D
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 E
dissent are noteworthy:
(i) In Romesh Thappar, this Court recognised that
cr iticism or dissent dir ected against the
Government, was not to be curtailed and any
attempt to do so could not be justified as a F
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 G
inaction. It is now recognised that the right to
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 H
740 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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 Director ate General of
C 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.
D (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,
E 509 of the IPC, based on complaints regarding the
unpopular comments made by the appellanttherein,
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
F 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
G 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
H as newspaper, television or other electronic media, etc.,
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 741
[B. V. NAGARATHNA, J.]

in order to encourage people to buy or use them. In other A
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
B
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:
(i) In Hamdard Dawakhana (Wakf) Lal Kuan vs. C
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 D
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 E
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 F
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 G
is the nature of advertisement and what is the business/
commercial activity falling under Article 19(1)(g) it seeks
to further.
In the aforesaid case, what was challenged was the
Drugs and Magic Remedies ( Objectionable H
742 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
relating to commerce or trade and not propagation of
ideas. Such advertising of prohibited drugs or commodities
the sale of whichwas 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).
C 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
D 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.
E Ltd.”), this Court considered the decision in Hamdard
Dawakhana and 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
F 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
G 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,
H the State was completely free to recall commercial
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 743
[B. V. NAGARATHNA, J.]

speech which is false, misleading, unfair, deceptive and A
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.
B
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” provision in a statute. An example of compelled
speech is a provision mandating printing of the ingredients, C
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 D
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 E
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 F
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 G
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 propaganda
or project a partisan or distorted point of view, H
744 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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.
B (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.
C
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
D 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
E 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 speech under Article 19(1)(a), as
recognised in Bijoe Emmanuel vs. State of Kerala,
F (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
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 745
[B. V. NAGARATHNA, J.]

also in the matter of exercising the said freedom. In other A
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
B
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.
16.2. This Court, in Pravasi Bhalai Sangathan vs. Union of C
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 D
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 E
expression that exposes the group to hatred,
hat e speech seeks to delegitim ise 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 F
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 G
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)
H
746 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 Supreme
B
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
C 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
D
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
E 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”)
F 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 justification for criminalization
of ‘hate speech’ was discussed as follows:
G “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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 747
[B. V. NAGARATHNA, J.]

relationships between the citizens, and between the State A
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 B
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 C
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 D
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 E
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 F
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 G
incitement of violence to challenge unity and
integrity of the nation or public disorder tend to
trample upon liberty and freedom of others.”
(Emphasis by me)
H
748 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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’:
B
“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
C 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,
D 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.
E 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
F 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 produce structural
continuity to constitute ‘hate speech’.”
G 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
H
the perspective of a reasonable member of the public.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 749
[B. V. NAGARATHNA, J.]

16.4. Further, in a landmark Judgment of the United States’ A
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
B
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 C
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 did not find the same to be of relevance
in the Indian social mosaic considering that the other D
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 ourCountry.
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 E
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 F
which prohibit hate speech. Section 153-A penalises
the promotion of class hatred. Section 153-B penalises
“imputations, assertions prejudicial to national
integration”. Section295-A penalises insults to religion
and to religious beliefs. Section 298 makes it a penal G
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. H
750 SUPREME COURT REPORTS [2023] 8 S.C.R.

A ii) Section 95 of the Code of Criminal Procedure,
1973 (“CrPC”) empowers the State Government to
forfeit 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
B
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
C 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
D 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
E 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 theScheduled Castes and the
F Scheduled Tribes (Prevention of Atrocities) Act,
1989 punishes an intentional insult or intimidation with
intent to humiliate a member of a Scheduled Caste
or Tribe in any place within public view.
vi) Section 8 of theRepresentation of the People Act,
G 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
H India on grounds of religion, race, caste, community,
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 751
[B. V. NAGARATHNA, J.]

or language, by a candidate or his agent or any other A
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, B
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: C

(a) contains an attack on religion or communities
or contains visuals or words contemptuous of
religious groups or which promotes communal
attitudes;
D
(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 E
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 F
regional groups.
Similarly, the Advertising Code under Rule 7
of theCable Television Networks Rules, 1994
prohibits the carriage of advertisements on the cable
service which hurt the religious susceptibilities of
G
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
H
752 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
disturb public tranquillity. Further, the Central
Government is empowered to prohibit the transmission
or re-transmission of any channel or programme in
the interest of the sovereignty, integrity or security
of India or of public order.
C 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.
D 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
E 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
F 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
G on the reporting of communal incidents.
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
H dissemination.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 753
[B. V. NAGARATHNA, J.]

16.6. One of the recommendations of the 267th Law Commission A
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 B
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 C
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 D
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 E
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; F
(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
G
punished with imprisonment for a term which may
extend to one year and/or fine up to Rs 5000, or
both”.
The proposed provisionunder Section 505-A, seeks to
control not only speech that could potentially incite violence
H
754 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C ‘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
harmthrough potential social, economic and political
D 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 and understood.I
E am concerned with speech that may not belinked 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,
F 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
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 755
[B. V. NAGARATHNA, J.]

being persecutorial, disregarding or hateful. The author has A
also recognised that in some contexts, “at home speeches”
may themselves amount to hate speeches as such speech
cannow 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
B
speech primarily carries no meaning other than hatred,
hostility and ill-will.”
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 C
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 D
Lau Tzu, a celebrated Chinese philosopher and writer, in the following
words:
“Watch your thoughts; they becomewords.
Watch your words; they becomeactions.
E
Watch your actions; theybecome habit.
Watch your habits; theybecome character.
Watch yourcharacter; it becomes your destiny.”
19. Theoretical and doctrinal underpinnings justifying restraints
on derogatoryand disparaging speech, may be traced to two primary F
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:
G
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
must be exercised in a manner that would protect and promote the rights
of fellow-citizens.
H
756 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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.
B 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
C 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
D 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-
E targeted members of the group, sometimes representing
society at large, on the other hand, may gradually become
de-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
F 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
G 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
H eroding the tolerance and open mindedness that must
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 757
[B. V. NAGARATHNA, J.]

flourish in a multicultural society which is committed to A
the idea of equality.”
ii) Australia: The position of lawin 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 B
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:
C
“(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. D

(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 E
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 F
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 G
paramount constitutional value has been recognised in South
Africa. The Constitutional Courthas 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
H
758 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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,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
C 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
D 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
E 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
F 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 the reputation of another by
stating that the same curbs and puts unreasonable restriction on the
G 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,
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 759
[B. V. NAGARATHNA, J.]

comfortable and (noise) pollution free environment,guaranteed by A
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 B
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
themleading to indignity.
23. Rule of Law, includes certain minimum requirements without C
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 Aharon Barak, former
Chief Justice of Israel, has lucidly explained this facet of Rule of law in D
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 E
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”. F
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.” G
(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
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760 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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:
B “62. It is now almost accepted that there are no absolute
constitutional rights [Though, debate on this vexed issue
still continues and some 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
C 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
D 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
E 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
F 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
G 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
H relativity means that a constitutional licence to limit those rights is
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 761
[B. V. NAGARATHNA, J.]

granted where such a limitation will be justified to protect public A
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
B
people element, limiting those very rights through their
representatives. These two constitute a fundamental component
of the notion of 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 C
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
D
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. E
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 clarifiedthat at this juncture that it is not necessary to F
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 G
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. H
762 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C 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.
D 27. Fraternity is based on the idea that citizens have reciprocal
responsibilities towards one another. The termtakeswithin 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
E 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
F 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
G 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 back drop of the
ideal of fraternity. This Court observed that the fraternal
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 763
[B. V. NAGARATHNA, J.]

ideal also finds resonance in Part IVA of the Constitution. A
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:
B
“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 a
member of the collective. The individual should have all C
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 D
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 E
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 F
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 G
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
H
764 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C 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.”
D (Emphasis by me)
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
E 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
F 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.
G 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, assuresthat the dignity of individuals cannot be
H dented by means of unwarranted speech being made by
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 765
[B. V. NAGARATHNA, J.]

fellow citizens, including public functionaries. Thus, the A
Preamble of the Constitution and the values thereof assuring
the people of India not only justice, 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
B
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 C
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 D
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 E
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. Sub-
clause (c),(e) and (j) of Article 51-A of the Constitution which are relevant
to these cases read as follows:
F
“Article 51-A. Fundamental Duties- .—It shall be the duty of
every citizen of India—
(a) xxx
(b) xxx
G
(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 H
766 SUPREME COURT REPORTS [2023] 8 S.C.R.

A religious, linguistic and regional or sectional diversities;
to renounce practices derogatory to the dignity of
women;
(f) xxx
(g) xxx
B
(h) xxx
(i) xxx
(j) to strive towards excellence in all spheres of individual
and collective activity so that the nation constantly rises
C 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
D 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.
E
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
F
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
G 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
H practically negated, in so far as the reach of their speech is concerned.
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 767
[B. V. NAGARATHNA, J.]

31. However, given the specific submission of the petitioners herein A
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.
32. It may be appropriate at this juncture to refer to the writings B
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 C
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 D
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 E
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 F
will significantly contribute in eliminating instances of 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 G
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 H
768 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C of rights are 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 ‘vâE-maya tapas:’

D

Anudvega-karaA vâkyaA satyaA priya-hitaA cha yat
SvâdhyâyâbhyasanaA chaiva vâE-mayaA tapa uchyate
E
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.

F 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,
G 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?

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 769
[B. V. NAGARATHNA, J.]

36. All human beings are endowed at birth, with certain inalienable A
rights and among such rights are right to life and liberty, including liberty
of thought and expression. These rights have been recognized as
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
B
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 C
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
D
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: E
“1514. While dealing with natural rights, Roscoe Pound states on
page 500 of Vol. I of his Jurisprudence:
“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 F
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 G
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
H
770 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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
C 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
D 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
E denied by describing 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
F 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
G 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
H fundamental rights would have the effect of denuding human beings
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 771
[B. V. NAGARATHNA, J.]

of basic dignity and would result in the extinguishment of essential A
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 B
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 C
not the sole repository of the right to life and personal liberty. That such
rights inhered in men even prior to the enactment of 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 D
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, E
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 F
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 G
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 H
772 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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 right of human beings in civilised
societies governed by the rule of law. Many modern
B
constitutions incorporate certain fundamental rights,
including the one relating to personal freedom.”
xxx
“155. Sanctity of life and liberty was not something new when
C 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
D 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
E 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.
F 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
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 773
[B. V. NAGARATHNA, J.]

laid down in constitutions and laws approved by either the people A
or their representatives. Law thus emerges as a norm limiting the
application of power by the government 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
B
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 C
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 D
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 E
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 F
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 G
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 H
774 SUPREME COURT REPORTS [2023] 8 S.C.R.

A “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
B
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
C 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
D
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
E 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
F
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
G 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 vested with the power
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 775
[B. V. NAGARATHNA, J.]

of issuing writs of habeas corpus under Article 226. No A
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
B
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 C
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] D
In holding thus, H.R.Khanna, J. refused to subscribe to the majority
view in the said casethat 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 E
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.
F
38. The strength of H.R. Khanna, J’s minority opinion was
subsequently acknowledged and affirmed by this Court in
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, G
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 H
776 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B 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
C 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
D 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 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
E 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
F 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
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 777
[B. V. NAGARATHNA, J.]

answers when a citizen has been deprived of these, most precious A
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, B
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/ C
natural rights to the Constitutional plane was to make them
specifically enforceable against the State and its agencies
through Courts of Law.
ii) Notwithstanding that such rights have been placed in Part
III of the Constitution of India, the rights are concurrently D
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 E
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.
F
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 G
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. H
778 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 40. With historical and political changes and the advent of
democracy and of Constitutional government, the “State”was created
under and 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
B
their interests. In order to reconcile the competing effects of creation of
the State, certaincommon 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
C 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
D 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
E 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
F to forge a new relationship between the citizens and the State, which
was the new site of Governmental power. The realm of interaction
between 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
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 779
[B. V. NAGARATHNA, J.]

Constitutional and Fundamental Rights of citizens is on the State and the A
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
B
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 C
duty to respect a Fundamental Right, except where expressly otherwise
provided, is on the State. Remedies against violation of 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 D
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 E
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 F
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 G
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
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780 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
entity recognized by Article 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
C 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]
D 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
E 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
F 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.
G Where interference is by an entity other than State or its 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 781
[B. V. NAGARATHNA, J.]

have been transformed into statutory rights under specific enactments A
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:
B
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 C
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. D
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 forum which would
be called upon to adjudicate on the failure to respect each
of such rights. E

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:
F
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 G
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 H
782 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B although there is no express reference to the State in Article
21, it could not be suggested that the Article was intended
to 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.
C
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
D 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
E 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
F 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 buy plots under the aegis of
the Cooperative Society. This restrictive covenant in the
G 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
H company and were not like a statute. The bye-laws were
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 783
[B. V. NAGARATHNA, J.]

only “binding between the persons affected by them.” A
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
B
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 C
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.
Through its jurisprudential labour, this Court has devised D
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 E
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]
F
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 G
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 H
784 SUPREME COURT REPORTS [2023] 8 S.C.R.

A fundamental rights claims against all persons. A private body,
acting in private capacity, fulfilling a private function, cannot
be axiomatically amenable to the claims of fundamental
rights violations.
The decision of this Court in Ramakrishna Mission
B 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
C 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,
D 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
E 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 held that medical services were provided
F 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
G 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
H Rights between citizens inter sewould set at naught and
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 785
[B. V. NAGARATHNA, J.]

render redundant, all the tests and doctrines forged by this A
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
B
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 significantly expanded the scope of “State” C
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
D
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 E
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 F
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 horizontal claim for fundamental G
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
H
786 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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,
C 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
D
Articles 226 or 32, as the case may be.
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
E 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
F 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
G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 787
[B. V. NAGARATHNA, J.]

of Article 21 of the Constitution, irrespective of whether the detention is A
by the State or by a private person.
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 B
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 C
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 D
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 E
made available even as against private persons, in which event the power
exercised by this Court could be in accordance 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 F
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 G
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.”

H
788 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C 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 as
well as Article 32 of the Constitution, is festium remidium, i.e., a speedy
D 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
E 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
F 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.

G 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
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 789
[B. V. NAGARATHNA, J.]

Constitutional Courts except those rights which have been statutorily A
recognised and in accordance with the applicable law. 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 can be
before a Constitutional Court i.e., by way of Article 226 before the
B
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? C

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:
D
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 E
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 F
there is delay 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 G
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
H
790 SUPREME COURT REPORTS [2023] 8 S.C.R.

A 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
B
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
C 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
D
forcibly expel them from the State. In that background, a
writ 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
E 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
F
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
G 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
H their right to life and personal liberties. It was in that context
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 791
[B. V. NAGARATHNA, J.]

that this Court declared that the State is bound to protect A
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 gratiamonetary compensation to the families of B
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, C
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 D
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; E
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 F
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 Constitution to protect the
G
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 actors which would undermine the life and liberty H
792 SUPREME COURT REPORTS [2023] 8 S.C.R.

A of other persons etc. This Court has, on several occasions,
issued writs of mandamus directing State authorities to carry
out such statutory obligations. In directing so, this Court
may have referred to the right to life and personal liberties
under Article 21. However, such reference to Article 21 is
not to be construed as an acknowledgement by the Court
B
of an affirmative duty on the part of the State under Article
21 of the 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.Given that Article 21 only
imposes a negative duty, a violation of the same would occur
C only when the State undertakes an obligation by enacting a
statute or a scheme, but does not fulfil it. Thus, the violation
will only occur when a scheme has been initiated but is not
being appropriately implemented, as was noted in the
aforecited cases.
D In light of the aforesaid discussion, Question No. 3 is answered
as follows:
“The duty cast upon the State under Article 21 is a negative
duty not to deprive a person of his life and personal liberty
except in accordance with law. The State has an affirmative
E duty to carry out obligations cast upon it under statutory and
constitutional law, which are based on the Fundamental Right
guaranteed under Article 21 of the Constitution. Such
obligations may require interference by the State where acts
of a private actor may threaten the life or liberty of another
individual. Failure to carry out the duties enjoined upon the
F State under 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 liberties, the State would have breached
the negative duty cast upon it under Article 21.”
G Re: Question No. 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?
45. A Minster may make statements in two capacities: first, in his
H personal capacity; second, in his official capacity and as a delegate of
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 793
[B. V. NAGARATHNA, J.]

the Government. It is a no brainer that in respect of the former category A
of statements, no vicarious liability may be attributed to the Government
itself. The latter category of statements may be traceable to any affair
of the State or may be made with a view to protect the Government. If
such statements are disparaging or derogatory and represent not only
the personal views of the individual Minister making them, but also
B
embody the views of the Government, then, such statements can be
attributed vicariously to the Government itself, especially in view of the
principle of Collective Responsibility. In other words, if such views are
endorsed not only in the statements made by an individual Minister, but
are also reflective of the Government’s stance, such statements may be
attributed vicariously to the Government. However, if such statements C
are stray opinions of an individual Minister and are not consistent with
the views of the Government, then they shall be attributable to the Minister
personally and not to the Government.
Therefore, Question No. 4 is answered as follows:
“A statement made by a Minister if traceable to any affairs of D
the State or for protecting the Government, can be attributed
vicariously to the Government by invoking the principle of
collective responsibility, so long as such statement represents
the view of the Government also. If such a statement is not
consistent with the view of the Government, then it is E
attributable to the Minister personally.”
Re: Question No. 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’? F
46. While public law and private law are in theory, treated as
analytically different, in practice, the divide between the two spheres is
often blurred. As a result, ideas, concepts and devices from one sphere,
influence the other. Such an intermingling has given rise to the doctrine
of horizontal effects as discussed hereinabove, wherein a constitutional G
directive or norm (Fundamental Right) is interpreted by Courts to apply
between individuals.
47. Another concept which can be traced to the interaction
between public law and private law is that of a Constitutional tort, which
in essence attributes vicarious liability on the State for acts and omissions
H
794 SUPREME COURT REPORTS [2023] 8 S.C.R.

A of its agents which result in violation of fundamental rights of an individual
or group. A constitutional tort is a violation of one’s constitutional rights,
particularly fundamental rights, by an agent of the government, acting in
his/her official capacity. The alleged constitutional violation creates a
cause of action that is distinct from any other available state tort remedy.
It however, carries with it, the essential element of tort law, which seeks
B
to redress a harm or injury by awarding monetary compensation by a
competent court of law.
Writ Petition: Principles of Procedure
48. Normally the filing of a writ petition invoking Article 32 of the
C Constitution before the Supreme Court or Article 226 before the High
Court is resorted to seeking an extraordinary remedy. The prerogative
powers of the High Court are not exercised for enforcement of private
rights of the parties but are for the purpose of ensuring that public
authorities act within the limits of law. Writ remedy is thus not a private
law remedy except writ of habeas corpus. Thus, writ petition would lie
D against the State including local authorities and other authorities as defined
under Article 12 of the Constitution which is an inclusive definition which
takes within its scope and ambit all statutory bodies instrumentalities and
authorities or persons charged with, or expected to exercise, public
functions or discharge public duties. A writ petition may be instituted for
E the enforcement of any fundamental rights guaranteed by Part III of the
Constitution under Article 32 before the Supreme Court but under Article
226 of the Constitution, the jurisdiction of the High Courts is wider than
the jurisdiction of the Supreme Court inasmuch as the said Article may
be invoked for enforcement of fundamental rights as also “for any other
purpose”.
F
Tortious liability:
49. In India, the government can be held liable for tortious acts of
its servants and can be ordered to be paid compensation to the persons
suffering as a result of the legal wrong. Article 294(b) of the Constitution
G declares that the liability of the Union Government or the State
Government may arise “out of any contract or otherwise”. The word
otherwise implies that the said liability may arise for tortious acts as
well. Article 300 enables institution of appropriate proceedings against
the government for enforcing such liability.

H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 795
[B. V. NAGARATHNA, J.]

50. Even prior to the commencement of the Constitution, the liability A
of the Government for tortious acts of its servants or agents were
recognised vide Peninsular & Oriental Steam Navigation Co. vs.
Secy. Of State, (1868-69) 5 Bom HCR APP 1. After the
commencement of the Constitution, there have been several cases in
which the Union of India and State Governments were held liable for
B
tortious acts of their employees, servants and agents. All those cases
were not necessarily by invoking the writ jurisdiction of the Supreme
Court and the High Courts. Though, the Government is liable for tortious
acts of its officers, servants or employees, normally, such liability cannot
be enforced by a Writ Court. An aggrieved party has the right to approach
the competent court or authority to seek damages or compensation in C
accordance with the law of the land.
51. But if fundamental rights have been violated, and if the court
is satisfied that the grievance of the petitioner is well founded, it may
grant the relief by enforcing a person’s fundamental right. Such relief
may be in the form of monetary compensation/damages. Instances of D
such cases are Rudul Sah vs. State of Bihar, (1983) 4 SCC 141;
Sebastian M. Hongray vs. Union of India, (1984) 3 SCC 82; Bhim
Singh vs. State of J&K, (1985) 4 SCC 677; People’s Union for
Democratic Rights vs. Police Commissioner, (1989) 4 SCC 730;
Saheli vs. Commissioner of Police, (1990) 1 SCC 422; State of
Maharashtra vs. Ravikant S. Patil, (1991) 2 SCC 373; Kumari vs. E
State of Tamil Nadu, (1992) 2 SCC 223; Shakuntala Devi vs. Delhi
Electric Supply Undertaking, (1995) 2 SCC 369; Tamil Nadu
Electricity Board vs. Sumanth, (2000) 4 SCC 543; Railway Board
vs. Chandrima Das, (2000) 2 SCC 465.
52. Article 21 has played a significant role in shaping the law on F
tortious liability of the Government. This Court has asserted that the
concept of sovereign function, which acts as an exception to attracting
tortious liability, ends where Article 21 begins. Therefore, this Court has
been willing to defend life and liberty of persons against state lawlessness
by holding that where Article 21 is violated, the State has to pay G
compensation and the concept of sovereign function does not prevail in
this area.
53. This proposition may be specifically traced to early PILs, which
began in India in the 1980s, primarily in cases where officials of the
State, such as prison officials had mistreated prisoners. The focus of the H
796 SUPREME COURT REPORTS [2023] 8 S.C.R.

A first phase of PIL in India was on exposure of repression by the agencies
of the state, notably the police, prison, and other custodial authorities.
These early PILs were essentially Constitutional tort actions which
concerned allegations of violation of protected fundamental rights, as a
result of acts or omissions on the part of officials of the State. Therefore,
Constitutional law and tort law came to be merged by this Court under
B
the rubric of PIL, and this Court began allowing successful petitioners to
recover monetary damages from the State for infraction of their
fundamental rights. In such cases, there may have been statutory rights
of persons also which would then be an enunciation of an aspect of
Fundamental Rights particularly under Article 21 of the Constitution.
C 54. In Rudul Sah vs. State of Bihar, (1983) 4 SCC 141, Y.V.
Chandrachud, CJ., gave further momentum to fundamental rights to
combat state lawlessness by granting cash compensation to a victim of
unlawful incarceration for fourteen years. It is to be noticed that His
Lordship, in the said case, took note of the dilemma in allowing a litigant
D to seek damages in a writ petition/PIL action against the State. His
Lordship noted that this could have the effect of ordinary civil action
being circumvented on a routine basis, by invoking writ jurisdiction of
the High Courts and the Supreme Court as an alternative to ordinary
civil action. However, it was recognized that granting such remedies
would enhance the legitimacy of the vehicle of PIL. Therefore, this
E Court in Rudul Sah ultimately chose to grant monetary damages, in
order to ‘mulct’ the violators, as well as to offer a ‘palliative’ for victims.
Subsequent to the decision in Rudul Sah, compensatory relief has been
granted as a means to ‘civilize public power’in several cases involving
abrogation of Fundamental Rights, [See for instance, Sabastian M.
F Hongray vs. Union of India, A.I.R. 1984 SC 1026; Bhim Singh,
MLA vs. State of Jammu and Kashmir, A.I.R. 1986 SC 494.]
55. In Nilabati Behera vs. State of Orissa, (1993) 2 SCC 746,
this Court observed that the award of compensation in a proceeding
under Article 32 or Article 226 of the Constitution is a remedy available
G in public law based on strict liability for contravention of fundamental
rights. In respect of such actions, the doctrine of sovereign immunity
does not apply, though it may be available as a defence in a private law
in an action based on tort. Drawing a distinction between proceedings
under the private and public law, it was observed that a public law
proceeding may serve a different purpose than a private law proceeding.
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 797
[B. V. NAGARATHNA, J.]

Public law proceedings are based on the concept of strict liability for A
contravention of guarantee basic and indivisible rights of the citizens by
the State. The purpose of public law is not only to civilise governmental
power and but also to assure the citizens that they live under a legal
system which gains to protect their interest and preserve their rights.
Therefore, when the court moulds the relief by granting compensation,
B
in proceedings under Article 32 and Article 226 of the Constitution seeking
enforcement or protection of fundamental rights, it does so under public
law by way of employing elements of the law of torts and fixing the
liability on the State which has been negligent and has failed in its public
duty to protect the fundamental rights of the citizens. The payment of
compensation under such cases is not to be understood as it is generally C
understood in a civil action for damages under private law, but in the
broader sense of providing relief by ordering monetary amounts to be
paid for the wrong done due to breach of public duty which would have
the effect of violation of fundamental rights of citizens. Such grant of
damages in exercise of a writ jurisdiction by the constitutional courts is
D
independent of the rights available to the aggrieved party to claim
compensation under private law in an action based on tort. Therefore, a
suit may be instituted in a competent court of law or proceedings may be
initiated to prosecute the offender under the penal law.
56. Though, in D.K.Basu vs. State of West Bengal, (1997) 1
SCC 416 monetary compensation was granted, in Hindustan Paper E
Corporation Ltd. vs. Ananta Bhattacharjee, (2004) 6 SCC 213 this
Court cautioned that a direction to pay compensation under Article 226
of the Constitution is permissible as a public law remedy and resorted to
only when there is a violation by the State or its agents acting in official
capacity of the fundamental right guaranteed by Article 21 of the F
Constitution, and not otherwise. It was further observed that it is not
every violation of the provisions of the Constitution or a statute which
would enable the court to direct grant of compensation. The power of
the court to grant compensation in public law is limited. Therefore,
normally in case of tortious liability, the person aggrieved has to approach
a civil court for ventilating his grievances and he cannot invoke the writ G
jurisdiction of the Supreme Court or a High Court. However, if the duty
breached is of a public nature or there is violation or breach or infringement
of a fundamental right by an act or omission on the part of the authority,
it is open to the party who has suffered a “legal wrong” to invoke the
jurisdiction of the Supreme Court or a High Court by instituting the writ H
798 SUPREME COURT REPORTS [2023] 8 S.C.R.

A petition. In that case, the court, in exercise of its extraordinary jurisdiction
and discretion judiciously may grant relief to the person wronged without
relegating him to avail a remedy, otherwise available to him under private
law having regard to the facts and circumstances of the particular case.
57. In Chairman, Railway Board vs. Chandrima Das, (2000)
B 2 SCC 465, this Court was presented with an appeal against an order of
the Calcutta High Court in a writ petition filed by a civil rights lawyer on
behalf of a foreign national-victim of rape, allegedly committed by railway
employees at a government-owned railway station. The events in question
happened when the employees were off duty, but were present at the
premises owned and operated by the Government (Railways) . The writ
C petition was filed against the employer, in addition to initiating criminal
proceedings against the individuals. A specific prayer was made in the
writ petition for monetary compensation for the victim, payable by the
Government, alleging that its failure to protect the victim and prevent the
crime, had violated the victim’s fundamental right. The High Court
D awarded a sum of Rs. 10 Lakhs as compensation to the victim of rape,
as it was of the opinion that the offence was committed at the building
(Rail Yatri Niwas) belonging to the Railways and was perpetrated by
the Railway employees. An appeal against the said judgment was
preferred before this Court.
E 58. This Court dismissed the appeal holding that where public
functionaries are involved and the matter relates to violation of
Fundamental Rights, or the enforcement of public duties, the remedy
would be available under public law, notwithstanding that a suit could be
filed under private law, for damages. Since the crime of rape amounted
to a violation of the victim’s right to life under Article 21 of the Constitution,
F this Court concluded that a public law remedy was wholly appropriate.
59. The decisions in Rudul Sah and Chandrima Das establish
that a public law action seeking monetary compensation for violation of
fundamental rights was no longer an action in lieu of a private law claim,
but was to serve an independent and more important purpose. However,
G it cannot be ignored that the decisions of Courts to award compensation
in such cases, proceed on the basis of lower evidentiary standards, as
noted by this Court in Kumari vs. State of Tamil Nadu, (1992) 2 SCC
223.
60. In Tamil Nadu Electricity Board vs. Sumathi Das, (2000)
H 4 SCC 543, this Court held that exercise of writ jurisdiction would be
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 799
[B. V. NAGARATHNA, J.]

inappropriate where there were disputed questions of fact that required A
proof through substantial evidence. However, it has been clarified that
the restriction applied only to the higher judiciary’s writ jurisdiction under
Articles 32 and 226, and that it did not restrain this Court’s power to
address the matter under Article 142, which allows this Court to pass
any order ‘necessary for doing complete justice in any cause or matter.’
B
Therefore, this Court has recognised that factual disputes could
operate as a limit on the Courts’ ability to treat a matter as being actionable
as a Constitutional tort but has nevertheless awarded monetary
compensation in certain cases possibly having regard to the glaring facts
of those cases by exercising power under Article 142 of the Constitution.
C
61. Scholarly views suggest that the concept of Constitutional tort
challenges the ability of law to deter socially harmful behaviour of different
kinds, by forcing the perpetrator to internalise the costs of their actions.
However, in case of a Constitutional tort action, the entity saddled with
the cost, is not the same as the entity who is to be deterred. This absurdity
is stated to be threatening to the corrective justice idea that tort law D
embodies. In other words, an actor’s direct ability to alter the injury-
causing behaviour is critical to the foundation of tort law. However, given
that an action of Constitutional tort imposes the burden of damages on
an entity, other than the violator of the right, a doubt has been cast on its
effectiveness in serving as a vehicle of corrective justice. E
62. In light of the aforesaid discussion, it is observed that it is not
prudent to treat all cases where a statement made by a public functionary
resulting in harm or loss to a person/citizen, as a constitutional tort. Regard
must be had in every case to the nature of resultant harm or loss. Further,
it is to be noted that even the cases cited hereinabove have permitted F
treating an act or omission as a constitutional tort only where there has
been an infraction of fundamental right as a direct result of such act or
omission. Therefore the causal connection between the act or omission
and the resultant infraction of fundamental rights, is central to any
determination of an action of constitutional tort.
G
63. In Delhi Jal Board vs. National Campaign for Dignity &
Rights of Sewerage & Allied Workers, (2011) 8 SCC 568, this Court
refused to entertain a matter against an interim order passed by the
Delhi High Court in a writ petition, whereby the Petitioner Board had
been directed to deposit compensation in favour of the family of a
H
800 SUPREME COURT REPORTS [2023] 8 S.C.R.

A sewerage worker who had died while performing his duties. Dismissing
the case, this Court held that since the deceased had died due to
insensitivity on the part of the State apparatus, to the safety and well-
being of its employees, the State would be liable to pay compensation to
the family of the deceased. This Court invoked Article 142 of the
Constitution to enhance the amount of compensation payable.
B
64. At this juncture, it may be apposite to sound a word of caution
as regards the approach of the Courts in granting monetary compensation
as a means for vindication of fundamental rights. It is to be noted that in
the absence of a clear, cogent and comprehensive legal framework based
on judicial precedent, which would clarify what harm or injury is
C actionable as a constitutional tort, such a device is to be resorted to only
in cases where there are brutal violations of fundamental rights, such as
the violations that were involved in Rudul Sah and Chandrima Das.
This Court has acknowledged such a view in Sebastian M. Hongray,
by noting that compensation was being awarded in the said case having
D regard to “torture, the agony and the mental oppression” which the family
of the victim therein had to endure due his death by an encounter. Similarly,
this Court, in Bhim Singh stated that the compensation was awarded
by taking note of the “bizzare acts” of police lawlessness. As already
highlighted, compensation was awarded in Delhi Jal Board, by
exercising power under Article 142. Thus, the remedy provided is on a
E case to case basis on an evolution of the concept of constitutional tort
through judicial dicta.
65. While it is true that the Courts must mould their tools to deal
with particularly extreme and threatening situations, and the device of a
‘constitutional tort’ has evolved through such an exercise, it must be
F borne in mind that the tool of treating an action as a constitutional tort
must not be wielded only in instances wherein state lawlessness and
indifference to the right to life and personal liberties have caused immense
suffering. The law would have to evolve in this regard, in respect of
violation of other Fundamental Rights apart from issuance of the
prerogative writs.
G
66. Therefore, it is observed that presently invocation of writ
jurisdiction to grant damages, by treating acts and omissions of agencies
of the State as Constitutional torts, must be an exception rather than a
rule. The remedy before a competent court or under criminal law is, in
any case available as per the existing legal framework.
H
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 801
[B. V. NAGARATHNA, J.]

In light of the aforesaid discussion, Question No. 5 is answered A
as follows:
“A proper legal framework is necessary to define the acts or
omissions which would amount to constitutional tort and the
manner in which the same would be redressed or remedied
on the basis of judicial precedent. Particularly, it is not prudent B
to treat all cases where a statement made by a public
functionary resulting in harm or loss to a person/citizen, as a
constitutional tort, except in the context of the answer given
to Question No. 4 above.”
67. In light of the above discussion as well as the answers given
to the questions referred, the following other conclusions are drawn: C

a) It is for the Parliament in its wisdom to enact a legislation
or code to restrain, citizens in general and public
functionaries, in particular, from making disparaging or
vitriolic remarks against fellow citizens, having regard to
the strict parameters of Article 19(2) and bearing in mind D
the freedom under Article 19(1) (a) of the Constitution of
India. Hence, I am not inclined to issue any guideline in this
regard, but the observations made hereinabove may be borne
in mind.
b) It is also for the respective political parties to regulate and E
control the actions and speech of its functionaries and
members. This could be through enactment of a Code of
Conduct which would prescribe the limits of permissible
speech by functionaries and members of the respective
political parties. F
c) Any citizen, who is prejudiced by any form of attack, as a
result of speech/expression through any medium, targeted
against her/himor by speech which constitutes ‘hate speech’
or any species thereof, whether such attack or speech is
by a public functionary or otherwise, may approach the
G
Court of Law under Criminal and Civil statutes and seek
appropriate remedies. Whenever permissible, civil remedies
in the nature of declaratory remedies, injunctions as well as
pecuniary damages may be awarded as prescribed under
the relevant statutes.
H
802 SUPREME COURT REPORTS [2023] 8 S.C.R.

A However, answers given to Question Nos. 4 and 5 may have a
bearing in the context of collective responsibility of government and
Constitutional tort.
Writ Petition (Crl.) No.113 of 2016 and Special Leave Petition
(Civil) bearing Diary No.34629 of 2017 are directed to be listed before
B an appropriate Bench after seeking orders of Hon’ble the Chief Justice
of India.

Bibhuti Bhushan Bose Reference answered.
(Assisted by : Sirgapoor Sahil Reddy, Shriya Chakravarthy
and Mahendra Yadav, LCRAs)
C

D

E

F

G

H