The Special Leave Petition was filed against the Kerala High Court’s judgment and order.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL/CIVIL APPELLATE JURISDICTION
WRIT PETITION (CRIMINAL) NO. 113 OF 2016
KAUSHAL KISHOR … PETITIONER(S)
VERSUS
STATE OF UTTAR PRADESH & ORS. …RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION @ (DIARY) NO. 34629 OF 2017
J U D G M E N T
V. RAMASUBRAMANIAN, J.
PRELUDE
ததயயனனறற சடறடபணற உளறளனறமற ஆறனதத
நனவயனனறற சடறடவட
Said the Tamil PoetPhilosopher Tiruvalluvar of the Tamil Sangam
age (31, BCE) in his classic “Tirukkural”. Emphasizing the
importance of sweet speech, he said that the scar left behind by a
burn injury may heal, but not the one left behind by an offensive
1
speech. The translation of this verse by G.U. Pope in English reads
thus:
“In flesh by fire inflamed, nature may thoroughly heal the sore;
In soul by tongue inflamed, the ulcer healeth never more.”
A Sanskrit Text contains a piece of advice on what to speak and
how to speak.
सतयय बबरययतब पपबपयय बबरययनन बबरययतब सतयमपपबपयमब ।
पपबपयय च नयननतय बबरययददष धमरर सनयतनर ॥
satyam brūyāt priya brūyān na brūyāt satyam apriyam
ṃ
|
priya ca nān ta brūyād e a dharma sanātana
ṃ ṛ ṃ ṣ ḥ ḥ
||
The meaning of this verse is: “Speak what is true; speak what is
pleasing; Do not speak what is unpleasant, even if it is true;
And do not say what is pleasing, but untrue; this is the
eternal law.”
The “Book of Proverbs” (16:24) says:
“Pleasant words are a honeycomb, sweet to the soul and
healing to the bones”
Though religious texts of all faiths and ancient literature of all
languages and geographical locations are full of such moral
injunctions emphasising the importance of sweet speech (more than
2
free speech), history shows that humanity has consistently defied
those diktats. The present reference to the Constitution Bench is
the outcome of such behaviour by two honourable men, who
occupied the position of Ministers in two different States.
I. Questions formulated for consideration
1.By an order dated 05.10.2017, a Three Member Bench of this
Court directed Writ Petition (Criminal) No.113 of 2016 to be placed
before the Constitution Bench, after two learned senior counsel,
appointed as amicus curiae, submitted that the questions arising for
consideration in the writ petition were of great importance. Though
the Bench recorded, in its order dated 05.10.2017, the questions
that were submitted by the learned amicus curiae, the Three
Member Bench did not frame any particular question, but directed
the matter to be placed before the Constitution Bench.
2.At this juncture, a Special Leave Petition (Diary) No.34629 of
2017 arising out a judgment of the Kerala High Court came up
before the same Three Member Bench. Finding that the questions
raised in the said SLP were also similar, this Court passed an order
3
on 10.11.2017, directing the said SLP also to be tagged with Writ
Petition (Criminal) No.113 of 2016.
3.Thereafter, the Constitution Bench, by an order dated
24.10.2019, formulated the following five questions to be decided by
this Court:
“…1) Are the grounds specified in Article 19(2) in
relation to which reasonable restrictions on the right
to free speech can be imposed by law, exhaustive, or
can restrictions on the right to free speech be imposed
on grounds not found in Article 19(2) by invoking other
fundamental rights?
2) Can a fundamental right under Article 19 or 21 of
the Constitution of India be claimed other than against
the ‘State’ or its instrumentalities?
3) Whether the State is under a duty to affirmatively
protect the rights of a citizen under Article 21 of the
Constitution of India even against a threat to the
liberty of a citizen by the acts or omissions of another
citizen or private agency?
4) Can a statement made by a Minister, traceable to
any affairs of State or for protecting the Government,
be attributed vicariously to the Government itself,
especially in view of the principle of Collective
Responsibility?
5) Whether a statement by a Minister, inconsistent
with the rights of a citizen under Part Three of the
Constitution, constitutes a violation of such
constitutional rights and is actionable as
‘Constitutional Tort”? …”
4
II.A brief backdrop
4.Without a brief reference to the factual matrix, the questions
to be answered by us may look abstract. Therefore, we shall now
refer to the background facts in both these cases.
5.Writ Petition (Criminal) No.113 of 2016 was filed under Article
32 of the Constitution praying for several reliefs including
monitoring the investigation of a criminal complaint in FIR
No.0838/2016 under Section 154 Cr.P.C., for the offences under
Sections 395, 397 and 376D read with the relevant provisions of
the Protection of Children from Sexual Offences Act, 2012 (for
short, ‘POCSO Act’) and for the trial of the case outside the State
and also for registering a complaint against the then Minister for
Urban Development of the Government of U.P. for making
statements outrageous to the modesty of the victims. The case of
the petitioner in Writ Petition (Criminal) No.113 of 2016 in brief was
that on 29.7.2016 when he and the members of his family were
travelling from Noida to Shahjahanpur on National Highway 91 to
attend the death ceremony of a relative, they were waylaid by a
5
gang. According to the writ petitioner, the gang snatched away cash
and jewelry in the possession of the petitioner and his family
members and they also gang raped the wife and minor daughter of
the petitioner. Though an FIR was registered on 30.7.2016 for
various offences and newspapers and the television channels
reported this ghastly incident, the then Minister for Urban
Development of the Government of U.P. called for a press
conference and termed the incident as a political conspiracy.
Therefore, the petitioner apprehended that there may not be a fair
investigation. The petitioner claims that he was also offended by the
irresponsible statement made by the Minister and hence he was
compelled to file the said writ petition for the reliefs stated supra.
6.Insofar as Special Leave Petition (Diary) No.34629 of 2017 is
concerned, the same arose out of a judgment of the Division Bench
of the Kerala High Court dismissing two writ petitions. The writ
petitions were filed in public interest on the ground that the then
Minister for Electricity in the State of Kerala issued certain
statements in February 2016, 7.4.2017 and 22.4.2017. These
statements were highly derogatory of women. Though according to
6
the petitioners in the public interest litigation, the political party to
which the Minister belonged, issued a public censure, no action
was taken officially against the Minister. Therefore, the petitioner in
one writ petition prayed among other things for a direction to the
Chief Minister to frame a Code of Conduct for the Ministers who
have subscribed to the oath of office as prescribed by the
Constitution with a further direction to the Chief Minister to take
suitable action if any of the Ministers failed to live upto the oath.
The prayer in the second writ petition was for a direction to the
concerned Authorities to take action against the Minister for his
utterances.
7.Both the writ petitions were dismissed by a Division Bench of
the Kerala High Court, on the ground that the prayer of the public
interest writ petitioners were in the realm of moral values and that
the question whether the Chief Minister should frame a code of
conduct for the Ministers of his cabinet or not, is not within the
domain of the Court to decide. Therefore, challenging the said
common order, the petitioner in one of those public interest writ
petitions has come up with Special Leave Petition (Diary) No.34629
7
of 2017. Since the questions raised by the petitioner in the Special
Leave Petition overlapped with the questions raised in the Writ
Petition, they have been tagged together.
III.Contentions
8.We have heard Shri R. Venkataramani, learned Attorney
General for India, Ms. Aparajita Singh, learned senior counsel who
assisted us as amicus curiae, Shri Kaleeswaram Raj, learned
counsel for the petitioner in the special leave petition and Shri
Ranjith B. Marar, learned counsel appearing for the person who
sought to intervene/implead.
III.A.Preliminary note submitted by learned Attorney General
for India
9.The learned Attorney General for India submitted a
preliminary note containing his submissions questionwise, which
can be summed up as follows:
Question No.1
(i)On question No.1 it is his submission that as a matter of
constitutional principle, any addition, alteration or change in
the norms or criteria for imposition of restrictions on any
fundamental right has to come up through a legislative
8
process. The restrictions already enumerated in clauses (2)
and (6) of Article 19 have to be taken to be exhaustive.
Therefore, the Court cannot, under the guise of invoking any
other fundamental right such as the one in Article 21, impose
restrictions not found in Article 19(2). Under the
Constitutional scheme, there can be no conflict between two
different fundamental rights or freedoms.
Question No. 2
(ii)The Constitution itself sets out the scheme of claims of
fundamental rights against the State or its instrumentalities
and it has also enacted in respect of breaches or violations of
fundamental rights by persons other than State or its
instrumentalities. Any proposition, to add or insert subjects or
matters in respect of which claims can be made against
persons other than the State, would amount to Constitutional
change. The concept of State action propounded and applied
in US Constitutional Law and the enactment of 42 US Code §
1983 have to be seen in the context of peculiar state of affairs
dealing with governmental and official immunities from legal
proceedings. In view of specific provisions in Articles 15(2), 17,
23 and 24 of the Indian Constitution, there may not be a strict
need to take recourse to the law obtaining in the USA. Claims
against persons other than the State, either through enacted
law or otherwise must be confined to constitutionally enacted
subjects or matters.
9
Question No. 3
(iii)There are sufficient Constitutional and legal remedies available
for a citizen whose liberty is threatened by any person. Beyond
the Constitutional and legal remedy and protection available,
there may not be any other additional duty to affirmatively
protect the right of a citizen under Article 21. Cases of
infringement of fundamental rights are taken care of under
Articles 32 and 226.
Question No. 4
(iv)Conduct of public servants like a Minister, if it is traceable to
the discharge of public duty or the duties of the office, is
subject to scrutiny of the law. Sanction for prosecution can be
granted if misconduct is committed under colour of office.
Such misconduct including statements that may be made by a
Minister cannot be linked to the principles of collective
responsibility. The concept of vicarious liability is incapable of
being applied to situations and no government can ever be
vicariously liable for malfeasance or misconduct of Minister
not traceable to statutory duty or statutory violations for the
purpose of legal remedies. Ministerial misdemeanors, which
have nothing to do with the discharge of public duty and not
traceable to the affairs of the State, will have to be treated as
acts of individual violation and individual wrong. To extend in
the abstract, the liability of the State to such situations or
instances without necessary limitations can be problematic.
10
Post M/s. Kasturi Lal Ralia Ram Jain vs. The State of
Uttar Pradesh
1
and following Rudul Sah vs. State of Bihar
2
,
this Court has treated misconduct of public servants or
officers and consequent infringement of Constitutional rights
as ground for grant of compensation. However, there is need
for clarity and certainty as far as the conceptual basis is
concerned. This may be better resorted through enacted law.
Question No. 5
(v)While the principle of Constitutional tort has been conceived
in Nilabati Behera (Smt.) alias Lalita Behera (Through the
Supreme Court Legal Aid Committee) vs. State of Orissa
3
,
and subsequently applied to provide in regard to the
constitutional remedies, the matter preeminently deserves a
proper legal framework in order that the principles and
procedures are coherently set out without leaving the matter
openended or vague.
III.B. Notes of submissions by Amicus
10.Ms. Aparajita Singh, learned senior counsel and amicus curiae
submitted a written note questionwise, which can be summed up
as follows:
Question No. 1
1 AIR 1965 SC 1039
2 (1983) 4 SCC 141
3 (1993) 2 SCC 746
11
(i)The right to free speech under Article 19(1)(a) is subject to
clearly defined restrictions under Article 19(2). Therefore, any
law seeking to limit the right under Article 19(1)(a) has to
necessarily fall within the limitations provided under Article
19(2). Whenever two fundamental rights compete, the Court
will balance the two to allow the meaningful exercise of both.
This conundrum is not new, as the rights under Article 21 and
under Article 19(1)(a) have been interpreted and balanced on
numerous occasions. Take for instance the Right to
Information Act, 2005. The Act balances the citizen’s right to
know under Article 19(1)(a) with the right to fair investigation
and right to privacy under Article 21. This careful balancing
was explained by this Court in Thalappalam Service
Cooperative Bank Ltd. vs. State of Kerala
4
. The decision of
this Court in R. Rajagopal alias R.R. Gopal vs. State of
T.N.
5
is another example of reading down the restrictions (in
the form of defamation) on the right to free speech under
Article 19(2), in its application to public officials and public
figures in larger public interest. Again, in People’s Union for
Civil Liberties (PUCL) vs. Union of India
6
, the right to
privacy of the spouse of the candidate contesting the election
was declared as subordinate to the citizens’ right to know
under Article 19(1)(a). In Jumuna Prasad Mukhariya vs.
4 (2013) 16 SCC 82
5 (1994) 6 SCC 632
6 (2003) 4 SCC 399
12
Lachhi Ram
7
, a challenge to Sections 123(5) and 124(5) of the
Representation of the People Act, 1951 (as they prevailed at
that time) was rejected, on the ground that false personal
attacks against the contesting candidate was not violative of
the right to free speech. But when it comes to private citizens
who are not public functionaries, the right to privacy under
Article 21 was held to trump the right to know under Article
19(1)(a). This was in the case of Ram Jethmalani vs. Union
of India
8
, which concerned the right to privacy of account
holders. In Sahara India Real Estate Corporation Limited
vs. Securities and Exchange Board of India
9
, this Court
struck a balance between the right of the media under Article
19(1)(a) with the right to fair trial under Article 21. The
argument that free speech under Article 19(1)(a) was a higher
right than the right to reputation under Article 21 was rejected
by this Court in Subramanian Swamy vs. Union of India,
Ministry of Law
10
in which Section 499 IPC was under
challenge. The right to free speech was balanced with the right
to pollution free life in Noise Pollution (V.), in Re
11
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 Bihar
12
.
7(1955) 1 SCR 608
8(2011) 8 SCC 1
9(2012) 10 SCC 603
10(2016) 7 SCC 221
11(2005) 5 SCC 733
12(2017) 4 SCC 397
13
Question No. 2
(ii)There are some fundamental rights which are specifically
granted against nonState actors. Article 15(2)(a) – access to
shops, public restaurants, hotels and places of public
entertainment, Article 17 – untouchability, Article 23 – forced
labour and Article 24 prohibition of employment of children in
factories, mines etc., are rights which are enforceable against
private citizens also. Some aspects of Article 21 such as the
right to clean environment have been enforced against private
parties as well. The State is also under a Constitutional duty
to ensure that the rights of its citizens are not violated even by
nonState actors and ensure an environment where each right
can be exercised without fear of undue encroachment. In
People’s Union for Democratic Rights vs. Union of India
13
,
while rejecting the contention of the State that it was the
obligation of the private party i.e., the contractor to follow the
mandate of Article 24 of the Constitution and the relevant
laws, it was clarified that the primary obligation to protect
fundamental rights was that of the State even in the absence
of an effective legislation. In Bodhisattwa Gautam vs.
Subhra Chakraborty (Ms.)
14
, interim compensation was
awarded holding that fundamental rights under Article 21 can
be enforced even against private bodies and individuals. Public
law remedy has been repeatedly resorted to even against non
13(1982) 3 SCC 235
14(1996) 1 SC 490
14
State actors when their acts have violated the fundamental
rights of other citizens. Award of damages against nonState
actors for violation of the right to clean environment under
Article 21 was laid down in M.C. Mehta vs. Kamal Nath
15
.
Similarly, the majority and concurring opinion in Justice K.S.
Puttaswamy vs. Union of India
16
, while elaborating on the
duty of the State and nonState actors to protect the rights of
citizens, pointed out that recognition and enforcement of
claims qua nonState actors may require legislative
intervention. However, when it comes to Article 19, a
Constitution Bench in P.D. Shamdasani vs. Central Bank of
India Ltd.
17
, has held it to be inapplicable against private
persons.
Question No. 3
(iii)Fundamental rights of citizens enshrined in the Constitution
are not only negative rights against the State but also
constitute a positive obligation on the State to protect those
rights. The Constitution Bench in State of West Bengal vs.
Committee for Protection of Democratic Rights, West
Bengal
18
, while upholding the power of the Constitutional
Court to transfer an investigation to the CBI without the
consent of the concerned State, emphasized the duty of the
15(2000) 6 SCC 213
16(2017) 10 SCC 1
171952 SCR 391
18(2010) 3 SCC 571
15
State to conduct a fair investigation which is a fundamental
right of the victim under Article 21. The majority judgment in
Justice K.S. Puttaswamy (supra), defines the positive
obligation of the State to ensure the meaningful exercise of the
right of privacy. In S. Rangarajan vs. P. Jagjivan Ram
19
, 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. Shankarappa
20
, Section 6(1) of the
Cinematograph Act, 1952 which granted the Central
Government, the power to review the decision of the quasi
judicial Tribunal under the Act, was sought to be defended on
the ground of law and order. The contention was rejected
holding that it was the duty of the Government to ensure law
and order. In Indibly Creative Private Limited vs.
Government of West Bengal
21
, the negative restraint and
positive obligation under Article 19(1) (a) has been explained.
In Pt. Parmanand Katara vs. Union of India
22
, it was held
that even the doctors in Government hospitals are duty bound
to fulfil the constitutional obligation of the State under Article
21.
Question No. 4
19(1989) 2 SCC 574
20(2001) 1 SCC 582
21(2020) 12 SCC 436
22(1989) 4 SCC 286
16
(iv) The Minister being a functionary of the State, represents the
State when acting in his official capacity. Therefore, any
violation of the fundamental rights of the citizens by the
Minister in his official capacity, would be attributable to the
State. The State also has a positive obligation to protect the
rights of citizens under Article 21, whether the violation is by
its own functionaries or a private person. It would be
preposterous to suggest that while the State is under an
obligation to restrict a private citizen from violating the
fundamental rights of other citizens, its own Minister can do
so with impunity. However, the factum of violation would need
to be established on the facts of a given case. It would involve
a detailed inquiry into questions such as (a) whether the
statement by the Minister was made in his personal or official
capacity; (b) whether the statement was made on a public or
private issue; (c) whether the statement was made on a public
or private platform. In Amish Devgan vs. Union of India
23
,
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 Chavan
24
, provides a clear instance of direct
interference with the investigation by a Chief Minister. The
Court held the action of the Chief Minister to be " wholly
unconstitutional" and contrary to the oath of allegiance to the
Constitution and imposed costs on the State. The concurring
opinion emphasizes the responsibility that the oath of office
casts on the Minister under the Constitution. In Secretary,
Jaipur Development Authority, Jaipur vs. Daulat Mal
23(2021) 1 SCC 1
24(2011) 1 SCC 577
17
Jain
25
, while dealing with a case involving the misuse of
public office by a Minister, this Court elaborated on the
responsibility and liability of the Ministerial office under the
Constitution. The importance of the Oath of Office under the
Constitution was also emphasized by the Constitution Bench
in Manoj Narula vs. Union of India
26
. However, the
Ministerial code of conduct was held to be not enforceable in a
court of law in R. Sai Bharathi vs. J. Jayalalitha
27
, as it
does not have any statutory force. An argument can be made
that the Minister is personally bound by the oath of his office
to bear true faith and allegiance to the Constitution of India
under Articles 75(4) and 164(3) of the Constitution. The
Constitution imposes a solemn obligation on the Minister as a
Constitutional functionary to protect the fundamental rights of
the citizens. The code of conduct for Ministers (Both for Union
and States) specifically lays down that the Code is in addition
to the “. . . observance of the provisions of the Constitution, the
Representation of the People Act, 1951”. Therefore, a
Constitutional functionary is duty bound to act in a manner
which is in consonance with this constitutional obligation of
the State.
Question No. 5
(v)The State acts through its functionaries. Therefore, the
official act of a Minister which violates the fundamental rights
of the citizens, would make the State liable under
constitutional tort. The principle of sovereign immunity of the
25(1997) 1 SCC 35
26(2014) 9 SCC 1
27(2004) 2 SCC 9
18
State for the tortious acts of its servant, has been held to be
inapplicable in the case of violation of fundamental rights.
The principle of State liability under Constitutional tort was
expounded in Nilabati Behera (supra). In Common Cause,
A Registered Society vs. Union of India.
28
, the position in
the case of a public functionary was explained.
III.C. Written submissions of Shri Kaleeswaram Raj, Advocate
for the SLP petitioner
11.Shri Kaleeswaram Raj, learned counsel appearing for the
petitioner in the special leave petition submitted an elaborate note.
This note is divided into several chapters dealing with the nature
and extent of the freedom of speech, the restrictions on the same,
the horizontality of fundamental rights, constitutional rights and
constitutional values, statements made by Ministers and collective
responsibility, selfregulation as the best mode of regulation, hate
speech not being a protected speech and the way forward. The
contents of this note are summarized as follows:
(i) The Constitutional mandate of freedom of expression and
free speech is to be preserved without imposing
unconstitutional restrictions. It is a right available to
everyone including political personalities.
28(1999) 6 SCC 667
19
(ii)But even while upholding such a right, efforts should be
taken to frame a voluntary code of conduct for Ministers
etc., to ensure better accountability and transparency;
(iii)There is an imperative need to evolve a device such as
Ombudsman to act as a Constitutional check on the misuse
of the freedom of expression by public functionaries using
the apparatus of the State;
(iv)The right under Article 19(1)(a) is limited by restrictions
expressly indicated in Article 19(2), under which the
restrictions should be reasonable and must be provided for
by law, by the State. Therefore this Court cannot provide
for any additional restriction by an interpretative exercise or
otherwise;
(v) It is too remote to suggest that the right of a victim under
Article 21 stands violated if there is a statement by someone
that the case was born out of political conspiracy.
Therefore, there is actually no conflict of any other right
with Article 21;
(vi)Unlike Article 25 which makes the right thereunder subject
to public order, morality and health, Article 19(1)(a) does
not contain such restrictions. As held by this Court in
Sakal Papers (P) Ltd. vs. The Union of India
29
, freedom of
speech can be restricted only in the interest of security of
29(1962) 3 SCR 842
20
the State, friendly relations with foreign states, public order,
decency or morality or in relation to contempt of court,
defamation or incitement to an offence. It cannot be
curtailed, in the interest of the general public, as in the case
of freedom to carry on business;
(vii)Restricting speech by public figures, such as politicians, on
serious crimes will have great impact on the freedom of
speech. Such criticism which calls out true conspiracies
and true miscarriage of justice, plays an important role in a
democracy;
(viii)In so far as the enforcement of fundamental rights against
nonState actors is concerned, the vertical approach is
giving way to the concept of horizontal application. The
vertical approach connotes a situation where the
enforceability is only against the Government and not
against private actors. But with Nation States gradually
moving from laissez faire governance to welfare governance,
the role of the State is ever expanding, which justifies the
shift.
(ix)While the South African Constitution has adopted a
horizontal application by providing in Section 9(4) of the Bill
of Rights of Final Constitution of 1996 that no person may
unfairly discriminate directly or indirectly against anyone
on one or more grounds in terms of subSection (3) which
21
sets out the grounds that bind the State, the judiciary itself
has adopted a direct horizontal effect, in Ireland as could be
seen from the decisions in John Meskell vs. C
óras
Iompair
Éireann
30
and Murtagh Properties Limited vs.
Cleary
31
. In John Meskell (supra), the Irish Supreme Court
granted damages against the employer who dismissed the
employee for not joining a particular union after serving a
due notice to persuade him. In Murtagh Properties
Limited (supra), the High Court recognized and enforced
the right to earn livelihood without any discrimination
based on sex against a private employer. Countries like
Canada and Germany have developed indirect horizontal
application, meaning thereby that the rights regulate the
laws and statutes, which in turn regulate the conduct of
citizens;
(x) In the Indian context, direct horizontal effect has limited
application as can be seen from Articles 15(2), 17 and 24;
(xi)Paradigm cases of horizontality should be distinguished
from ordinary cases. For instance, the U.S. Supreme Court
held in Shelly vs. Kraemer
32
a covenant contained in a
contract prohibiting the sale of houses in a neighbourhood
to AfricanAmericans, as unenforceable, for they have the
effect of denying equal protection under the laws. The
301973 IR 121
311972 IR 330
32334 U.S. 1 (1948)
22
Federal Constitutional Court of Germany took a similar view
in L th
ϋ
33
case (1958) where a call for boycott of a film
directed by a person who had worked on antisemitic Nazi
propaganda was challenged. The German Court held that
there was an objective order of values that must affect all
spheres of law;
(xii)It has been repeatedly held by this Court that the power
under Article 226 is available not only against the
Government and its instrumentalities but also against “any
person or authority”. A reference may be made in this regard
to two decisions namely Praga Tools Corporation vs. Shri
C.A. Imanual
34
and Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotasav
Smarak Trust vs.V.R. Rudani
35
;
(xiii)There are several instances where this Court has issued
writs under Article 32 against nonState actors. Broadly
those cases fall under two categories, namely, (i) private
players performing public duties/functions; and (ii) non
State actors performing statutory activities that impact the
rights of citizens. Cases which fall under these two
categories have been held by this Court to be amenable to
writ jurisdiction as seen from several decisions including
33Luth (1958) BVerfGE 7, 198
34(1969) 1 SCC 585
35(1989) 2 SCC 691
23
M.C. Mehta vs. Union of India
36
. Absent any of these
parameters, the Court has refused to exercise writ
jurisdiction as seen from Binny Ltd. vs. V. Sadasivan.
37
;
(xiv)Even in jurisdictions where socio economic rights have
been elevated in status to that of constitutional rights, the
enforcement of those rights were made available only
against the State and not against private actors, as held by
this Court in Society for Unaided Private Schools of
Rajasthan vs. Union of India
38
;
(xv)On the issue of potential conflict of rights, it is important
to bear in mind the distinction between constitutional
rights and constitutional values. On a formal level, values
are understood teleologically as things to be promoted or
maximized. Rights, on the other hand, are not to be
promoted but rather to be respected. It would not show
proper concern for a right to allow the violation of one right
in order to prevent the violation of other rights. This would
promote the nonviolation of rights, but it would not
respect rights
39
;
(xvi)Instead of values whose satisfaction is to be maximized,
rights act as constraints on the actions of the state. They
confer individuals with a sphere of liberty that is inviolable.
36 AIR 1987 SC 1086
37 (2005) 6 SCC 657
38 (2012) 6 SCC 1
39 Frances Kamm, Morality, Mortality Vol.2, Oxford University Press, 1996
24
Rights thereby act as restrictions on the government on
how to pursue values, including constitutional values. It is,
therefore, crucially important that we draw a distinction
between the constitutional rights and constitutional
values. Not every increase in liberty or every improvement
in leading a dignified life is a constitutional right. This
position has been accepted by this Court;
(xvii)As held by this Court in Justice K.S. Puttaswamy, the
Court will strike a balance, wherever a conflict between two
sets of fundamental rights is projected. Strictly speaking,
what is actually conceived by some and noted in several
decisions including Justice K.S. Puttaswamy, is not the
conflict of rights in abstractum, at a doctrinal level, but the
conflict in the notion/invocation/practice of rights;
(xviii)On the issue of statements made by Ministers and
collective responsibility, a reference has to be made to
Articles 75(3) and 164(2). Both these Articles speak of
collective responsibility of the Council of Ministers. Though
the language employed in these Articles indicate that such
a collective responsibility is to the House of the People/
Legislative Assembly, it is actually a responsibility to the
people at large. Since every utterance by a Minister will
have a direct bearing on the policy of the Government,
there is an imperative need for a voluntary code of
conduct. As pointed out by this Court in Common Cause
25
(supra), collective responsibility has two meanings, namely,
(i) that all members of the Council of Ministers are
unanimous in support of its policies and exhibit such
unanimity in public; and (ii) that they are personally and
morally responsible for its success and failure;
(xix)Individual aberrations on the part of Ministers are serious
threats to constitutional governance and as such the head
of the Council of Ministers has a duty to ensure that such
breaches do not happen;
(xx)A code of conduct to selfregulate the speeches and actions
of Ministers is constitutionally justifiable and this Court
can definitely examine its requirement. Ideally, a Minister
is not supposed to breach his collective responsibility
towards the Cabinet and the Legislature and hence, it is
advisable to have a cogent code of conduct as occurring in
advanced democracies;
(xxi)While it is not possible to impose additional restrictions on
the freedom of speech, it is certainly desirable to have a
code of conduct for public functionaries, as followed in
other jurisdictions. The Court may keep in mind the fact
that this Court in Sahara India Real Estate
Corporation Limited (supra) cautioned against framing
guidelines across the board to restrict the freedom of Press;
26
(xxii)Coming to hate speeches, there has been a steep increase
in the number of hate speeches since 2014. From May
2014 to date, there have been 124 reported instances of
derogatory speeches by 45 politicians. Social media
platforms have connived the proliferation of targeted hate
speech. Such speeches provide fertile ground for
incitement to violence;
(xxiii) On the role of the Court in dealing with the question of
hate speech, the decisions in Pravasi Bhalai Sangathan
vs. Union of India
40
; Kodungallur Film Society vs.
Union of India
41
and Amish Devgan (supra) lay down
broad parameters;
(xxiv) At the international level, the definition of hate speech was
formulated in the UN Strategy and Plan of Action on Hate
Speech, to mean
“… any kind of communication in speech, writing or
behavior, that attacks or uses pejorative or
discriminatory language with reference to a person
or a group on the basis of who they are, in other
words, based on their religion, ethnicity,
nationality, race, colour, descent, gender or other
identity factor.”
The Role and Responsibilities of Political Leaders in
Combating Hate Speech and Intolerance (Provisional
version) dated 12 March 2019, was submitted by the
40 (2014) 11 SCC 477
41 (2018) 10 SCC 713
27
Committee on Equality and NonDiscrimination to the
Parliamentary Assembly of the Council of Europe. The
Assembly passed the resolution adopting the text proposed
by rapporteur Ms. Elvira Kovacs, Serbia;
(xxv) Finally, the way forward is, (i) for the legislature to adopt a
voluntary model code of conduct for persons holding public
offices, which would reflect Constitutional morality and
values of good governance; and (ii) the creation of an
appropriate mechanism such as Ombudsman, in
accordance with the Venice principles and Paris principles.
Till such an Ombudsman is constituted, the National and
State Human Rights Commissions have to take proactive
measures, in terms of the provisions of Protection of
Human Rights Act, 1993.
IV.Discussion and Analysis
Question No. 1
12.Question No.1 referred to us, is as to whether the grounds
specified in Article 19(2) in relation to which reasonable restrictions
on the right to free speech can be imposed by law are exhaustive, or
can restrictions on the right to free speech be imposed on grounds
not found in Article 19(2) by invoking other fundamental rights?
28
History of evolution of clause (2) of Article 19
13.For finding an answer to this question, it may be necessary
and even relevant to take a peep into history. Since Dr. B.R.
Ambedkar’s original draft in this regard followed Article 40(6) of the
Irish Constitution, the original draft of the Advisory Committee
included restrictions such as public order, morality, sedition,
obscenity, blasphemy and defamation. Sardar Vallabhbhai Patel
suggested the inclusion of libel also. These restrictions were sought
to be justified by citing the decision in Gitlow vs. New York
42
.
14.Since the country had witnessed large scale communal riots at
that time, Sir Alladi Krishnaswamy Iyer forcefully argued for the
inclusion of security and defence of the State or national security as
one of the restrictions. Discussion also took place about restricting
speech that is intended to spoil communal harmony and speech
which is seditious in nature. With suggestions, counter suggestions
and objections so articulated, the initial report of the Sub
Committee on Fundamental Rights underwent a lot of changes. The
evolution of clauses (1) and (2) of Article 19 stage by stage, from the
42 286 US 652 (1925)
29
time when the draft report was submitted in April 1947, upto the
time when the Constitution was adopted, can be presented in a
tabular form
43
as follows:
Draft Provision
Draft Report of the
Subcommittee on
Fundamental Rights, April
1947 (BSR II, 139)
9. There shall be liberty for the exercise of
the following rights subject to public order
and morality:
(a) The right of every citizen to freedom of
speech and expression. The publication or
utterance of seditious, obscene, slanderous,
libellous or defamatory matter shall be
actionable or punishable in accordance with
law.
Final Report of the Sub
Committee on Fundamental
Rights, April 1947 (BSR II,
172)
10. There shall be liberty for the exercise of
the following rights subject to public order
and morality or to the existence of grave
emergency declared to be such by the
Government of the Union or the unit
concerned whereby the security of the Union
or the unit, as the case may be.
Interim Report of the
Advisory Committee, April
30, 1947
There shall be liberty for the exercise of the
following rights subject to public order and
morality or to the existence of grave
emergency declared to be such by the
Government of the Union or the Unit
concerned whereby the security of the Union
or the Unit, as the case may be, is
threatened:
(a)The right of every citizen to freedom of
speech and expression:
Provision may be made by law to make the
publication or utterance of seditious,
obscene, blasphemous, slanderous, libellous
or defamatory matter actionable or
punishable.
Draft Constitution prepared15. (1) There shall be liberty for the exercise
43 Sourced from the article “Arguments from Colonial Continuity the Constitution (First
Amendment) Act, 1951” (2008) of Burra, Arudra, Assistant Professor, Department of
Humanities and Social Sciences , IIT (Delhi),
30
by B. N. Rau, October 1947
(BSR III, 89)
of the following rights subject to public order
and morality, namely:
(a) the right of every citizen to freedom of
speech and expression;
…
(2) Nothing in this section shall restrict the
power of the State to make any law or to take
any executive action which under this
Constitution it has power to make or to take,
during the period when a Proclamation of
Emergency issued under subsection (I) of
section 182 is in force, or, in the case of a
unit during the period of any grave
emergency declared by the Government of
the unit whereby the security of the unit is
threatened.
Draft Constitution prepared
by the Drafting Committee
and submitted to the
President of the Constituent
Assembly, February 1948
(BSR III, 522)
13. (1) Subject to the other provisions of this
Article, all citizens shall have the right –
(a) to freedom of speech and expression;
…
(2) Nothing in subclause (a) of clause (1) of
this Article shall affect the operation of any
existing law, or prevent the State from
making any law, relating to libel, slander,
defamation, sedition or any other matter
which offends against decency or
morality or undermines the authority or
foundation of the State.
Proposal introduced in the
Constituent Assembly in
October 1948 (BSR IV, 39)
13. (1) Subject to the other provisions of this
Article, all citizens shall have the right –
(a) to freedom of speech and expression;
…
(2) Nothing in subclause (a) of clause (1) of
this article shall affect the operation of any
existing law, or prevent the State from
making any law, relating to libel, slander,
defamation, sedition or any other matter
which offends against decency or morality or
undermines the security of, or tends to
overthrow, the State.
31
Revised Draft Constitution,
introduced and adopted in
November 1949 (BSR IV,
755)
19. (1) All citizens shall have the right
(a) to freedom of speech and expression;
…
(2) Nothing in subclause (a) of clause (1)
shall affect the operation of any existing law
in so far as it relates to, or prevent the State
from making any law relating to, libel,
slander, defamation, contempt of Court or
any matter which offends against decency or
morality or which undermines the security
of, or tends to overthrow, the State.
15.Immediately after the adoption of the Constitution, this Court
had an occasion to deal with a challenge to an order passed by the
Government of Madras in exercise of the powers conferred by
Section 9(1A) of the Madras Maintenance of Public Order Act,
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 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
Madras
45
held as follows:
44 1949 Act
45 AIR 1950 SC 124
32
“[12] We are therefore of opinion that unless a law
restricting freedom of speech and expression is
directed solely against the undermining of the security
of the State or the overthrow of it, such law cannot fall
within the reservation under clause (2) of Art. 19,
although the restrictions which it seeks to impose may
have been conceived generally in the interests of public
order. …”
16.An argument was advanced in Romesh Thappar (supra) that
Section 9(1A) of the 1949 Act could not be considered wholly void,
as the securing of public safety or maintenance of public order
would include the security of the State and that therefore the said
provision, as applied to the latter purpose was covered by Article
19(2). However, the said argument was rejected on the ground that
where a law purports to authorise the imposition of restrictions on
a fundamental right, in language wide enough to cover restrictions,
both within or without the limits of Constitutionally permissible
legislative action affecting such right, it is not possible to uphold it
even so far as it may be applied within the Constitutional limits, as
it is not severable.
17.On the same date on which the decision in Romesh Thappar
was delivered, the Constitution Bench of this Court also delivered
another judgment in Brij Bhushan vs. The State of Delhi
46
. It also
46 AIR 1950 SC 129
33
arose out of a writ petition under Article 32 challenging an order
passed by the Chief Commissioner of Delhi in exercise of the powers
conferred by Section 7(1)(c) of the East Punjab Public Safety Act,
1949, requiring the Printer and the Publisher as well as the Editor
of an English weekly by name ‘Organizer’, to submit for scrutiny,
before publication, all communal matters and news and views
about Pakistan including photographs and cartoons, other than
those derived from the official sources. Following the decision in
Romesh Thappar , the Constitution Bench held that the imposition
of precensorship on a journal is a restriction on the liberty of the
Press, which is an essential part of the right to freedom of speech
and expression. The Bench went on to hold that Section 7(1)(c) of
the East Punjab Public Safety Act, 1949 does not fall within the
reservation of clause (2) of Article 19.
18.After aforesaid two decisions, the Parliament sought to amend
the Constitution through the Constitution (First Amendment) Bill,
1951. In the Statement of Objects and Reasons to the First
Amendment, it was indicated that the citizen's right to freedom of
speech and expression guaranteed by Article 19(1)(a) has been held
34
by some Courts to be so comprehensive as not to render a person
culpable, even if he advocates murder and other crimes of violence.
Incidentally, the First Amendment also dealt with other issues,
about which we are not concerned in this discussion. Clause (2) of
Article 19 was substituted by a new clause under the Constitution
(First Amendment) Act, 1951. For easy appreciation of the
metamorphosis that clause (2) of Article 19 underwent after the first
amendment, we present in a tabular column, Article 19(2) prefirst
amendment and postfirst amendment as under:
PreFirst Amendment – Article
19(2)
PostFirst Amendment – Article
19(2)
(2) Nothing in subclause (a) of clause
(1) shall affect the operation of any
existing law in so far as it relates to,
or prevents the State from making
any law relating to, libel, slander,
defamation, contempt of court or any
matter which offends against decency
or morality or which undermines the
security of, or tends to overthrow, the
State.
(2) Nothing in subclause (a) of
clause (1) shall affect the operation
of any existing law, or prevent the
State from making any law, in so far
as such law imposes reasonable
restrictions on the exercise of the
right conferred by the said sub
clause in the interests of the
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.
19.It is significant to note that Section 3(1)(a) of the Constitution
(First Amendment) Act, 1951, declared that the newly substituted
35
clause (2) of Article 19 shall be deemed always to have been
enacted in the amended form, meaning thereby that the
amended clause (2) was given retrospective effect.
20.Another important feature to be noted in the amended clause
(2) of Article 19 is the inclusion of the words ‘reasonable
restrictions’. Thus, the test of reasonableness was introduced by the
first amendment and the same fell for jural exploration within no
time, in State of Madras vs. V.G. Row
47
. The said case arose out
of a judgment of the Madras High Court quashing a Government
Order declaring a society known as ‘People’s Education Society’ as
an unlawful association and also declaring as unconstitutional,
Section 15(2)(b) of the Indian Criminal Law Amendment Act, 1908,
as amended by the Indian Criminal Law Amendment (Madras) Act,
1950. While upholding the judgment of the Madras High Court, this
Court indicated as to how the test of reasonableness has to be
expounded. The relevant portion of the judgment reads as follows:
“23. It is important in this context to bear in mind that
the test of reasonableness, wherever prescribed,
should be applied to each individual statute impugned,
and no abstract standard, or general pattern of
47(1952) 1 SCC 410
36
reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been
infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the
evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing
conditions at the time, should all enter into the
judicial verdict. In evaluating such elusive factors
and forming their own conception of what is
reasonable, in all the circumstances of a given
case, it is inevitable that the social philosophy and
the scale of values of the Judges participating in
the decision should play an important part, and the
limit to their interference with legislative
judgment in such cases can only be dictated by
their sense of responsibility and selfrestraint and
the sobering reflection that the Constitution is
meant not only for people of their way of thinking
but for all, and that the majority of the elected
representatives of the people have, in authorizing
the imposition of the restrictions, considered them
to be reasonable.”
21.After the First Amendment to the Constitution, the country
witnessed cries for secession, with parochial tendencies showing
their ugly head, especially from a southern State. Therefore, a
National Integration Conference was convened in September
October, 1961 to find ways and means to combat the evils of
communalism, casteism, regionalism, linguism and narrow
mindedness. This Conference decided to set up the National
Integration Council. Accordingly, it was constituted in 1962. The
constitution of the Council assumed significance in the wake of the
37
SinoIndia war in 1962. This National Integration Council had a
Committee on national integration and regionalism. This Committee
recommended two amendments to the Constitution, namely, (i) the
amendment of clause (2) of Article 19 so as to include the words
“the sovereignty and integrity of India” as one of the restrictions; and
(ii) the amendment of 8 Forms of oath or affirmation contained in
the Third Schedule. Until 1963, no one taking a constitutional oath
was required to swear that they would “uphold the sovereignty and
integrity of India”. But, the Constitution (Sixteenth Amendment) Act,
1963 expanded the forms of oath to ensure that “every candidate
for the membership of a State Legislature or Parliament, and every
aspirant to, and incumbent of, public office” – to quote its Statement
of Objects and Reasons – “pledges himself . . . to preserve the
integrity and sovereignty of the Union of India.” Thus, by the
Constitution (Sixteenth Amendment) Act, 1963, “ the sovereignty
and integrity of India”, was included as an additional ground of
restriction on the right guaranteed under Article 19(1)(a).
22.Having seen the history of evolution of clause (2) of Article 19,
let us now turn to the first question.
38
Two parts of Question No.1
23.Question No.1 is actually in two parts. The first part raises a
poser as to whether reasonable restrictions on the right to free
speech enumerated in Article 19(2) could be said to be exhaustive.
The second part of the Question raises a debate as to whether
additional restrictions on the right to free speech can be imposed on
grounds not found in Article 19(2), by invoking other fundamental
rights.
First part of Question No.1
24.The judicial history of the evolution of clause (2) of Article 19
which we have captured above shows that lot of deliberations went
into the articulation of the restrictions now enumerated. The draft
Report of the SubCommittee on Fundamental Rights itself
underwent several changes until the Constitution was adopted in
November, 1949. In the form in which the Constitution was adopted
in 1949, the restrictions related to (i) libel; (ii) slander; (iii)
defamation; (iv) contempt of court; (v) any matter which offends
39
against decency or morality; and (vi) any matter which undermines
the security of the State or tends to overthrow the State.
25.After the 1
st
and 16
th
Amendments, the emphasis is on
reasonable restrictions relating to, (i) interests of sovereignty and
integrity of India; (ii) the security of the State; (iii) friendly relations
with foreign states; (iv) public order; (v) decency or morality; (vi)
contempt of court; (vii) defamation; and (viii) incitement to an
offence.
26.A careful look at these eight heads of restrictions would
show that they save the existing laws and enable the State to
make laws, restricting free speech with a view to afford
protection to (i) individuals (ii) groups of persons (iii) sections
of society (iv) classes of citizens (v) the Court (vi) the State and
(vii) the country. This can be demonstrated by providing in a table,
the provisions of the Indian Penal Code that make some speech or
expression a punishable offence, thereby impeding the right to free
speech, the heads of restriction under which they fall and the
40
category/class of person/persons sought to be protected by the
restriction:
Table of Provisions under IPC restricting freedom of speech and expression
Laws restricting free
speech
Heads of Restriction
traceable to Article 19(2)
Person/Class of Person
sought to be protected
and the nature of
protection.
Section 117 of the IPC
Abetting commission of
offence by the public or by
more than ten persons.
There is an illustration
under the section which
forms part of the statute.
This illustration seeks to
restrict freedom of
expression
Illustration:
A affixes in a public place a
placard instigating a sect
consisting of more than ten
members to meet at a
certain time and place, for
the purpose of attacking the
members of an adverse sect,
while engaged in a
procession. A has committed
the offence defined in this
section.
1.Public Order
2.Incitement to an Offence
Individual Persons
Protection from
incitement to commit
offence.
Section 124A of the IPC
Sedition
48
1.Public Order
2.Decency and Morality
State – Protection against
disaffection
Section 153A(1)(a) of the
IPC Promoting enmity
between different groups on
ground of religion, race,
place of birth, residence,
language, etc., and doing
acts prejudicial to
maintenance of harmony
1.Public Order
2. Decency and Morality
Groups of Persons
Protection from
disrupting harmony
among different sections
of society.
48 Subject matter of challenge pending before this Court.
41
Section 153B of the IPC
Imputations, assertions
prejudicial to the national
integration
1.Sovereignty and
Integrity of the State
2.Public Order
3.Decency and Morality
1. Nation
2. Group of persons
belonging to different
religions, races,
languages, etc,.
Section 171C of the IPC
Undue Influence at
Elections
1.Public Order Candidates contesting
the Election and Voters –
To ensure free and fair
election and to keep the
purity of the democratic
process
Section 228 of the IPC
Intentional insult or
interruption to public
servant sitting in judicial
proceedings
Contempt of Court Court –To prevent people
from undermining the
authority of the court.
Section 228A of the IPC
Disclosure of identity of the
victim of certain offences
etc.
1.Public Order
2.Decency and Morality
Individual persons
(Victims of offences u/s
376) Protection of
identity of women and
minors.
Section 295A of the IPC
Deliberate and malicious
acts, intended to outrage
religious feelings of any
class by insulting its
religion or religious beliefs.
1.Public order,
2.Decency and morality
Sections of society
professing and practicing
different religious
beliefs/sentiments.
Section 298 of the IPC
Uttering words, etc., with
deliberate intent to wound
religious feelings.
1.Public order,
2.Decency and morality
Sections of society
professing and practicing
different religious
beliefs/sentiments.
Section 351 of the IPC –
Assault. The definition of
assault includes some
utterances, as seen from
the Explanation under the
Section.
Explanation:
Mere words do not amount
to an assault. But the words
which a person uses may
give to his gestures or
preparation such a meaning
1.Public Order
2.Decency and morality
Individual Persons –
Protection from Criminal
Force.
42
as may make those gestures
or preparations amount to
an assault.
Section 354 of the IPC
Assault to woman with
intent to outrage her
modesty
Note:
The Definition of Assault
includes the use of words.
1.Public Order
2.Decency and morality
3.Defamation
Individual Persons –
Protection of Modesty of
a Woman.
Section 354A of the IPC –
Sexual Harassment (It
includes sexually colored
remarks).
1.Public Order
2.Decency and morality
3.Defamation
Individuals – Protection
of Modesty of a Woman.
Section 354C of the IPC –
Voyeurism
1.Public Order
2.Decency and morality
3.Defamation
Individuals – Protection
of Modesty of a Woman.
Section 354D of the IPC –
Stalking
1.Decency and Morality
2.Defamation
Individuals – Protection
of Modesty of a Woman.
Section 354E of the IPC –
Sextortion
1.Public Order
2.Decency and morality
3.Defamation
Individual Persons –
Protection of Modesty of
a Woman.
Section 355 of the IPC
Assault or criminal force
with intent to dishonour
person, otherwise than on
grave provocation.
Note:
The Definition of Assault
includes use of words.
1.Public Order
2.Decency and morality
3.Defamation
Individual Persons –
Protection of reputation.
Section 383 of the IPC –
Extortion (The illustration
under the Section includes
threat to publish
defamatory libel).
Illustration:
A threatens to publish a
defamatory libel concerning
Z unless Z gives him money.
He thus induces Z to give
1.Public Order
2.Decency and Morality
Individuals – Protection
from fear of injury/
Protection of Property.
43
him money. A has
committed extortion.
Section 390 of the IPC –
Robbery
Note:
In all robbery there is either
theft or extortion.
1.Public Order
2.Decency and Morality
Individuals – Protection
from fear of injury/
Protection of Property.
Section 499 of the IPC –
Defamation
Defamation Individual Persons and
Group of People –
Reputation sought to be
protected.
Section 504 of the IPC –
Intentional insult with
intent to provoke breach of
peace.
1.Incitement to an offense
2.Public Order
3.Decency and morality
The public – Protection of
Peace.
Section 505(1)(b) of the IPC
– Statement likely to cause
fear or alarm to the public
whereby any person may be
induced to commit an
offence against the State or
against the public
tranquility.
1.Sovereignty and Integrity
of the State
2.Incitement to an offense
3.Public Order
State – Protection from
the commission of
offences against the State
and protection of public
tranquility.
Section 505(1)(c) of the IPC
Statement intended to incite
any class or community of
persons to commit any
offence against any other
class or community.
Public Order Class/community of
people.
Protection from
incitement to commit
violence against class or
community.
Section 509 of the IPC –
Word, Gesture or Act
intended to insult the
modesty of a woman.
1.Defamation
2.Decency or Morality
Individual persons –
Protection of Modesty of
a Woman.
27.We have taken note of, in the above Table, only the provisions
of the Indian Penal Code that curtail free speech. There are also
other special enactments such as The Scheduled Castes and The
44
Scheduled Tribes (Prevention of Atrocities) Act, 1989, The
Prevention of Insults to National Honour Act, 1971 etc., which also
impose certain restrictions on free speech. From these it will be
clear that the eight heads of restrictions contained in clause (2) of
Article 19 are so exhaustive that the laws made for the purpose of
protection of the individual, sections of society, classes of citizens,
court, the country and the State have been saved.
28.The restrictions under clause (2) of Article 19 are
comprehensive enough to cover all possible attacks on the
individual, groups/classes of people, the society, the court, the
country and the State. This is why this Court repeatedly held that
any restriction which does not fall within the four corners of Article
19(2) will be unconstitutional. For instance, it was held by the
Constitution Bench in Express Newspapers (Private) Ltd. vs. The
Union of India
49
, that a law enacted by the legislature, which does
not come squarely within Article 19(2) would be struck down as
unconstitutional. Again, in Sakal Papers (supra), this Court held
that the State cannot make a law which directly restricts one
freedom even for securing the better enjoyment of another freedom.
491959 SCR 12
45
29.That the Executive cannot transgress its limits by imposing an
additional restriction in the form of Executive or Departmental
instruction was emphasised by this Court in Bijoe Emmanuel vs.
State of Kerala
50
. The Court made it clear that the reasonable
restrictions sought to be imposed must be through “a law” having
statutory force and not a mere Executive or Departmental
instruction. The restraint upon the Executive not to have a
backdoor intrusion applies equally to Courts. While Courts
may be entitled to interpret the law in such a manner that the
rights existing in blue print have expansive connotations, the Court
cannot impose additional restrictions by using tools of
interpretation. What this Court can do and how far it can afford to
go, was articulated by B. Sudharshan Reddy, J., in Ram
Jethmalani (supra) as follows:
“85. An argument can be made that this Court can
make exceptions under the peculiar circumstances of
this case, wherein the State has acknowledged that it
has not acted with the requisite speed and vigour in the
case of large volumes of suspected unaccounted for
monies of certain individuals. There is an inherent
danger in making exceptions to fundamental principles
and rights on the fly. Those exceptions, bit by bit, would
then eviscerate the content of the main right itself.
50(1986) 3 SCC 615
46
Undesirable lapses in upholding of fundamental rights
by the legislature, or the executive, can be rectified by
assertion of constitutional principles by this Court.
However, a decision by this Court that an exception
could be carved out remains permanently as a part of
judicial canon, and becomes a part of the constitutional
interpretation itself. It can be used in the future in a
manner and form that may far exceed what this Court
intended or what the constitutional text and values can
bear. We are not proposing that Constitutions cannot be
interpreted in a manner that allows the nationState to
tackle the problems it faces. The principle is that
exceptions cannot be carved out willynilly, and without
forethought as to the damage they may cause.
86.One of the chief dangers of making exceptions to
principles that have become a part of constitutional law,
through aeons of human experience, is that the logic,
and ease of seeing exceptions, would become
entrenched as a part of the constitutional order. Such
logic would then lead to seeking exceptions, from
protective walls of all fundamental rights, on grounds of
expediency and claims that there are no solutions to
problems that the society is confronting without the
evisceration of fundamental rights. That same logic
could then be used by the State in demanding
exceptions to a slew of other fundamental rights,
leading to violation of human rights of citizens on a
massive scale.”
30.Again, in Secretary, Ministry of Information &
Broadcasting, Govt. of India vs. Cricket Association of
Bengal
51
, this Court cautioned that the restrictions on free speech
can be imposed only on the basis of Article 19(2). In Ramlila
Maidan Incident, in re.
52
, this Court developed a threepronged
51(1995) 2 SCC 161
52 (2012) 5 SCC 1
47
test namely, (i) that the restriction can be imposed only by or under
the authority of law and not by exercise of the executive power; (ii)
that such restriction must be reasonable; and (iii) that the
restriction must be related to the purposes mentioned in clause (2)
of Article 19.
31.That the eight heads of restrictions contained in clause (2) of
Article 19 are exhaustive can be established from another
perspective also. The nature of the restrictions on free speech
imposed by law/judicial pronouncements even in countries where a
higher threshold is maintained, are almost similar. To drive home
this point, we are presenting in the following table, a comparative
note relating to different jurisdictions:
JurisdictionThe Document
from which the
Right to Freedom
of Speech and
Expression flows
The Document
from which the
restrictions on
the right to
freedom of
Speech and
Expression flow
Nature of
Restrictions
India Article 19(1)(a)
Constitution of
India
Article 19(2)
Constitution of
India
1.Sovereignty and
integrity of the
State,
2.Security of the
State,
3.Friendly relations
48
with foreign
countries,
4.Public order,
5.Decency and
morality,
6.Contempt of court,
7.Defamation,
8.Incitement to an
offense.
UK Article 10(1) of the
Human Rights Act,
1998
Article 10(2) of the
Human Rights Act,
1998
1.National security,
2.Territorial integrity
or public safety,
3.For the prevention
of disorder or
crime, for the
protection of
health or morals,
4.For the protection
of the reputation
or rights of others,
5.For preventing the
disclosure of
information
received in
confidence, or
6.For maintaining
the authority and
impartiality of the
judiciary.
USA First Amendment
to the US
Constitution
No restriction is
specifically
provided in the
Constitution. But
Judicial Review by
the Supreme Court
has admitted
certain restrictions
Recognised forms of
Unprotected Speech:
1. Obscenity as held
in Roth v. United
States, 354 U.S. 476,
483 (1957).
2.Child Pornography
as held in Ashcroft v.
Free Speech Coalition,
435 U.S. 234 (2002).
3. Fighting Words
49
and True Threat as
held in Chaplinsky v.
New Hampshire, 315
U.S. 568 (1942) and
Virginia v. Black, 538
U.S. 343, 363 (2003),
respectively.
Australia Australian
Constitution does
not expressly
speak about
freedom of
expression.
However, the High
Court has held
that an implied
freedom of political
communication
exists as an
indispensible part
of the system of
representative and
responsible
government
created by the
Constitution. It
operates as a
freedom from
government
restraint, rather
than a right
conferred directly
on individuals.
Australia is a party
to seven core
international
human rights
treaties. The right
to freedom of
opinion and
expression is
contained in
Articles 19 and 20
of the International
Covenant on Civil
and Political
Rights (ICCPR)and
Articles 4 and 5 of
1. Article 19(3), 20
of the ICCPR
contains
mandatory
limitations on
freedom of
expression, and
requires countries,
subject to
reservation/declar
ation, to outlaw
vilification of
persons on
national, racial or
religious grounds.
Australia has
made a declaration
in relation to
Article 20 to the
effect that existing
Commonwealth
and state
legislation is
regarded as
adequate, and that
the right is
reserved not to
introduce any
further legislation
imposing further
restrictions on
these matters.
2. Criminal Code
Act 1995
3. Racial
Discrimination
Act 1975
Under International
Treaties:
1.Rights of
Reputation of
Others,
2.National Security,
3.Public Order,
4.Public Health, or
5.Public Morality
Under the Criminal
Code Act, 1995
1.Offences relating to
urging by force or
violence the overthrow
of the Constitution or
the lawful authority of
the Government; and
2. Offences relating to
the use of a
telecommunications
carriage service in a
way which is
intentionally
menacing, harassing
or offensive, and
using a carriage
service to
communicate content
which is menacing,
harassing or
offensive.
Speech or
Expression
amounting to Racial
50
the Convention on
the Elimination of
All Forms of Racial
Discrimination
(CERD) , Articles
12 and 13 of the
Convention on the
Rights of the Child
(CRC) and Article
21 of the
Convention on the
Rights of Persons
with Disabilities
(CRPD).
Discrimination
under the Racial
Discrimination Act,
1975
European
Union
Article 10(1),
European
Convention on
Human Rights,
1950
Article 10(2),
European
Convention on
Human Rights,
1950
1.In the interests of
national security,
territorial integrity
or public safety,
2.For the prevention
of disorder or
crime,
3.For the protection
of health or
morals,
4.For the protection
of the reputation
or rights of others,
5.For preventing the
disclosure of
information
received in
confidence, or
6.For maintaining
the authority and
impartiality of the
judiciary.
Republic of
South Africa
Bill of Rights,
Article 16(1) of the
Constitution of the
Republic of South
Africa, 1996
Bill of Rights,
Article 16(2) of the
Constitution of the
Republic of South
Africa, 1996
1.Propaganda for
war,
2.Incitement of
imminent violence,
3.Advocacy of hatred
that is based on
race, ethnicity,
gender, religion,
and that
51
constitutes
incitement to
cause harm.
32.Since the eight heads of restrictions contained in clause (2) of
Article 19 seek to protect:
(i) the individual – against the infringement of his dignity,
reputation, bodily autonomy and property;
(ii) different sections of society professing and practicing, different
religious beliefs/sentiments against offending their beliefs and
sentiments;
(iii) classes/groups of citizens belonging to different races, linguistic
identities etc. against an attack on their identities;
(iv) women and children – against the violation of their special
rights;
(v) the State against the breach of its security;
(vi) the country against an attack on its sovereignty and integrity;
(vii) the Court – against an attempt to undermine its authority,
we think that the restrictions contained in clause (2) of Article 19
are exhaustive and no further restriction need to be incorporated.
33.In any event, the law imposing any restriction in terms of
clause (2) of Article 19 can only be made by the State and not by
52
the Court. The role envisaged in the Constitutional scheme for
the Court, is to be a gatekeeper (and a conscience keeper) to
check strictly the entry of restrictions, into the temple of
fundamental rights. The role of the Court is to protect
fundamental rights limited by lawful restrictions and not to
protect restrictions and make the rights residual privileges .
Clause (2) of Article 19 saves (i) the operation of any existing law;
and (ii) the making of any law by the State. Therefore, it is not for
us to add one or more restrictions than what is already found.
Second part of Question No.1
34.The second part of Question No.1 is as to whether additional
restrictions on the right to free speech can be imposed on grounds
not found in Article 19(2) by invoking other fundamental rights.
35.This part of Question No.1 already stands partly answered
while dealing with the first part of Question No.1. The decisions of
this Court in Express Newspapers (Private) Ltd. (supra), the
Cricket Association of Bengal (supra) and Ramlila Maidan
53
Incident, in re. (supra), provide a complete answer to the question
whether additional restrictions on the right to free speech can be
imposed on grounds not found in Article 19(2).
36.The question whether additional restrictions can peep into
Article 19(2), by invoking other fundamental rights, also stands
answered by this Court in Sakal Papers. In Sakal Papers, the
Central Government issued an order called Daily Newspaper (Price
and Page) Order, 1960 in exercise of the power conferred under the
Newspaper (Price and Page) Act, 1956, fixing the maximum number
of pages that might be published by a newspaper according to the
price charged. Therefore, the publisher of a Marathi Newspaper
challenged the constitutionality of both the Act and the Order. One
of the arguments raised on behalf of the State in the said case was
that there are two aspects of the activities of newspapers namely,
(i) the dissemination of news and views; and (ii) the commercial
aspect. While the former would fall under Article 19(1)(a), the latter
would fall under Article 19(1)(g).
37.Since these two rights are independent and since the
restrictions on the right under Article 19(1)(g) can be placed in the
54
interest of the general public under Article 19(6), it was contended
by the State in Sakal Papers that the Act and the Order are saved
by clause (6) of Article 19. Butthe said argument of the State was
rejected by the Constitution Bench in Sakal Papers, in the
following words:
“It may well be within the power of the State to place,
in the interest of the general public, restrictions upon
the right of a citizen to carry on business but it is not
open to the State to achieve this object by directly and
immediately curtailing any other freedom of that
citizen guaranteed by the Constitution and which is
not susceptible of abridgement on the same grounds
as are set out in cl. (6) of Art. 19. Therefore, the right
of freedom of speech cannot be taken away with the
object of placing restrictions on the business activities
of a citizen. Freedom of speech can be restricted only
in the interests of the security of the State, friendly
relations with foreign State, public order, decency or
morality or in relation to contempt of court,
defamation or incitement to an offence. It cannot, like
the freedom to carry on business, be curtailed in the
interest of the general public. If a law directly
affecting it is challenged it is no answer that the
restrictions enacted by it are justifiable under cls.
(3) to (6). For, the scheme of Art. 19 is to
enumerate different freedoms separately and then
to specify the extent of restrictions to which they
may be subjected and the objects for securing
which this could be done. A citizen is entitled to
enjoy each and every one of the freedoms together
and cl. (1) does not prefer one freedom to another.
That is the plain meaning of this clause. It
follows from this that the State cannot make a
law which directly restricts one freedom even for
securing the better enjoyment of another freedom.
All the greater reason, therefore, for holding that
55
the State cannot directly restrict one freedom by
placing an otherwise permissible restriction on
another freedom.”
38.We are conscious of the fact that Sakal Papers was a case
where the petitioner before the Court had two different fundamental
rights and the law made by the State fell within the permitted
restrictions upon the exercise of one of those two fundamental
rights. However, the restriction traceable to clause (6) of Article 19
was not available in clause (2) of Article 19. It is in such
circumstances that this Court held that the restriction validly
imposed upon the exercise of one fundamental right cannot
automatically become valid while dealing with another fundamental
right of the same person, the restriction of which stands
Constitutionally on different parameters.
39.In Sakal Papers the conflict was neither between one
individual’s fundamental right qua another individual’s
fundamental right nor one fundamental right qua another
fundamental right of the same individual. It was a case where a
restriction validly made upon a fundamental right was held invalid
qua another fundamental right of the same individual. In the cases
56
on hand, what is sought to be projected is a possible conflict arising
out of the exercise of a fundamental right by one individual, in a
manner infringing upon the free exercise of the fundamental right of
another person. But this conflict is age old.
40.The exercise of all fundamental rights by all citizens is possible
only when each individual respects the other person’s rights. As
acknowledged by the learned Attorney General and Ms. Aparjita
Singh, learned Amicus, this Court has always struck a balance
whenever it was found that the exercise of fundamental rights by an
individual, caused inroads into the space available for the exercise
of fundamental rights by another individual. The emphasis even in
the Preamble on “fraternity” is an indication that the survival of all
fundamental rights and the survival of democracy itself depends
upon mutual respect, accommodation and willingness to coexist in
peace and tranquility on the part of the citizens. Let us now see a
few examples. The Fundamental Duty enjoined upon every citizen of
the country under Article 51A (e) to “promote harmony and the
spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities
57
and to renounce practices derogatory to the dignity of women”, is
also an indicator that no one can exercise his fundamental right in
a manner that infringes upon the fundamental right of another.
41.As articulated by Jeevan Reddy, J. in Cricket Association of
Bengal, no one can exercise his right of speech in such a manner
as to violate another man’s right. In paragraph 152 of the decision
in Cricket Association of Bengal, Jeevan Reddy, J. said : “Indeed
it may be the duty of the State to ensure that this right is
available to all in equal measure and that it is not hijacked
by a few to the detriment of the rest. This obligation flows
from the Preamble to our Constitution, which seeks to secure
all its citizens liberty of thought, expression, belief and
worship………...Under our Constitutional scheme, the State is
not merely under an obligation to respect the fundamental
rights guaranteed by PartIII but under an equal obligation to
ensure conditions in which those rights can be meaningfully
and effectively enjoyed by one and all.”
58
42. The above passage from the opinion of Jeevan Reddy, J., in
Cricket Association of Bengal, was quoted with approval by the
Constitution Bench in Sahara India Real Estate Corporation
Limited case.
43.There are several instances where this Court either struck a
balance or placed on a slightly higher pedestal, the fundamental
right of one over that of the other. Interestingly, the competing
claims arose in many of those cases, in the context of Article 19(1)
(a) right of one person qua Article 21 right of another. Let us now
take a look at some of them.
(i) In R. Rajagopal (supra), the rights pitted against one another
were the freedom of expression under Article 19(1)(a) and the
right to privacy of the Officers of the Government under Article
21. This Court propounded:
“26. We may now summarise the broad principles
flowing from the above discussion:
(1) The right to privacy is implicit in the right to life
and liberty guaranteed to the citizens of this country
by Article 21. It is a "right to be let alone". A citizen has
a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, childbearing and
education among other matters. None can publish
anything concerning the above matters without his
consent — whether truthful or otherwise and whether
laudatory or critical. If he does so, he would be
59
violating the right to privacy of the person concerned
and would be liable in an action for damages. Position
may, however, be different, if a person voluntarily
thrusts himself into controversy or voluntarily invites
or raises a controversy.
(2) The rule aforesaid is subject to the exception, that
any publication concerning the aforesaid aspects
becomes unobjectionable if such publication is based
upon public records including court records. This is
for the reason that once a matter becomes a matter of
public record, the right to privacy no longer subsists
and it becomes a legitimate subject for comment by
press and media among others. We are, however, of
the opinion that in the interests of decency [Article
19(2)] an exception must be carved out to this rule,
viz., a female who is the victim of a sexual assault,
kidnap, abduction or a like offence should not further
be subjected to the indignity of her name and the
incident being publicised in press/media.
(3) There is yet another exception to the rule in (1)
above — indeed, this is not an exception but an
independent rule. In the case of public officials, it is
obvious, right to privacy, or for that matter, the
remedy of action for damages is simply not available
with respect to their acts and conduct relevant to the
discharge of their official duties. This is so even where
the publication is based upon facts and statements
which are not true, unless the official establishes that
the publication was made (by the defendant) with
reckless disregard for truth. In such a case, it would
be enough for the defendant (member of the press or
media) to prove that he acted after a reasonable
verification of the facts; it is not necessary for him to
prove that what he has written is true. Of course,
where the publication is proved to be false and
actuated by malice or personal animosity, the
defendant would have no defence and would be liable
for damages. It is equally obvious that in matters not
relevant to the discharge of his duties, the public
official enjoys the same protection as any other citizen,
as explained in (1) and (2) above. It needs no
reiteration that judiciary, which is protected by the
power to punish for contempt of court and Parliament
60
and legislatures protected as their privileges are by
Articles 105 and 104 respectively of the Constitution of
India, represent exceptions to this rule.
(4) So far as the Government, local authority and other
organs and institutions exercising governmental power
are concerned, they cannot maintain a suit for
damages for defaming them.
(5) Rules 3 and 4 do not, however, mean that Official
Secrets Act, 1923, or any similar enactment or
provision having the force of law does not bind the
press or media.
(6) There is no law empowering the State or its officials
to prohibit, or to impose a prior restraint upon the
press/media.”
(ii) In People’s Union for Civil Liberties (PUCL) (supra), the
rights that were perceived as competing with each other were
the right to privacy of the spouse of a candidate contesting
election qua the voter’s right to information. In his separate
but near concurring opinion, P. Venkatarama Reddi, J.
articulated the position thus:
“121. …
…When there is a competition between the right to
privacy of an individual and the right to
information of the citizen, the former right has to
be subordinated to the latter right as it serves the
larger public interest. …”
(iii) In Noise Pollution (V.), in Re (supra), the rights that
competed with one another, were the rights enshrined in
Article 19(1)(a) and Article 21. The clash was between
61
individuals and the persons in the neighborhood. This Court
held:
“11. Those who make noise often take shelter
behind Article 19(1)(a) pleading freedom of speech and
right to expression. Undoubtedly, the freedom of
speech and right to expression are fundamental rights
but the rights are not absolute. Nobody can claim a
fundamental right to create noise by amplifying the
sound of his speech with the help of loudspeakers.
While one has a right to speech, others have a right to
listen or decline to listen. Nobody can be compelled to
listen and nobody can claim that he has a right to
make his voice trespass into the ears or mind of
others. Nobody can indulge into aural aggression. If
anyone increases his volume of speech and that too
with the assistance of artificial devices so as to
compulsorily expose unwilling persons to hear a noise
raised to unpleasant or obnoxious levels, then the
person speaking is violating the right of others to a
peaceful, comfortable and pollutionfree life
guaranteed by Article 21. Article 19(1)(a) cannot be
pressed into service for defeating the fundamental
right guaranteed by Article 21. …”
(iv)In Ram Jethmalani the right to know, inhering in Article
19(1)(a) and the right to privacy under Article 21, were seen to
be in conflict. Right to privacy was asserted by individuals
holding bank accounts in other countries. The court had to
balance the same with the citizens’ right to know. This Court
propounded as follows:
“84. The rights of citizens, to effectively seek the
protection of fundamental rights, under clause (1)
of Article 32 have to be balanced against the rights of
citizens and persons under Article 21. The latter
cannot be sacrificed on the anvil of fervid desire to find
instantaneous solutions to systemic problems such as
unaccounted for monies, for it would lead to
62
dangerous circumstances, in which vigilante
investigations, inquisitions and rabble rousing, by
masses of other citizens could become the order of the
day. The right of citizens to petition this Court for
upholding of fundamental rights is granted in order
that citizens, interalia, are ever vigilant about the
functioning of the State in order to protect the
constitutional project. That right cannot be extended
to being inquisitors of fellow citizens. An inquisitorial
order, where citizens’ fundamental right to privacy is
breached by fellow citizens is destructive of social
order. The notion of fundamental rights, such as a
right to privacy as part of right to life, is not merely
that the State is enjoined from derogating from them.
It also includes the responsibility of the State to
uphold them against the actions of others in the
society, even in the context of exercise of fundamental
rights by those others.”
(v)In Sahara India Real Estate Corporation Limited freedom
of press and the right to fair trial were the competing rights. In
this case, the Constitution Bench was dealing with a question
whether an order for postponement of publication of the
proceedings pending before a Court, would constitute a
restriction under Article 19(1)(a) and as to whether such
restriction is saved under Article 19(2). This question was
answered by the Constitution Bench in para 42 as follows:
“42. At the outset, we must understand the nature of
such orders of postponement. Publicity postponement
orders should be seen in the context of Article 19(1)(a)
not being an absolute right. The US clash model based
on collision between freedom of expression (including
free press) and the right to a fair trial will not apply to
the Indian Constitution. In certain cases, even the
accused seeks publicity (not in the pejorative sense) as
openness and transparency is the basis of a fair trial
in which all the stakeholders who are a party to a
63
litigation including the Judges are under scrutiny and
at the same time people get to know what is going on
inside the courtrooms. These aspects come within the
scope of Article 19(1) and Article 21. When rights of
equal weight clash, the Courts have to evolve
balancing techniques or measures based on
recalibration under which both the rights are given
equal space in the constitutional scheme and this is
what the “postponement order” does, subject to the
parameters mentioned hereinafter. But, what happens
when the courts are required to balance important
public interests placed side by side. For example, in
cases where presumption of open justice has to be
balanced with presumption of innocence, which as
stated above, is now recognised as a human right.
These presumptions existed at the time when the
Constitution was framed [existing law under Article
19(2)] and they continue till date not only as part of
rule of law under Article 14 but also as an Article 21
right. The constitutional protection in Article 21 which
protects the rights of the person for a fair trial is, in
law, a valid restriction operating on the right to free
speech under Article 19(1)(a), by virtue of force of it
being a constitutional provision. Given that
the postponement orders curtail the freedom of
expression of third parties, such orders have to be
passed only in cases in which there is real and
substantial risk of prejudice to fairness of the trial or to
the proper administration of justice which in the words
of Justice Cardozo is “the end and purpose of all laws”.
However, such orders of postponement should be
ordered for a limited duration and without disturbing
the content of the publication. They should be passed
only when necessary to prevent real and substantial
risk to the fairness of the trial (court proceedings), if
reasonable alternative methods or measures such as
change of venue or postponement of trial will not
prevent the said risk and when the salutary effects of
such orders outweigh the deleterious effects to the free
expression of those affected by the prior restraint. The
order of postponement will only be appropriate in
cases where the balancing test otherwise favours non
publication for a limited period. …”
64
(vi)In Thalapplam Service Cooperative Bank Ltd. (supra), the
right to know held as part of Article 19(1)(a) and the right to
privacy being part of Article 21 were perceived as competing
with each other, in a matter between holders of accounts in
cooperative banks and members of the public who wanted
details. This Court in paragraph 64 held:
“64. Recognising the fact that the right to privacy is a
sacrosanct facet of Article 21 of the Constitution, the
legislation has put a lot of safeguards to protect the
rights under Section 8(j), as already indicated. If the
information sought for is personal and has no
relationship with any public activity or interest or it
will not subserve larger public interest, the public
authority or the officer concerned is not legally obliged
to provide those information. Reference may be made
to a recent judgment of this Court in Girish
Ramchandra Deshpande v. Central Information
Commr., (2013) 1 SCC 212, wherein this Court held
that since there is no bona fide public interest in
seeking information, the disclosure of said information
would cause unwarranted invasion of privacy of the
individual under Section 8(1)(j) of the Act. Further, if
the authority finds that information sought for can be
made available in the larger public interest, then the
officer should record his reasons in writing before
providing the information, because the person from
whom information is sought for, has also a right to
privacy guaranteed under Article 21 of the
Constitution.”
(vii) In Subramanian Swamy (supra), the right to freedom of
speech of an individual guaranteed under Article 19(1)(a) qua
the right to dignity and reputation of another individual
guaranteed under Article 21 were the competing rights. In this
case, the Court held as follows:
65
“98. Freedom of speech and expression in a spirited
democracy is a highly treasured value. Authors,
philosophers and thinkers have considered it as a
prized asset to the individuality and overall
progression of a thinking society, as it permits
argument, allows dissent to have a respectable place,
and honours contrary stances. There are proponents
who have set it on a higher pedestal than life and not
hesitated to barter death for it. Some have condemned
compelled silence to ruthless treatment. William
Dougles has denounced regulation of free speech like
regulating diseased cattle and impure butter. The
Court has in many an authority having realised its
precious nature and seemly glorified sanctity has put
it in a meticulously structured pyramid. Freedom of
speech is treated as the thought of the freest who has
not mortgaged his ideas, may be wild, to the artificially
cultivated social norms; and transgression thereof is
not perceived as a folly. Needless to emphasise,
freedom of speech has to be allowed specious castle,
but the question is: should it be so specious or
regarded as so righteous that it would make
reputation of another individual or a group or a
collection of persons absolutely ephemeral, so as to
hold that criminal prosecution on account of
defamation negates and violates right to free speech
and expression of opinion…”
(viii) In Asha Ranjan (supra), the right to free trial, of an accused
vis
àvis
the victim, came up for consideration. The Court
propounded in paragraph 61:
“61. Be it stated, circumstances may emerge that may
necessitate for balancing between intrafundamental
rights. It has been distinctly understood that the test
that has to be applied while balancing the two
fundamental rights or inter fundamental rights, the
principles applied may be different than the principle
to be applied in intraconflict between the same
fundamental right. To elaborate, as in this case, the
accused has a fundamental right to have a fair trial
under Article 21 of the Constitution. Similarly, the
66
victims who are directly affected and also form a part
of the constituent of the collective, have a fundamental
right for a fair trial. Thus, there can be two individuals
both having legitimacy to claim or assert the right. The
factum of legitimacy is a primary consideration. It has
to be remembered that no fundamental right is
absolute and it can have limitations in certain
circumstances. Thus, permissible limitations are
imposed by the State. The said limitations are to be
within the bounds of law. However, when there is
intraconflict of the right conferred under the same
article, like fair trial in this case, the test that is
required to be applied, we are disposed to think, it
would be “paramount collective interest” or
“sustenance of public confidence in the justice
dispensation system”. An example can be cited. A
group of persons in the name of “class honour”, as has
been stated in Vikas Yadav v. State of U.P., (2016) 9
SCC 541: (2016) 3 SCC (Cri) 621], cannot curtail or
throttle the choice of a woman. It is because choice of
woman in choosing her partner in life is a legitimate
constitutional right. It is founded on individual choice
that is recognised in the Constitution under Article 19,
and such a right is not expected to succumb to the
concept of “class honour” or “group thinking”. It is
because the sense of class honour has no legitimacy
even if it is practised by the collective under some kind
of a notion. Therefore, if the collective interest or the
public interest that serves the public cause and
further has the legitimacy to claim or assert a
fundamental right, then only it can put forth that their
right should be protected. There can be no denial of
the fact that the rights of the victims for a fair trial is
an inseparable aspect of Article 21 of the Constitution
and when they assert that right by themselves as well
as the part of the collective, the conception of public
interest gets galvanised. The accentuated public
interest in such circumstances has to be given
primacy, for it furthers and promotes “Rule of Law”.
…”
67
(ix) In Railway Board representing the Union of India vs.
Niranjan Singh
53
, a trade union worker was charged of the
misconduct of addressing meetings within the railway
premises, in contravention of the directions issued by the
employer. When he sought protection under clauses (a), (b)
and (c) of Article 19(1), this Court rejected the same by holding
“that the exercise of those freedoms will come to an end
as soon as the right of someone else to hold his property
intervenes.” This Court went on to state that “the validity of
that limitation is not to be judged by the test prescribed
in subArticles (2) and (3) of Article 19”.
(x)In Life Insurance Corporation of India vs. Prof. Manubhai
D. Shah
54
, two fundamental rights were not competing or in
conflict with each other. But the right to free speech and the
right to propagate one’s ideas, in the context of censorship
under the Cinematograph Act, 1952 and in the context of a
State institution refusing to publish an Article in an inhouse
magazine were in question. In Paragraph 23 of the Report, this
Court said: “every right has a corresponding duty or obligation
and so is the fundamental right of speech and expression. The
freedom conferred by Article 19(1((a) is therefore not absolute as
perhaps in the case of the US First Amendment: it carries with it
certain responsibilities towards fellow citizens and society at
53(1969) 1 SCC 502
54 (1992) 3 SCC 637
68
large. A citizen who exercises this right must remain
conscious that his fellow citizen too has a similar right.
Therefore, the right must be so exercised as not to come
in direct conflict with the right of another citizen.”
44.The series of decisions discussed above shows that whenever
two or more fundamental rights appeared either to be on a collision
course or to be seeking preference over one another, this Court has
dealt with the same by applying wellestablished legal tools.
Therefore, we are of the view that under the guise of invoking other
fundamental rights, additional restrictions, over and above those
prescribed in Article 19(2), cannot be imposed upon the exercise of
one’s fundamental rights.
45.In fine, we answer Question No.1 in the following manner:
“The grounds lined up in Article 19(2) for restricting the
right to free speech are exhaustive. Under the guise of
invoking other fundamental rights or under the guise of
two fundamental rights staking a competing claim against
each other, additional restrictions not found in Article
19(2), cannot be imposed on the exercise of the right
conferred by Article 19(1)(a) upon any individual.”
69
Question No.2
46.The second question referred to us is as to whether a
fundamental right under Article 19 or 21 can be claimed against
anyone other than the State or its instrumentalities. Actually, the
question is not about “claim” but about “enforceability”.
47.To use the phraseology adopted by the philosophers of Law,
the question on hand is as to whether Part III of the
Constitution has a “vertical” or “horizontal” effect. Wherever
Constitutional rights regulate and impact only the conduct of the
Government and Governmental actors, in their dealings with private
individuals, they are said to have “a vertical effect”. But wherever
Constitutional rights impact even the relations between private
individuals, they are said to have “a horizontal effect”.
48.In his scholarly article, “The ‘Horizontal Effect’ of
Constitutional Rights”, published in Michigan Law Review (Volume
2. Issue 3, 2003) Stephen Gardbaum, states that the horizontal
position has been adopted to varying degrees in Ireland, Canada,
Germany, South Africa and European Union. According to the
70
learned author, this issue has also been the topic of sustained
debate in the United Kingdom following the enactment of the
Human Rights Act of 1998
55
.
49.No jurisdiction in the world appears to be adopting, at least as
on date, a purely vertical approach or a wholly horizontal approach.
A vertical approach provides weightage to individual autonomy,
choice and privacy, while the horizontal approach seeks to imbibe
Constitutional values in all individuals. These approaches which
appear to be bipolar opposites, raise the ageold question of
‘individual vs. society’.
50.Even in countries where the individual reigns supreme, as in
the United States, the Thirteenth Amendment making slavery and
involuntary servitude a punishable offence, has actually made
inroads into individual autonomy. Therefore, some scholars think
that the Thirteenth Amendment provided a shift from the ‘purely
vertical’ approach in a direct way. Subsequently, an indirect effect
of the horizontality was found in certain decisions of the U.S.
Supreme Court, two of which are of interest.
55Interestingly The Protection of Human Rights Act, 1993 was enacted in India five years
before a similar Act came in United Kingdom.
71
51.After the American Civil War (18611865), the Reconstruction
Era began in the United States. During this period, the Fourteenth
Amendment came (18661868) followed by the Civil Rights Act,
1875 (also called Enforcement Act or Force Act). This Civil Rights
Act, 1875 entitled everyone, to access accommodation, public
transport and theaters regardless of race or color. Finding that
despite the Act, they were excluded from “whites only” facilities in
hotels, theaters etc., the victims of discrimination (African
Americans) filed cases. All those five cases were tagged together and
the U.S. Supreme Court held in (year 1883) what came to be known
as “Civil Rights Cases”
56
that the Thirteenth and Fourteenth
Amendments did not empower Congress to outlaw racial
discrimination by private individuals. But after nearly 85 years, this
decision was overturned in Jones vs. Alfred H. Mayer Co
57
wherein it was held that Congress could regulate sale of private
property to prevent racial discrimination. This was done in terms of
42 U.S. Code § 1982 which entitled all citizens of the United States
to have the same right, in every State and Territory, as is enjoyed by
56109 US 3 (1883)
57392 US 409 (1968)
72
white citizens thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.
52.But a good 20 years before the decision in Jones (supra) was
delivered, the U.S. Supreme Court had an occasion to consider a
clash between contractual rights and Constitutional rights. It was
in Shelly (supra) where an AfricanAmerican family (Shellys) who
purchased a property in a neighbourhood in St. Louis, Missouri was
sought to be restrained from taking possession, because of a
racially restrictive covenant contained in an Agreement of the year
1911 to which a majority of property owners in the neighbourhood
were parties. The covenant restricted the sale of any property or
part thereof for a term of 50 years to AfricanAmericans and Asian
Americans. The Missouri Supreme Court upheld the racially
restricted covenant. But the U.S. Supreme Court reversed it holding
that the enforcement of such covenants violated the Equal
Protection Clause of the Fourteenth Amendment. In other words
the contractual rights were trumped by the Constitutional
obligations.
73
53.Then came the decision in New York Times vs. Sullivan
58
. It
was a case where the City Commissioner in Montgomery, Alabama
filed an action for libel against the New York Times for publishing
an allegedly defamatory statement in a paid advertisement. The jury
awarded damages and the judgment was affirmed by the Supreme
Court of Alabama. However, the U.S. Supreme Court reversed the
decision and held that the First Amendment which prohibited a
public official from recovering damages for a defamatory falsehood
relating to the public official’s official conduct except in the case of
actual malice, bound the plaintiff from exercising his private right.
54.The above decisions of the U.S. Supreme Court were seen by
scholars as indicating a shift from a ‘purely vertical approach’ to a
‘horizontal approach’.
55.While the U.S. Constitution represented (to begin with) a
purely vertical approach, the Irish Constitution was found to be on
the opposite side of the spectrum, with the rights provided therein
having horizontal effect. Article 40 of the Irish Constitution deals
with Personal Rights under the Chapter “Fundamental Rights”. Sub
58376 U.S. 254 (1964)
74
Article (3) of Article 40 states that “The State guarantees in its laws
to respect, and, as far as practicable, by its laws to defend and
vindicate the personal rights of the citizen”. In other words, two
rights are guaranteed namely (i) respect for the personal rights of
the citizen; and (ii) to defend and vindicate the personal rights of its
citizen.
56.The second clause of subArticle (3) of Article 40 of the Irish
Constitution states that “The State shall, in particular, by its laws
protect as best it may from unjust attack and, in the case of injustice
done, vindicate the life, person, good name, and property rights of
every citizen”.
57.The above provisions have been interpreted by the Irish
Supreme Court as imposing a positive obligation on all State actors,
including the Courts to protect and enforce the rights of individuals.
It appears that full horizontal effect was given by the Irish Supreme
Court to Constitutional rights such as freedom of association,
freedom from sex discrimination and the right to earn a livelihood.
For instance, the Irish Supreme Court had an occasion to consider
75
in John Meskell, the Constitutional rights of citizens to form
associations and unions guaranteed by Article 40.6.1. This case
arose out of an agreement reached between certain trade unions
and the employer to terminate the services of all workers and to
reemploy them on condition that they agree to be members of the
specified trade unions at all times. One employee whose services
were terminated was not reemployed, as he refused to accept the
special condition. Therefore, he sued the company for damages and
claimed a declaration that his dismissal was a violation of the
Constitutional rights. Holding that the Constitutional right of
citizens to form associations and unions necessarily
recognized a correlative right to abstain from joining
associations and unions, the Irish Supreme Court awarded
damages on the ground that the nonState actors actually violated
the Constitutional right of the plaintiff. In other words, the
Constitutional rights were considered to have horizontal effect.
58.The Constitution of the Republic of South Africa, 1996 also
provides horizontal effect to certain rights. Section 8.2 of the said
Constitution states: “A provision of the Bill of Rights binds a
76
natural or a juristic person if, and to the extent that, it is
applicable, taking into account the nature of the right and the nature
of any duty imposed by the right.”
59.The manner in which Section 8.2 has to be applied is spelt out
in Section 8.3. The same reads thus:
“8. Application
…..
3. When applying a provision of the Bill of Rights to a
natural or juristic person in terms of subsection (2), a
court
a. in order to give effect to a right in the Bill,
must apply, or if necessary develop, the common
law to the extent that legislation does not give
effect to that right; and
b. may develop rules of the common law to limit
the right, provided that the limitation is in
accordance with section 36(1).”
60.Section 9 of the Constitution of the Republic of South Africa
guarantees equality before law and equal protection and the benefit
of the law to everyone. Section 9.3 mandates the State not to
unfairly discriminate directly or indirectly against anyone, on
one or more grounds including race, gender, sex, pregnancy,
77
marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture, language, and birth. If Section 9.3 is a mandate against
the State, what follows in Section 9.4 is a mandate against every
person. Section 9.4 reads as follows:
“9. Equality
…..
4. No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds
in terms of subsection (3). National legislation
must be enacted to prevent or prohibit unfair
discrimination.”
61.Again, Section 10 recognises the right to human dignity.
While doing so, it employs a language, which applies to non
State actors also. Section 10 states that “Everyone has inherent
dignity and the right to have their dignity respected and protected”.
62.During the period from April 1994 to February 1997, when the
Republic of South Africa had an Interim Constitution, the
Constitutional Court of South Africa had an occasion to deal with a
defamation action in Du Plessis and Others vs. De Klerk and
78
Another
59
. The defamation action was instituted by an Airline
company, against a newspaper for publishing an article implicating
the Airline in the unlawful supply of arms to UNITA (National Union
for the Total Independence of Angola). After the Interim Constitution
came into force, the defendantnewspaper raised a defence that
they were insulated against the defamation action, under Section
15 of the Constitution which protected the freedom of the press.
The Transvaal Provincial Division of the Supreme Court referred two
issues to the Constitutional Court. One of the issues was
whether Chapter 3 (fundamental rights) of the Constitution
was applicable to legal relationships between private parties.
The majority (11:2) of the Court held that Chapter 3 could not be
applied directly to the common law in actions between private
parties. But they left open the question whether there were
particular provisions of the Chapter that could be so applied.
However, the Court held that in terms of Section 35(3) of the
Interim Constitution, Courts were obliged in the application and
development of common law, to have due regard to the spirit,
purport and objects of Chapter 3. The majority held that it was the
59 1996 ZACC 10
79
task of the Supreme Court to apply and develop the common law as
required by Section 35(3).
63. Interestingly, the dissenting opinion given by Kriegler, J.
became the subject matter of lot of academic debate. To begin with,
Kriegler, J. rejected the idea that the debate was one of “verticality
versus horizontality”. He said that Chapter 3 rights do not operate
only as against the State but also horizontally as between
individuals where Statutes are involved. Calling “direct
horizontality” as a bogeyman, Kriegler, J. said as follows:
“The Chapter has nothing to do with the ordinary
relationships between private persons or associations.
What it does govern, however, is all law, including that
applicable to private relationships. Unless and until
there is a resort to law, private individuals are at liberty
to conduct their private affairs exactly as they please as
far as the fundamental rights and freedoms are
concerned. As far as the Chapter is concerned a
landlord is free to refuse to let a flat to someone
because of race, gender or whatever; a white bigot
may refuse to sell property to a person of colour;
a social club may blackball Jews, Catholics or
Afrikaners if it so wishes. An employer is at
liberty to discriminate on racial grounds in the
engagement of staff; a hotelier may refuse to let a
room to a homosexual; a church may close its
doors to mourners of a particular colour or class.
But none of them can invoke the law to enforce or
protect their bigotry. One cannot claim rescission
of a contract or specific performance thereof if
such claim, albeit wellfounded at common law,
80
infringes a Chapter 3 right. One cannot raise a
defence to a claim in law if such defence is in conflict
with a protected right or freedom. The whole gamut of
private relationships is left undisturbed. But the state,
as the maker of the laws, the administrator of laws and
the interpreter and applier of the law, is bound to stay
within the four corners of Chapter 3. Thus, if a man
claims to have the right to beat his wife, sell his
daughter into bondage or abuse his son, he will
not be allowed to raise as a defence to a civil
claim or a criminal charge that he is entitled to
do so at common law, under customary law or in
terms of any statute or contract. That is a far cry
from the spectre of the state placing its hand on
private relationships. On the contrary, if it were to try
to do so by legislation or administrative action, sections
4, 7(1) and the whole of Chapter 3 would stand as a
bastion of personal rights.”
64.After the Final Constitution was adopted and it came into force
on February 4, 1997, the first case to come up on this issue was
Khumalo vs. Holomisa
60
. In this case, Bantu Holomisa, the leader
of the South African opposition political party sued a newspaper for
publishing an article alleging as though he was under a police
investigation for his involvement with a gang of bank robbers.
Heavy reliance was placed in this case on the majority decision of
the Constitutional Court of South Africa in Du Plessis (supra). But
as pointed out earlier, Du Plessis was a case which was decided at
a time when South Africa had only an Interim Constitution.
60 (2002) ZACC 12
81
Therefore, while dealing with Khumalo (supra), the Constitutional
Court of South Africa applied the Final Constitution, as it had come
into force by then. What is relevant for our purpose is the opinion of
the Constitutional Court in paragraph 33 which dealt with the
enforcement of the rights against nonState actors. Paragraph 33
reads thus:
“[33] In this case, the applicants are members of the
media who are expressly identified as bearers of
constitutional rights to freedom of expression. There
can be no doubt that the law of defamation does affect
the right to freedom of expression. Given the intensity
of the constitutional right in question, coupled
with the potential invasion of that right which
could be occasioned by persons other than the
state or organs of state, it is clear that the right
to freedom of expression is of direct horizontal
application in this case as contemplated by
section 8(2) of the Constitution. The first question
we need then to determine is whether the common law
of defamation unjustifiably limits that right. If it does, it
will be necessary to develop the common law in the
manner contemplated by section 8(3) of the
Constitution.”
65. The horizontal effect was taken to another extreme by the
Constitutional Court of South Africa in Governing Body of the
Juma Musjid Primary School & Others vs. Essay N.O. and
Others
61
wherein it was held that an eviction order obtained by the
61(CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC)
82
owner of a private land on which a public school was located, could
not be enforced as it would impact the students’ right to basic
education and the best interests of the child under the South
African Constitution (Sections 28 and 29). The Court held that a
private landowner and nonState actor has a Constitutional
obligation not to impair the right to basic education under Section
29 of the Constitution. The relevant portion reads thus:
“[57] In order to determine whether the right to a basic
education in terms of section 29(1)(a) binds the Trust,
section 8(2) requires that the nature of the right of the
learners to a basic education and the duty imposed by
that right be taken into account. From the discussion
in the previous paragraphs of the general nature of the
right and the MEC’s obligation in relation to it, the
form of the duty that the right to a basic education
imposed on the Trustees emerges. It is clear that
there is no primary positive obligation on the Trust to
provide basic education to the learners. That primary
positive obligation rests on the MEC. There was also
no obligation on the Trust to make its property
available to the MEC for use as a public school. A
private landowner may do so, however, in accordance
with section 14(1) of the Act which provides that a
public school may be provided on private property only
in terms of an agreement between the MEC and the
owner of the property.
[58] This Court, in Ex Parte Chairperson of the
Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa, made
it clear that socioeconomic rights (like the right to
a basic education) may be negatively protected
from improper invasion. Breach of this obligation
occurs directly when there is a failure to respect
the right, or indirectly, when there is a failure to
83
prevent the direct infringement of the right by
another or a failure to respect the existing
protection of the right by taking measures that
diminish that protection. It needs to be stressed
however that the purpose of section 8(2) of the
Constitution is not to obstruct private autonomy
or to impose on a private party the duties of the
state in protecting the Bill of Rights. It is rather
to require private parties not to interfere with or
diminish the enjoyment of a right. Its application
also depends on the intensity of the constitutional
right in question, coupled with the potential
invasion of that right which could be occasioned by
persons other than the State or organs of State. ”
66.Coming to the United Kingdom, they ratified the European
Convention on Human Rights in 1951. But the rights conferred by
the Convention had to be enforced by British citizens only in the
European Court of Human Rights, for a long time. Finding that it
took an average of five years to get an action in the European Court
of Human Rights after all domestic remedies are exhausted and also
finding that on an average, the same costed £30,000, a white paper
was submitted in 1997 under the title “Rights Brought Home”. This
led to the enactment of the Human Rights Act, 1998 by the
Parliament of the United Kingdom. It came into force on 2.10.2000
(coincidentally Gandhi Jayanti Day). This Act sought to incorporate
into the domestic law, the rights conferred by the European
84
Convention, so that the citizens need not go to the European Court
of Human Rights in Strasbourg. After the enactment of the Human
Rights Act, the horizontal effect of Convention Rights became the
subject matter of debate in several cases.
67.For instance, Douglas vs. Hello! Ltd.
62
was a case where the
right to privacy of an individual was pitted against the right of free
speech and expression. In that case, a magazine called OK! was
given the exclusive right to publish the photographs of the wedding
reception of a celebrity couple that took place at New York. On the
day of the wedding, certain paparazzo had infiltrated the venue and
took few unauthorized photographs which were shared with
potential competitor viz. Hello! Ltd. (another magazine). Hello!
published the photographs in the next issue of their magazine even
before Ok! could publish it. The question before the Court of Appeal
(Civil Division) was whether there was violation of right to privacy,
among others and whether it could be enforced against a private
person. The Court said:
“49. It follows that the ECtHR has recognised an
obligation on member states to protect one
62[2001] QB 967
85
individual from an unjustified invasion of private
life by another individual and an obligation on the
courts of a member state to interpret legislation in a
way which will achieve that result.
50. Some, such as the late Professor Sir William Wade,
in Wade & Forsyth Administrative Law (8
th
Ed.) p 983,
and Jonathan Morgan, in Privacy, Confidence and
Horizontal Effect:" Hello" Trouble (2003) CLJ 443,
contend that the Human Rights Act should be given
'full, direct, horizontal effect'. The courts have not
been prepared to go this far.…
…
102. To summarise our conclusion at this stage:
disregarding the effect of the OK! contract, we are
satisfied that the Douglases' claim for invasion of
their privacy falls to be determined according to
the English law of confidence. That law, as
extended to cover private and personal
information, protected information about the
Douglases' wedding.”
68.In X vs. Y
63
, the Court of Appeals dealt with the case of an
employee X, who was cautioned by the Police for committing a sex
offence with another man in a public bathroom. The offence
occurred when X was off duty. On finding about the incident, the
employer Y suspended X and dismissed him after a disciplinary
hearing. The dismissal was challenged as violative of Convention
Rights. An argument was raised that these rights are not
enforceable against private parties. Though on facts, the claim of
63[2004] EWCA Civ 662
86
the dismissed employee was dismissed, the legal issue was
articulated by the Court thus:
“55. The applicant invoked articles 8 and 14 of the
Convention in relation to his cause of action in private
law.
(1) As appears from the authorities cited in section C
above, article 8 is not confined in its effect to relations
between individuals and the state and public
authorities. It has been interpreted by the
Strasbourg court as imposing a positive obligation
on the state to secure the observance and
enjoyment of the right between private individuals.
(2) If the facts of the case fall within the ambit of
article 8, the state is also under a positive obligation
under article 14 to secure to private individuals the
enjoyment of the right without discrimination,
including discrimination on the ground of sexual
orientation.
(3) A person's sexual orientation and private sex life
fall within the scope of the Convention right to respect
for private life (see ADT v. UK [2000] 2 FLR 697) and
the right to nondiscrimination in respect that right.
Interference with the right within article 8.1 has to be
justified under article 8.2.”
69.In Plattform "Ärzte F
ür Das Leben"
vs. Austria
64
, a question
arose as to the enforceability of the right to freedom of assembly
against nonState actors, who obstructed the assembly. The case
arose out of these facts. On 28 December 1980, the anti
abortion NGO "
Ärzte für das Leben" (
Physicians for Life) organised a
religious service and a march to the clinic of a doctor who carried
64[1988] ECHR 15
87
out abortions in StadlPaura. A number of counterdemonstrators
disrupted the march to the hillside by mingling with the marchers
and shouting down their recitation. At the end of the ceremony,
special riotcontrol units – which had until then been standing by –
formed a cordon between the opposing groups. One person caught
in the act of throwing eggs was fined. The association lodged a
disciplinary complaint against police for failing to protect the
demonstration, which was refused. When the matter was taken to
the Constitutional Court, it held that it had no jurisdiction over the
case. Therefore, the association applied to the European
Commission on 13 September 1982, alleging violation of
Articles 9 (conscience and religion), 10 (expression), 11 (association)
and 13 (effective remedy) of the European Convention on Human
Rights. The European Court on Human Rights held:
“32. A demonstration may annoy or give offence to
persons opposed to the ideas or claims that it is
seeking to promote. The participants must, however,
be able to hold the demonstration without having to
fear that they will be subjected to physical violence
by their opponents; such a fear would be liable to
deter associations or other groups supporting common
ideas or interests from openly expressing their
opinions on highly controversial issues affecting
the community. In a democracy the right to counter
demonstrate cannot extend to inhibiting the exercise of
the right to demonstrate.
88
Genuine, effective freedom of peaceful assembly
cannot, therefore, be reduced to a mere duty on
the part of the State not to interfere: a purely
negative conception would not be compatible with
the object and purpose of Article 11 (art. 11). Like
Article 8 (art. 8), Article 11 (art. 11) sometimes
requires positive measures to be taken, even in the
sphere of relations between individuals, if need be
(see, mutatis mutandis, the X and Y v. the Netherlands
judgment of 26 March 1985, Series A no. 91, p. 11, §
23)”
70.In X and Y vs. The Netherlands
65
, a privatelyrun home for
children with mental disabilities was sued on the ground that a 16
yearold inmate was subjected to sexual assault. When the case
was dismissed by the domestic court on a technical plea, the father
of the victim approached the European Court of Human Rights.
ECHR outlined the extent of State obligation on the protection of
the right to life even against private persons as follows:
“23. The Court recalls that although the object of
Article 8 (art. 8) is essentially that of protecting the
individual against arbitrary interference by the public
authorities, it does not merely compel the State to
abstain from such interference: in addition to this
primarily negative undertaking, there may be positive
obligations inherent in an effective respect for private
or family life (see the Airey judgment of 9 October
1979, Series A no. 32, p. 17, para. 32). These
obligations may involve the adoption of measures
designed to secure respect for private life even in
the sphere of the relations of individuals between
themselves.”
65[1985] ECHR 4
89
71.Having taken an overview of the theoretical aspect of
“verticality vs horizontality” and the approach of Constitutional
Courts in other jurisdictions, let us now come back to the Indian
context.
72.PartIII of the Indian Constitution begins with Article 12 which
defines the expression “the State” to include the Government and
the Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the
territory of India or under the control of the Government of India.
73.After defining the expression “the State” in Article 12 and after
declaring all laws inconsistent with or in derogation of the
fundamental rights to be void under Article 13, PartIII of the
Constitution proceeds to deal with rights. There are some Articles
in PartIII where the mandate is directly to the State and
there are other Articles where without injuncting the State,
certain rights are recognized to be inherent, either in the
citizens of the country or in persons. In fact, there are two sets
of dichotomies that are apparent in the Articles contained in Part
90
III. One set of dichotomy is between (i) what is directed against the
State; and (ii) what is spelt out as inhering in every individual
without reference to the State. The other dichotomy is between
(i) citizens; and (ii) persons. This can be illustrated easily in the
form of a table as follows:
Sl.
Nos.
Provisions containing a
mandate to the State
Provisions declaring
the rights of the
individuals without
reference to “the
State”
on whom the
right is
conferred
1.Article 14 mandates the State
not to deny to any person
equality before law or the
equal protection of the laws
within the territory of India.
Any person
2.Article 15(1) mandates the
State not to discriminate
against any citizen on
grounds only of religion, race,
caste, sex, place of birth or
any of them.
Any citizen
3. Article 15(2) mandates
that no citizen shall
be subject to any
disability, liability,
restriction or
condition, with regard
to— (i) access to
shops, public
restaurants, hotels
and places of public
entertainment; or (ii)
the use of wells,
tanks, bathing ghats,
roads and places of
Citizen
91
public resort
maintained wholly or
partly out of State
funds or dedicated to
the use of general
public,
only on grounds of
religion, race, caste,
sex, place of birth or
any of them.
4.Article 16(1) declares that
there shall be equality of
opportunity for all citizens in
matters relating to
employment or appointment
to any office under the State.
Only citizens
5.Article 16(2) states that no
citizen shall on grounds of
only religion, race, caste, sex,
descent, place of birth,
resident or any of them be
ineligible for or discriminated
against in respect of any
employment or office under
the State.
Citizen
6. Article 17 abolishes
untouchability and
forbids the practice of
the same in any form
and declares it to be a
punishable offence.
Neither the
word “citizen”
nor the word
“person” is
mentioned in
Article 17. It
means that
what is
abolished is
the practice
and any
violation of
this
injunction is
punishable.
7. Six types of rights are
listed in Article 19(1),
as available to all
Citizens
92
citizens.
8.Article 20 confers three
different rights namely (i) not
to be convicted except by the
application of a law in force at
the time of the commission of
offence; (ii) not to be
prosecuted and punished for
the same offence more than
once; and (iii) right against
selfincrimination.
Persons
9. Article 21 protects life
and liberty of all
persons.
Persons
10.Article 21A mandates the
State to provide free and
compulsory education to all
children of the age of six to
fourteen years.
Children
11.Article 22 provides protection
against arrest and detention
generally and saves preventive
detention with certain
limitations.
All persons
except an
enemy alien
(Article 22(3)
(a) makes the
provision
inapplicable
to an enemy
alien).
12. Article 23(1) prohibits
traffic in human
beings and begar and
other similar forms of
forced labour. Any
contravention is made
a punishable offence.
Any person
13. Article 24 prohibits
the employment of
children below the age
of fourteen years in
any factory or mine.
Children
14. Article 25(1) declares
the right of all persons
to freedom of
Persons
93
conscience and the
right freely to profess,
practice and
propagate religion.
15. Article 26 confers four
different types of
rights upon every
religious
denomination or any
section thereof.
Religious
denomination
16.Article 27 confers right not to
be compelled to pay any
taxes, for the promotion of
any particular religion.
Person
17. Article 28(1) forbids
religious instructions
being provided in any
educational
institution wholly
maintained out of
State funds, with the
exception of those
established under any
endowment or trust.
Person
18. A right not to take
part in any religious
instruction imparted
in an educational
institution recognised
by the State or
receiving aid out of
State funds, is
conferred by Article
28(3).
Person
19. A right to conserve the
language, script or
culture distinct to any
part of the territory of
India is conferred by
Article 29(1).
Citizens
20.A right not to be denied
admission into any
This applies to
institutions
Citizen
94
educational institution
maintained by the State or
receiving aid out of State
funds, on grounds only of
religion, race, caste, language
or any of them is conferred by
Article 29(2).
maintained by the
State or even to
institutions receiving
aid out of State funds.
21.(i) A right to establish and
administer educational
institutions of their choice is
conferred by Article 30(1)
upon the religious as well as
linguistic minorities.
(ii) The State is mandated
under Article 30(2) not to
discriminate against any
educational institution while
granting aid.
Religious and
linguistic
minorities
22. The right to move the
Supreme Court for the
enforcement of the
rights conferred by
Part III is guaranteed
under Article 32.
The words
“State”,
“citizen” or
“person” are
not mentioned
in Article 32,
indicating
thereby that
the right is
available to
one and all,
depending
upon which
right is sought
to be
enforced.
74.The above table would show that some of the Articles of Part
III are in the form of a directive to the State, while others are not.
This is an indication that some of the rights conferred by PartIII
are to be honored by and also enforceable against, nonState actors.
95
75.For instance, the rights conferred by Articles 15(2)(a) and (b),
17, 20(2), 21, 23, 24, 29(2) etc., are obviously enforceable against
nonState actors also. The owner of a shop, public restaurant, hotel
or place of entertainment, though a nonState actor cannot deny
access to a citizen of India on grounds only of religion, race etc., in
view of Article 15(2)(a). So is the case with wells, tanks, bathing
ghats, roads and places of public resort maintained wholly or partly
out of State funds or dedicated to the use of general public, in view
of Article 15(2)(b). The right not to be enforced with any disability
arising out of untouchability is available against nonState actors
under Article 17. The right against double jeopardy, and the right
against selfincrimination available under subArticles (2) and (3) of
Article 20 may also be available even against nonState actors in
the case of prosecution on private complaints. We need not
elaborate more, as the table given above places all rights in
perspective.
76.That takes us to the question as to how the Courts in India
have dealt with cases where there were complaints of infringement
by nonState actors, of fundamental rights, other than those
96
covered in column 2 of the Table in para 73 above. To begin with,
this Court was weary of extending the enforcement of fundamental
rights against private individuals. But this reluctance changed over
a period of time. Let us now see how the law evolved:
(i)In P.D. Shamdasani (supra), a Five Member Bench of this
Court was dealing with a writ petition under Article 32, filed
by a person who lost a series of proceedings both civil and
otherwise, against the Central Bank of India Limited, which
was at that time a company incorporated under Companies
Act. The grievance of the petitioner in that case was that the
shares held by him in the company were sold by the bank in
exercise of its right of lien for recovery of a debt. Therefore, the
petitioner pitched his claim under Article 19(1)(f) and Article
31(1)(which was available at that time). But while making a
comparison between Article 31(1) (as it stood at that time) and
Article 21, both of which contained a declaration in the same
negative form, this Court observed in P.D. Shamdasani as
follows: “There is no express reference to the State in
Article 21. But could it be suggested on that account that
that Article was intended to afford protection to life and
personal liberty against violation by private individuals?
The words “except by procedure established by law”
plainly exclude such a suggestion”.
97
(ii)The aforesaid principle in P.D. Shamdasani was reiterated by
another Five Member Bench of this Court in Smt. Vidya
Varma vs. Dr. Shiv Narain Varma
66
holding that the
language of Article 31(1) and Article 21 are similar and that
they do not apply to invasions of a right by a private individual
and that consequently no writ will lie in such cases.
(iii)In Sukhdev Singh vs. Bhagatram Sardar Singh
Raghuvanshi
67
two questions arose before a Constitution
Bench of this Court. One of the questions was whether an
employee of a statutory corporation is entitled to protection of
Articles 14 and 16 against the corporation on the premise that
these statutory corporations are authorities within the
meaning of Article 12. In his separate but concurring opinion,
Mathew, J. pointed out that the concept of State has
undergone drastic changes in recent years and that today
State cannot be conceived of simply as a coercive machinery
wielding the thunderbolt of authority. The learned Judge
quoted the decision of the US Supreme Court in Marsh vs.
Alabama
68
, where a person who was a Jehovah’s witness was
arrested for trespassing and distributing pamphlets, in a
company town owned by a corporation. Though the property
in question was private, the Court said that the operation of a
town was a public function and that therefore, the private
66AIR 1956 SC 108
67(1975) 1 SCC 421
68326 US 501 (1946)
98
rights of the corporation must be exercised within
constitutional limitations. After quoting the decision in Marsh,
K.K. Mathew, J. went on to hold as follows:
“95. But how far can this expansion go? Except in
very few cases, our Constitution does not, through its
own force, set any limitation upon private action.
Article 13(2) provides that no State shall make any law
which takes away or abridges the rights guaranteed by
Part III. It is the State action of a particular character
that is prohibited. Individual invasion of individual
right is not, generally speaking, covered by Article
13(2). In other words, it is against State action that
fundamental rights are guaranteed. Wrongful
individual acts unsupported by State authority in the
shape of laws, customs, or judicial or executive
proceeding are not prohibited. Articles 17, 23 and 24
postulate that fundamental rights can be violated by
private individuals and that the remedy under Article
32 may be available against them. But, by and large,
unless an act is sanctioned in some way by the State,
the action would not be State action. In other words,
until some law is passed or some action is taken
through officers or agents of the State, there is no
action by the State…”
(iv)In People’s Union for Democratic Rights (supra) this Court
pointed out that the fundamental right guaranteed under
Article 24 is enforceable against everyone, including the
contractors. The Court went a step further by holding that the
Union of India, the Delhi Administration and the Delhi
Development Authority have a duty to ensure that this
Constitutional obligation is obeyed by the contractors. Going
further, this Court held that certain fundamental rights such
as those found in Articles 17, 23 and 24 are enforceable
against the whole world.
99
(v)S. Rangarajan (supra) was a case where a division Bench of
the Madras High Court revoked the ‘U’ certificate issued to a
Tamil feature film, on the ground that it offended the
reservation policy. The Government of Tamil Nadu supported
the decision of the High Court on the ground that several
organizations in Tamil Nadu were agitating that the film
should be banned as it hurt the sentiments of people
belonging to the reserved categories. After pointing out that
this Court was amused and troubled by the stand taken
by the State Government, this Court indicated that it is
the duty of the State to protect the freedom of expression
since it is a liberty granted against the State and that
the State cannot plead its inability to handle the hostile
audience problem. Holding that the State cannot negate the
rule of law and surrender to blackmail and intimidation, this
Court said that it the obligatory duty of the Court to prevent it
and protect the freedom.
(vi)In Smt. Nilabati, this Court made a distinction between,
(i) the decision in Kasturi Lal upholding the State’s plea
of sovereign immunity for tortious acts of its servants,
which was confined to the sphere of liability in tort; and
(ii) the State’s liability for contravention of fundamental
rights to which the doctrine of sovereign immunity has
no application in the constitutional scheme . In paragraph
100
34, which contains the separate but concurring opinion of
Dr. A.S. Anand, J., the law was summarised as follows:
“34. The public law proceedings serve a different
purpose than the private law proceedings. The relief of
monetary compensation, as exemplary damages, in
proceedings under Article 32 by this Court or under
Article 226 by the High Courts, for established
infringement of the indefeasible right guaranteed
under Article 21 of the Constitution is a remedy
available in public law and is based on the strict
liability for contravention of the guaranteed basic and
indefeasible rights of the citizen. The purpose of public
law is not only to civilize public power but also to
assure the citizen that they live under a legal system
which aims to protect their interests and preserve their
rights. Therefore, when the court moulds the relief by
granting “compensation” in proceedings under Article
32 or 226 of the Constitution seeking enforcement or
protection of fundamental rights, it does so under the
public law by way of penalising the wrongdoer and
fixing the liability for the public wrong on the State
which has failed in its public duty to protect the
fundamental rights of the citizen. The payment of
compensation in such cases is not to be understood,
as it is generally understood in a civil action for
damages under the private law but in the broader
sense of providing relief by an order of making
‘monetary amends’ under the public law for the wrong
done due to breach of public duty, of not protecting
the fundamental rights of the citizen. The
compensation is in the nature of ‘exemplary damages’
awarded against the wrongdoer for the breach of its
public law duty and is independent of the rights
available to the aggrieved party to claim compensation
under the private law in an action based on tort,
through a suit instituted in a court of competent
jurisdiction or/and prosecute the offender under the
penal law.”
(vii)In Lucknow Development Authority vs. M.K. Gupta
69
this
Court pointed out that the administrative law of accountability
69(1994) 1 SCC 243
101
of public authorities for their arbitrary and even ultra vires
actions has taken many strides and that it is now accepted by
both by this Court and English Courts that the State is liable
to compensate for the loss or injury suffered by a citizen due
to arbitrary actions of its employees.
(viii)The decision in Bodhisattwa Gautam (supra), arose under
special circumstances. A girl student of a college lodged a
complaint against a Lecturer for alleged offences under
Sections 312, 420, 493, 496 and 498A IPC. The Lecturer
moved the High Court under Section 482 Cr.P.C. for quashing
the complaint. The High Court dismissed the quash petition.
When the Lecturer filed a special leave petition, this Court not
only dismissed the SLP but also issued notice suo motu on the
question as to why he should not be asked to pay reasonable
monthly maintenance during the pendency of the prosecution.
Finally, this Court ordered payment of a monthly interim
compensation after holding that what was violated was
the fundamental right of the women under Article 21 and
that therefore a remedy can be provided by this Court
under Article 32 even against the nonstate actor (namely
the accused). This decision was cited with approval in
Chairman, Railway Board & Ors. vs. Chandrima Das
(Mrs.) &Ors.
70
.
70(2000) 2 SCC 465
102
(ix)As rightly highlighted by the learned amicus, this Court has
awarded damages against nonState actors under the
environmental law regime, whenever they were found to have
violated the right under Article 21. For instance this Court was
concerned with a case in M.C. Mehta vs. Kamal Nath
71
where a company built a club on the banks of River Beas,
partly taken on lease from the Government and partly by
encroaching into forest land and virtually turning the course
of the River. Invoking the “polluter pays principle” and
“precautionary principle” landscaped in Vellore Citizens’
Welfare Forum vs. Union of India
72
and also applied in
Indian Council for EnviroLegal Action vs. Union of
India
73
, this Court held the owner of the private motel to be
liable to pay compensation towards the cost of restoration of
the ecology of the area. Thereafter, a show cause notice was
issued to the motel as to why they should not be asked to pay
compensation to reverse the degraded environment and as to
why a pollution fine should not be imposed. In response, the
motel contended before this Court that though in proceedings
under Article 32 it was open to this Court to grant
compensation to the victims whose fundamental rights were
violated or who are victims of arbitrary Executive action or
victims of atrocious behavior of public authorities, the Court
cannot impose any fine on those who are guilty of that action.
71(1997) 1 SCC 388
72(1996) 5 SCC 647
73(1996) 3 SCC 212
103
The motel also contended that fine is a component of criminal
jurisprudence and hence the imposition of fine would be
violative of Articles 20 and 21. This Court, even while
accepting the said argument in so far as the component of fine
is concerned, directed the issue of fresh notice to the motel to
show cause why exemplary damages be not awarded, in
addition to the damages already awarded. Thereafter, this
Court held in M.C. Mehta vs. Kamal Nath (supra at footnote
no.15) as follows:
“10. In the matter of enforcement of fundamental
rights under Article 21, under public law domain, the
Court, in exercise of its powers under Article 32 of the
Constitution, has awarded damages against those who
have been responsible for disturbing the ecological
balance either by running the industries or any other
activity which has the effect of causing pollution in the
environment. The Court while awarding damages also
enforces the “POLLUTERPAYS PRINCIPLE” which is widely
accepted as a means of paying for the cost of pollution
and control. To put in other words, the wrongdoer, the
polluter, is under an obligation to make good the
damage caused to the environment.”
(x)In Consumer Education & Research Centre & Ors. vs.
Union of India &Ors.
74
, this Court held that in appropriate
cases the Court could give appropriate directions to the
employer, be it the State or its undertaking or private
employer, to make the right to life meaningful, to prevent
pollution of work place, protection of environment, protection
of the health of the workmen and to preserve free and
74(1995) 3 SCC 42
104
unpolluted water for the safety and health of the people. The
Court was dealing in that case with the occupational health
hazards and diseases afflicting the workmen employed in
asbestos industries. In paragraph 29 of the Report, this Court
said, “…It is therefore settled law that in public law claim for
compensation is a remedy available under Article 32 or Article
226 for the enforcement and protection of fundamental and
human rights. … It is a practical and inexpensive mode of
redress available for the contravention made by the State, its
servants, its instrumentalities, a company or a person in the
purported exercise of their powers and enforcement of
the rights claimed either under the statutes or licence
issued under the statute or for the enforcement of any
right or duty under the Constitution or the law.”
(xi)In Vishaka vs. State of Rajasthan.
75
, this Court laid down
guidelines, in the absence of a legislation, for the enforcement
of the right to gender equality of working women, in a class
action petition that was filed to enforce fundamental rights of
working women and to prevent sexual harassment of women
in workplace. The guidelines imposed an obligation upon both
public and private employers not to violate the fundamental
rights guaranteed to working women under Article 14, 15,
19(1)(g) and 21. In Medha Kotwal Lele & Ors. vs. Union of
75(1997) 6 SCC 241
105
India
76
,this Court noted that even after 15 years of the
judgment in Vishaka (supra), many States had not made the
necessary amendments or failed to effectively implement the
guidelines. This Court issued a direction in Paragraph 44.4 :
“44.4 The State functionaries and private and
public sector undertakings/organisations/bodies/
institutions, etc. shall put in place sufficient
mechanism to ensure full implementation of Vishaka
[Vishaka v. State of Rajasthan, (1997) 6 SCC 241 :
1997 SCC (Cri) 932] guidelines and further provide
that if the alleged harasser is found guilty, the
complainant victim is not forced to work with/under
such harasser and where appropriate and possible the
alleged harasser should be transferred. Further
provision should be made that harassment and
intimidation of witnesses and the complainants shall
be met with severe disciplinary action.”
(xii)In Githa Hariharan (Ms.) & Anr. vs. Reserve Bank of India
& Anr.
77
, this Court was dealing with a challenge to Section
6(a) of the Hindu Minority and Guardianship Act, 1956 and
Section 19(b) of the Guardians and Wards Act, 1890 which
declared the father to be the natural guardian of the person
and property of a minor son and unmarried daughter. The
mother was recognised as the natural guardian under these
provisions “after the father”. These provisions resulted in
hardship to spouses separated from each other while dealing
with the wards. Reading the obligations of the State under
certain International Conventions like CEDAW into the right to
76(2013) 1 SCC 297
77(1999) 2 SCC 228
106
dignity of women and gender equality, traceable to Article 21
and 14, this Court read down the word “after” to mean “in the
absence of”. By such interpretation, this Court invoked
fundamental rights to interpret a word in the sphere of family
law.
(xiii)In Indian Medical Association vs. Union of India.
78
, the
policy of an Army College of Medical Sciences to admit only
those who are wards of army personnel, based on scores
obtained in an entrance test, was under challenge. The
question that came up for consideration was whether this
discriminatory practice by a private entity would be in
violation of Article 15 of the Constitution. This Court in
Paragraph 187 stated:
“187. Inasmuch as education, pursuant to T.M.A. Pai
[(2002) 8 SCC 481], is an occupation under subclause
(g) of clause (1) of Article 19, and it is a service that is
offered for a fee that takes care of all the expenses of
the educational institution in rendering that service,
plus a reasonable surplus, and is offered to all those
amongst the general public, who are otherwise
qualified, then such educational institutions would
also be subject to the discipline of clause (2) of Article
15. In this regard, the purport of the above
exposition of clause (2) of Article 15, when read in
the context of egalitarian jurisprudence inherent in
Articles 14, 15, 16 and Article 38, and read with
our national aspirations of establishing a society in
which equality of status and opportunity, and
justice, social, economic and political, would imply
that the private sector which offers such facilities
ought not to be conducting their affairs in a
manner which promote existing discriminations
and disadvantages.”
78 (2011) 7 SCC 179
107
(xiv)In Society for Unaided Private Schools of Rajasthan
(supra), the constitutionality of Section 12 of the Right of
Children to Free and Compulsory Education Act, 2009 was
challenged on the ground that it violated Articles 19(1)(g) and
30 of those who had established schools in the private sector.
While upholding the Constitutionality of the provision, which
required all schools, private and Statefunded, to reserve 25%
of its intake for students from disadvantaged background, this
Court held:
“222. The provisions referred to above and other
provisions of international conventions indicate that
the rights have been guaranteed to the children and
those rights carry corresponding State obligations to
respect, protect and fulfil the realisation of children's
rights. The obligation to protect implies the
horizontal right which casts an obligation on the
State to see that it is not violated by nonState
actors. For nonState actors to respect children's
rights casts a negative duty of nonviolation to
protect children's rights and a positive duty on
them to prevent the violation of children's rights
by others, and also to fulfil children's rights and
take measures for progressive improvement. In
other words, in the spheres of nonState activity
there shall be no violation of children's rights.”
(xv)In Jeeja Ghosh vs. Union of India
79
, the petitioner, a
disabled person suffering from cerebral palsy, was
unceremoniously ordered off a SpiceJet aircraft by the flight
crew on account of the disability. The petition was filed for
putting in place a system to ensure such a violation of human
79(2016) 7 SCC 761
108
dignity and inequality is not meted out to similarly placed
persons. This Court observed as follows:
“10. It is submitted by the petitioner that the Union of
India (Respondent 1) has an obligation to ensure that
its citizens are not subject to such arbitrary and
humiliating discrimination. It is a violation of their
fundamental rights, including the right to life, right to
equality, right to move freely throughout the territory
of India, and right to practise their profession. The
State has an obligation to ensure that these
rights are protected — particularly for those who are
disabled. …”
This Court awarded compensation to the petitioner against the
private Airline on the ground that the airline, though a private
enterprise, ought not to have violated her fundamental right.
(xvi)In Zee Telefilms Ltd. vs. Union of India
80
, this Court held
that though BCCI does not fall within the purview of the term
“State”, it discharges public duties and that therefore even if a
remedy under Article 32 is not available, the aggrieved party can
always seek a remedy before the ordinary courts of law or by way of
a writ petition under Article 226. This Court pointed out that the
violator of a constitutional right could not go scotfree merely
because it is not a State. The said logic was extended by this Court
to a “Deemed to be University” in Janet Jeyapaul vs. SRM
80(2005) 4 SCC 649
109
University
81
, on the ground that though it is a private university, it
was discharging “public functions”, by imparting education.
77.All the above decisions show that on a casetocase basis, this
Court applied horizontal effect, considering the nature of the right
violated and the extent of obligation on the part of the violator. But
to enable the courts to have certain basic guidelines in place, for
dealing with such cases, this Court developed a tool in Justice K.S.
Puttaswamy. While affirming the right to privacy as a fundamental
right, this Court laid down the landscape as follows:
“397. Once we have arrived at this understanding of
the nature of fundamental rights, we can dismantle a
core assumption of the Union's argument: that a right
must either be a common law right or a
fundamental right. The only material distinctions
between the two classes of right—of which the nature
and content may be the same—lie in the incidence of
the duty to respect the right and in the forum in which
a failure to do so can be redressed. Common law
rights are horizontal in their operation when they
are violated by one's fellow man, he can be named
and proceeded against in an ordinary court of
law. Constitutional and fundamental rights, on
the other hand, provide remedy against the
violation of a valued interest by the “State”, as an
abstract entity, whether through legislation or
otherwise, as well as by identifiable public
officials, being individuals clothed with the
powers of the State. It is perfectly possible for an
81(2015) 16 SCC 530
110
interest to simultaneously be recognised as a
common law right and a fundamental right.
Where the interference with a recognised interest
is by the State or any other like entity recognised
by Article 12, a claim for the violation of a
fundamental right would lie. Where the author of
an identical interference is a nonState actor, an
action at common law would lie in an ordinary
court.
398. Privacy has the nature of being both a common
law right as well as a fundamental right. Its content, in
both forms, is identical. All that differs is the incidence
of burden and the forum for enforcement for each
form.”
78.Thus, the answer to Question No. 2 is partly found in the 9
Judge Bench decision in Justice K.S. Puttaswamy itself. We have
seen from the line of judicial pronouncements listed above that
after A.K. Gopalan vs. State of Madras
82
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 Madras
83
“Brush aside for a moment the
pettifogging of the law and forget for the nonce all the
learned disputations about this and that, and "and" or "or ",
or "may" and "must ". Look past the mere verbiage of the
82AIR 1950 SC 27
83 AIR 1951 SC 301
111
words and penetrate deep into the heart and spirit of the
Constitution.”. The original thinking of this Court that these rights
can be enforced only against the State, changed over a period of
time. The transformation was from “State” to “Authorities” to
“instrumentalities of State” to “agency of the Government” to
“impregnation with Governmental character” to “enjoyment of
monopoly status conferred by State” to “deep and pervasive
control”
84
to the “nature of the duties/functions performed”
85
.
Therefore, we would answer Question No. 2 as follows:
“A fundamental right under Article 19/21 can
be enforced even against persons other than
the State or its instrumentalities”
Question No. 3
79.“Whether the State is under a duty to affirmatively protect the
rights of a citizen under Article 21 of the Constitution of India even
against a threat to the liberty of a citizen by the acts or omissions of
another citizen or private agency?” is the third question referred to
us.
84 R.D. Shetty vs International Airport Authority (1979) 3 SCC 489
85 Andi Mukta vs V.R. Rudani (1989) 2 SCC 691
112
80.Before we proceed further, it is necessary to make a small
correction. Article 21 right is available not only to citizens but to all
persons. Therefore, the word ‘citizen’ mentioned in Question No.3
has to be read as ‘person’.
81.As we have pointed out in the Table under paragraph 73
above, the expression “the State” is not used in Article 21. This
Article 21 guarantees every person that he shall not be deprived of
his life and liberty except according to the procedure established by
law. Going by the scheme of PartIII which we have outlined both in
the preceding paragraphs and in the Table in paragraph 73, it is
clear that the State has two obligations, (i) not to deprive a person
of his life and liberty except according to procedure established by
law; and (ii) to ensure that the life and liberty of a person is not
deprived even otherwise. Article 21 does not say “the State shall
not deprive a person of his life and liberty”, but says that “no
person shall be deprived of his life or personal liberty”.
82.When the Constitution was adopted, our understanding of the
words “life” and “personal liberty” was not as it has evolved over the
113
past seven decades. Similarly, it was not imagined or conceived at
that time that anyone other than the State is capable of depriving
the life and personal liberty of a person, except by committing a
punishable offence. But with the expanding horizons of our
philosophical understanding of law, life and liberty and the
advancement of science and technology, we have come to realize
that “life is not an empty dream” and “our hearts are not muffled
drums beating funeral marches to the grave”
86
, nor is “life a tale told
by an idiot, full of sound and fury signifying nothing”
87
.
83.Over a period of time, this Court has interpreted ‘the right to
life’ to include, (i) livelihood; (ii) all those aspects of life which go to
make a man’s life meaningful, complete and worth living; (iii)
something more than mere survival or animal existence; (iv) right to
live (and die) with human dignity; (v) right to food, water, decent
environment, medical care and shelter etc.; (vi) all that gives
meaning to a man’s life, such as his tradition, culture, heritage and
protection of that heritage in its full measure; and (vii) the right to
Privacy. There are certain jurisdictions which have taken this right
86 From H.W. Longfellow in “A Psalm of life”
87 From Shakespeare in Macbeth
114
to include “the right to be forgotten” or the “right not to be
remembered”.
84.When the word “life” was understood to mean only physical
existence, the deprivation of the same was generally conceived to be
possible only by the State, except in cases where someone
committed an offence punishable under the Penal Code. But the
moment the right to life under Article 21 was developed into a
bouquet of rights and science and technology intruded into all
spheres to life, the deprivation of the right by nonState actors also
became possible. Another development that has taken place in the
past 3 to 4 decades is that several of the functions of the
Government have either been outsourced to nonState actors or
been entrusted to publicprivate partnerships. This is why, the High
Courts and this Court modulated the tests to be applied for finding
out the maintainability of an action under Article 226 or Article 32.
Once upon a time, the maintainability of a petition under Article
32/226 depended upon “who the respondent was”. Later, the focus
shifted to “the nature of the duties/functions performed” by the
115
respondent, for finding out his amenability to the jurisdiction under
Article 226.
85.Life and personal liberty are two different things, even while
being an integral part of a whole and they have different
connotations. Question No. 3 is so worded that the focus is not on
‘deprivation of life’ but on (i) ‘deprivation of personal liberty’ and that
too by the acts or omissions of another person or private agency;
and (ii) the duty of the State to affirmatively protect it. Therefore, we
shall, in our discussion, focus more on two aspects, namely,
(i) deprivation of personal liberty by nonState actors; and (ii) the
duty of the State. An elaborate exposition of the expression
“personal liberty” and its origin in Greek civilization may be found
in the judgment of this Court in Siddharam Satlingappa Mhetre
vs. State of Maharashtra
88
. Suffice it to say for our purpose that
in this judgment, this Court identified in paragraph 53 of the
Report that Article 21 guarantees two rights, namely, (i) right to life;
and (ii) right to personal liberty. Therefore, because of the manner
in which Question No. 3 is framed, we shall try to confine our
88 (2011) 1 SCC 694
116
discussion to personal liberty, though at times both may overlap or
get interchanged.
86.The expression “personal liberty” appearing in Article 21 was
held by this Court in A.K. Gopalan (supra) to mean freedom from
physical restraint of a person by incarceration or otherwise.
However, the understanding of the expression “personal liberty” got
enlarged in Kharak Singh vs. State of U.P.
89
It was a case where
a person who was originally charged for the offence of dacoity and
later released for lack of evidence, was put under surveillance by
the Police, and his name included in the historysheet under the
U.P. Police Regulations. As a result, he was required to make
frequent visits to the Police Station. Sometimes the Police made
domiciliary visits at night to his house. They would knock at the
door, disturb his sleep and ask to report to the Police, whenever he
went out of the village. Though by a majority, the Constitution
Bench held in Kharak Singh (supra) that the regulation permitting
domiciliary visits is unconstitutional, the majority upheld the Police
surveillance on the ground that (at that time) right to privacy had
89AIR 1963 SC 1295
117
not become part of the fundamental rights. But K. Subba Rao, J.
speaking for himself and J.C. Shah, J. held that the concept of
personal liberty in Article 21 is comprehensive enough to include
privacy. The thinking reflected in A.K. Gopalan that physical
restraint was necessary to constitute infringement of personal
liberty, was completely changed by K. Subba Rao, J. in his minority
opinion in Kharak Singh. Giving a completely new dimension to
personal liberty, K. Subba Rao, J. said:
“(31) …The expression is wide enough to take in a
right to be free from restrictions placed on his
movements. The expression “coercion” in the modern
age cannot be construed in a narrow sense. In an
uncivilized society where there are no inhibitions,
only physical restraints may detract from
personal liberty, but as civilization advances the
psychological restraints are more effective than
physical ones. The scientific methods used to
condition a man's mind are in a real sense
physical restraints, for they engender physical
fear channelling one's actions through
anticipated and expected grooves. So also
creation of conditions which necessarily engender
inhibitions and fear complexes can be described
as physical restraints. Further, the right to
personal liberty takes in not only a right to be
free from restrictions placed on his movements,
but also free from encroachments on his private
life. It is true our Constitution does not expressly
declare a right to privacy as a fundamental right, but
the said right is an essential ingredient of personal
liberty. Every democratic country sanctifies
118
domestic life; it is expected to give him rest,
physical happiness, peace of mind and security . In
the last resort, a person's house, where he lives with
his family, is his “castle”; it is his rampart against
encroachment on his personal liberty. The pregnant
words of that famous Judge, Frankfurter J., in (1948)
338 US 25, pointing out the importance of the security
of one's privacy against arbitrary intrusion by the
police, could have no less application to an Indian
home as to an American one. If physical restraints on
a person's movements affect his personal liberty,
physical encroachments on his private life would affect
it in a larger degree. Indeed, nothing is more
deleterious to a man's physical happiness and health
than a calculated interference with his privacy. We
would, therefore, define the right of personal
liberty in Art. 21 as a right of an individual to be
free from restrictions or encroachments on his
person, whether those restrictions or
encroachments are directly imposed or indirectly
brought about by calculated measures. It so
understood, all the acts of surveillance under
Regulation 236 infringe the fundamental right of the
petitioner under Art. 21 of the Constitution.”
As pointed out by Rohinton Nariman, J., in Mohd. Arif alias
Ashfaq vs. Registrar, Supreme Court of India & Ors.
90
“The
minority judgment of Subba Rao and Shah, JJ. eventually became
law in Rustom Cavasjee Cooper vs. Union of India
91
(Bank
Nationalisation case), where the 11Judge Bench finally discarded
the view expressed in A.K. Gopalan and held that various
90(2014) 9 SCC 737
91(1970) 1 SCC 248
119
fundamental rights contained in different articles are not mutually
exclusive …”.
87.If U.P. Police Regulations were challenged in Kharak Singh,
identical Regulations issued by the State of Madhya Pradesh were
challenged in Gobind vs. State of Madhya Pradesh
92
. Though this
Court upheld the impugned Regulations, K.K. Mathew, J. pointed
out:
“25. Rights and freedoms of citizens are set forth in
the Constitution in order to guarantee that the
individual, his personality, and those things stamped
with his personality shall be free from official
interference except where a reasonable basis for
intrusion exists. “Liberty against Government” a
phrase coined by Professor Corwin expresses this idea
forcefully. In this sense, many of the fundamental
rights of citizens can be described as contributing to
the right to privacy.
*** *** ***
27. There are two possible theories for protecting
privacy of home. The first is that activities in the home
harm others only to the extent that they cause offence
resulting from the mere thought that individuals might
be engaging in such activities and that such ‘harm’ is
not constitutionally protectible by the State.The
second is that individuals need a place of
sanctuary where they can be free from societal
control. The importance of such a sanctuary is
that individuals can drop the mask, desist for a
while from projecting on the world the image they
want to be accepted as themselves, an image that
may reflect the values of their peers rather than
92(1975) 2 SCC 148
120
the realities of their natures.[See 26 Stanford Law
Rev. 1161, 1187]”
88.Thus, the understanding of this Court in A.K. Gopalan, that
deprivation of personal liberty required a physical restraint,
underwent a change in Kharak Singh and Gobind (supra). From
there, the law marched to the next stage in Satwant Singh
Sawhney vs. D. Ramarathnam, Assistant Passport Officer, New
Delhi
93
where a Constitution Bench of this Court held by a
majority, that the right to personal liberty included the right of
locomotion and right to travel abroad . It was held in the said
decision that “liberty" in our Constitution bears the same
comprehensive meaning as is given to the expression "liberty"
by the 5th and 14th Amendments to the U.S. Constitution and
the expression "personal liberty" in Article 21 only excludes
the ingredients of "liberty" enshrined in Article 19 of the
Constitution. The Court went on to hold that “the expression
"personal liberty" in Art. 21 takes in the right of locomotion
and to travel abroad, but the right to move throughout the
93 AIR 1967 SC 1836
121
territories of India is not covered by it inasmuch as it is
specially provided in Art. 19.”
89.Satwant Singh (supra) was the case of a businessman, who
was directed to surrender his passport, with a view to prevent him
from travelling out of India, on account of an investigation pending
against him under the Export and Import Control Act. It must be
noted that this case was before the enactment of The Passports Act,
1967.
90.After The Passports Act came into force, the decision of the
7Judge Bench in Maneka Gandhi vs. Union of India
94
came. It
was held therein that the right to travel abroad is part of the right
to personal liberty and that the same cannot be deprived except
according to the procedure established by law.
91.Next came the decision in Bandhua Mukti Morcha vs. Union
of India & Ors.
95
. It was a case where a letter addressed by an
NGO to the Court exposing the plight of persons working in stone
quarries under inhuman conditions, was treated as a public
94 (1978) 1 SCC 248
95(1984) 3 SCC 161
122
interest litigation. Some of those workers were actually bonded
labourers. After this Court issued notice to the State Governments
and the lessees of the quarries, a preliminary objection was raised
as to the maintainability of the writ petition. While rejecting the
preliminary objection, this Court broadly indicated how the
fundamental rights of those bonded labourers were violated and
what were the duties of the State and the Court in cases of that
nature. The relevant portion of the decision reads thus:
“9. … We should have thought that if any citizen
brings before the Court a complaint that a large
number of peasants or workers are bonded serfs or are
being subjected to exploitation by a few mine lessees
or contractors or employers or are being denied the
benefits of social welfare laws, the State Government,
which is, under our constitutional scheme, charged
with the mission of bringing about a new socio
economic order where there will be social and
economic justice for everyone and equality of status
and opportunity for all, would welcome an enquiry by
the Court, so that if it is found that there are in fact
bonded labourers or even if the workers are not
bonded in the strict sense of the term as defined in the
Bonded Labour System (Abolition) Act, 1976 but they
are made to provide forced labour or are consigned to
a life of utter deprivation and degradation, such a
situation can be set right by the State Government.
Even if the State Government is on its own enquiry
satisfied that the workmen are not bonded and are not
compelled to provide forced labour and are living and
working in decent conditions with all the basic
necessities of life provided to them, the State
Government should not baulk an enquiry by the Court
when a complaint is brought by a citizen, but it should
be anxious to satisfy the Court and through the Court,
123
the people of the country, that it is discharging its
constitutional obligation fairly and adequately and the
workmen are being ensured social and economic
justice. …”
92.Therefore, three major breakthroughs happened, the first in
Kharak Singh, the second in Satwant Singh and Maneka
Gandhi (supra) and the third in Bandhua Mukti Morcha (supra).
The first breakthrough was the opinion, though of a minority, that
physical restraint was not a necessary sine qua non for the
deprivation of personal liberty and that even a psychological
restraint may amount to deprivation of personal liberty. The second
breakthrough was the opinion in Satwant Singh and Maneka
Gandhi that the right of locomotion and to travel abroad are part of
the right to personal liberty. The third breakthrough was the
opinion in Bandhua Mukti Morcha that the State owed an
obligation to take corrective measures when there was an infraction
of Article 21.
93.In National Human Rights Commission vs. State of
Arunachal Pradesh & Anr.
96
, this Court was confronted with a
situation where private citizens, namely, the All Arunachal Pradesh
96(1996) 1 SCC 742
124
Students’ Union held out threats to forcibly drive chakmas, out of
the State. The National Human Rights Commission itself filed a writ
petition under Article 32. While allowing the writ petition and
issuing directions, this Court indicated the role of the State in the
following words:
“20. …Thus the State is bound to protect the life
and liberty of every human being, be he a citizen
or otherwise, and it cannot permit any body or group
of persons, e.g., the AAPSU, to threaten the Chakmas
to leave the State, failing which they would be forced to
do so. No State Government worth the name can
tolerate such threats by one group of persons to
another group of persons; it is dutybound to protect
the threatened group from such assaults and if it fails
to do so, it will fail to perform its constitutional as well
as statutory obligations. Those giving such threats
would be liable to be dealt with in accordance with
law. The State Government must act impartially and
carry out its legal obligations to safeguard the life,
health and wellbeing of Chakmas residing in the State
without being inhibited by local politics. …”
94.In Mr. ‘X’ vs. Hospital ‘Z’
97
, the appellant had accompanied a
patient to the hospital for treatment and offered to donate blood, for
the purpose of surgery. Before allowing him to donate blood,
samples were taken from “X”. It was detected that he was HIV
positive. The fact that Mr. “X” tested positive was disclosed by the
97(1998) 8 SCC 296
125
hospital to the fianc
ée of Mr. “X”. Therefore, the proposal for
marriage was called off and Mr. “X” was ostracised by the
community. Mr. “X” sued the hospital for damages, pitching his
claim on the right to privacy and the duty of confidentiality that the
hospital had in their relationship with him. Though this Court
partly agreed with Mr. “X” the court found that the disclosure made
by the hospital actually saved the life of a lady. But while dealing
with a right under Article 21 vis
àvis
the hospital (a private
hospital), this Court held as follows :
“27. Right of privacy may, apart from contract,
also arise out of a particular specific relationship
which may be commercial, matrimonial, or even
political. As already discussed above, doctorpatient
relationship, though basically commercial, is,
professionally, a matter of confidence and, therefore,
doctors are morally and ethically bound to maintain
confidentiality. In such a situation, public disclosure of
even true private facts may amount to an invasion of
the right of privacy which may sometimes lead to the
clash of one person's “right to be let alone” with
another person's right to be informed.
28. Disclosure of even true private facts has the
tendency to disturb a person's tranquillity. It may
generate many complexes in him and may even lead to
psychological problems. He may, thereafter, have a
disturbed life all through. In the face of these
potentialities, and as already held by this Court in its
various decisions referred to above, the right of privacy
is an essential component of the right to life envisaged
by Article 21. The right, however, is not absolute and
126
may be lawfully restricted for the prevention of crime,
disorder or protection of health or morals or protection
of rights and freedom of others.”
95.In Pt. Parmanand Katara (supra), a human rights activist
filed a writ petition under Article 32 seeking a direction to the Union
of India that every injured person brought for treatment to a
hospital should instantaneously be given medical aid to preserve life
and that the procedural Criminal Law should be allowed to operate
thereafter. The basis of the said writ petition was a report about a
scooterist who got injured in a road traffic accident, being turned
away by the nearby hospital on the ground that they were not
authorized to handle medicolegal cases. Before the victim could be
taken to an authorized hospital located 20 kilometers away, he
died, which prompted the writ petition. While issuing directions,
this Court expressed an opinion about the affirmative duty of court
in paragraph 8 as follows:
“8. Article 21 of the Constitution casts the
obligation on the State to preserve life. The
provision as explained by this Court in scores of
decisions has emphasized and reiterated with
gradually increasing emphasis that position. A doctor
at the government hospital positioned to meet this
State obligation is, therefore, duty bound to extend
medical assistance for preserving life. Every doctor
127
whether at a government hospital or otherwise
has the professional obligation to extend his
services with due expertise for protecting life. No
law or State action can intervene to avoid/delay the
discharge of the paramount obligation cast upon
members of the medical profession. The obligation
being total, absolute and paramount, laws of
procedure whether in statutes or otherwise which
would interfere with the discharge of this
obligation cannot be sustained and must,
therefore, give way.…”
That the State has an obligation to help preserve life, guaranteed
under Article 21 was spelt out clearly in Pt. Parmanand Katara .
What applies to life applies equally to personal liberty. This is
because there may be cases involving both the right to life as well
as liberty.
96.For instance, in Suchita Srivastava & Anr. vs.
Chandigarh Administration
98
,this Court had an occasion to
consider the reproductive rights of a mentallychallenged woman.
This right was read as part of the right to life and liberty under
Article 21. In Devika Biswas vs. Union of India.
99
, this Court
considered certain issues concerning the entire range of conduct
and management, under the auspices of State Governments, of
98(2009) 9 SCC 1
99(2016) 10 SCC 726
128
sterilization procedures, either in camps or in accredited centres
and held that the right to health and reproductive rights of a person
are part of the right under Article 21. While doing so, this Court
quoted with approval the decision in Bandhua Mukti Morcha
where the obligation of the State to ensure that the fundamental
rights of weaker sections of society are not exploited, was
underlined.
97.Tapping of telephones in exercise of the power conferred by
Section 5(2) of the Indian Telegraph Act, 1885 became the subject
matter of challenge in People’s Union for Civil Liberties (PUCL)
vs. Union of India
100
. This Court held that conversation on
telephone is an important facet of a man’s private life and that
tapping of telephone would infringe Article 21. Technological
eavesdropping except in accordance with the procedure established
by law was frowned upon by the Court. This was at a time when
mobile phones had not become the order of the day and the State
monopoly was yet to be replaced by private players such as
intermediaries/service providers. Today, the infringement of the
100(1997) 1 SCC 301
129
right to privacy is mostly by private players and if fundamental
rights cannot be enforced against nonState actors, this right will go
for a toss.
98.In District Registrar and Collector, Hyderabad & Anr. vs.
Canara Bank & Ors.
101
, what was under challenge was an
amendment made to The Indian Stamp Act, 1899 by the State of
Andhra Pradesh, empowering a public officer to inspect the
registers, books, papers and documents kept in any premises,
including a private place where such registers, books etc., are kept.
Taking cue from the decision in R. Rajagopal and Maneka
Gandhi, this Court held in paragraphs 55 and 56 of the decision as
follows:
“55. The A.P. Amendment permits inspection being
carried out by the Collector by having access to the
documents which are in private custody i.e. custody
other than that of a public officer. It is clear that this
provision empowers invasion of the home of the person
in whose possession the documents “tending” to or
leading to the various facts stated in Section 73 are in
existence and Section 73 being one without any
safeguards as to probable or reasonable cause or
reasonable basis or materials violates the right to
privacy both of the house and of the person. We have
already referred to R. Rajagopal case [(1994) 6 SCC 632]
101(2005) 1 SCC 496
130
wherein the learned Judges have held that the right to
personal liberty also means life free from encroachments
unsustainable in law, and such right flowing from
Article 21 of the Constitution.
56. In Maneka Gandhi v. Union of India [(1978) 1 SCC
248] a sevenJudge Bench decision, P.N. Bhagwati, J.
(as His Lordship then was) held that the expression
“personal liberty” in Article 21 is of the widest amplitude
and it covers a variety of rights which go to constitute
the personal liberty of man and some of them have been
raised to the status of distinct fundamental rights and
given additional protection under Article 19 (emphasis
supplied). Any law interfering with personal liberty of a
person must satisfy a triple test: (i) it must prescribe a
procedure; (ii) the procedure must withstand the test of
one or more of the fundamental rights conferred under
Article 19 which may be applicable in a given situation;
and (iii) it must also be liable to be tested with reference
to Article 14. As the test propounded by Article 14
pervades Article 21 as well, the law and procedure
authorising interference with personal liberty and right
of privacy must also be right and just and fair and not
arbitrary, fanciful or oppressive. If the procedure
prescribed does not satisfy the requirement of Article 14
it would be no procedure at all within the meaning of
Article 21.”
99.In Indian Woman says Gangraped on orders of village
Court published in Business and Financial News dated
2312014, in Re
102
, this Court was dealing with a suo motu writ
petition relating to the gangrape of a women under orders of a
community panchayat as punishment for having a relationship with
a man belonging to a different community. After taking note of two
102(2014) 4 SCC 786
131
earlier decisions, one in Lata Singh vs. State of U.P.
103
which
dealt with honour killings of youngsters involved in intercaste,
interreligious marriages and the other in Arumugam Servai vs.
State of Tamil Nadu
104
, which dealt with khap panchayats, this
Court opined in paragraph 16 as follows:
“16. Ultimately, the question which ought to consider
and assess by this Court is whether the State police
machinery could have possibly prevented the said
occurrence. The response is certainly a “yes”. The
State is dutybound to protect the fundamental
rights of its citizens; and an inherent aspect of
Article 21 of the Constitution would be the
freedom of choice in marriage . Such offences are
resultant of the State's incapacity or inability to
protect the fundamental rights of its citizens.”
In fact, this Court observed in the aforesaid decision that the
obligation of the State does not get extinguished upon payment of
compensation and that the rehabilitation of the victims of such
nature was a must.
100. In Shakti Vahini vs. Union of India & Ors.
105
, while
dealing with a writ petition seeking a direction to the State
Governments and Central Government to take preventive measures
103(2006) 5 SCC 475
104(2011) 6 SCC 405
105(2018) 7 SCC 192
132
to combat honour crimes and to submit a National/State plan of
action, this Court issued a slew of directions directing the State
Governments to take both punitive and remedial measures, on the
ground that the State has a positive obligation to protect the life
and liberty of persons. In paragraph 49 this Court said, “We are
disposed to think so, as it is the obligation of the State to have an
atmosphere where the citizens are in a position to enjoy their
fundamental rights.” After quoting the previous decision in S.
Rangarajan (supra), which arose out of the infringement of the
freedom of expression in respect of a cinematograph film, this Court
said in Shakti Vahini (supra) as follows:
“49. …
We are absolutely conscious that the aforesaid
passage has been stated in respect of a different
fundamental right, but the said principle applies
with more vigour when the life and liberty of
individuals is involved. We say so reminding the
States of their constitutional obligations to
comfort, nurture the sustenance of fundamental
rights of the citizens and not to allow any hostile
group to create any kind of trench in them.”
101. At last, while dealing with the right to privacy, in Justice
K.S. Puttaswamy, this Court made it clear that, “it is a right
133
which protects the inner sphere of the individuals from
interference by both the State and nonState actors”.
102. Before we conclude this chapter, we must point out that some
academics feel that the same level of justification for infringement
by the State, for all rights recognized by the Court, end up being
problematic
106
and that the idea of a hierarchy of rights, as
articulated by Das, J. in A.K. Gopalan may have to be examined.
In fact, Rohinton Nariman, J. articulated this idea in Mohd. Arif
(supra) where the question was as to whether a petition for review
in the Supreme Court should be heard in open Court at least in
death penalty cases. The learned Judge said:
“36. If a pyramidical structure is to be imagined,
with life on top, personal liberty (and all the
rights it encompasses under the new doctrine)
immediately below it and other fundamental
rights below personal liberty it is obvious that
this judgment will apply only to death sentence
cases. In most other cases, the factors mentioned by
Krishna Iyer, J. in particular the Supreme Court’s
overcrowded docket, and the fact that a full oral
hearing has preceded judgment of a criminal appeal on
merits, may tilt the balance the other way.”
106Anup Surendranath in his Article “Life and Personal Liberty” in The Oxford Handbook of
the Indian Constitution (South Asia Edition), 2016
134
Therefore, the importance of the right to personal liberty over and
above all the other rights guaranteed under Articles 19 and 14 need
hardly to be overemphasized.
103. Therefore, our answer to Question No.3 would be that the
State is under a duty to affirmatively protect the rights of a
person under Article 21, whenever there is a threat to personal
liberty, even by a nonState actor.
Question No.4
104. Question No.4 referred to us is this: “Can a statement made
by a Minister, traceable to any affairs of the State or for protecting
the Government, be attributed vicariously to the Government itself,
especially in view of the principle of Collective Responsibility?”
105. The above question revolves around the role and
responsibility of a Minister and the vicarious liability/responsibility
of a Government to any statement made by him. For answering the
said question, we may need to understand the role of a Minister
under our Constitutional scheme.
135
106. Part V of the Constitution providing for matters connected
with “The Union” contains five chapters, dealing respectively with,
(i) the Executive; (ii) Parliament; (iii) Legislative powers of the
President; (iv) the Union Judiciary; and (v) Comptroller and Auditor
General of India. Part VI of the Constitution dealing with “The
States” contains six chapters, dealing respectively with, (i) general
provision containing the definitions; (ii) the Executive; (iii) the State
Legislature; (iv) Legislative power of the Governor; (v) the High
Courts in the States; and (vi) Subordinate Courts.
107. While Articles 74 and 75 provide for, (i) ‘Council of Ministers
to aid and advise the President’; and (ii) ‘Other provisions as to
Ministers’, insofar as the Union is concerned, Articles 163 and 164
provide for, (i) ‘Council of Ministers to aid and advise the Governor’;
and (ii) ‘Other provisions as to Ministers’, insofar as the States are
concerned. Similarly, Article 77 provides for the conduct of business
of the Government of India and Article 166 provides for the conduct
of business of the Government of a State. The duties of the Prime
136
Minister are dealt with in Article 78 and the duties of Chief
Ministers are dealt with in Article 167.
108. Article 75(3) states that “the Council of Ministers shall be
collectively responsible to the House of the People.” Similarly,
Article 164(2) states “the Council of Ministers shall be collectively
responsible to the Legislative Assembly of the State”.
109. Generally, all executive action of the Government of India
shall be expressed to be taken in the name of the President under
Article 77(1). However, for more convenient transaction of the
business of the Government of India, the President shall make
Rules. These Rules shall also provide for the allocation of the
business among Ministers. This is under Article 77(3). Similar
provisions are found in subArticles (1) and (3) of Article 166.
110. There are special duties assigned to the Prime Minister and
the Chief Ministers, under Articles 78 and 167 respectively.
111. While dealing with the scheme of Article 166(3), the
Constitution Bench of this Court pointed out in A. Sanjeevi Naidu
137
vs. State of Madras
107
, that under our Constitution, the Governor
is essentially a constitutional head and the administration of the
State is run by the Council of Ministers. Since it is impossible for
the Council of Ministers to deal with each and every matter that
comes before the Government, the Governor is authorized under
Article 166(3) to make Rules for the more convenient transaction of
the business of the Government of the State and for allocation
amongst its Ministers the business of the Government. In
paragraph 10 of the said decision, the Constitution Bench
spoke about “joint responsibility” and not about collective
responsibility. The relevant portion of paragraph 10 reads as
follows:
“10.The cabinet is responsible to the Legislature
for every action taken in any of the Ministries.
That is the essence of joint responsibility. That
does not mean that each and every decision must be
taken by the cabinet. The political responsibility of the
Council of Ministers does not and cannot predicate the
personal responsibility of the Council of Ministers to
discharge all or any of the Governmental functions.
Similarly an individual Minister is responsible to the
Legislature for every action taken or omitted to be
taken in his ministry. This again is a political
107 (1970) 1 SCC 443
138
responsibility and not personal responsibility. …”
112.The expression “collective responsibility” can be traced to some
extent, to Article 75(3) insofar as the Union is concerned and to
Article 164(2) insofar as the States are concerned. But in both the
Articles, it is the Council of Ministers who are stated to be
collectively responsible to the House of the People/Legislative
Assembly of the State. Generally collective responsibility of the
Council of Ministers either to the House of the People or to the
Assembly should be understood to correlate to the decisions
and actions of the Council of Ministers and not to every
statement made by every individual Minister.
113.In State of Karnataka vs. Union of India.
108
, a Seven
Member Constitution Bench of this Court, while dealing with a
challenge made by the State of Karnataka in the form of a civil suit
under Article 131, to the appointment by the Central Government, of
a commission of enquiry against the Chief Minister of Karnataka,
had an occasion to consider the exposition of the words “collective
108 (1977) 4 SCC 608
139
responsibility” appearing in Article 164(2). After indicating that
collective responsibility is basically political in origin and
mode of operation, Beg, C.J. opined in the said case as follows:
“46. The object of collective responsibility is to
make the whole body of persons holding
Ministerial office collectively, or, if one may so
put it, “vicariously” responsible for such acts of
the others as are referable to their collective
volition so that, even if an individual may not be
personally responsible for it, yet, he will be
deemed to share the responsibility with those who
may have actually committed some wrong. …
47. Each Minister can be and is separately responsible
for his own decisions and acts and omissions also.
But, inasmuch as the Council of Ministers is able to
stay in office only so long as it commands the support
and confidence of a majority of members of the
Legislature of the State, the whole Council of Ministers
must be held to be politically responsible for the
decisions and policies of each of the Ministers and of
his department which could be presumed to have the
support of the whole Ministry. Hence, the whole
Ministry will, at least on issues involving matters of
policy, have to be treated as one entity so far as its
answerability to the Legislative Assembly representing
the electors is concerned. This is the meaning of the
principle underlying Article 164(2) of the Constitution.
The purpose of this provision is not to find out facts or
to establish the actual responsibility of a Chief
Minister or any other Minister or Ministers for
particular decisions or Governmental acts. That can be
more suitably done, when wrongful acts or decisions
are complained of, by means of inquiries under the
Act. As already indicated above, the procedure of
Parliamentary Committees to inquire into every legally
or ethically wrong act was found to be unsatisfactory
and unsound. The principle of individual as well as
140
collective ministerial responsibility can work most
efficiently only when cases requiring proper sifting and
evaluation of evidence and discussion of questions
involved have taken place, where this is required, in
proceedings before a Commission appointed under
Section 3 of the Act.
48. Textbook writers on Constitutional Law have
indicated how collective ministerial responsibility to
Parliament, which has essentially a political purpose
and effects, developed later than individual
responsibility of Ministers to Parliament which was
also political in origin and operation. It is true that an
individual Minister could, in England, where the
principle of individual and collective responsibility of
Ministers was evolved, be responsible either for
wrongful acts done by him without the authority of the
whole cabinet or of the monarch to support them, or
under orders of the King who could, in the eye of law,
do no wrong. But, apart from an impeachment, which
has become obsolete, or punishment for contempts of
a House, which constitute only a limited kind of
offences, the Parliament does not punish the offender.
For establishing his legal liability recourse to ordinary
courts of law is indispensable.”
114.Quoting from Wade and Phillips on Constitutional Law, this
Court pointed out in the State of Karnataka (supra) that
“responsibility to Parliament only means that the Minster may
be compelled by convention to resign.”
115.The extent to which the enforcement of collective responsibility
can be taken was also indicated in the above decision as follows:
“50.The whole question of responsibility is
related to the continuance of a Minister or a
141
Government in office. A Minister's own acts or
omissions or those of others in the department in
his charge, for which he may feel morally
responsible, or, for which others may hold him
morally responsible, may compel him to resign. By
an extension of this logic, applied to individual
Ministers at first, emerged the principle of “collective
responsibility” which we find enacted in Articles 75(2)
and 164(2) of our Constitution. The only sanction for
its enforcement is the pressure of public opinion
expressed particularly in terms of withdrawal of
political support by members of Parliament or the
State Legislature as the case may be.”
116. In other words, this Court indicated that while a Minister may
be compelled to resign for his individual acts of omission or
commission, the only sanction for the enforcement of collective
responsibility is the “pressure of public opinion”.
117. In R.K. Jain vs. Union of India
109
, this Court was concerned
with a public interest litigation relating to the functioning of the
Customs, Excise and Gold Control Appellate Tribunal. At that time
the office of the President of the Tribunal was lying vacant for over
six months. But after rule nisi was issued in the first writ petition,
the Government appointed someone as the President of the
Tribunal. Immediately, a second writ petition was filed challenging
the appointment and also some of the recruitment rules relating to
109(1993) 4 SCC 119
142
the appointment.The file relating to the appointment was produced
in a sealed cover and the Government claimed privilege in terms of
Section 123 of the Indian Evidence Act, 1872 and Article 74(2) of
the Constitution. While dealing with the executive power of the
President and the role of the Council of Ministers, K.Ramasamy, J.,
said “The principle of ministerial responsibility has a variety
of meanings precise and imprecise, authentic and vague”.
Paragraphs 29 and 30 of the report in R.K. Jain (supra) may be
usefully extracted as follows:
“29. It would thus be held that the Cabinet known as
Council of Ministers headed by Prime Minister under
Article 75(3) is the driving and steering body
responsible for the governance of the country. They
enjoy the confidence of the Parliament and remain in
office so long as they maintain the confidence of the
majority. They are answerable to the Parliament and
accountable to the people. They bear collective
responsibility and shall be bound to maintain secrecy.
Their executive function comprises of both the
determination of the policy as well as carrying it into
execution, the initiation of legislation, the maintenance
of order, the promotion of social and economic welfare,
direction of foreign policy. In short the carrying on or
supervision of the general administration of the affairs
of Union of India which includes political activity and
carrying on all trading activities, the acquisition,
holding and disposal of property and the making of
contracts for any purpose. In short the primary
function of the Cabinet is to formulate the policies of
the Government in conformity with the directive
principles of the Constitution for the governance of the
nation; place the same before the Parliament for
143
acceptance and to carry on the executive function of
the State as per the provisions of the Constitution and
the laws.
30. Collective responsibility under Article 75(3) of
the Constitution inheres maintenance of
confidentiality as enjoined in oaths of office and of
secrecy set forth in Schedule III of the
Constitution that the Minister will not directly or
indirectly communicate or reveal to any person or
persons any matter which shall be brought under
his/her consideration or shall become known to
him/her as Minister except as may be required for the
“due discharge of his/her duty as Minister”. The base
and basic postulate of its significance is
unexceptionable. But the need for and effect of
confidentiality has to be nurtured not merely from
political imperatives of collective responsibility
envisaged by Article 75(3) but also from its
pragmatism.”
118. In paragraph 33 of the report in R.K. Jain, this Court
indicated that the Cabinet as a whole is collectively responsible for
the advice tendered to the President and for the conduct of business
of each of his/her department. The question as to what happens
when an individual Minister is in total disagreement with the
collective decision of the Cabinet was also spelt out in R.K. Jain in
the following words:
“33. ...Each member of the Cabinet has personal
responsibility to his conscience and also responsibility
to the Government. Discussion and persuasion may
diminish disagreement, reach unanimity, or leave
it unaltered. Despite persistence of disagreement,
144
it is a decision, though some members like it less
than others. Both practical politics and good
government require that those who like it less
must still publicly support it. If such support is too
great a strain on a Minister's conscience or
incompatible to his/her perceptions of
commitment and he/she finds it difficult to
support the decision, it would be open to him/her
to resign. So the price of the acceptance of Cabinet
office is the assumption of the responsibility to
support Cabinet decisions. The burden of that
responsibility is shared by all.”
119. In Secretary, Jaipur Development Authority, Jaipur
(supra), the abuse of official position by the Minister of Urban
Development and Housing Department and the officers working in
the Jaipur Development Authority in the matter of allotment of
plots became the subject matter. While dealing with the question of
individual and collective accountability and responsibility of
Ministers, this Court said in paragraph 10 as follows:
“10. ...The Governor runs the Executive Government
of a State with the aid and advice of the Chief Minister
and the Council of Ministers which exercise the
powers and performs its duties by the individual
Ministers as public officers with the assistance of the
bureaucracy working in various departments and
corporate sectors etc. Though they are expressed in
the name of the Governor, each Minister is personally
and collectively responsible for the actions, acts and
policies. They are accountable and answerable to the
people. Their powers and duties are regulated by the
law and the rules. The legal and moral responsibility
145
or liability for the acts done or omissions, duties
performed and policy laid down rest solely on the
Minister of the Department. Therefore, they are
indictable for their conduct or omission, or misconduct
or misappropriation. The Council of Ministers are
jointly and severally responsible to the
Legislature. He/they is/are also publicly
accountable for the acts or conducts in the
performance of duties.”
120. Again, in paragraph 11, this Court outlined the responsibility
of the Ministers as follows:
“11. The Minister holds public office though he gets
constitutional status and performs functions under
the Constitution, law or executive policy. The acts
done and duties performed are public acts or duties as
the holder of public office. Therefore, he owes certain
accountability for the acts done or duties performed.
In a democratic society governed by rule of law, power
is conferred on the holder of the public office or the
authority concerned by the Constitution by virtue of
appointment. The holder of the office, therefore, gets
opportunity to abuse or misuse the office. The
politician who holds public office must perform public
duties with the sense of purpose, and a sense of
direction, under rules or sense of priorities. The
purpose must be genuine in a free democratic society
governed by the rule of law to further socioeconomic
democracy. The Executive Government should frame
its policies to maintain the social order, stability,
progress and morality. All actions of the Government
are performed through/by individual persons in
collective or joint or individual capacity. Therefore,
they should morally be responsible for their actions.”
121. In Vineet Narain vs. Union of India.
110
, this Court was
concerned with a public interest litigation under Article 32
110(1998) 1 SCC 226
146
complaining about the inaction on the part of the Central Bureau of
Investigation in a matter relating to the disclosures contained in
what came to be known as “Jain Diaries”. After taking note of the
Report of Lord Nolan on “Standards in Public Life”, this Court
issued certain directions, though confined only to the Central
Bureau of Investigation, Enforcement Directorate and Prosecution
Agency. But Lord Nolan’s Report dealt mainly with principles of
public life and code of conduct.
122. The decision in Common Cause was little peculiar and
riddled with some problems. The allotment of petroleum outlets by
the then Minister of State for Petroleum and Natural Gas, under
what was claimed to be a discretionary quota, was first set aside by
this Court by a judgment reported in (1996) 6 SCC 530.
Simultaneously, a showcause notice was issued to the then
Minister Capt. Satish Sharma as to why a criminal complaint
should not be lodged against him and why he should not be
directed to pay damages for his malafide action in wrongfully
allotting the petrol outlets. After the Minister responded to the
showcause notice, an order was passed, reported in (1996) 6 SCC
147
593, directing the Minister to pay exemplary damages and also
directing the initiation of prosecution. Later, a petition for review
was filed by the Minister for recalling the order which directed
payment of exemplary damages and also the registration of a case
by the Central Bureau of Investigation. The decision in the petition
for review, reported in (1999) 6 SCC 667, dealt with the question of
collective responsibility in the context of the contention raised. It
was argued by the delinquent Minister in the said case that under
the business rules of the Cabinet, the act of a Minister is to be
treated as the act of the President or the Governor as the case may
be and that therefore the allotment made by him should be treated
to have been made while acting only on behalf of the President. As
an extension of this argument, it was also contended that the
Minister having acted as a part of the Council of Ministers, his act
should be treated to be the act of the entire Cabinet on the principle
of collective responsibility. While rejecting the said contention, this
Court held in Common Cause that the immunity available to the
President under Article 361 of the Constitution cannot be extended
to the orders passed in the name of the President under Article
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77(1) or 77(2). Dealing with the concept of collective responsibility,
this Court held in paragraph 31 as follows:
“31. The concept of “collective responsibility” is
essentially a political concept. The country is
governed by the party in power on the basis of the
policies adopted and laid down by it in the Cabinet
meeting. “Collective responsibility” has two meanings:
the first meaning which can legitimately be ascribed to
it is that all members of a Government are unanimous
in support of its policies and would exhibit that
unanimity on public occasions although while
formulating the policies, they might have expressed a
different view in the meeting of the Cabinet. The other
meaning is that Ministers, who had an opportunity to
speak for or against the policies in the Cabinet are
thereby personally and morally responsible for its
success and failure.”
123. After having dealt with the concept of collective
responsibility, this Court carved out an exception in paragraph 34
as follows:
“34. From the above, it will be seen that in spite of the
fact that the Council of Ministers is collectively
responsible to the House of the People, there may be
an occasion where the conduct of a Minister may be
censured if he or his subordinates have blundered and
have acted contrary to law.”
124. Again in paragraph 36 this Court held as follows:
“36. Even in England, all Ministers and servants of the
Crown are accountable to the courts for the legality of
their actions, and may be held civilly and criminally
liable, in their individual capacities, for tortious or
criminal acts. This liability may be enforced either by
149
means of ordinary criminal or civil proceedings or by
means of impeachment, a remedy which is probably
obsolete. They are also subject to the judicial review
jurisdiction of the courts. [See: Halsbury's Laws of
England, Fourth Edn., (Reissue), Vol. 8(2), para 422.]”
125. In State (NCT of Delhi) vs. Union of India
111
, the
Constitution Bench of this Court was concerned with the
interpretation of Article 239AA of the Constitution. The concept of
collective responsibility was dealt with extensively by Dipak Misra,
C.J., as he then was, from paragraphs 82 to 85. In his independent
but concurring opinion Dr. D.Y. Chandrachud, J. also dealt with
the question of collective responsibility from paragraphs 318
onwards.
126. What follows from the above discussion is, (i) that the
concept of collective responsibility is essentially a political concept;
(ii) that the collective responsibility is that of the Council of
Ministers; and (iii) that such collective responsibility is to the House
of the People/Legislative Assembly of the State. Generally, such
responsibility correlates to (i) the decisions taken; and (ii) the acts
of omission and commission done. It is not possible to extend this
111(2018) 8 SCC 501
150
concept of collective responsibility to any and every statement orally
made by a Minister outside the House of the People/Legislative
Assembly.
127. Shri Kaleeswaram Raj, learned counsel appearing for the
special leave petitioner drew our attention to the code of conduct for
Ministers of the Government of Australia, code of conduct for
Ministers of the Government of India and the Ministerial Code of the
United Kingdom. However, attractive such prescriptions may be, it
is not possible to enforce such code of conduct in a court of law.
Government servants stand on a different footing, as any
misconduct on their part with reference to the Government
Servants (Conduct) Rules, may attract disciplinary action under the
Civil Services (Discipline and Appeal) Rules. Even in the case of
Government servants, it may not be possible to justify a
dismissal/removal from service on the basis of a statement uttered
by a Government servant, as it may not pass the proportionality
test, vizaviz the gravity of the misconduct.
128. The suggestion made by Shri Kaleeswaram Raj that the
Prime Minister, in the case of a Minister of the Union of India and
151
the Chief Minister, in the case of a Minister of the State should be
allowed to take appropriate action, against the erring Minister, is
just fanciful. The Prime Minister or the Chief Minister does not have
disciplinary control over the members of the Council of Ministers. It
is true that in practice, a strong Prime Minister or Chief Minister
will be able to drop any Minister out of the Cabinet. But in a
country like ours where there is a multiparty system and where
coalition Governments are often formed, it is not possible at all
times for a Prime Minister/Chief Minister to take the whip,
whenever a statement is made by someone in the Council of
Ministers.
129. Governments which survive on waferthin majority (of which
we have seen quite a bit), sometimes have individual Ministers who
are strong enough to decide the very survival of such Governments.
This problem is not unique to our country.
130. We have followed the Westminster Model but the
Westminster Model itself became shaky after the United Kingdom
saw the first coalition Government in 2010, since the Churchill
Caretaker Ministry of 1945. It is interesting to note that in a Report
152
submitted by the Constitution Committee (UK) in the year 2014,
under the title, “Constitutional Implications of Coalition Government”
it was pointed out that “collective ministerial responsibility has
been the convention most affected by coalition Government ”.
The Report proceeds to state that the coalition Government formed
in 2010 (in UK) set out five specific issues on which the parties
would agree to differ. But, in reality the number of areas of
disagreement has been greater resulting on one occasion, in
Ministers being whipped to vote in opposite lobbies and on another,
in MPs on the Treasury Benches attempting to amend the Address
on the Queen’s speech.
131. In the “Briefing Paper” (Number 7755, 14 November 2016) on
“Collective responsibility” by Michael Everett available in the House
of Commons Library, (i) the early origins and development of the
concept of collective responsibility; (ii) what is collective
responsibility; (iii) the conventions of collective responsibility; and
(iv) departures from collective responsibility are dealt with. This
Paper traces early beginnings of the doctrine of collective
responsibility to the reign of George III (17601820). According to
153
the Briefing Paper, the development of today’s concept of collective
responsibility arose during the Victorian golden age of
Parliamentary Government. In fact, the Briefing Paper quotes some
commentators who have questioned whether the convention of
collective responsibility remains appropriate for the Government of
today. The Briefing Paper quotes Barry Winetrobe, a Research
Fellow at the Constitution Unit who said that the doctrine of
collective responsibility was developed at a time when a sense
of coherence was required to be maintained among disparate
ministerial forces in the face of the Monarch and that it is not
necessarily appropriate in an age, not just of democracy, but
of greater and more direct participative democracy .
132. It will be useful to quote a portion of Chapter 2.3 under the
heading “Enforcing collective responsibility” from the Briefing Paper
as follows:
“…Dr Felicity Matthews, Senior Lecturer in Governance
and Public Policy at the University of Sheffield, has also
argued that the respect accorded to the doctrine of
collective responsibility “has varied”, with its
maintenance and disregard “owing as much to politics
as to propriety”.
154
An interesting example of this occurred in 2003 during
the buildup to the Iraq war. Robin Cook, the Leader of
the House of Commons, resigned in protest in March
2003 over the then Labour Government’s policy toward
Iraq, being unable to maintain the official Government
position. His actions were therefore consistent with the
doctrine of collective responsibility. However, Clare
Short, the Secretary of State for International
Development, was allowed to stay in the Cabinet
despite her own vocal opposition to military
intervention and despite publicly denouncing the then
Prime Minister as “deeply reckless” in March 2003.
According to Felicity Matthews, despite her
“extraordinary breach” of collective responsibility, Clare
Short was persuaded and allowed to retain her
ministerial portfolio. She then remained in the Cabinet
for a further two months, until she decided to resign on
12 May 2003, following perceived mistakes in the
US/UK coalition after the invasion. This example,
according to Matthews, “underlines the extent to which
Prime Ministers have proven unwilling or unable to
enforce a strict interpretation of collective
responsibility, even when their personal credibility has
been besmirched”.
133. Thus, the convention developed in the United Kingdom for
Ministers, itself appears to have gone for a toss and hence, it is not
possible to draw any inspiration from the UK Model.
134. We are not suggesting for a moment that any public official
including a Minister can make a statement which is irresponsible or
in bad taste or bordering on hate speech and get away with it. We
are only on the question of collective responsibility and the
vicarious liability of the Government.
155
135. As all the literature on the issue shows, collective
responsibility is that of the Council of Ministers. Each individual
Minister is responsible for the decisions taken collectively by the
Council of Ministers. In other words, the flow of stream in collective
responsibility is from the Council of Ministers to the individual
Ministers. The flow is not on the reverse, namely, from the
individual Ministers to the Council of Ministers.
136. Our attention was also drawn to the decision of this Court in
Amish Devgan. Though the said decision considered extensively
the impact of the speech of “a person of influence”, we are not, in
this reference dealing with the same. This is for the reason that the
said decision concerned “hate speech”. None of the questions
referred to us, including Question No.4 with which we are presently
concerned, relates to hate speech, and understandably so. The writ
petition as well as the special leave petition out of which this
reference arose, concerned speeches made by the Ministers of the
State of Uttar Pradesh and the State of Kerala. The speech made by
the Minister of the State of Uttar Pradesh attempted to paint a case
of robbery and gangrape as a political conspiracy. The speech of
156
the Minister of the State of Kerala portrayed women in a
disrespectful way. Since the statements concerned in both the cases
were attributed to the Ministers, Question No.4 referred to us,
specifically relates to “statement made by a Minister”. Amish
Devgan did not deal with the statement of a Minister traceable to
any affairs of the State, though a Minister would fall under the
category of “person of influence”. Moreover, the statements
attributed to the Ministers in the cases on hand may not come
under the category of hate speech. Therefore, we do not wish to
enlarge the scope of this reference by going into the questions
which were answered in Amish Devgan.
137. Therefore, our answer to Question No.4 would be that a
statement made by a Minister even if traceable to any affairs
of the State or for protecting the Government, cannot be
attributed vicariously to the Government by invoking the
principle of collective responsibility.
Question No.5
157
138. Question No.5 referred to us for consideration is “whether a
statement by a Minister, inconsistent with the rights of a citizen
under PartIII of the Constitution, constitutes a violation of such
constitutional rights and is actionable as ‘Constitutional Tort’?”
139. To begin with, we have some difficulty with the words
“a statement by a Minister”, appearing in Question No.5.
A statement may be made by a Minister either inside or outside the
House of People/Legislative Assembly of the State. A statement may
also be made by a Minister in writing or by words spoken. A
statement may be made in private or in public. A statement may
also be made by a Minister either touching upon the affairs of the
Ministry/ department of which he is in control or touching generally
upon the policies of the Government of which he is a part. A
Minister may also make a statement, in the form of an opinion on
matters about which he or his department is not concerned or over
which he has no control. All such statements need not necessarily
give rise to an action in tort or in constitutional tort.
140. Take for instance a case where a Minister makes a statement
that women are unfit to be employed in a particular avocation. It
158
may reflect his insensitivity to gender equality and also may expose
his low constitutional morality. The fact that due to his insensitivity
or lack of understanding or low constitutional morality, he speaks a
language that has the potential to demean the constitutional rights
of women, cannot be a ground for action in Constitutional tort.
Needless to say that no one can either be taxed or penalised for
holding an opinion which is not in conformity with the
constitutional values. It is only when his opinion gets translated
into action and such action results in injury or harm or loss that an
action in tort will lie. With this caveat, let us now get into the core
of the issue.
141. A tort is a civil wrong, that causes a claimant to suffer loss or
harm resulting in legal liability for the person who commits the
tortious act. Halsbury’s Law of England states: “Those civil rights of
action which are available for the recovery of unliquidated damages
by persons who have sustained injury or loss from acts, statements
or omissions of others in breach of duty or contravention of right
imposed or conferred by law rather than by agreement are rights of
action in tort.”
159
142. If Crown Proceedings Act, 1947 changed the course of the law
relating to tort in England, the Federal Tort Claims Act, 1946
changed in America, the course of law relating to the liability of the
State for the tortious acts of its servants. Nevertheless, the claims
for damages continued to be resisted for a long time both here and
elsewhere on the principle of sovereign immunity. It is interesting to
note that on the initiative of the President of India, the Law Ministry
took up for consideration the question whether legislation on the
lines of the Crown Proceedings Act, 1947 of the United Kingdom is
needed and if so, to what extent. After the constitution of the Law
Commission, the Law Ministry referred the matter to the
Commission for consideration and report. In its First Report
submitted on 11.5.1956 on “Liability of the State in Tort”, the Law
Commission took note of (i) the existing law in India; (ii) law in
England; (iii) law in America; (iv) law in Australia; (v) law in France;
(vi) rule of statutory construction; and (vii) conclusions and
proposals.
143. In Chapter VIII containing the conclusions and proposals, the
First Report of the Law Commission suggested: (i) that in the
160
context of a welfare State, it is necessary to establish a just relation
between the rights of the individual and the responsibilities of the
State; (ii) that when the Constitution was framed, the question to
what extent, if any, the Union and the States should be made liable
for the tortious acts of their servants or agents was left for future
legislation; (iii) that the question of demarcating the line up to
which the State should be made liable for the tortious acts, involves
a nice balancing of considerations, so as not to unduly restrict the
sphere of the activities of the State and at the same time to afford
sufficient protection to the citizen; (iv) that it is necessary that the
law should, as far as possible, be made certain and definite, instead
of leaving it to courts to develop the law according to the views of
the judges; and (v) that the old distinction between sovereign and
the nonsovereign functions or Governmental and the non
Governmental functions should no longer be invoked to determine
the liability of the State.
144. Paragraph 66 of the First Report of the Law Commission
contained the principles on which appropriate legislation should
proceed. It will be useful to extract paragraph 66 of the First Report
161
of the Law Commission, to understand the sweep of constitutional
tort, as it was conceived within a few years of the adoption of the
Constitution. In fact, it has laid down the road map very clearly
with lot of foresight. Paragraph 66 reads thus:
“66. The following shall be the principles on which
legislation should proceed:—
I. Under the general law:
Under the general law of torts i.e., the English
Common Law as imported into India on the principle
of justice, equity and good conscience, with statutory
modifications of that law now in force in India (vide the
Principles of General Law, Appendix VI)—
(i) The State as employer should be liable
for the torts committed by its employees and
agents while acting within the scope of their
office or, employment.
(ii) The State as employer should be liable
in respect of breach of those duties which a
person owes to his employees or agents under
the general law by reason of being their
employer.
(iii) The State should be liable for torts
committed by an independent contractor only in
cases referred to in Appendix VI.
(iv) The State also should be liable for torts
where a corporation owned or controlled by the
State would be liable.
(v) The State should be liable in respect of
breach of duties attached under the general law
to the ownership, occupation, possession or
control of immoveable properly from the moment
162
the State occupies or takes possession or
assumes control of the property.
(vi) The State should be subject to the
general law liability for injury caused by
dangerous things (chattels).
In respect of (i) to (vi) the State should be entitled to
raise the same defences, which a citizen would be
entitled to raise under general law.
II. In respect of duties of care imposed by statute:
(i) If a statute authorises the doing of an
act which is in itself injurious, the State should
not be liable.
(ii) The State should be liable, without
proof of negligence, for breach of a statutory
duty imposed on it or its employees which
causes damage.
(iii) The State should be liable if in the
discharge of statutory duties imposed upon it or
its employees, the employees act negligently or
maliciously, whether or not discretion is involved
in the exercise of such duty.
(iv) The State should be liable if in the
exercise of the powers conferred upon it or its
employees the power is so exercised as to cause
nuisance or trespass or the power is exercised
negligently or maliciously causing damage.
N.B.—Appendix V shows some of the Acts
which contain protection clauses. But under the
General Clauses Act a thing is deemed to be
done in good faith even if it is done negligently.
Therefore, by suitable legislation the protection
should be made not to extend to negligent acts
however honestly done and for this purpose the
relevant clauses in such enactments should be
examined.
(v) The State should be subject to the
same duties and should have the same rights as
163
a private employer under a statute, whether it is
specifically binding on the State or not.
(vi) If an Act negatives or limits the
compensation payable to a citizen who suffered
damage, coming within the scope of the Act, the
liability of the State should be the same as
under that Act and the injured person should be
entitled only to the remedy, if any, provided
under the Act.
III. Miscellaneous:
Patents, Designs and Copyrights: The provisions
of Sec. 3 of the Crown Proceedings Act may be
adopted.
IV. General Provisions:
(i) Indemnity and contribution: To enable
the State to claim indemnity or contribution, a
provision on the lines of Sec. 4 of the Crown
Proceedings Act may be adopted.
(ii) Contributory negligence: In England,
the Law Reform (Contributory Negligence)
Act,1945 was enacted amending the law relating
to contributory negligence and in view of the
provisions of the Crown Proceedings Act the said
Act also binds the Crown. In India, the trend of
judicial opinion is in favour of holding that the
rule in Merryweather v. Nixan [(1799) 8 T.R. 186]
does not apply and that there is no legal
impediment to one tortfeasor recovering
compensation from another.
But the law should not be left in an uncertain
state and there should be legislation on the lines
of the English Act.
(iii) Appropriate provision should be made
while revising the Civil Procedure Code to make
it obligatory to implead as party to a suit in
which a claim for damages against the State is
made, the employee, agent or independent
contractor for whose act the State is sought to
164
be made liable. Any claim based
on indemnity or contribution by the State may
also be settled in such proceeding as all the
parties will be before the court.
V. Exceptions:
(i)Acts of State: The defence of “Act of
State” should be made available to the State for
any act, neglect or default of its servants or
agents. “Act of State” means an act of the
sovereign power directed against another
sovereign power or the subjects of another
sovereign power not owning temporary
allegiance, in pursuance of sovereign rights.
(ii) Judicial acts and execution of judicial
process:The State shall not be liable for acts
done by judicial officers and persons executing
warrants and orders of judicial officers in all
cases where protection is given to such officers
and persons by Sec. 1 of the Judicial Officers
Protection Act, 1850.
(iii) Acts done in the exercise of political
functions of the State such as acts relating to:
(a)Foreign Affairs (entry 10, List
I, Seventh Schedule of the Constitution);
(b) Diplomatic, Consular and trade
representation (entry 11);
(c) United Nations
Organisation(entry 12);
(d)Participation in international
conferences, associations and other bodies
and implementing of decisions made
thereat (entry 13);
(e)entering into treaties and
agreements with foreign countries and
implementing of treaties, agreements and
conventions with foreign countries (entry
14);
(f) war and peace (entry 15);
165
(g)foreign jurisdiction (entry 16);
(h)anything done by the
President, Governor or Rajpramukh in the
exercise of the following functions:
Power of summoning, proroguing
and dissolving the Legislature, vetoing of
laws and anything done by the President
in the exercise of the powers to issue
Proclamations under the Constitution;
(i) Acts done under the Trading with
the Enemy Act, 1947;
(j) Acts done or omitted to be done
under a Proclamation of Emergency when
the security of the State is threatened.
(iv) Acts done in relation to the Defence Forces:
(a)Combatant activities of the
Armed Forces during the time of war;
(b) Acts done in the exercise of
the powers vested in the Union for the
purpose of training or maintaining the
efficiency of the Defence Forces;
The statutes relating to these
already provide for payment of
compensation and the machinery for
determining the compensation: See
Manoeuvres, Field Firing and Artillery
Practice Act, 1948; Seaward Artillery
Practice Act, 1949;
(c) The liability of the State for
personal injury or death caused by a
member of the Armed Forces to another
member while on duty shall be restricted
in the same manner as in England (Sec.
10 of the Crown Proceedings Act)
(v) Miscellaneous:
166
(a) any claim arising out of
defamation, malicious prosecution and
malicious arrest,
(b) any claim arising out of the
operation of quarantine law,
(c) existing immunity under the
Indian Telegraph Act, 1885 and Indian
Post Offices Act, 1898,
(d) foreign torts. (The English
provision may be adopted.)”
145. It appears that based on the First Report of the Law
Commission, a Bill known as the Government (Liability in Torts) Bill
was introduced in 1967, but the same did not become the law. As a
consequence, a huge burden was cast on the Courts to develop the
law through judicial precedents, some of which we shall see now.
146. The judicial journey actually started off on a right note with
the decision in The State of Bihar vs. Abdul Majid
112
, where a
Government servant who was dismissed but later reinstated, filed a
suit for recovery of arrears of salary. Though the State raised a
defence on the basis of the doctrine of pleasure, this Court rejected
the same on the ground that said doctrine based on the Latin
112 AIR 1954 SC 245
167
phrase “durante bene placito” (during pleasure) has no application
in India. This decision was followed in State of Rajasthan vs. Mst.
Vidhyawati
113
, which involved a claim for compensation by the
widow of a person who was fatally knocked down by a jeep owned
and maintained by the State. When sovereign immunity was
pleaded, this Court observed in Vidhyawati (supra): “when the
rule of immunity in favour of the Crown, based on common
law in the United Kingdom has disappeared from the land of
its birth, there is no legal warrant for holding that it has any
validity in this country, particularly after the Constitution.”
147. On the question of the liability of the State, for the tortious
acts of its servants, this Court opined in Vidhyawati, as follows:
“(10)This case also meets the second branch of the
argument that the State cannot be liable for the
tortious acts of its servants, when such servants are
engaged on an activity connected with the affairs of the
State. In this connection it has to be remembered that
under the Constitution we have established a welfare
state, whose functions are not confined only to
maintaining law and order, but extend to engaging in
all activities including industry, public transport, state
trading, to name only a few of them. …”
113 AIR 1962 SC 933
168
148. But despite the decisions in Abdul Majid (supra) and
Vidhyawati, this Court fell into a slippery slope in Kasturi Lal. It
was a case where the partner of a firm dealing in bullion and other
goods was arrested and detained in police custody and the gold and
silver that he was carrying was seized by the police. When he was
released later, the silver was returned but the Head Constable who
effected the arrest misappropriated the gold and fled away to
Pakistan in October, 1947. The suit filed by Kasturi Lal for
recovery of the value of the gold, was resisted on the ground that
this was not a case of negligence of the servants of the State and
that even if negligence was held proved against the police officers
the State could not be held liable. While upholding the contention of
the State, this Court said “if a tortious act is committed by a public
servant and it gives rise to a claim for damages, the question to ask
is: was the tortious act committed by the public servant in discharge
of statutory functions which are referable to, and ultimately based
on, the delegation of the sovereign powers of the State to such public
servant? If the answer is in the affirmative, the action for damages
for loss caused by such tortious act will not lie. On the other hand, if
169
the tortious act has been committed by a public servant in discharge
of duties assigned to him not by virtue of the delegation of any
sovereign power, an action for damages would lie. The act of the
public servant committed by him during the course of his employment
is in this category of cases, an act of a servant who might have been
employed by a private individual for the same purpose.”
149. In fact, it was suggested by this Court in Kasturi Lal that
the Legislatures in India should seriously consider making
legislative enactments to regulate and control their claim for
immunity. Before proceeding further with the journey in the
chronological sequence, it must be mentioned that the decision in
Kasturi Lal was diluted to some extent after nearly 30 years which
we shall take note of at the appropriate stage.
150. In Khatri (II) vs. State of Bihar.
114
, which came to be
popularly known as Bhagalpur blinding case, this Court was dealing
with a brutal incident of Police atrocity which resulted in twenty
four prisoners being blinded. Though an opportunity was provided
114 (1981) 1 SCC 627
170
to this Court to signal the arrival of Constitutional tort in the said
case and though the petitioners sought compensation for the
violation of their Article 21 right, this Court simply postponed the
decision to a future date by holding that they are issues of the
gravest Constitutional importance, involving the exploration of new
dimension of the right to life and personal liberty.
151. But within a couple of years, another opportunity arose in
Rudul Sah (supra), which related to the unlawful detention of a
prisoner for fourteen years even after his acquittal. This shook the
conscience of this Court. Therefore, this Court awarded
compensation in an arbitrary sum of money, even while reserving
the right of the petitioner to bring a suit for recovery of appropriate
damages. This Court said that the order of compensation passed by
this Court was in the nature of palliative. When it is suggested by
the State that the appropriate remedy would be only to file a suit for
damages, this Court said that by refusing to order anything
(towards compensation), this Court would be doing mere lipservice
to the fundamental right to liberty and that one of the telling ways
171
in which the violation of the right by the State can be reasonably
prevented, is to mulct its violators with monetary compensation.
152. After Rudul Sah, there was no looking back. Instead of
providing elaborate details, we think it is sufficient to provide in a
tabular form, details of the cases where this Court awarded
compensation in public law, invoking the principle of constitutional
tort, either expressly or impliedly.
Sr.
No.
Case Laws Decision
1.Sebastian M.Hongray vs.
Union of India
(1984) 3 SCC 82
Two men who were taken for questioning
by 21st Sikh Regiment never returned
home.
When a writ of habeas corpus was filed
by a JNU student, this Court directed
that the missing men be produced before
the Court. This order could not be
complied with.
Court awarded compensation of Rs.1lac
to the wives of the missing men on
account of mental agony suffered by
them.
2.Bhim Singh, MLA vs. State
of J&K.
(1985) 4 SCC 677
An MLA was illegally arrested and
detained to prevent him from attending a
session of the Jammu & Kashmir State
Legislative Assembly.
FIR was registered u/s 153A, IPC and
order of remand was obtained from the
Magistrate without producing the MLA
before Court.
In a writ for habeas corpus filed by his
wife, this Court observed that there had
been a violation of his fundamental rights
under Articles 21 and 22(2) of the
Constitution and accordingly directed the
State of Jammu and Kashmir to pay
172
Bhim Singh a sum of Rs.50,000/ as
compensation.
3.Peoples’ Union for
Democratic Rights vs. State
of Bihar &Ors.
(1987) 1 SCC 265
A public interest litigation was filed
against the illegal shooting by police
officers against members of a peaceful
assembly.
Several were injured and 21 died
(including children) due to this incident.
While the State had paid a compensation
of Rs.10,000 each to heirs of the
deceased, this Court found it insufficient
and directed payment of Rs.20,000 to
dependants of each deceased and
Rs.5,000 to each injured person.
4.Saheli, a Women’s Resources
Centre through Ms. Nalini
Bhanot & Ors. vs.
Commissioner of Police,
Delhi Police Headquarters &
Ors.
(1990) 1 SCC 422
Two women were forcefully evicted from
their homes. The landlord was aided by
the SHO and SI in the assault that led to
demise of the nineyearold son of one of
the women.
This Court awarded compensation of
Rs.75,000 to the mother of the deceased
child.
5.Supreme Court Legal Aid
Committee through its
Hony. Secretary vs. State of
Bihar & Ors.
(1991) 3 SCC 482
A person injured in a train robbery, was
taken to the nearest hospital by the
Police by tying him to the footboard of a
vehicle. This led to his death.
This Court observed that had timely care
been given to the victim he might have
been saved.
The State of Bihar was directed to pay
Rs.20,000 to the legal heirs of the
deceased.
6.Nilabati Behera (Smt.) alias
Lalita Behera (Through the
Supreme Court Legal Aid
Committee) vs. State of
Orissa & Ors.
(1993) 2 SCC 746
Petitioner was a mother whose son had
died in police custody.
This Court directed the State to pay
compensation of Rs.1.5 lacs.
7.Arvinder Singh Bagga vs.
State of U.P. & Ors.
(1994) 6 SCC 565
A married woman was detained and
physically assaulted in a police station
with a view to coerce her to implicate her
husband and his family in a case of
abduction and forcible marriage.
After taking her statement, her husband
173
and his family were also harassed by the
police.
This Court observed that the police had
exhibited highhandedness and
uncivilized behaviour and awarded the
woman a compensation of Rs.10,000 and
members of her family Rs.5,000 each.
8.N. Nagendra Rao & Co. vs.
State of A.P.
(1994) 6 SCC 205
Appellant was in the business of food
grains and fertiliser. On an inspection by
the concerned authorities, his stocks
were seized.
As was the practice, the food grains in
custody were sold and the proceeds
deposited in the Treasury, but the
fertilisers were not dealt with in the same
manner causing great loss to the
Petitioner.
In a suit for negligence and misfeasance
of public authorities, this Court further
developed the concept of Constitutional
Tort and limited the scope of sovereign
immunity laid down in Kasturilal. The
State was held vicariously liable for the
actions of the authorities.
9.Inder Singh vs. State of
Punjab & Ors.
(1995) 3 SCC 702
A Deputy Superintendent of Police along
with his subordinates abducted and
killed seven persons due to personal
vengeance.
This Court ordered an inquiry by the
CBI.After CBI filed a report, this court
directed the State to pay Rs.1.5 lacs to
the legal heirs (to be recovered from guilty
policemen later) and State to pay costs
quantified at Rs.25,000.
10.Paschim Banga Khet
Mazdoor Samity & Ors. vs.
State of W.B. & Anr.
(1996) 4 SCC 37
The callous attitude on the part of the
medical authorities at various
Governmentrun hospitals in Calcutta in
providing treatment to a train accident
victim was highlighted in this case.
This Court directed the State to pay
Rs.25,000 for the denial of its
constitutional obligations of care.
174
11.D.K. Basu vs. State of W.B.
(1997) 1 SCC 416
In a public interest litigation involving
incidents of custodial violence in West
Bengal, this Court issued guidelines for
law enforcement agencies to follow when
arresting and detaining any person.
This Court also discussed the award of
compensation as a remedy for violation of
fundamental rights as a punitive
measure against State action.
12.People’s Union for Civil
Liberties vs. Union of India
& Anr.
(1997) 3 SCC 433
Two persons alleged to be terrorists were
killed by the police in a false encounter.
This Court directed the State of Manipur
to pay Rs.1 lac to the family of the
deceased and Rs.10,000 to PUCL for
pursuing the case for many years.
13.Municipal Corporation of
Delhi, Delhi vs. Uphaar
Tragedy Victims Association
& Ors.
(2011) 14 SCC 481
A fire in a cinema hall resulted in injury
to over 100 persons and death of 59
cinemagoers.
The fire was caused by a transformer
installed by Delhi Vidyut Board (DVB).
HC had found the Municipal Corporation,
Delhi Police, and the DVB responsible for
the accident.
This Court held only DVB and theatre
owner liable to pay compensation in the
ratio of 15:85.
While doing so, this Court dealt
extensively with the concept of
Constitutional Tort.
153. It will be clear from the decisions listed in the Table above
that this Court and the High Courts have been consistent in
invoking Constitutional tort whenever an act of omission and
commission on the part of a public functionary, including a
Minister, caused harm or loss. But as rightly pointed out by the
learned Attorney General in his note, the matter preeminently
175
deserves a proper legal framework so that the principles and
procedure are coherently set out without leaving the matter open
ended or vague. In fact, the First Report of the Law Commission
submitted a draft bill way back in 1956. This Court recommended a
legislative measure in Kasturi Lal in 1965 and a bill called
Government (Liability in Torts) Bill was introduced in 1967. But
nothing happened in the past 55 years. In such circumstances,
courts cannot turn a blind eye but may have to imaginatively
fashion the remedy to be provided to persons who suffer injury or
loss, without turning them away on the ground that there is no
proper legal frame work.
154. Therefore, our answer to Question No. 5 is as follows:
“A mere statement made by a Minister, inconsistent with the
rights of a citizen under PartIII of the Constitution, may not
constitute a violation of the constitutional rights and become
actionable as Constitutional tort. But if as a consequence of
such a statement, any act of omission or commission is done
176
by the officers resulting in harm or loss to a person/citizen,
then the same may be actionable as a constitutional tort”.
SUMMING UP
155. To sum up, our answers to the five questions referred to the
Bench, are as follows:
QUESTIONS ANSWERS
1.Are the grounds specified in
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?
The grounds lined up in
Article 19(2) for restricting
the right to free speech are
exhaustive. Under the guise
of invoking other
fundamental rights or under
the guise of two fundamental
rights staking a competing
claim against each other,
additional restrictions not
found in Article 19(2), cannot
be imposed on the exercise of
the right conferred by Article
19(1)(a) upon any individual.
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?
A fundamental right under
Article 19/21 can be enforced
even against persons other
than 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
The State is under a duty to
affirmatively protect the rights
of a person under Article 21,
177
even against a threat to the
liberty of a citizen by the acts
or omissions of another citizen
or private agency?
whenever there is a threat to
personal liberty, even by a
nonState actor.
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?
A statement made by a
Minister even if traceable to
any affairs of the State or for
protecting the Government,
cannot be attributed
vicariously to the Government
by invoking the principle of
collective responsibility.
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”?
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, then
the same may be actionable
as a constitutional tort.
178
156. Now that we have answered the questions, the writ petition
and the special leave petition are directed to be listed before the
appropriate bench after getting orders from Hon’ble the Chief
Justice of India.
…..…………....................J.
(S. Abdul Nazeer)
…..…………....................J.
(B.R. Gavai)
…..…………....................J.
(A.S. Bopanna)
.…..………......................J.
(V. Ramasubramanian)
New Delhi;
January 03, 2023
179
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL /CIVIL APPELLATE JURISDICTION
WRIT PETITION (CRL.) NO. 113 OF 2016
Kaushal Kishor …..Petitioner(s)
Versus
State of Uttar Pradesh & Ors. ….. Respondent(s)
With
SLP (C) @ Diary No.34629 of 2017
Sl.No. Particulars Page Nos.
1. Introduction 2-10
2. Submissions 10-17
3. Preface 17-18
4. Article 19(1)(a) and 19 (2) – An Overview 18-26
5. Wesley Hohfeld’s analysis of the form of
rights
26-30
6. The content of Article 19 (1)(a) 30-40
7. ‘Hate speech’ 40-54
8. Human dignity as a value as well as a
right under the Constitution of India
54-63
9. The preambular goals of ‘Equality’ and
‘Fraternity’
63-72
10. Re: Question No.2 72-101
11. Re: Question No.3 101-106
12. Re: Question No.4 106-107
13. Re: Question No.5 107-120
14. Conclusions 120-121
2
J U D G M E N T
NAGARATHNA, J.
I have had the benefit of reading the erudite judgment proposed
by His Lordship V. Ramasubramanian, J . While I agree with the
reasoning and conclusions arrived at by his Lordship on certain
questions referred to this Constitution Bench, I wish to lend a different
perspective to some of the issues by way of my separate opinion.
2. In the words of one of the Indian philosophers, Basaveshwara:
“NuDidare muttina haaradantirabeku,
NuDidare maanikyada deeptiyantirabeku,
NuDidare spatikada shalaakeyantirabeku,
NuDidare Lingamecchi ahudenabeku.”
One should speak only when the words uttered are as pure as
pearls strung on a thread;
Like the lustre shed by a ruby;
Like a crystal’s flash that cleaves the blue;
And such that the Lord, on listening to such speech, must say
“yes, yes, that is true!”
Introduction:
3. The concern of the petitioners in these cases is the misuse of the
right to freedom of speech and expression under Article 19(1)(a) of the
Constitution, particularly, by those persons holding political offices,
public servants, public functionaries or others holding responsible
positions in Indian polity and society. The concern of the petitioners is
with regard to the manner in which public functionaries make
disparaging and insulting remarks against certain sections of the
3
society, against countrymen and against certain individuals such as
women who may be victims of crime. Such indiscreet speech is a cause
of concern in recent times as it is thought to be hurtful and insulting.
The questions raised in these matters are with regard to remedies
available in law so as to counter such kind of hurtful or disparaging
speech made, particularly, by public functionaries.
4. The facts giving rise to the present petitions may be encapsulated
as under:
4.1. Writ Petition (Crl.) No. 113 of 2016, relates to the unsavory public
comments made by a former Uttar Pradesh Cabinet Minister, in
the context of an alleged gang rape of a woman and her minor
daughter that took place on 29
th July, 2016 on the Noida-
Shahjahanpur National Highway (NH 91). Relying on certain
news articles, the petitioner in Writ Petition (Crl.) No. 113 of 2016
has brought to the notice of this Court the remarks made by the
said public functionary, terming the alleged incident as an
“opposition conspiracy,” which was proliferated merely because
“elections were near, and the desperate opposition could stoop to
any level to defame the government.”
4.2. In relation to such statements, a First Information Report, being
FIR No. 0838 of 2016 was registered against the said Minister on
30
th July, 2016 by the Kotwali Police Station, Dehat,
4
Bulandshahr, Uttar Pradesh, for offences under Sections 395,
397, 376-D, 342 of the Indian Penal Code, 1860 (hereinafter
referred to as ‘IPC’ for the sake of convenience).
4.3. In the above background, the Writ Petition has been preferred,
praying as follows:
“P R A Y E R : -
In view of the above stated submissions, it is therefore,
most humbly prayed that this Hon’ble Court; may in
the interests of justice, be pleased to :-
a. Issue a writ of mandamus and / or any other
appropriate writ and / or direction against the
respondents directing them to stop the infringement of
the fundamental rights of the petitioner to live a lawful
life; in addition to passing other appropriate directions
to the respondents.
b. Direct the state to pay the appropriate compensation to
the petitioner, other victims and the family members as
per Law.
c. Direct the state to provide and ensure respectable and
appropriate free of cost and safe education
arrangements till the attainments of the highest degree
in the interest of justice.
d. Direct the state to provide and ensure sufficient life
security and appropriate job security to the petitioner,
other victims and family members.
e. Summon the status report from the investigation
agency in the interests of justice.
f. Monitor the investigation of FIR No.0838/2016 under
Section 154 Cr. P.C. 395, 397, 376-D and POCSO Act,
342.
g. Transfer the trial of the FIR No.0838/2016 to Delhi
from Bulandshahar in the interest of justice.
h. Pass directions to Respondent No.1 to register F.I.R.
against Sh. Azam Khan, Minister for Urban
Development, Govt. of UP; for making statements being
outrageous to the modesty of the petitioner in the
matters of the present case.
i. Direct to the Respondent No.1 for registration of F.I.R.
No.0838/2016 against erring police officials for
disobeying the directions of law in the present case.
5
j. Pass any other or further orders as this Hon’ble Court
may deem fit and proper in the light of the facts and
circumstances of the present case in favour of the
petitioners and against the respondents.”
4.4. Special Leave Petition bearing Diary No. 34629 of 2017 has been
filed impugning the common order dated 31
st May, 2017 passed
by the High Court of Kerala, at Ernakulam dismissing Writ
Petition (C) No. 15869 and Writ Petition (C) No. 14712 of 2017.
The said Writ Petitions were filed before the High Court alleging
inaction on the part of Government of Kerala in connection with
the derogatory statements made on separate occasions, by the
then Minister of Electricity, Government of Kerala, against a
woman Principal of a polytechnic college in Kerala, the mother of
a student who allegedly committed suicide due to the alleged
harassment by the college authorities and against women
labourers of a tea plantation. Aggrieved by the dismissal of the
said Writ Petition, SLP bearing Diary No. 34629 of 2017 came to
be filed before this Court, which was directed to be tagged with
Writ Petition (Crl.) No. 113 of 2016.
5. The questions raised for the consideration of this Constitution
Bench are enumerated as under:
“1) Are the grounds specified in Article 19(2) in
relation to which reasonable restrictions on the
right to free speech can be imposed by law,
exhaustive, or can restrictions on the right to free
speech be imposed on grounds not found in
6
Article 19(2) by invoking other fundamental
rights?
2) Can a fundamental right under Article 19 or 21 of
the Constitution of India be claimed other than
against the ‘State’ or its instrumentalities?
3) Whether the State is under a duty to affirmatively
protect the rights of a citizen under Article 21 of
the Constitution of India even against a threat to
the liberty of a citizen by the acts or omissions of
another citizen or private agency?
4) Can a statement made by a Minister, traceable to
any affairs of State or for protecting the
Government, be attributed vicariously to the
Government itself, especially in view of the
principle of Collective Responsibility?
5) Whether a statement by a Minister, inconsistent
with the rights of a citizen under Part Three of the
Constitution, constitutes a violation of such
constitutional rights and is actionable as
‘Constitutional Tort’?”
6. His Lordship, Ramsubramanian, J. has answered the questions
referred to this Constitution Bench in the scholarly judgment proposed
by him. My view on each of such questions, as contrasted with those of
His Lordship’s have been expressed in a tabular form hereinunder, for
easy reference.
Questions His Lordship’s views My views
1) Are the grounds
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
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
I respectfully agree with
the reasoning and
conclusion of His
Lordship, in so far as
Question No. 1 is
concerned.
7
Questions His Lordship’s views My views
right to free speech be
imposed on grounds not
found in Article 19(2) by
invoking other
fundamental rights?
fundamental righ ts
taking 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.
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?
A fundamental right
under Article 19/21
can be enforced even
against persons other
than the State or its
instrumentalities.
The rights in the realm
of common law, which
may be similar in their
content to the
Fundamental Rights
under Article 19/21,
operate horizontally;
However, the
Fundamental Rights
under Articles 19 and
21, do not except those
rights which have also
been statutorily
recognised. Therefore, a
fundamental right
under Article 19/21
cannot be enforced
against persons other
than the State or its
instrumentalities.
However, they may be
the basis for seeking
common law remedies.
But a remedy in the
form of writ of Habeas
Corpus, if sought
against a private person
on the basis of Article
21 of the Constitution
8
Questions His Lordship’s views My views
can be before a
Constitutional Court
i.e., by way of Article
226 before the High
Court or Article 32 read
with Article 142 before
the Supreme Court.
As far as non -State
entities or those entities
which do not fall within
the scope of Article 12 of
the Constitution are
concerned, a writ petition
to enforce fundamental
rights would not be
entertained as against
them. This is primarily
because such matters
would involve disputed
questions of fact.
3) Whether the State is
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?
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 private actor.
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 however has an
affirmative duty to carry
out obligations cast upon
it under constitutional
and statutory law. Such
obligations may require
interference by the State
where acts of a private
party may threaten the
life or liberty of another
individual. Hence,
failure to carry out the
duties enjoined upon
9
Questions His Lordship’s views My views
the State under
constitutional and
statutory law to protect
the rights of a citizen,
could have the effect of
depriving a citizen of
his right to life and
personal liberty. When a
citizen is so deprived of
his right to life and
personal liberty, the
State would have
breached the negative
duty cast upon it under
Article 21.
4) Can a statement
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?
A statement made by
a Minister even if
traceable to any
affairs of the State or
for protecting the
Government, cannot
be attributed
vicariously to the
Government by
invoking the
principle of
collective
responsibility.
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
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.
5) Whether a statement
by a Minister,
inconsistent with the
rights of a citizen under
Part Three of the
Constitution,
constitutes a violation
A mere statement
made by a Minister,
inconsistent with the
rights of a citizen
under Part-III of the
Constitution, may
not constitute a
A proper legal framework
is necessary to define the
acts or omissions which
would amo unt to
constitutional torts, and
the manner in which the
same would be redressed
10
Questions His Lordship’s views My views
of such constitutional
rights and is actionable
as ‘Constitutional Tort’
violation of
constitutional rights
and become
actionable as a
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.
or remedied on the basis
of judicial precedent.
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
constitutional torts.
Public functionaries
could be proceeded
against personally if their
statement is inconsistent
with the views of the
Government. If, however,
such views are consistent
with the views of the
Government, or are
endorsed by the
Government, then the
same may be vicariously
attributed to the State on
the basis of the principle
of collective responsibility
and appropriate remedies
may be sought before a
court of law.
Submissions:
7. We have heard learned Senior Counsel, Sri Kaleeswaram Raj, for
the Petitioners and learned Attorney General for the Respondents, and
learned Senior Counsel Ms. Aparajita Singh, amicus curiae.
11
Arguments on behalf of the petitioners:
8. The submissions of learned Senior Counsel, Sri Kaleeswaram Raj,
appearing on behalf of the Petitioners may be epitomized as under:
8.1. That while upholding the constitutional right to freedom of
speech and expression of Ministers, efforts should be made to
frame a voluntary code of conduct for Ministers and public
officials, which would ensure better accountability and
transparency in their political activities and also place a check on
the misuse of freedom of speech and expression exercised by
public functionaries using the apparatus of the State.
8.2. That while the state’s duty to protect life and liberty broadly falls
within the right under Article 21, it is difficult to chain the State
with responsibility in every instance where speech by a public
functionary strikes at the dignity of another person. That in the
absence of such a provision to vicariously attribute responsibility
to the State, every instance of such speech cannot be actionable
and remediable through the judiciary. That no duty
corresponding to Article 21 is imposed on individual Ministers
nor such duty is imposed on any government machinery to
regulate the conduct of individual Ministers warranting judicial
intervention. Therefore, even though no actionable breach of
public duty can be said to have taken place when statements are
12
made by people in power, this in turn, postulates the desirability
to have a voluntary code of conduct in the better interest of the
government as well as the governed.
8.3. Reliance was placed on Article 75 (3) of the Constitution to
contend that Ministers have a collective responsibility towards
the legislature and thus, a code of conduct to self-regulate the
speech and actions of Ministers is constitutionally justifiable.
That a Minister is not supposed to breach her/his collective
responsibility towards the Cabinet and the Legislature, hence, it
is advisable to have a cogent code of conduct as available in
advanced democracies.
8.4. Learned Senior Counsel lastly submitted that the instant cases
do not involve a question as to conflict of any other right with
Article 19. That the question herein, in sum and substance, is,
whether, any restraint justifiable under the Constitution, can be
placed on Ministers and public functionaries, to regulate their
speech.
Arguments on behalf of the Respondent-Union of India:
9. Submissions of Learned Attorney General for India, Sri R.
Venkataramani and Learned Solicitor General of India, Sri Tushar
Mehta, appearing on behalf of the Respondent-Union of India, may be
summarized as under:
13
9.1. At the outset, Sri R. Venkataramani, Learned Attorney General
fairly submitted that restrictions on the freedom of speech
enumerated under Article 19 (2) have to be taken to be exhaustive
and thus, the court cannot invoke any other fundamental right,
namely, Article 21 to impose restrictions on grounds which are
not enumerated under Article 19(2). Further, that as a matter of
constitutional principle, any addition, alteration or change in the
norms or criteria for imposition of restrictions, on any
fundamental right has to come through a legislative process. That
the balancing of fundamental rights, either to avoid overlapping
or to ensure mutual enjoyment, is different from treating one
right as a restriction on another right.
9.2. It was next submitted that the Constitution of India sets out the
scheme of claims of fundamental rights against the State or its
instrumentalities and such scheme also addresses breaches or
violations of fundamental rights by persons other than the State
or its instrumentalities. Thus, any proposition to add or insert
subjects or matters in respect of which claims can be made
against persons other than the State, would amount to a
constitutional change. That any enlargement of such
constitutional principles would have the consequence of opening
a flood gate of constitutional litigation.
14
9.3. It was further contended that there are sufficient constitutional
and legal remedies available to a citizen whose liberty is
threatened by any person and beyond the constitutional and legal
remedies, there may not be any other additional duty to
affirmatively protect the right of a citizen under Article 21.
9.4. Learned Attorney General urged that Ministerial misdemeanors,
which have nothing to do with the discharge of public duty and
are not traceable to the affairs of the State will have to be treated
as acts of individual violation and individual wrongs. Thus, the
state cannot be vicariously liable for the same. That the conduct
of a public servant like a Minister in the government, if was
traceable to the discharge of a public duty or duties of the office,
was subject to the scrutiny of law. However, such misconduct
including statements that may be made by a Minister, cannot be
linked to the principles of collective responsibility.
Submissions of learned amicus curiae, Ms. Aparajita Singh, Senior
Advocate:
10. The submissions of learned amicus curiae, Ms. Aparajita Singh,
may be summarized as under:
10.1. At the outset she submitted that the right to freedom of speech
and expression under Article 19(1)(a) is subject to clearly defined
restrictions under Article 19(2). Therefore, any law seeking to
15
limit the right under Article 19(1)(a) has to fall within the
limitation provided under Article 19(2).
10.2. That the right to freedom of speech and expression of a public
functionary who represents the state has to be balanced with a
citizen’s right to fair investigation under Article 21 and if the
exercise of a Minister’s right under Article 19(1)(a) violates a
citizen’s right under Article 21 then the same would have to be
read down to protect the right of the citizen. Thus, a Minister
cannot claim the protection of Article 19(1)(a) to violate Article 21
rights of citizens.
10.3. Ms. Aparajita Singh next contended that a Minister, being a
functionary of the State represents the State when acting in his
official capacity. Therefore, any violation of the fundamental
rights of citizens by the Minister in his official capacity, would be
attributable to the State. Thus, it would be preposterous to
suggest that while the State is under an obligation to restrict a
private citizen from violating the fundamental rights of other
citizens, its own Minister can do so with impunity. However,
learned amicus curiae qualified such submission by stating that
the factum of violation would need to be established on the facts
of a given case and hence the law has to evolve from case to case.
It would involve a detailed inquiry into questions such as i)
whether the statement by the Minister was made in his personal
16
or official capacity; ii) whether the statement was made on a
public or private issue; iii) whether the statement was made on a
public or private platform.
10.4. It was submitted that a Minister is personally bound by the oath
of office to bear true faith and allegiance to the Constitution of
India under Articles 75(4) and 164(3) of the Constitution. That
the code of conduct for Ministers (both for Union and States)
specifically lays down that the Code is in addition to the
“…observance of the provisions of the Constitution, the
Representation of the People Act, 1951”. Therefore, a
constitutional functionary is duty bound to act in a manner
which is in consonance with the constitutional obligations.
10.5. It was lastly submitted that the State acts through its
functionaries. Therefore, an official act of a Minister which
violates the fundamental rights of the citizens, would make the
State liable by treating the said act of the Minister as a
constitutional tort. However, the principle of sovereign immunity
of the state for the tortious acts of its servants, has been held to
be inapplicable in the case of violation of fundamental rights.
Question No. 1 referred to this Constitution Bench reads as under:
“Are the grounds specified in Article 19(2) in relation to which
reasonable restrictions on the right to free speech can be imposed
17
by law, exhaustive, or can restrictions on the right to free speech
be imposed on grounds not found in Article 19(2) by invoking
fundamental rights?”
Preface:
11. In my view, these cases call for an analysis of the content of Article
19(1)(a) of the Constitution of India which grants to all citizens of India
the right to freedom of speech and expression. Before proceeding to
analyse the relevant constitutional provisions, it may be appropriate to
preface the discussion with the thought that freedom of speech is not
contingent only upon the laws of a nation. The compulsion of social
relations and the informal pressures of conformity, exerted in a
pervasive manner, determine to a great extent, the content and limits of
permissible speech in society. It is the laws, however, through their own
unique methods, which reinforce social sanctions. Therefore, the
Constitution, which is the fundamental law of the land, as well as the
other laws which are measured on the touchstone of the Constitution,
are to be interpreted, having regard, inter-alia, to the content and
permissible limits of free speech in a peaceful society.
It is necessary to observe that freedom of speech and expression
has always been closely linked with certain socio-political ideals that
constitute the foundation of democracy: respect for individual dignity
and equality; fraternity; ideals of tolerance; cultural and religious
sensitivity. Many of these ideals are written into the text of our
18
Constitution and permeate its structure through the very Preamble to
the Constitution. These ideals form the philosophical foundations of the
discourse on free speech and therefore, any analysis of the same should
be compatible with these ideals. It is in that background that one must
set out to examine whether additional accountability and thus, a legal
obligation can be cast upon public functionaries with respect to the
permissible extent of free speech. Further, it is also necessary to
examine the difference between restraints on the exercise of freedom of
speech and expression, vis-à-vis restrictions thereon, and in that
background examine the degree of self-restraint that needs to be
exercised by every citizen, whether a public functionary or not, in
exercising his/her right to freedom of speech and expression in a
Country like ours which is so unique because of its diversity and
pluralism.
Article 19(1)(a) and Article 19(2): An overview
12. At this stage, it would be useful to dilate on Article 19(1)(a) and
Article 19(2) as under:
12.1. Article 19(1)(a) to (f) of the Constitution guarantees certain
fundamental rights to the citizens of India. These fundamental
rights are however, subject to reasonable res trictions as
enumerated in Articles 19(2) to (6) thereof which could be
imposed by the State. These fundamental rights are in the nature
of inalienable rights of man or basic human rights which inhere
19
in all citizens of a free country. Yet, these rights are not
unrestricted or absolute, and are regulated by restrictions, which
may be imposed by the State, which have to be reasonable. The
object of prescribing restraints or reasonable restrictions on the
fundamental freedoms is to avoid anarchy or disorder in society.
Hence, the founding fathers of our Constitution while
enumerating the fundamental rights, have alongside prescribed
reasonable restrictions in clauses (2) to (6) of Article 19 and the
laws enacted within the strict limits of such restrictions are
constitutionally permissible.
12.2. Since, these cases involve the freedom of speech and expression,
it is unnecessary to analyse the nature of the other fundamental
rights in Article 19(1) of the Constitution. Articles 19(1) (a) and
19(2) of the Constitution read as under:
“19. Protection of certain rights regarding
freedom of speech, etc.-
(1) All citizens shall have the right –
(a) to freedom of speech and expression;
xxx xxx xxx
(2) Nothing in sub-clause (a) of clause (a)
shall affect the operation of any existing
law, or prevent the State from making
any law, in so far as such law imposes
reasonable restrictions on the exercise of
the right conferred by the said sub-
clause in the interests of the sovereignty
and integrity of India, the security of the
State, friendly relations with Foreign
States, public order, decency or morality
or in relation to contempt of court,
defamation or incitement to an offence.”
20
12.3. The freedom of speech and expression as envisaged under Article
19(1)(a) of the Constitution means the right to free speech and to
express opinions through various media such as by word of
mouth, through the print or electronic media, through
pictographs, writings, graphics or any other manner that can be
discerned by the mind. The right includes the freedom of press.
The content of this right also includes propagation of ideas
through publication and circulation, the right to seek
information and to acquire or impart ideas. In short, the right to
free speech would include every nature of right that would come
within the scope and ambit of free speech. Hence, Article 19(1)(a)
in very broad and in wide terms states that all citizens shall have
the right to freedom of speech and expression. The said right can
be curtailed only by reasonable restricti ons which are
enumerated in Article 19(2) thereof which can be imposed by the
State under the authority of law but not by exercise of executive
power in the absence of any law. Further, the nature of
restrictions on right to free speech must be reasonable, and in
the interest of the sovereignty and integrity of India, security of
the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court,
defamation or incitement to an offence. (Article 19(2)).
12.4. For a country like ours which is a Parliamentary Democracy,
freedom of speech and expression is a necessary right as well as
21
a concomitant for the purpose of not only ensuring a healthy
democracy but also to ensure that the citizens could be well
informed and educated on governance. The dissemination of
information through various media , including print and
electronic media or audio visual form, is to ensure that the
citizens are enlightened about their rights and duties, the
manner in which they should conduct themselves in a democracy
and for enabling a debate on the policies and actions of the
Governments and ultimately for the development of the Indian
society in an egalitarian way.
12.5. The right to freedom of speech and expression in Article 19(1)(a)
of the Constitution has its genesis in the Preamble of the
Constitution which, inter alia, speaks of liberty of thought,
expression, belief. Since, India is a sovereign democratic republic
and we follow a parliamentary system of democracy, liberty of
thought and expression is a significant freedom and right under
our constitutional setup.
12.6. This Court has, since the enforcement of the Constitution, been
zealously upholding the right to freedom of speech and
expression in innumerable judgments which may be highlighted
with reference to a few of them.
i) In Romesh Thappar vs. State of Madras, AIR 1950 SC
124, 1950 SCC 436 , (“Romesh Thappar ”) while
highlighting that the freedom of speech is the foundation of
22
all democratic organisations, held that said freedom would
also include the right to freedom of the press. This judgment
highlighted that the free flow of opinion and ideas is
necessary to sustain collective life of the well informed
citizenry which is a sine qua non for effective governance.
ii) In S. Khushboo vs. Kanniammal, (2010) 5 SCC 600,
(“Khushboo”) this Court held that the freedom under Article
19(1)(a) envisaged dissemination of all kinds of views, both
popular as well as unpopular.
iii) Recently in Shreya Singhal vs. Union of India, (2015) 5
SCC 1, (“Shreya Singhal”) this Court speaking through
Nariman, J. highlighted on the differences between the US
First Amendment and Article 19(1)(a) read with Article 19(2)
in the following words:
“15. It is significant to notice first the differences
between the US First Amendment and Article
19(1)(a) read with Article 19(2). The first important
difference is the absoluteness of the US First
Amendment—Congress shall make no law which
abridges the freedom of speech. Second, whereas
the US First Amendment speaks of freedom of
speech and of the press, without any reference to
“expression”, Article 19(1)(a) speaks of freedom of
speech and expression without any reference to “the
press”. Third, under the US Constitution, speech
may be abridged, whereas under our Constitution,
reasonable restrictions may be imposed. Fourth,
under our Constitution such restrictions have to be
in the interest of eight designated subject-matters—
that is, any law seeking to impose a restriction on
the freedom of speech can only pass muster if it is
proximately related to any of the eight subject-
matters set out in Article 19(2).”
23
It was further observed that insofar as the first apparent
difference is concerned, the United States Supreme Court
has never given effect to the declaration that Congress shall,
under some circumstances, make any law abridging the
freedom of speech. Insofar as the second apparent difference
is concerned, para 17 of Shreya Singhal is extracted as
under:
“17. So far as the second apparent difference is
concerned, the American Supreme Court has
included “expression” as part of freedom of
speech and this Court has included “the press”
as being covered under Article 19(1)(a), so that,
as a matter of judicial interpretation, both the
US and India protect the freedom of speech and
expression as well as press freedom. Insofar as
abridgement and reasonable restrictions are
concerned, both the US Supreme Court and this
Court have held that a restriction in order to be
reasonable must be narrowly tailored or
narrowly interpreted so as to abridge or restrict
only what is absolutely necessary. It is only
when it comes to the eight subject-matters that
there is a vast difference. In the US, if there is a
compelling necessity to achieve an important
governmental or societal goal, a law abridging
freedom of speech may pass muster. But in
India, such law cannot pass muster if it is in the
interest of the general public. Such law has to
be covered by one of the eight subject-matters
set out under Article 19(2). If it does not, and is
outside the pale of Article 19(2), Indian courts
will strike down such law.”
In Shreya Singhal, there was a challenge to Section 66-A
of the Information Technology Act, 2000, which was struck down
as being violative of Article 19(1)(a) and was not saved under
24
Article 19(2) on the ground of vagueness and not providing
manageable standards and clear guidance for citizens,
authorities and courts for drawing a precise line between
allowable and forbidden speech, expression or information.
When a law uses vague expressions capable of misuse or abuse
without providing notice to persons of common intelligence to
guess their meaning, it leaves them in a boundless sea of
uncertainty, conferring wide, unfettered powers on authorities to
curtail freedom of speech and expression arbitrarily.
12.7. The present cases, however, are not really concerned with
restrictions on the right to freedom of speech being imposed by
the State. These cases are concerned with the content of Article
19(1)(a) of the Constitution, inasmuch as the grievance sought
to be ventilated by the petitioners is, whether, there could be an
inherent constitutional restriction on freedom of speech and
expression on the citizens vis-à-vis other citizens. These cases
are not with regard to reasonable restrictions that could be
imposed by the State on the freedom of speech and expression,
rather, what would be the content of free speech that should not
be exercised as a right by an individual citizen which would not
in any way give rise to a cause of action to another citizen to seek
a remedy.
25
13. The content of a free speech right, as described hereinabove, is
to be understood in terms of the structural elements or components
of a free speech right. Only when a free speech right is understood as
such, deductions can be made as to the precise boundaries thereof
and the basis on which such right can be limited or restrained.
Stephen Gradbaum, in his essay titled “The Structure of a Free Speech
Right,” in the Oxford Handbook of Freedom of Speech has discussed
six components of a free speech right, in the following words:
“The first is the 'force' of a free speech right. This
includes what type of legal right to free speech is
formally recognized or at issue: for example, common
law, statutory, or constitutional. This in turn helps to
determine whether and how easily a free speech right
can be legally superseded. Another aspect of force is
whether and how the right is judicially enforceable. The
second component is the 'subject' of free speech rights,
or who are the rights-holders: for example, all persons
within a jurisdiction or only citizens; legal persons
including corporations or only natural persons? The
third is the ‘scope’ of a free speech right: a right to say
or do what exactly? Does it include falsehoods, hate
speech, or baking a cake? The fourth, as a distinct
structural element concerning content, addresses
whether the right includes not only negative
prohibitions on relevant others but also positive
obligations, such as a duty to affirmatively protect the
free speech of rights-holders from third-party threats?
The fifth component is the 'object' of a free speech right:
who are these 'relevant others' that are bound by the
holder's rights? Against whom can the right be validly
asserted? Finally, there is the 'limitation’ of a free
speech right. If the prior questions have all been
answered to the effect that a free speech right is
implicated and infringed in a particular situation, when,
if ever, might there be a legally justified limitation of that
right? Is the right an absolute bar or ‘trump’ against
inconsistent action and, if not, what presumptive weight
attaches to it? How, when, and why can the presumption
be rebutted? Collectively, by constituting and expressing
26
the underlying structure of the right to free speech, the
answers to these six questions help to define the nature
and extent of any particular such right in a given legal
system.”
(Emphasis by me)
Referring to the aspect of limitation of a free speech right, the
learned author has observed that the teleology of a Constitutional order,
can also play a role in fashioning the contours of free speech
protections. That is to say, a free speech right may be fashioned to serve
Constitutional commitments.
14. According to Wesley Hohfeld’s analysis of the form of rights, every
right has a complex internal structure, and such structure determines
what the rights mean for those who hold them. Such rights are ordered
arrangements of basic components. One of the components of a right,
is a correlative duty. That is to say, if X has a right, he is legally
protected from interference in respect of such right and such right
carries with it the duty of the State, not to interfere with such right. If
the State (or any other person) is under no corelative duty to abstain
from interfering with the exercise of a right, then such a right is not a
‘right’ in the strict Hohfeldian sense. The boundaries of the protective
perimeter within which a person can exercise their rights, depend on
the degree to which the State is duty bound to protect the right.
14.1. What emerges from the Hohfeldian conception of rights and
corelative duties, qua the right to freedom of speech and
expression may be summed up as follows:
27
a) The Constitution of India confers under Article 19(1)(a), the
right to freedom of speech and expression to all its citizens.
The State has a corelative duty to abstain from interference
with such right except as provided in Article 19(2) of the
Consitution which are reasonable restrictions on the right
conferred under Article 19(1)(a). The extent of such duty
depends upon the content of speech. For instance, in respect
of speech that is likely to be adverse to the interests of
sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency
or morality; or speech that constitutes contempt of court,
defamation or is of such nature as would be likely to incite
the commission of an offence, the duty of the State to abstain
from interference, is nil. This principle is Constitutionally
reflected under Article 19(2) which enables the State to enact
law which would impose reasonable restrictions on such
speech as described under the eight grounds listed
hereinabove which are the basis for reasonable restrictions.
b) Per contra, in respect of speech and expression which
constitutes an exchange of ideas, including dissent or
disagreement, and such ideas are expressed in a manner
compatible with the ethos cultivated in a civilised society,
the duty of the State to abstain from interference, is high.
28
c) Similarly, in respect of commercial speech, the State is
completely free to recall or curb commercial speech which is
false, misleading, unfair or deceptive. Therefore, th e
threshold of tolerance towards commercial speech or
advertisements depends on the content of such speech and
the object of the material sought to be
propagated/circulated. The duty of the State to abstain from
interference would also depend upon the nature and effect
of the commercial speech.
d) As is evident from the above illustrations, the extent of
protection of speech would depend on whether, such speech
would constitute a ‘propagation of ideas’ or would have any
social value. If the answer to the said question is in the
affirmative, such speech would be protected under Article
19(1)(a); if the answer is in the negative, such speech would
not be protected under Article 19(1)(a). In respect of speech
that does not form the content of Article 19(1)(a), the State
has no duty to abstain from interference having regard to
Article 19(2) of the Constitution and only the grounds
mentioned therein.
e) Having noted that the protective perimeter within which a
person can exercise his/her rights depends on the degree to
which the State is duty bound to protect the right, it may
also be said as a corollary that in respect of speech that does
29
not form the content of Article 19(1)(a), the State has no duty
to abstain from interference and therefore, speech such as
hate speech, defamatory speech, etc. would lie outside the
protective perimeter within which a person can exercise his
right to freedom of speech. Such speech can be subjected to
restrictions or restraints. While restrictions on the right to
freedom of speech and expression are required to be made
only under the grounds listed under Article 19(2), by the
State, restraints on the said right, do not gather their
strength from Article 19(2). Restraints on the right to
freedom of speech and expression are governed by the
content of Article 19(1)(a) itself; i.e., any kind of speech,
which does not conform to the content of the right under
Article 19(1)(a), may be restrained. Questions pertaining to
the voluntary or binding nature of such restraint, the force
behind the same, the persons on whom such restraints are
to be imposed, the manner in which compliance thereof
could be achieved, etc., are aspects left to be deliberated
upon and answered by the Parliament. However, the finding
made hereinabove is only to the extent of clarifying that any
kind of speech, which does not form the content of Article
19(1)(a), may be restrained as such speech does not
constitute an exchange of ideas, in a manner compatible
with the ethos cultivated in a civilised society. Such
30
restraints need not be traceable only to Article 19(2), which
exhaustively lists eight grounds on which restrictions may
be imposed on the right to freedom of speech and expression
by the state.
The Content of Article 19(1)(a):
15. The freedom of speech and expression under Article 19(1)(a) is a
right with diverse facets, both with regard to the content of speech and
expression, and the medium through which communication takes place.
It is also a dynamic concept that has evolved with time and advances in
technology. In short, Article 19(1)(a) covers the right to express oneself
by word of mouth, through writing, pictorial form, graphics, or in any
other manner. It includes the freedom of communication and the right
to propagate or publish one's views and opinions. The communication
of ideas may be through any medium such as a book, newspaper,
magazine or movie, including electronic and audio-visual media.
15.1. Right to Circulate:
Freedom of the press takes within its fold a number of rights
and one such right is the freedom of publication. Publication also
means dissemination and circulation; indeed, without
circulation, publication would be of little value, vide Romesh
Thappar; Sakal Papers (P) Ltd. vs. Union of India, A.I.R.
1962 SC 305 (“Sakal Papers (P) Ltd.”).
31
In Life Insurance Corporation vs. Prof. Manubhai D.
Shah, (1992) 3 SCC 637 (“Prof. Manubhai D. Shah”) this
Court reiterated that the freedom of speech and expression under
Article 19(1)(a) must be understood to take within its ambit the
freedom to circulate one’s view. That such circulation could be
by word of mouth, in writing or through audio-visual media. The
freedom to ‘air one’s view’ was declared as a “lifeline of any
democratic institution” and the Court expressed strong criticism
at any attempt aimed at stifling or suffocating the right to
circulation. In the said case, the appeals concerned separate
instances of state-controlled entities (LIC and Doordarshan)
refusing to publish or broadcast work that criticized the
government. The Court reasoned that government -controlled
means of publication have a greater burden to recognize an
individual’s right to defend themselves and if a state censors
content, then it is obligated to provide reasons valid in law. That
when a state-controlled entity refuses to circulate through its
magazine or other platform, one’s views, including one’s defence,
the right to circulate is violated.
This Court has therefore, on several occasions recognised
the right to circulation, as a facet of the right to freedom of
speech. The right to circulation includes, the right to
optimise/maximise the volume of such circulation and also
determine the content and reach thereof.
32
15.2. Right to dissent:
Article 19(1)(a) serves as a vehicle through which dissent
can be expressed. The right to dissent, disagree and adopt
varying and individualistic points of view inheres in every
citizen of this Country. In fact, the right to dissent is the
essence of a vibrant democracy, for it is only when there is
dissent that different ideas would emerge which may be of help
or assist the Government to improve or innovate upon its
policies so that its governance would have a positive effect on
the people of the country which would ulti mately lead to
stability, peace and development which are concomitants of
good governance.
15.3. The following judgments of this Court on the right to dissent
are noteworthy:
(i) In Romesh Thappar, this Court recognised that criticism
or dissent directed against the Government, was not to be
curtailed and any attempt to do so could not be justified as
a reasonable restriction under Article 19 (2) of the
Constitution. This declaration by this Court cemented the
idea that the freedom of speech and expression covers the
right to dissent or criticise, even when such right is
employed with respect to criticism of governmental policy
or action or inaction. It is now recognised that the right to
33
dissent is an essential pre-requisite of a healthy democracy
and a facet of free speech.
(ii) In Kedar Nath Singh vs. State of Bihar, A.I.R. 1962 SC
955 (“Kedar Nath Singh”) this Court considered a
challenge to Sections 124-A and 505 of the IPC, which
criminalised attempts targeted at exciting disaffection
towards the Government, by words, or through writing and
publications which may disturb public tranquillity.
Although this Court dismissed the challenge to the vires of
the aforestated provisions, it was clarified that criticism of
measures adopted by the government, would be within the
limits of, and consistent with the freedom of speech and
expression.
(iii) Subsequently, in Directorate General of Doordarshan
vs. Anand Patwardhan , (2006) 8 SCC 433 (“Anand
Patwardhan”) this Court observed that the State cannot
prevent open discission, even when such discussion was
highly critical of governmental policy.
(iv) The right of an individual to hold unpopular or
unconventional views was once again upheld in Khushboo
wherein this Court quashed First Information Reports
(FIRs) registered pertaining to offences under Sections 292,
499, 500, 504, 505, 509 of the IPC, based on complaints
regarding the unpopular comments made by the appellant
34
therein, an actor, in a news magazine on the subject of pre-
marital sex wherein she had urged women and girls to take
necessary precautions to avoid the transmission of
venereal diseases. In doing so, this Court observed that
criminal law could not be set into motion in a manner as
would interfere with the domain of personal autonomy. The
Court upheld the appellant’s freedom of speech and
expression and quashed the FIRs, expressing the need for
tolerance even qua unpopular views.
15.4. Right to advertise (commercial speech):
As per the dictionary meaning, the expression "advertise"
means, to draw attention to, or describe goods for sale, services
offered, etc., through any medium, such as newspaper,
television or other electronic media, etc., in order to encourage
people to buy or use them. In other words, it is to draw attention
to any product or service. "Advertisement" is a public notice,
announcement, picture in a newspaper or on a wall or hoarding
in the street etc., which advertises something. In short, it is to
advert attention to something and in the commercial sense, to
draw attention to goods for sale or services offered. In that
sense, an advertisement is commercial speech.
A glimpse of the following cases would be useful:
35
(i) In Hamdard Dawakhana (Wakf) Lal Kuan vs. Union of
India, A.I.R 1960 SC 554 (“Hamdard Dawakhana ”) this
Court held that an advertisement is a form of speech, but its
true character is reflected by the object for the promotion of
which it is employed. However, this Court qualified its
observations with the caveat that when advertisement takes the
form of commercial advertisement which has an element of
trade or commerce, it no longer falls within the concept of
freedom of speech, for, the object is not propagation of ideas -
social, political or economic or furtherance of literature or
human thought; but the commendation of the efficacy, value
and importance of the product it seeks to advertise. In the said
case, this Court did not recognize commercial speech on par
with other forms of speech by holding that it did not have the
same value as political or creative expression. That broadly, the
right to publish and distribute commercial advertisements
advertising an individual's personal business is a part of
freedom of speech guaranteed by the Constitution, but not
every advertisement is a matter which comes within the scope
of freedom of speech, nor can it be said that it is an expression
of ideas. In every case, one has to see what is the nature of
advertisement and what is the business/commercial activity
falling under Article 19(1)(g) it seeks to further.
36
In the aforesaid case, what was challenged was the Drugs
and Magic Remedies (Objectionable Advertisements) Act, 1954.
It was held that the object of the Act was the prevention of self-
medication and self-treatment by prohibiting advertisements,
which may be used to advocate the same or which tended to
spread the evil. It was further held that the advertisements of
Hamdard Dawakhana , appellant in the said case, were relating
to commerce or trade and not propagation of ideas . Such
advertising of prohibited drugs or commodities the sale of which
was not in the interest of the general public, cannot be "speech"
within the meaning of freedom of speech and would not fall
within Article 19(1)(a).
It is therefore evident that this Court in the said case placed
weight on the aspect as to whether, the advertisement sought
to be protected, did in fact constitute ‘propagation of ideas.’ The
true content and object of the material sought to be
propagated/circulated was to be assessed, in order to declare
whether such content would enjoy the protection of Article
19(1)(a).
(ii) Subsequently, in Indian Express Newspaper (Bombay)
Pvt. Ltd. vs. Union of India, (1985) 1 SCC 641 (“Indian
Express Newspaper (Bombay) Pvt. Ltd. ”), this Court
considered the decision in Hamdard Dawakhana and
37
observed that the main plank of said decision was the type of
advertisement or the content thereof and that particular
advertisement did not carry with it the protection of Article
19(1)(a). It was further clarified that the observations made in
Hamdard Dawakhana are too broadly stated. That all
commercial advertisements cannot be denied the protection of
Article 19(1)(a) of the Constitution merely because they are
issued by businessmen.
(iii) Subsequently, in Tata Press Limited vs. Mahanagar
Telephone Nigam Limited , (1995) 5 SCC 139 (“Tata Press
Limited”), this Court clarified that commercial speech, which
is entitled to protection under the First Amendment in USA is
also protected under Article 19(1)(a) of the Indian Constitution.
However, in the USA, the State was completely free to recall
commercial speech which is false, misleading, unfair, deceptive
and which proposes illegal transactions in USA. But, under the
Indian Constitution, commercial speech which is deceptive,
unfair, misleading and untruthful, would be hit by Article 19(2)
of the Constitution and can be regulated/prohibited by the
State.
15.5. Compelled Speech:
Compelled or forced speech is speech which compels a
person to state a thing. It is in the form of a "must carry"
38
provision in a statute. An example of compelled speech is a
provision mandating printing of the ingredients, its measure
and such other details on a food product or pharmaceutical
item. The object is to inform and, in some cases, warn a
potential consumer about the nature of the product. Such
compelled speech cannot be a violation of the freedom of speech
and expression. But if the State compels a citizen to carry out
propaganda or a point of view contrary to his wish then it may
be a restriction on his freedom of speech and expression, which
must be justified as per Article 19(2) of the Constitution. But,
if the “must carry” provision furthers informed decision making,
which is the essence of free speech and expression, then it will
not amount to a violation of Article 19(1)(a). The following
judgments could be cited in the aforesaid context:
(i) In Union of India vs. Motion Picture Association, A.I.R.
1999 SC 2334 (“Motion Picture Association”), this Court
held that whether compelled speech will or will not amount
to a violation of the freedom of speech and expression, would
depend upon the nature of a "must carry" provision. It
observed that, if a "must carry" provision further informed
decision-making, which is the essence of the right to free
speech and expression, it will not amount to any violation of
the fundamental freedom of speech an d expression.
However, if such a provision compels a person to carry out
39
propaganda or project a partisan or distorted point of view,
contrary to his wish, it may amount to a restraint on his
freedom of speech and expression. It may also violate other
fundamental rights such as Article 19 (1) (g) or right against
self-incrimination which is protected under Article 20 (3) of
the Constitution.
(ii) Therefore, this Court, in the said case, once again laid stress
on the ideas and information sought to be communicated,
by way of compelling the transmission of such ideas. The
content of the information which is compelled to be carried
was found to be highly relevant.
Thus, the right under Article 19(1)(a) is a multi-faceted
freedom and includes within its expanse, inter-alia, the right to
gender identity as a facet of freedom of expression , vide
National Legal Services Authority vs. Union of India ,
(2014) 5 SCC 438 (“National Legal Services Authority”); the
right of the press to conduct interviews, vide Prabha Dutt vs.
Union of India, (1982) 1 SCC 1 (“Prabha Dutt”); the right to
attend proceedings in Court and report the same, vide Swapnil
Tripathi vs. Supreme Court of India , (2018) 10 SCC 639
(“Swapnil Tripathi”); the right to fly the national flag vide
Union of India vs. Naveen Jindal , (2004) 2 SCC 510
(“Naveen Jindal”). The right to silence, often regarded as the
very converse of ‘speech,’ is also implicit in the freedom of
40
speech under Article 19(1)(a), as recognised in Bijoe
Emmanuel vs. State of Kerala , (1986) 3 SCC 615 (“Bijoe
Emmanuel”).
16. ‘Hate Speech’:
16.1. The various nuances of what has come to be termed as ‘hate
speech’ could be discussed with reference to judgments of this
Court as under:
Learned counsel appearing for the petitioner , Sri
Kaleeswaram Raj submitted that , the contention of the
petitioners in these cases is that the right to free speech which is
a right against the State would also bring within its fold, a duty
vis-à-vis not only the State but other citizens also in the matter
of exercising the said freedom. In other words, what is sought to
be addressed in these cases is what are the components or
elements of the fundamental right of free speech and whether
there could be limits on the right to free speech de hors Article
19(2) of the Constitution, with a view to check, w hat has
ubiquitously come to be known as ‘hate speech’ or ‘disparaging
speech’. By this I do not restrict the scope of consideration in the
instant cases only to speech made by public functionaries, but
the same shall also extend to speech by ordinary citizens,
especially on social media.
41
16.2. This Court, in Pravasi Bhalai Sangathan vs. Union of India ,
(2014) 11 SC 477 (“Pravasi Bhalai Sangathan ”) speaking
through Dr. B.S. Chauhan, J., has dealt with ‘hate speech’ as
having an innate relationship with the idea of discrimination.
That the impact of such speech is not measured by its abusive
value alone, but rather by how successfully and systematically
it marginalises people. The definition of ‘hate spee ch’ as
propounded by this Court in the aforesaid case, is extracted
hereinunder:
“Hate speech is an effort to marginalise individuals
based on their membership in a group. Using
expression that exposes the group to hatred, hate
speech seeks to delegitimise group members in the
eyes of the majority, reducing their social standing
and acceptance within society. Hate speech,
therefore rises beyond causing distress to individual
group members. It can have a societal impact. Hate
speech lays the groundwork for later, broad attacks on
[the] vulnerable that can range from discrimination, to
ostracism, segregation, deportation, violence and, in
the most extreme cases, to genocide. Hate speech also
impacts a protected group’s ability to respond to the
substantive ideas under debate, thereby placing a
serious barrier to their full participation in our
democracy.”
(Emphasis by me)
This Court referred to the judgment of the Supreme Court of
Canada in Saskatchewan Human Rights Commission vs.
William Whatcott, 2013 SCC 11 (“Saskatchewan”) (Canada)
wherein it was held that human rights obligations form the basis
for the control of publication of "hate speeches." The Canadian
42
Supreme Court further declared that the repugnancy of the ideas
being expressed is not sufficient to justify restricting the
expression, and whether or not the author of the expression
intended to incite hatred or discriminatory treatment, is
irrelevant. That the key is to determine the likely effect of the
expression on its audience, keeping in mind the legislative
objectives to reduce or eliminate discrimination. Placing reliance
on the observations of the Canadian Supreme Court, this Court
in Pravasi Bhalai Sangathan observed that the offence of hate
speech is not limited to causing individual distress but would
target persons who are members of certain groups or sections of
society which breeds discrimination and consequently, hostility.
16.3. In India, human dignity is not only a value but a right that is
enforceable. In a human-dignity-based democracy, freedom of
speech and expression must be exercised in a manner that would
protect and promote the rights of fellow-citizens. But hate
speech, whatever its content may be, denies human beings the
right to dignity. In this regard, it may be apposite to refer to a
recent decision of this Court in Amish Devgan vs. Union of
India, (2021) 1 SCC 1 (“Amish Devgan”) wherein this Court
speaking through Sanjeev Khanna, J. undertook an analysis of
‘hate speech’ as being antithetical to, and incompatible with the
foundations of human dignity. Protection of ‘Dignity’ as a
43
justification for criminalization of ‘hate speech’ was discussed as
follows:
“46. […] Dignity, in the context of criminalisation of
speech with which we are concerned, refers to a person's
basic entitlement as a member of a society in good
standing, his status as a social equal and as bearer of
human rights and constitutional entitlements. It gives
assurance of participatory equality in inter-personal
relationships between the citizens, and between the
State and the citizens, and thereby fosters self-worth.
Dignity in this sense does not refer to any particular level
of honour or esteem as an individual, as in the case of
defamation which is individualistic.
47. Preamble to the Constitution consciously puts
together fraternity assuring dignity of the individual and
the unity and integrity of the nation. Dignity of
individual and unity and integrity of the nation are
linked, one in the form of rights of individuals and other
in the form of individual's obligation to others to ensure
unity and integrity of the nation. The unity and integrity
of the nation cannot be overlooked and slighted, as the
acts that 'promote' or are 'likely' to 'promote'
divisiveness, alienation and schematism do directly and
indirectly impinge on the diversity and pluralism, and
when they are with the objective and intent to cause
public disorder or to demean dignity of the targeted
groups, they have to be dealt with as per law. The
purpose is not to curtail right to expression and speech,
albeit not gloss over specific egregious threats to public
disorder and in particular the unity and integrity of the
nation. Such threats not only insidiously weaken virtue
and superiority of diversity, but cut-back and lead to
demands depending on the context and occasion, for
suppression of freedom to express and speak on the
ground of reasonableness. Freedom and rights cannot
extend to create public disorder or armour those who
challenge integrity and unity of the country or
promote and incite violence. Without acceptable
public order, freedom to speak and express is
challenged and would get restricted for the common
masses and law-abiding citizens. This invariably
leads to State response and, therefore, those who
indulge in promotion and incitement of violence to
challenge unity and integrity of the nation or public
44
disorder tend to trample upon liberty and freedom of
others.”
(Emphasis by me)
Further, referring to the views of Alice E. Marwick and Ross
Millers in the report titled “Online Harassment, defamation, and
Hateful Speech: A Primer of the Legal Landscape,” this Court in
Amish Devgan elucidated as follows on three distinct elements
that legislatures and courts can use to define and identify ‘hate
speech’:
“72.1. The content-based element involves open use of
words and phrases generally considered to be offensive
to a particular community and objectively offensive to
the society. It can include use of certain symbols and
iconography. By applying objective standards, one
knows or has reasonable grounds to know that the
content would allow anger, alarm or resentment in
others on the basis of race, colour, creed, religion or
gender.
72.2. The intent-based element of 'hate speech'
requires the speaker's message to intend only to
promote hatred, violence or resentment against a
particular class or group without communicating any
legitimate message. This requires subjective intent on
the part of the speaker to target the group or person
associated with the class/group.
72.3. The harm or impact-based element refers to the
consequences of the ‘hate speech’, that is, harm to the
victim which can be violent or such as loss of self-
esteem, economic or social subordination, physical and
mental stress, silencing of the victim and effective
exclusion from the political arena.
72.4. Nevertheless, the three elements are not
watertight silos and do overlap and are interconnected
and linked. Only when they are present that they
45
produce structural continuity to constitute 'hate
speech'.”
It was further clarified that the effect of the words must be
judged from the standard of “reasonable, strong-minded, firm
and courageous men and not those who are weak and ones with
vacillating minds, nor those who scent danger in every hostile
point of view.” That in order to ensure maximisation of free
speech, the assessment should be from the perspective of a
reasonable member of the public.
16.4. Further, in a landmark Judgment of the United States’ Supreme
Court in the matter of Chaplinsky vs. State of New
Hampshire, 315 U.S. 568 (1942) (“Chaplinsky”) “hate speech”
was defined by Murphy J. to mean “fighting words, which by their
very utterance inflict injury or tend to incite an immediate breach
of peace. It has been observed that such utterances are no
essential part of any exposition of ideas, and are of slight social
value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and
morality.”
16.5. The term ‘hate speech’ does not find a specific place in Article
19(2) of the Constitution and it appears that it does not constitute
a specific exception to the freedom of speech and expression
under Article 19(1)(a). Possibly the framers of the Constitution
46
did not find the same to be of relevance in the Indian social
mosaic considering that the other cherished values of our
Constitution such as fraternity and dignity of the individual
would be strong factors which would negate any form of hate
speech to be uttered in our Country. This may be having regard
to our social and cultural values. However, with the passage of
time, a wide range of Indian statutes have been enacted with a
view to control hate speech. It may be useful to refer to a few of
such provisions, with a view to examine the sufficiency of the
existing framework in checking ‘hate speech’ although, the said
term has not yet been precisely defined till date by the Parliament.
i) The Indian Penal Code (“IPC”) contains provisions which
prohibit hate speech. Section 153-A penalises the promotion
of class hatred. Section 153-B penalises “imputations,
assertions prejudicial to national integration". Section 295-
A penalises insults to religion and to religious beliefs.
Section 298 makes it a penal offence to utter words, makes
sounds or gestures with the deliberate intention of wounding
the religious feelings of another. Section 505 makes it a
penal offence to incite any class or community against
another. Chapter XXII, IPC punishes criminal intimidation.
ii) Section 95 of the Code of Criminal Procedure , 1973
(“CrPC”) empowers the State Government to forfeit
47
publications that are punishable under Sections 124 -A,
153-A, 153-B, 292, 293 or 295-A of the IPC. Section 107
empowers the Executive Magistrate to prevent a person from
committing a breach of peace or disturbing public
tranquillity or doing any wrongful act that may cause breach
of peace or disturb public tranquillity. Section 144
empowers the District Magistrate, a Sub -divisional
Magistrate or any other Execu tive Magistrate specially
empowered by the State Government in this behalf to issue
orders in urgent cases of nuisance or apprehended danger.
The above offences are cognizable.
iii) Section 7 of the Protection of Civil Rights Act, 1955
penalises incitement to, and encouragement of
untouchability through words, either spoken or written, or
by signs or by visible representations or otherwise.
iv) Section 3(g) of the Religious Institutions (Prevention of
Misuse) Act, 1988 prohibits religious institutions to allow
the use of any premises belonging to, or under their control
for promoting or attempting to promote disharmony, feelings
of enmity, hatred, ill-will between different religious, racial,
linguistic or regional groups or castes or communities.
v) Section 3(1)(x) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 punishes an
intentional insult or intimidation with intent to humiliate a
48
member of a Scheduled Caste or Tribe in any place within
public view.
vi) Section 8 of the Representation of the People Act, 1951
disqualifies a person from contesting elections if he is
convicted for indulging in acts amounting to illegitimate use
of freedom of speech and expression. Section 123(3-A) of the
same Act declares "the promotion of, or attempt to promote,
feelings of enmity or hatred between different classes of the
citizens of India on grounds of religion, race, caste,
community, or language, by a candidate or his agent or any
other person with the consent of a candidate or his election
agent for the furtherance of the prospects of the election of
that candidate or for prejudicially affecting the election of
any candidate", a "corrupt practice".
vii) The Cable Television Networks (Regulation) Act, 1995
requires that all programmes and advertisements telecast on
television conform to the Programme Code and the
Advertisement Code. Rule 6, Cable Television Networks
Rules, 1994 lays down the Programme Code and prohibits
the carrying of any programme on the cable service which:
(a) contains an attack on religion or communities or
contains visuals or words contemptuous of religious
groups or which promotes communal attitudes;
49
(b) is likely to encourage or incite violence or contains
anything against maintenance of law and order or which
promotes anti-national attitudes;
(c) criticises, maligns or slanders any individual in person
or certain groups, segments of social, public and moral
life of the country;
(d) contains visuals or words which reflect a slandering,
ironical and snobbish attitude in the portrayal of certain
ethnic, linguistic and regional groups.
Similarly, the Advertising Code under Rule 7 of the
Cable Television Networks Rules, 1994 prohibits the
carriage of advertisements on the cable service which hurt
the religious susceptibilities of subscribers, which derides
any race, caste, colour, creed or nationality, or incite
violence or disorder or breach of law.
The Cable Television Networks (Regula tion) Act,
1995 empowers the authorised officer appointed under the
Act to prohibit the transmission of a programme or channel,
if it is not in conformity with the Programme Code or the
Advertisement Code; or if it is likely to promote disharmony
or feelings of enmity, hatred or ill-will between different
religious, racial, linguistic or regional groups; or is likely to
disturb public tranquillity. Further, the Central Government
is empowered to prohibit the transmission or
50
re-transmission of any channel or programme in the interest
of the sovereignty, integrity or security of India or of public
order.
viii) Under the Cinematograph Act, 1952 , a film can be denied
certification on various grounds, including on the ground
that it is likely to incite the commission of an offence or that
it is against the interests of the sovereignty and integrity of
India or public order.
ix) The Information Technology Act, 2000 (IT Act) allows the
interception of information by the authorities in the interest
of public order, or the sovereignty and integrity of India, or
for the purpose of preventing incitement to the commission
of a cognizable offence. Section 66-A of the same Act which
sought to penalise information that is "grossly offensive" or
of "menacing character" or despite knowledge that it is false,
is sent to cause annoyance, inconvenience, danger,
obstruction, insult, criminal intimidation, enmity, hatred or
ill-will, was struck down in Shreya Singhal on the ground
of, inter alia, vagueness.
x) Norms of Journalistic Conduct, 2010 issued by the Press
Council of India (constituted under the Press Council Act,
1978) contain extensive guidelines on the reporting of
communal incidents.
51
The content of speech is sought to be controlled in all the
aforesaid statutes when the same is made not only by public
functionaries but any ordinary citizen also through whatever
medium of dissemination.
16.6. One of the recommendations of the 267
th Law Commission was
to insert Sections 153C and 505A and associated provisions in
the CrPC to deal with ‘Hate Speech’. As per the Law Commission
report, the proposed provisions would read as under:
“153-C- Whoever on grounds of religion, race, caste or
community, sex, gender identity, sexual orientation,
place of birth, residence, language, disability or tribe–
(a) uses gravely threatening words either spoken or
written, signs, visible representations within the
hearing or sight of a person with the intention to cause,
fear or alarm; or
(b) advocates hatred by words either spoken or written,
signs, visible representations, that causes incitement
to violence shall be punishable with imprisonment of
either description for a term which may extend to two
years, and fine up to Rs 5000, or with both.”
“505-A- Causing fear, alarm, or provocation of violence
in certain cases: Whoever in public intentionally on
grounds of religion, race, caste or community, sex,
gender, sexual orientation, place of birth, residence,
language, disability or tribe uses words, or displays any
writing, sign, or other visible representation which is
gravely threatening, or derogatory;
(i)within the hearing or sight of a person, causing fear
or alarm, or;
(ii) with the intent to provoke the use of unlawful
violence, against that person or another, shall be
52
punished with imprisonment for a term which may
extend to one year and/or fine up to Rs 5000, or both”.
The proposed provision under Section 505-A, seeks to
control not only speech that could potentially incite violence or
hurt the feelings of a community or dampen national integrity,
but also seeks to check threatening or derogatory remarks, made
on grounds of religion, race, caste or community, sex, gender,
sexual orientation, place of birth, residence, language, disability
or tribe, and which cause fear or alarm. While speech of the
former category has been traditionally regarded as ‘hate speech,’
generally vitriolic or ‘derogatory’ statements, which are made on
the grounds of religion, race, caste or community, sex, gender,
sexual orientation, place of birth, residence, language, disability
or tribe, have traditionally not been considered to qualify as ‘hate
speech,’ no matter how unwarranted or disparaging such
statements may be.
16.7. Traditionally, ‘hate speech’ is the term used to describe speech
that can potentially cause actual material harm through
potential social, economic and political marginalisation of a
community as declared by this Court in Pravasi Bhalai
Sangathan. However, in the present case, in my opinion, we are
concerned with a more overarching area of derogatory, vitriolic
and disparaging speech, which is actually not ‘hate speech’
simplicitor as has been traditionally sought to be defined
53
and understood. I am concerned with speech that may not be
linked to systematic discrimination and eventual political
marginalisation of a community, but which may nonetheless
have insidious effects on the societal perception of human
dignity, values of social cohesion, fraternity and equality
cherished by “We the people” of India.
16.8. Andrew F. Sellars, in his essay published by Harvard University,
titled 'Defining Hate Speech,’ has examined the concept of ‘hate
speech’ in different democratic jurisdictions. The author has
identified that certain remarks, which, although may not be ‘hate
speech’ in the strict sense of the term, border on the said term.
That even tacit elements of intent of the speaker to cause harm,
may constitute some species of hate speech. Intent may refer to
non-physical aspects like to demean, vilify, humiliate, or being
persecutorial, disregarding or hateful. The author has also
recognised that in some contexts, “at home speeches” may
themselves amount to hate speeches as such speech can now be
uploaded and circulated in the virtual world through internet etc.
The only pre-requisite is that the speech should have no
redeeming purpose, which means that “the speech primarily
carries no meaning other than hatred, hostility and ill-will.”
54
Beyond ‘hate speech’:
17. The expansive scope of ‘hate speech’ as set out above, would
include within its sweep not only ‘hate speech’ simplicitor which is
defined as speech aimed at systematic discrimination and eventual
political marginalisation of a community, but also other species of
derogatory, vitriolic and disparaging speech.
18. A philosophical justification to control and restrain derogatory,
vitriolic and disparaging speech has been very poignantly conveyed by
Lau Tzu, a celebrated Chinese philosopher and writer, in the following
words:
"Watch your thoughts; they become words.
Watch your words; they become actions.
Watch your actions; they become habit.
Watch your habits; they become character.
Watch your character; it becomes your destiny.”
19. Theoretical and doctrinal underpinnings justifying restraints on
derogatory and disparaging speech, may be traced to t wo primary
factors: human dignity as a value as well as a right; the Preambular
goals of ‘equality’ and ‘fraternity.’
Human dignity as a value as well as a right under the Constitution
of India:
20. As discussed supra, human dignity is not only a value but a right
that is enforceable under Article 21 of the Constitution of India. In a
human-dignity-based democracy, freedom of speech and expression
55
must be exercised in a manner that would protect and p romote the
rights of fellow-citizens.
International practice:
21. In attempting to justify restraints on free speech, on the argument
founded on considerations of autonomy, dignity and self-worth of the
person(s) against whom derogatory statements are made, reference may
be made to international practice in this regard.
i) Canada: Canadian jurisprudence on the subject proceeds on the
basis of inviolability of human dignity as its paramount value and
specifically limits the freedom of expression when necessary to
protect the right to personal honour. The Canadian approach
emphasises on multiculturalism and group equality, as it places
greater emphasis on cultural diversity and promotes the idea of an
ethnic mosaic. Interestingly, the Canadian position, as discernible
from the Canadian Supreme Court’s verdict in R vs. James
Keegstra, (1990) 3 SCR 697 (“Keegstra”) (Canada) considers the
likely impact of hate speech on both the targeted groups and non-
targeted groups. The former are likely to be degraded and
humiliated and experience injuries to their sense of self-worth and
acceptance in the larger society and may well, as a consequence,
avoid contact with members of the other group within the polity.
The non-targeted members of the group, sometimes representing
society at large, on the other hand, may gradually become de-
56
sensitised and may in the long run start accepting and believing
the messages of hate directed towards racial and religious groups.
These insidious effects pose serious threats to social cohesion in
the long run rather than merely projecting immediate threats to
violence.
Further, Dixon C.J. of the Canadian Supreme Court in
Canada Human Rights Commission vs. Taylor, (1990) 3 SCR
892 (“Taylor”) (Canada) has observed as follows, as regards the
interrelationship between messages of hate propaganda and the
values of dignity and equality:
“...messages of hate propaganda undermine the
dignity and self-worth of targeted group members
and, more generally, contribute to disharmonious
relations among various racial, cultural and religious
groups, as a result eroding the tolerance and open
mindedness that must flourish in a multicultural
society which is committed to the idea of equality.”
ii) Australia: The position of law in Australia is substantially aligned
with that in Canada. The Australian Federal Court, in the case of
Pat Eatock vs. Andrew Bolt, (2011) FCA 1103 (“Pat Eatock”)
(Australia) followed the dictum in Keegstra in holding that the
right to freedom of expression could be restricted vide legislation
which made racial hatred a criminal offence. The Australian
Federal Court stated that the rationale for a legislation restraining
free speech was as follows:
57
“(a) The justification from pursuit of truth does not
support the protection of hate propaganda, and may even
detriment our search for truth. The more erroneous or
mendacious a statement, the less its value in the quest of
truth. We must not overemphasise that rationality will
overcome all falsehoods.
(b) Self-fulfilment and autonomy, in a large part, come
from one's ability to articulate and nurture an identity
based on membership in a cultural or religious group.
The extent to which this value furthers free speech should
be modulated insofar as it advocates an intolerant and
prejudicial disregard for the process of individual self-
development and human flourishing.
(c) The justification from participation in democracy
shows a shortcoming when expression is employ ed to
propagate ideas repugnant to democratic values, thus
undermining the commitment to democracy. Hate
propaganda argues for a society with subversion of
democracy and denial of respect and dignity to
individuals based on group identities.”
iii) South Africa: The position which regards dignity as a paramount
constitutional value has been recognised in South Africa. The
Constitutional Court has expressed willingness to subjugate
freedom of expression when the same sufficiently undermines
dignity. The constitutional provision, therefore, enjoins the
legislature and the court to limit free speech rights and the exercise
of those rights which deprive others of dignity.
iv) Germany: The German law on the subject posits that freedom of
expression is one amongst several rights which is limited by
principles of equality, dignity and multiculturalism. Further, value
of personal honour always triumphs over the right to utter untrue
statements or facts made with the knowledge of their falsity. Also,
58
if true statements of fact invade the intimate personal sphere of an
individual, the right to personal honour triumphs over the freedom
of speech. If the expression of opinion as opposed to a fact
constitutes a serious affront to the dignity of a person, the value of
dignity triumphs over the speech. Therefore, German application
strikes a balance between rights and duties, between the individual
and the community on the one hand and between the self-
expression needs of the speaker and the self-respect and dignity of
the listeners on the other. It recognises the content-based speech
regulation and also recognises the difference between fact and
opinion.
The inalienability of ‘human dignity’ under the Constitution of
India vis-à-vis the right to freedom of speech and expression:
22. In Charu Khurana v s. Union of India, (2015) 1 SCC 192
(“Charu Khurana ”), this Court declared that dignity is the
quintessential quality of personality and a basic constituent of the
rights guaranteed and protected under Article 21. Dignity is a part of
the individual rights that form the fundamental fulcrum of collective
harmony and interest of a society. That while the right to speech and
expression is absolutely sacrosanct, dignity as a part of Article 21 has
its own significance. That dignity of an individual cannot be overridden
and blotched by malice and vile and venal attacks to tarnish and destroy
59
the reputation of another by stating that the same curbs and puts
unreasonable restriction on the freedom of speech and expression.
Further, in In Re. Noise Pollution (V), (2005) 5 SCC 733 it was
observed that Article 19(1)(a) cannot be cited as a justification for
defeating the fundamental right guaranteed by Article 21. That a person
speaking cannot violate the rights of others to enjoy a peaceful,
comfortable and (noise) pollution free environment, guaranteed by
Article 21.
Having regard to the unequivocal declaration of this Court, to the
effect that Article 21 could not be sacrificed at the altar of securing the
widest amplitude of free speech rights, this premise can serve as a
theoretical justification for prescribing restraints on derogatory and
disparaging speech. Human dignity, being a primary element under the
protective umbrella of Article 21, cannot be negatively altered on
account of derogatory speech, which marks out persons as unequal and
vilifies them leading to indignity.
23. Rule of Law, includes certain minimum requirements without
which a legal system cannot exist. Professor Lon L. Fuller, a renowned
American legal philosopher, has described these requirements
collectively as the 'inner morality of law'. Such an understanding of the
concept of Rule of Law places much emphasis on the centrality of
individual dignity in a society governed by the Rule of Law. Justice
60
Aharon Barak, former Chief Justice of Israel, has lucidly explained this
facet of Rule of law in the following manner:
“The Rule of law is not merely public order, the Rule of law
is social justice based on public order. The law exists to
ensure proper social life. Social life, however, is not a goal
in itself but a means to allow the individual to live in
dignity and develop himself. The human being and human
rights underlie this substantive perception of the Rule of
law, with a proper balance among the different rights and
between human rights and the proper needs of society.
The substantive Rule of law "is the Rule of proper law,
which balances the needs of society and the
individual". This is the Rule of law that strikes a
balance between society's need for political
independence, social equality, economic development,
and internal order, on the one hand, and the needs of
the individual, his personal liberty, and his human
dignity on the other. The Judge must protect this rich
concept of the Rule of law.”
(Emphasis by me)
24. As recognised by this Court in K.S. Puttaswamy (Retd.) vs.
Union of India, (2019) 1 SCC 1 (“Puttaswamy”), a substantive aspect
of the Rule of Law is the balance between the individual and society. In
that background, this Court discussed the scope of Constitutional
rights under our Constitutional scheme and the extent of their
protection. While emphasising that there are no absolute constitutional
rights, this Court laid down, in the following words that one of the only
rights which is treated as "absolute" is the right to human dignity:
“62. It is now almost accepted tha t there are no
absolute constitutional rights [Though, debate on
this vexed issue still continues and some
61
constitutional experts claim that there are certain
rights, albeit very few, which can still be treated as
"absolute". Examples given are:(a) Right to human
dignity which is inviolable,(b) Right not to be subjected
to torture or to inhuman or degrading treatment or
punishment. Even in respect of such rights, there is a
thinking that in larger public interest, the extent of their
protection can be diminished. However, so far such
attempts of the States have been thwarted by the
judiciary.] and all such rights are related. As per the
analysis of Aharon Barak [Aharon
Barak,Proportionality: Constitutional Rights and Their
Limitation (Cambridge University Press 2012).], two key
elements in developing the modern constitutional theory
of recognising positive constitutional rights along with
its limitations are the notions of democracy and the Rule
of law. Thus, the requirement of proportional limitations
of constitutional rights by a sub-constitutional law i.e.
the statute, is derived from an interpretation of the
notion of democracy itself. Insofar as the Indian
Constitution is concerned, democracy is treated as the
basic feature of the Constitution and is specifically
accorded a constitutional status that is recognised in the
Preamble of the Constitution itself. It is also unerringly
accepted that this notion of democracy includes human
rights which is the cornerstone of Indian democracy.
Once we accept the aforesaid theory (and there cannot
be any denial thereof), as a fortiori, it has also to be
accepted that democracy is based on a balance between
constitutional rights and the public interests. In fact,
such a provision in Article 19 itself on the one hand
guarantees some certain freedoms in Clause (1) of Article
19 and at the same time empowers the State to impose
reasonable restrictions on those freedoms in public
interest. This notion accepts the modern constitutional
theory that the constitutional rights are related. This
relativity means that a constitutional licence to limit
those rights is granted where such a limitation will be
justified to protect public interest or the rights of others.
This phenomenon--of both the right and its limitation in
the Constitution--exemplifies the inherent tension
between democracy's two fundamental elements. On the
one hand is the right's element, which constitutes a
fundamental component of substantive democracy; on
the other hand is the people element, limiting those very
rights through their representatives. These two
constitute a fundamental component of the notion of
62
democracy, though this time in its formal aspect. How
can this tension be resolved? The answer is that this
tension is not resolved by eliminating the "losing" facet
from the Constitution. Rather, the tension is resolved by
way of a proper balancing of the competing principles.
This is one of the expressions of the multi-faceted nature
of democracy. Indeed, the inherent tension between
democracy's different facets is a "constructive tension".
It enables each facet to develop while harmoniously
coexisting with the others. The best way to achieve this
peaceful coexistence is through balancing between the
competing interests. Such balancing enables each facet
to develop alongside the other facets, not in their place.
This tension between the two fundamental aspects --
rights on the one hand and its limitation on the
other hand--is to be resolved by balancing the two so
that they harmoniously coexist with each othe r.
This balancing is to be done keeping in mind the
relative social values of each competitive aspects
when considered in proper context.”
[Emphasis by me]
25. It is clarified that at this juncture that it is not necessary to engage
in the exercise of balancing our concern for the free flow of ideas and
the democratic process, with our desire to further equality and human
dignity. This is because no question would arise as to the conflict of two
seemingly competing rights, being the right to freedom of speech and
expression, vis-à-vis the right to human dignity and equality. The
reason for the same is because, the restraint that is called for, is only in
relation to unguided, derogatory, vitriolic speech, which in no way can
be considered as an essential part of exposition of ideas, which has little
social value. This discourse, in no way seeks to pose a potential danger
to peaceful dissenters, who exercise their right to freedom of speech and
expression in a critical, but measured fashion.
63
The present cases pertain specifically to derogatory, disparaging
speech, which closely resembles hate speech. Such speech does not fall
within the protective perimeter of Article 19(1)(a) and does not
constitute the content of the free speech right. Therefore, when such
speech has the effect of infringing the fundamental right under Article
21 of another individual, it would not constitute a case which requires
balancing of conflicting rights, but one wherein abuse of the right to
freedom of speech by a person has attacked the fundamental rights of
another.
The Preambular goals of ‘equality’ and ‘fraternity’:
26. Equality, liberty and fraternity are the foundational values
embedded in the Preamble of our Constitution. ‘Hate speech’, in the
sense discussed hereinabove, strikes at each of these foundational
values, by marking out a society as being unequal. It also violates
fraternity of citizens from diverse backgrounds, the sine-qua-non of a
cohesive society based on plurality and multi-culturalism such as in
India that is, Bharat.
27. Fraternity is based on the idea that citizens have reciprocal
responsibilities towards one another. The term takes within its sweep,
inter-alia, the ideals of tolerance, co-operation, and mutual aid.
27.1. The meaning of the term fraternity, in the context of criminal
defamation and restraints on the freedom of speech and
64
expression has been examined by this Court in Subramanian
Swamy vs. Union of India, (2016) 7 SCC 221 (“Subramanian
Swamy”) wherein it was observed that fraternity under the
Constitution expects every citizen to respect the dignity of the
other. Mutual respect is the fulcrum of fraternity that assures
dignity. This Court qualified its observations with the caveat that
‘fraternity’ does not mean that there cannot be dissent or
difference, more so because all citizens have the right to freedom
of speech and expression. However, it was unequivocally declared
that a constitutional value which is embedded in the idea of
fraternity is dignity of the individual, which is required to be
respected by fellow citizens. That the Preamble consciously
chooses to assure the dignity of the individual, in the context of
fraternity and therefore, rights enshrined in Part III have to be
exercised by individuals against the backdrop of the ideal of
fraternity. This Court observed that the fraternal ideal also finds
resonance in Part IVA of the Constitution. In upholding the
permissibility of the law on criminal defamation, on the
touchstone of the concept of constitutional fraternity, this Court
speaking through Dipak Misra, J. (as his Lordship then was)
observed in paragraphs 155 and 163, as follows:
“155. It is a constitutional value which is to be
cultivated by the people themselves as a part of
their social behavior. There are two schools of
thought; one canvassing individual liberalization and
the other advocating for protection of an individual as
65
a member of the collective. The individual should have
all the rights under the Constitution but
simultaneously he has the responsibility to live upto
the constitutional values like essential brotherhood-
the fraternity-that strengthens the societal interest.
Fraternity means brotherhood and common interest.
Right to censure and criticize does not conflict with
the constitutional objective to promote fraternity.
Brotherliness does not abrogate and rescind the
concept of criticism. In fact, brothers can and should
be critical. Fault finding and disagreement is required
even when it leads to an individual disquiet or group
disquietude. Enemies Enigmas Oneginese on the part
of some does not create a dent in the idea of fraternity
but, a significant one, liberty to have a discordant note
does not confer a right to defame the others.”
“163. We have referred to two concepts, namely,
constitutional fraternity and the fundamental duty, as
they constitute core constitutional values. Respect for
the dignity of another is a constitutional norm. It
would not amount to an overstatement if it is said
that constitutional fraternity and the intrinsic
value inhered in fundamental duty proclaim the
constitutional assurance of mutual respect and
concern for each other's dignity. The individual
interest of each individual serves the collective
interest and correspondingly the colle ctive
interest enhances the individual excellence.
Action against the State is different than an action
taken by one citizen against the other. The
constitutional value helps in structuring the
individual as well as the community interest.
Individual interest is strongly established when
constitutional values are respected. The Preamble
balances different and divergent rights. Keeping in
view the constitutional value, the legislature has
not repealed Section 499 and kept the same alive
as a criminal offence. The studied analysis from
various spectrums, it is difficult to come to a
conclusion that the existence of criminal defamation
is absolutely obnoxious to freedom of speech and
expression. As a prescription, it neither invites the
frown of any of the Articles of the Constitution nor its
very existence can be regarded as an unreasonable
restriction.”
(Emphasis by me)
66
27.2. The decision of this Court in Subramanian Swamy establishes
precedent of justifying a restraint on free speech, on the ground
of promotion of fraternity. It has been recognized that the
constitutional value of fraternity imputes an obligation on all
citizens to subserve collective interest and respect the dignity and
equality of fellow citizen. Restraints on free speech prescribed to
secure these ends, have been held to be justified, as being aimed
at preserving the Preambular ideal of fraternity. It is also to be
noted that this Court in the said case recognized that fraternity
as a value is to be cultivated by citizens themselves as a part of
their social behavior by refraining from uttering defamatory
statements. This chord of the said judgment, acknowledges the
idea of self-restraint or inherent restraints as being read into the
right to freedom of speech and expression.
27.3. Democracy, being one of the basic features of our Constitution,
it is implicit that in a rule by majority there would be a sense of
security and inclusiveness. Further, the Preamble of the
Constitution which envisages, inter alia, fraternity, assures that
the dignity of individuals cannot be dented by means of
unwarranted speech being made by fellow citizens, including
public functionaries. Thus, the Preamble of the Constitution and
the values thereof assuring the people of India not only justice,
67
liberty, equality but also fraternity and unity and integrity of the
nation, must remind every citizen of this Country irrespective of
the office or position or power that is held, of the sublime ideals
of the Constitution and to respect them in their true letter and
spirit. There is an inbuilt constitutional check to ensure that the
values of the Constitution are not in any way undermined or
violated. It is high time that we, as a society in general and as
individuals in particular, re-dedicate ourselves to the sacred
values of the Constitution and promote them not only at our
individual level but at the macro level. Any kind of speech which
undermines the values for which our Constitution stands would
cause a dent on our social and political values.
Employing the Fundamental Duties under Part IV -A of the
Constitution as a means to check disparaging, unwarranted
speech:
28. Every right engulfs and incorporates a duty to respect another’s
right and secure mutual compatibility and conviviality of the individuals
based on collective harmony, resulting in social order. The concept of
fraternity under the Constitution expects every citizen to respect the
dignity of the other. Mutual respect is the fulcrum of fraternity that
assures dignity. In the context of constitutional fraternity, fundamental
duties engrafted under Article 51-A of the Constitution gain significance.
68
Sub-clause (c), (e) and (j) of Article 51-A of the Constitution which are
relevant to these cases read as follows:
“Article 51-A. Fundamental Duties- .—It shall be the
duty of every citizen of India—
(a) xxx
(b) xxx
(c) to uphold and protect the sovereignty, unity
and integrity of India;
(d) xxx
(e) to promote harmony and the spirit of
common brotherhood amongst all the people
of India transcending religious, linguistic
and regional or sectional diversities; to
renounce practices derogatory to the dignity
of women;
(f) xxx
(g) xxx
(h) xxx
(i) xxx
(j) to strive towards excellence in all spheres of
individual and collective activity so that the
nation constantly rises to higher levels of
endeavour and achievement;”
Fundamental duties also constitute core Constitutional values for
good citizenship in a democracy such as ours. The duties enumerated
above, enjoin all citizens with the obligations of promoting fraternity,
harmony, unity, collective welfare etc. Fundamental duties have a keen
bond of sorority with the Constitutional goals and must therefore be
recognised not merely as Constitutional norms or precepts but as
obligations, corelative to rights. In short, the permissible content of the
right to freedom of speech and expression, ought to be tested on the
touchstone of fraternity and fundamental duties as envisaged under our
Constitution.
69
29. Although the questions for consideration before the Constitution
bench, were with specific regard to the possible restraints on
unwarranted and disparaging speech by public functionaries, the
observations made hereinabove, will apply with equal force to public
functionaries, celebrities/influencers as well as all citizens of India,
more so because technology is being used as a medium of
communication which has a wide spectrum of impact across the globe.
30. The internet represents a communication revolution and has
enabled us to communicate with millions of people worldwide, with no
more difficulty than communicating with a single person, at a click or
by touch on a screen. Ironically, the very qualities of the internet that
have revolutionised communication are amenable to misuse. The
internet, through various social media platforms has accelerated the
pace as well as the reach of messages, comments and posts to such an
extent that the difference between a celebrity and a common man, has
been practically negated, in so far as the reach of their speech is
concerned.
31. However, given the specific submission of the petitioners herein
that disparaging and vitriolic speech expressed at various levels of
political authority have exacerbated a climate bordering on intolerance
and tension in the society, which perhaps may lead to insecurity, it may
be appropriate to sound a strong word of warning in this regard.
70
32. It may be appropriate at this juncture to refer to the writings of
Michael Rosenfeld, on the key variables which determine the impact of
hate speech. One of the key variables highlighted by the learned author
in his paper titled “Hate Speech in Constitutional Jurisprudence: A
Comparative Analysis,” published in Cardozo Law Review, is the
question as to “who” the speaker is. The learned author notes that
speech made by a person of influence, such as a top government or
executive functionary, opposition leader, political or social leader of
following, or a credible anchor on a TV show carries far more credibility
and impact than a statement made by a common person.
Public functionaries and other persons of influence and celebrities,
having regard to their reach, real or apparent authority and the impact
they wield on the public or on a certain section thereof, owe a duty to
the citizenry at large to be more responsible and restrained in their
speech. They are required to understand and measure their words,
having regard to the likely consequences thereof on public sentiment
and behaviour, and also be aware of the example they are setting for
fellow citizens to follow.
33. While there are no infallible rules that can be formulated by the
Court to define the precise threshold of acceptable speech, every
citizen’s conscious attempt to abide by the Constitutional values, and to
preserve in letter and spirit the culture contemplated under the
Constitution will significantly contribute in eliminating instances of
71
societal discord, friction and disharmony, on account of disparaging,
vitriolic and derogatory speech, particularly when made by public
functionaries and/or public figures. This does not in any way imply that
ordinary citizens who form the great mass of the citizenry of this Country
can shun responsibility for vitriolic, unnecessarily critical, diabolical
speech, bordering on all those aspects mentioned under Article 19 (2)
either against public functionaries / figures or against other citizens in
general or against particular individuals.
34. Every citizen of India must consciously be restrained in speech,
and exercise the right to freedom of speech and expression under Article
19(1)(a) only in the sense that it was intended by the framers of the
Constitution, to be exercised. This is the true content of Article 19(1)(a)
which does not vest with citizens unbridled liberty to utter statements
which are vitriolic, derogatory, unwarranted, have no redeeming
purpose and which, in no way amount to a communication of ide as.
Article 19(1)(a) vests a multi-faceted right, which protects several
species of speech and expression from interference by the State.
However, it is a no brainer that the right to freedom speech and
expression, in a human-rights based democracy does no t protect
statements made by a citizen, which strike at the dignity of a fellow
citizen. Fraternity and equality which lie at the very base of our
Constitutional culture and upon which the superstructure of rights are
72
built, do not permit such rights to be employed in a manner so as to
attack the rights of another.
Verse 15 of Chapter 17 of the Srimad Bhagavad Gita describes
what constitutes discipline of speech or ‘vāṅ-maya tapas:’
अनुद्वेगकरं वाक्यं सत्यं प्रियहितं च यत् |
स्वाध्यायाभ्यसनं चैव वाङ्मयं तप उच्यते ||
Anudvega-karaṁ vākyaṁ satyaṁ priya-hitaṁ cha yat
Svādhyāyābhyasana ṁ chaiva vāṅ-mayaṁ tapa uchyate
Words that do not cause distress, are truthful, inoffensive,
pleasing and beneficial, are said to be included within the
discipline of speech, and are likened to regular recitation of the
Vedic scriptures.
35. The discussion presented hereinabove was with a view to rekindle
some ideas on the content of Article 19 (1) (a) of the Constitution and on
other pertinent issues surrounding the right to free speech guaranteed
under the aforesaid Article. However, as far as the substantial analysis
of Question No. 1 is concerned, I respectfully agree with the reasoning
and conclusions proposed by His Lordship, Ramasubramanian, J.
Re: Question No. 2: Can a fundamental right under Article 19 or
21 of the Constitution be claimed other than against the ‘State’
or its instrumentalities?
36. All human beings are endowed at birth, with certain inalienable
rights and among such rights are right to life and liberty, including
liberty of thought and expression. These rights have been recognized as
73
inalienable rights, having regard to the supreme value of human
personality. Incidentally, some of such rights have come to be
Constitutionally recognized under Part III of the Constitution of India.
Fundamental Rights were selected from what were previously natural
rights and were later termed as common law rights. However, it is to be
noted that Part III of the Constitution, is not the sole repository of such
rights. Even after some of such inalienable rights have come to be
Constitutionally recognised as Fundamental Rights under the
Constitution of India, the congruent rights under common law or
natural law have not been obliterated. It also follows, that the
corresponding remedies available in common law, are also not
obliterated. The object of elevating certain natural and common law
rights, as Fundamental Rights under the Constitution was to make
them specifically enforceable against the State and its agencies through
a Courts of law. These observations gain legitimacy from the judgment
of Mathew, J. in His Holiness Kesavanada Bharati Sripadagalvaru
vs. State of Kerala, (1973) 4 SCC 225 (Kesavanada Bharati)
wherein His Lordship recognized the object of Constitutions to declare
recognised natural rights as applicable qua the state. Adopting the
picturesque language of Roscoe Pound, the following observations were
made:
“1514. While dealing with natural rights, Roscoe
Pound states on page 500 of Vol. I of his
Jurisprudence:
74
“Perhaps nothing contributed so much to
create and foster hostility to courts and law
and Constitutions as this conception of the
courts as guardians of individual natural
rights against the state and against society;
this conceiving of the law as a final and
absolute body of doctrine declaring these
individual natural rights; this theory of
Constitutions as declaratory of common-
law principles, which are also natural-law
principles, anterior to the state and of
superior validity to enactments by the
authority of the state; this theory of
Constitutions as having for their purpose
to guarantee and maintain the nat ural
rights of individuals against the
government and all its agencies. In effect,
it set up the received traditional social,
political, and economic ideals of the legal
profession as a super-Constitution, beyond
the reach of any agency but judicial decision.
1515. I may also in this connection refer to a passage
on the inherent and inalienable rights in A History of
American Political Theories by C. Marriam: By the
later thinkers the idea that men possess inherent and
inalienable rights of a political or quasi-political
character which are independent of the state, has
been generally given up. It is held that these natural
rights can have no other than an ethical value, and
have no proper place in politics. There never was, and
there never can be,' says Burgess, 'any liberty upon
this earth and among human beings, outside of state
organization'. In speaking of natural rights, therefore,
it is essential to remember that these alleged rights
have no political force whatever, unless recognized
and enforced by the state. It is asserted by Willoughby
that 'natural rights' could not have even a moral value
in the supposed 'state of nature'; they would really be
equivalent to force and hence have no ethical
significance. (see p. 310).”
x x xx x x x
“1522. I am also of the view that the power to amend
the provisions of the Constitution relating to the
fundamental rights cannot be denied by describing
75
the fundamental rights as natural rights or human
rights. The basic dignity of man does not depend
upon the codification of the fundamental rights
nor is such codification a prerequisite for a
dignified way of living. There was no
Constitutional provision for fundamental rights
before January 26, 1950 and yet can it be said that
there did not exist conditions for dignified way of
living for Indians during the period between
August 15, 1947 and January 26,. 1950. The plea
that provisions of the Constitution, including those of
Part III, should be given retrospective effect has been
rejected by this Court. Article 19 which makes
provision for fundamental rights, is not applicable to
persons who are not citizens of India. Can it, in view
of that, be said that the non-citizens cannot while
staying in India lead a dignified life? It would, in my
opinion, be not a correct approach to say that
amendment of the Constitution relating to
abridgement or taking away of the fundamental rights
would have the effect of denuding human beings of
basic dignity and would result in the extinguishment
of essential values of life.”
[Emphasis by me]
37. This proposition was further highlighted in the enlightened
minority opinion of His Lordship, H.R. Khanna, J, in Additional
District Magistrate, Jabalpur vs. Shivakant Shukla, A.I.R. 1976
SC 1207 (“ADM Jabalpur”) wherein while refusing to subscribe to the
view that when the right to enforce Fundamental Right under Article 21
is suspended, the result would be that there would be no remedy
against deprivation of a person's life or liberty by the State even though
such deprivation is without the authority of law, observed, that Article
21 was not the sole repository of the right to life and personal liberty.
That such rights inhered in men even prior to the enactment of
76
the Constitution, and were not created for the first time by enacting the
Constitution. It was also recognised that though the Constitutionally
recognised remedy under Article 32, for infringement of the Right under
Article 21 may not be available as the said rights remained suspended
or notionally surrendered on account of declaration of an Emergency,
remedies under the laws which were in force prior to the coming into
effect of the Constitution would still operate to ensure that no person
could be deprived of his life or liberty except in accordance with law. In
that context, it was held that the rights Constitutionally recognised
under Article 21, represented ‘higher values’ which were elementary to
any civilised State and therefore the sanctity of life and liberty was not
traceable only to the Constitution. The relevant portions of His
Lordship’s judgment can be usefully extracted hereinunder:
“152. The effect of the suspension of the right to move
any court for the enforcement of the right conferred by
Article 21, in my opinion, is that when a petition is
filed in a court, the court would have to proceed upon
the basis that no reliance can be placed upon that
Article for obtaining relief from the court daring the
period of emergency. Question then arises as to
whether the rule that no one shall be deprived of ins
life or personal liberty without the authority of law stiff
survives during the period: of emergency despite the
Presidential order suspending the right to move any
court for the enforcement of the-right contained in
Article 21. The answer to this question is linked with
the answer to the question as to whether Article 21 is,
the sole repository of the right to life and personal
liberty. After giving the matter my earnest
consideration, I am of the opinion that Article 21
cannot be considered" to be the sole repository of
the right to life and; personal liberty. The right to
life, and personal: liberty is the most precious
77
right of human beings in civilised societies
governed by the rule of law. Many modern
constitutions incorporate certain fundamental
rights, including the one relating to personal
freedom.”
xxx
“155. Sanctity of life and liberty was not something
new when the Constitution was drafted. It
represented a fact of higher values which mankind
began to cherish in its evolution from a state of
tooth and claw to a civilized existence. Likewise,
the principle that no one shall be deprived of ins
life and liberty without the authority of law was
not the gift of the Constitution. It was a necessary
corollary of the concept relating to the sanctity of life
and liberty; it existed and was in force before the
coming into force, of the Constitution. The idea about
the sanctity of life and liberty as well as the principle
that no one shall be deprived of his life and liberty
without the authority of law are essentially two facets
of the same concept. This concept grew and acquired
dimensions in response to the inner urges and nobler
impulses with the march of civilisation. Great writers
and teachers, philosophers and political thinkers
nourished and helped in the efflorescence of the
concept by rousing the conscience of mankind and by
making it conscious of the necessity of the concept as
necessary social discipline in self-interest and for
orderly existence. According even to the theory of
social compact many aspects of which have now been
discredited, individuals have surrendered a part of
their theoretically unlimited freedom in return or the
blessings of the government. Those blessings include
governance in accordance with certain norms in the
matter of life and liberty of the citizens. Such norms
take the shape of the rule of law. Respect for law, we
must bear in mind, has a mutual relationship with
respect for government. Erosion of the respect for law,
it has accordingly been said, affects the respect for the
government. Government under the law means, as
observed by Macdonald, that the power to govern shall
be exercised only, under conditions laid down in
constitutions and laws approved by either the people
or their representatives. Law thus emerges as a norm
limiting the application of power by the government
78
over the citizen or by citizens over their fellows.
Theoretically all men are equal before the law and are
equally bound by it regardless of their status, class,
office or authority. At the same time that the law
enforces duties it also protects rights, even against the
sovereign.”
x x x
158. I am unable to subscribe to the view that when
right to enforce the right under Article 21 is
suspended, the result would be that there would be
no remedy against deprivation of a person's life or
liberty by the State even though such deprivation
is without the authority of law or even in flagrant
violation of the provisions of law. The right not to
be deprived of one's life or liberty without the
authority of law was not the creation of the
Constitution. Such right existed before the
Constitution came into force. The fact that the
framers of the Constitution made an aspect of
such right a part of the fundamental rights did not
have the effect of exterminating the independent
identity of such right and of making Article 21 to
be the sole repository of that right. Its real effect
was to ensure that a law under which a person can be
deprived of ins life or personal liberty should prescribe
a procedure for such deprivation or, according to the
dictum laid down by Mukherjea, J. in Gopalan's case,
such law should be a valid law not violative of
fundamental rights guaranteed by Part III of the
Constitution. Recognition as fundamental right of
one aspect of the pre-Constitutional right cannot
have the effect of making things less favourable so
far as the sanctity of life and personal liberty is
concerned compared to the position if an aspect of
such right had not been recognised as fundamental
right because, of the vulnerability of fundamental
rights accruing from Article 359. I am also unable
to agree that in view of the Presidential Order in the
matter of sanctity of life and liberty, things would be
worse off compared to the state of law as it existed
before the coining into force of the Constitution.”
x x x
79
“162. It has been pointed out above that even before
the coming into force of the Constitution, the position
under the common law both in England and in India
was that the State could not deprive a person of ins
life and liberty without the authority of law. The same
was the position under the penal laws of India. It was
an offence under the Indian Penal Code, as already
mentioned, to deprive a person of ins life or liberty
unless such a course was sanctioned by the laws of
the land. An action was also maintainable under the
law of torts for wrongful confinement in case any
person was deprived of ins personal liberty without
the authority of law. In addition to that, we had
Section 491 of the CrPC which provided the remedy of
habeas corpus against detention without the
authority of law. Such laws continued to remain in
force in view of Article 372 after the coming into force
of the Constitution. According to that article,
notwithstanding the repeal by this Constitution of the
enactments referred to in Article 395 but subject to
the other provisions of this Constitution, all the law in
force in the territory of India immediately before the
commencement of this Constitution shall continue in
force therein until altered or repealed or amended by
a competent legislature or other competent authority.
The law in force, as observed by the majority of the
Constitution Bench in the case of Director of
Rationing and Distribution v. The Corporation of
Calcutta and Ors. 1960 CriLJ 1684, include not only
the statutory law but also custom or usage haying the
force of law as also the common law of England which,
was adopted as the law of the country before the
coming into force of the Constitution. The position
thus seems to be firmly established that at the time,
the Constitution came into force, the legal position
was that no one could be deprived of ins life or liberty
without the- authority of law.
163. It is difficult to accede to the contention that
because of Article 21 of the Constitution, the law
which was already in force that no one could be
deprived of ins life or liberty without the authority
of law was obliterated and ceased to remain in
force. No rule of construction interpretation
warrants such an inference. Section 491 of the
CrPC continued to remain an integral part of that
Code despite the fact that the High Courts were
80
vested with the power of issuing writs of habeas
corpus under Article 226. No submission was ever
advanced on the score that the said provision had
become a dead letter of enforceable because of the fact
that Article 226 was made a part of the Constitution,
indeed, in the case of Makhan Singh (supra)
Gajendragadkar J. speaking for the majority stated
that after the coming into force of the Constitution, a
party could avail of either the remedy of Section 491
of the CrPC or that of Article 226 of the Constitution.
The above observations clearly go to show that
constitutional recognition of the remedy of writ of
habeas corpus did not obliterate or abrogate the
statutory remedy of writ of habeas corpus. Section
491 of the CrPC continued to be part of that Code till
that Code was replaced by the new Code. Although the
remedy of writ of habeas corpus is not now available
under the new CrPC, 1973, the same remedy is still
available under Article 226 of the Constitution.”
[Emphasis by me]
In holding thus, H.R. Khanna, J. refused to subscribe to the
majority view in the said case that once a right is recognised and
embodied in the Constitution and forms part of it, it could not have any
separate existence apart from the Constitution, unless it were also
enacted as a statutory principle by some positive law of the State. His
Lordship rejected the proposition that the intention of the Constitution
was not to preserve something concurrently in the field of natural law
or common law; it was to exclude all other control or to make the
Constitution the sole repository of ultimate control over those aspects
of human freedom which were guaranteed therein.
38. The strength of H.R. Khanna, J’s minority opinion was
subsequently acknowledged and affirmed by this Court in
81
Puttaswamy, wherein it was held that the rights to life and personal
liberty were ‘primordial rights’ and were not bounties which were
conferred by the State and created by the Constitution. That the right
to life existed even before the advent of the Constitution and in
recognising such right, the Constitution did not become the sole
repository of such rights. That every constitutional democracy including
our country, is rooted in an undiluted assurance that the Rule of law
will protect their rights and liberties against any invasion by the State
and that judicial remedies would be available when a citizen has been
deprived of most precious inalienable rights. Dr. D.Y. Chandrachud. J.
(as His Lordship then was) enunciated the aforesaid principles in the
following words:
“119. The judgments rendered by all the four judges
constituting the majority in ADM Jabalpur are
seriously flawed. Life and person al liberty are
inalienable to human existence. These rights are, as
recognised in Kesavananda Bharati , primordial
rights. They constitute rights under natural law. The
human element in the life of the individual is
integrally founded on the sanctity of life. Dignity is
associated with liberty and freedom. No civilized state
can contemplate an encroachment upon life and
personal liberty without the authority of law. Neither
life nor liberty are bounties conferred by the state nor
does the Constitution create these rights. The right to
life has existed even before the advent of the
Constitution. In recognising the right, the
Constitution does not become the sole repository of
the right. It would be preposterous to suggest that a
democratic Constitution without a Bill of Rights would
leave individuals governed by the state without either
the existence of the right to live or the means of
enforcement of the right. The right to life being
inalienable to each individual, it existed prior to
82
the Constitution and continued in force Under
Article 372 of the Constitution. Justice Khanna
was clearly right in holding that the recognition of
the right to life and personal liberty under the
Constitution does not denude the existence of that
right, apart from it nor can there be a fatuous
assumption that in adopting the Constitution the
people of India surrendered the most precious
aspect of the human persona, namely, life, liberty
and freedom to the state on whose mercy these
rights would depend. Such a construct is contrary
to the basic foundation of the Rule of law which
imposes restraints upon the powers vested in the
modern state when it deals with the liberties of the
individual. The power of the Court to issue a Writ of
Habeas Corpus is a precious and undeniable feature
of the Rule of law.
120. A constitutional democracy can survive when
citizens have an undiluted assurance that the Rule of
law will protect their rights and liberties against any
invasion by the state and that judicial remedies would
be available to ask searching questions and expect
answers when a citizen has been deprived of these,
most precious rights. The view taken by Justice
Khanna must be accepted, and accepted in reverence
for the strength of its thoughts and the courage of its
convictions.”
[Emphasis by me]
39. What emerges from the aforesaid decisions of this Court, may be
culled out as follows:
i) That some natural/primordial rights of man have been accorded a
secure position under the Constitution so as to protect such rights
against undue encroachments by organs of State. The object of
elevation of such common law rights/natural rights to the
Constitutional plane was to make them specifically enforceable
against the State and its agencies through Courts of Law.
83
ii) Notwithstanding that such rights have been placed in Part III of the
Constitution of India, the rights are concurrently preserved in the
field of natural law or common law. Remedies available in common
law for actualising such rights are also preserved. There are
therefore two spheres of rights, and corresponding remedies: first,
relatable to the Fundamental Rights enshrined under Part III the
Constitution of India, which correspond to the remedies under
Article 32 and Article 226 of the Constitution of India; second,
inalienable/natural/common law rights, which are pre -
constitutional rights, and may be protected by having recourse to
common law remedies.
iii) While the content of a certain common law right, may be identical
to a Fundamental Right, the two rights would be distinct in two
respects: first, incidence of the duty to respect such right; and
second, the forum which would be called upon to adjudicate on the
failure to respect such right. While the content of the right violated
may be identical, the status of the violator, is what is relevant.
With that primer, I shall proceed to consider whether the
Fundamental Rights under Article 19 or 21 of the Constitution of India
can be claimed against any person other than the State or its
instrumentalities.
40. With historical and political changes and the advent of democracy
and of Constitutional government, the “State” was created under and
84
by a constitution and placed at a position which renders it capable of
interfering with natural and common law rights. On the other hand, as
is evident from the text of the Preamble of the Constitution of India, the
“We the People of India created the State as an entity to serve their
interests. In order to reconcile the competing effects of creation of the
State, certain common law rights were elevated to the constitutional
plane by accommodating them in Part III of the Constitution of India to
make them specifically enforceable against the State and its agencies
through the Courts. Part III of the Constitution was therefore enacted
to dictate the relationship between citizens and the State- this is the
true character and utility of Part III. This idea has also found resonance
in Puttaswamy, wherein it was observed as follows:
“251. Constitutions address the rise of the new
political hegemon that they create by providing for a
means by which to guard against its capacity for
invading the liberties available and guaranteed to all
civilized peoples. Under our constitutional scheme,
these means - declared to be fundamental rights -
reside in Part III, and are made effective by the power
of this Court and the High Courts Under Articles 32
and 226 respectively. This narrative of the progressive
expansion of the types of rights available to
individuals seeking to defend their liberties from
invasion - from natural rights to common law rights
and finally to fundamental rights - is consistent with
the account of the development of rights that
important strands in constitutional theory present.”
Therefore, the primary object of Part III of the Constitution was to
forge a new relationship between the citizens and the State, which was
the new site of Governmental power. The realm of interaction between
85
citizens inter-se, was governed by common law prior to the enactment
of the Constitution and continued to be so governed even after the
commencement of the Constitution because as recognised hereinabove,
the common rights and remedies were not obliterated even after the
Constitution was enacted. These inalienable rights, although
subsequently placed in Part III of the Constitution, retained their
identity in the arena of common law and continued to regulate
relationships between citizens and entities, other than the State or its
instrumentalities. It is therefore observed that the incidence of the duty
to respect Constitutional and Fundamental Rights of citizens is on the
State and the Constitution provides remedies against violation of
Fundamental Rights by the State. These observations are in consonance
with the recognition by this Court in People’s Union for Civil Liberties
vs. Union of India, (2005) 2 SCC 436 (“People’s Union for Civil
Liberties”) that the objective of Part III is to place citizens at centre
stage and make the state accountable to them.
41. On the other hand, common law rights, regulate the relationship
between citizens inter-se. Although the content of a common law right
may be similar to a Fundamental Right, the two rights are distinct in so
far as, the incidence of duty to respect a common law right is on citizens
or entities other than State or its instrumentalities; while the incidence
of duty to respect a Fundamental Ri ght, except where expressly
otherwise provided, is on the State. Remedies against violation of
86
Fundamental Rights by the State are Constitutionally prescribed under
Articles 32 and 226; while common law remedies, some of which are
statutorily recognised, are available against violation of common law
rights. Such remedies are available even as against fellow citizens or
entities other than State or its instrumentalities. To this extent,
horizontality is recognised in common law. Further to some extent
certain Fundamental Rights are recognised statutorily and some others
are expressly recognised in the Constitution as being applicable as
horizontal rights between citizens inter se such as Articles 15(2), 17, 23,
24. A similar declaration as regards the right to privacy is found in the
decision of this Court in Puttaswamy. The relevant excerpts from the
said decision have been reproduced hereinunder:
“253. Once we have arrived at this understanding of the
nature of fundamental rights, we can dismantle a core
assumption of the Union's argument: that a right must
either be a common law right or a fundamental right.
The only material distinctions between the two classes
of right - of which the nature and content may be the
same - lie in the incidence of the duty to respect the right
and in the forum in which a failure to do so can be
redressed. Common law rights are horizontal in their
operation when they are violated by one's fellow
man, he can be named and proceeded against in an
ordinary court of law. Constitutional and
fundamental rights, on the other hand, provide
remedy against the violation of a valued interest by
the 'state', as an abstract entity, whether through
legislation or otherwise, as well as by identifiable
public officials, being individuals clothed with the
powers of the state. It is perfectly possible for an
interest to simultaneously be recognized as a
common law right and a fundamental right. Where
the interference with a recognized interest is by the
state or any other like entity recognized by Article
87
12, a claim for the violation of a fundamental right
would lie. Where the author of an identical
interference is a non-state actor, an action at
common law would lie in an ordinary court.
254. Privacy has the nature of being both a common
law right as well as a fundamental right. Its content,
in both forms, is identical. All that differs is the
incidence of burden and the forum for enforcement for
each form.”
[Emphasis by me]
It has therefore been unequivocally declared by this Court that
while the content of a right recognised under Part III of the Constitution
may coincide or overlap with a common law right, the remedies available
against violation of the respective form of right, operate in different
spheres of law. That is, although the content of a common law right
and a fundamental right may be almost identical, the remedy against
violation of a common law right, shall lie under common law and not
under the Constitution; similarly, the remedy against violation of a
Fundamental Right is provided for under the Constitution itself
expressly against the State under Article 19(2) thereof.
42. The status of the violator of the right, is also an essential
parameter for distinction between the two rights and corresponding
remedies. Where the interference with a recognized right is by the State
or any other entity recognized under Article 12, a claim for the violation
of a fundamental right would lie under Articles 32 and 226 of the
Constitution before this Court or before the High Court respectively.
Where interference is by an entity other than State or its
88
instrumentalities, an action would lie under common law and to such
extent, the legal scheme recognises horizontal operation of such rights.
43. Though the content of the Fundamental Right may be identical
under the Constitution with the common law right, it is only the
common law right that operates horizontally except when those
Fundamental Rights have been transformed into statutory rights under
specific enactments or where horizontal operation has been expressly
recognised under the Constitution. This is because, the following
difficulties would surface if the Fundamental Rights enshrined under
Article 19 and 21 are permitted to operate horizontally so as to seek the
remedy by way of a writ petition before a Constitutional Court:
i) No recognition that Fundamental Rights enshrined under Article
19 and 21 are permitted to operate horizontally can be made except
by ignoring the elementary differences between a Fundamental
Right and the congruent common law right. Such a recognition
could proceed only by ignoring the fact that the incidence of the
duty to respect a Fundamental Right is on t he State and its
instrumentalities. Recognition of horizontal enforceability of
Fundamental Rights would also ignore the status of the violator of
the right except when a Fundamental Right is also recognised as a
statutory right against another person or citizen. Therefore, such a
recognition is misplaced as it proceeds with total disregard to the
elementary differences in status of the two forms of rights,
incidence of duty to respect each of such forms of rights, and the
89
forum which would be called upon to adjudicate on the failure to
respect each of such rights.
ii) The following decisions of this Court are demonstrative of its
disinclination or reluctance in recognising that Fundamental
Rights enshrined under Article 19 and 21 are permitted to operate
horizontally:
a) In P.D. Shamdasani vs. Central Bank of India Ltd., A.I.R.
1952 SC 59, a Constitution Bench of this Court refused to
entertain a Writ Petition filed under Article 32 of the
Constitution, wherein a prayer was made to enforce the right
under Article 19(1)(f) and Article 31(1), as they then stood,
against a private entity. In that context, it was held that the
language and structure of Article 19 and its setting in Part III
of the Constitution clearly show that the Article was intended
to protect those freedoms against State action. This Court
declared that violation of rights of property by individuals or
entities other than the State and its instrumentalities, was not
within the purview of Article 19(1)(f).
Further, this Court made a comparison between Article
31(1), as it then stood, and Article 21 as both Articles cast a
negative duty on the State. In that context it was held that
although there is no express reference to the State in Article
21, it could not be suggested that the Article was intended to
90
afford protection to life and liberty against violation by private
individuals. That the words “except by procedure established
by law” exclude such suggestion that Article 21 would operate
horizontally.
The aforesaid decision is illustrative of this Court’s
reluctance to hold that the Fundamental Rights under Articles
19 or 21 of the Constitution, would operate horizontally. It is
also to be noted that in the aforesaid case, this Court has
acknowledged that a suitable remedy exists under statutory
law to redress the infraction complained of. Therefore, while
this Court was mindful that the rights in the realm of common
law, some of which have gained statutory recognition, operate
horizontally, the Fundamental Rights under Articles 19 and
21, do not, except in the case of seeking a writ in the nature of
habeas corpus.
(b) In Zoroastrian Cooperative Housing Society Limited vs.
District Registrar, Cooperative Societies (Urban), (2005) 5
SCC 632, the Petitioner society was a registered society with
its own bye-laws, under its parent legislation, the Bombay
Cooperative Societies Act. As per bye-law 7, only members of
the Parsi community were eligible to become members of the
Society. The effect of this was that since housing shares could
be transferred only to members, effectively, only Parsis could
91
buy plots under the aegis of the Cooperative Society. This
restrictive covenant in the bye-laws became the subject matter
of challenge before this Court, inter-alia, on the ground that it
violated the right to equality enshrined in the Constitution.
This Court refused to accept such a challenge and held that
the Society’s bye-laws were in the nature of Articles of
Association of a company and were not like a statute. The bye-
laws were only “binding between the persons affected by them.”
That a private contractual agreement is not subject to general
scrutiny under Part III of the Constitution. This Court further
distinguished between a discriminatory legislation passed by
the State and a discriminatory bye -laws of a society or
association, which is not ‘State’. Accordingly, it held that while
a legislation may be subject to a challenge on the touchstone
of Part III of the Constitution, bye-laws of a society or
association, could not.
This decision is also demonstrative of this Court’s
disapproval of horizontal operation of fundamental rights,
making them directly applicable to interactions, whether
contractual or otherwise, between private parties.
iii) I am however mindful of the fact that over the years, the
conception of “State” as defined under Article 12 of the
Constitution has undergone significant metamorphosis.
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Through its jurisprudential labour, this Court has devised
several principles and doctrines, so as to enable citizens to
enforce their fundamental rights not only against “State” as
defined in the strict sense to mean “agency of the Government,”
but also against entities imbued with public character, or
entitles which perform functions which closely resemble
governmental functions. [See: Pradeep Kumar Biswas vs.
Indian Institute of Chemical Biology, (2002) 5 SCC 111;
Zee Telefilms Ltd. vs. Union of India, (2005) 4 SCC 649;
Janet Jeyapaul vs. S.R.M. University, (2015) 16 SCC 530]
This Court has progressively expanded the scope of Article
12 of the Constitution so as to ensure that a private entity,
which performs a public duty/function and therefore informs
our national life, does not get away scott-free merely because
it is not “State” stricto sensu. Such entitles are imbued with
constitutional obligations on account of the public or statutory
functions performed by them. At this juncture, it is necessary
to reflect on the difference between holding that Fundamental
Rights may be enforced against a private entity on account of
the public nature of its functions, as contrasted with universal
operation of fundamental rights claims against all persons. A
private body, acting in private capacity, fulfilling a private
93
function, cannot be axiomatically amenable to the claims of
fundamental rights violations.
The decision of this Court in Ramakrishna Mission vs.
Kago Kunya, (2019) 16 SCC 303 is also highly instructive on
the issue of amenability of actions of private entities, to judicial
review under Article 226 of the Constitution of India. In the
said case, the issue before this Court was whether the Hospital
run by the Petitioner Mission performed a public function that
made it amenable to writ jurisdiction under Article 226. This
Court found that the Hospital and the Mission were not
amenable to writ jurisdiction under Article 226 since running
a hospital would not constitute a public function. This Court
further highlighted that even when a private entity performs a
public function, the Court would be required to enquire as to
whether the grant in aid received by the said entity covers a
significant portion of its expenditure. This Court went on to
declare that regulation of a private body by a statute does not
give it the colour of a public function. A public function was
held to be one which is “closely related to functions which are
performed by the State in its sovereign capacity.”
Accordingly, it was held that the Hospital was not performing
a public function since the functions it performed were not
“akin to those solely performed by State authorities.” It was
94
held that medical services were provided by private as well as
State entities and therefore, the nature of medical services was
not such that they could be carried out solely by State
authorities.
Thus, according to the decision of this Court in
Ramakrishna Mission , regulation by the State either through
a statute or otherwise; receipt of a meagre amount of aid from
the State; receipt of concessions by the State; do not make a
private entity amenable to the writ jurisdiction of Courts under
Article 226 of the Constitution.
Thus, recognising a horizontal approach of Fundamental
Rights between citizens inter se would set at naught and render
redundant, all the tests and doctrines forged by this Court to
identify “State” for the purpose of entertaining claims of
fundamental rights violations. Had the intention of this Court
been to allow Fundamental Rights, including the rights under
Articles 19 and 21, to operate horizontally, this Court would
not have engaged in evolving and refining tests to determine
the true meaning and scope of “State” as defined under Article
12. This Court would have simply entertained claims of
fundamental rights violations against all persons and entities,
without deliberating on fundamental questions as to
maintainability of the writ petitions. Although this Court has
95
significantly expanded the scope of “State” as defined under
Article 12, such expansion is based on considerations such as
the nature of functions performed by the entity in question and
the degree of control exercised over it by the State as such.
This is significantly different from recognising horizontality of
the fundamental rights under Articles 19 and 21, except while
seeking a writ in the nature of habeas co rpus. Such a
recognition would amount to disregarding the jurisprudence
evolved by this Court as to the scope of Article 12 of the
Constitution.
iv) Another aspect that needs consideration is that a Writ Court,
does not ordinarily adjudicate to issue Writs in cases where
alternate and efficacious remedies exist under common law or
statutory law particularly against private persons. Therefore,
even if horizontal operation of the Fundamental Rights under
Article 19/21 is recognised, such recognition would be of no
avail because the claim before a Writ Court of fundamental
rights violations would fail on the ground that the congruent
common law right which is identical in content to the
Fundamental Right, may be enforced by having recourse to
common law remedies. Therefore, on the ground that there
exists an alternate and efficacious remedy in common law, the
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horizontal claim for fundamental rights violations would fail
before a Writ Court.
This may be better understood by way of an illustration.
Let me assume fo r the purpose of argument that the
Fundamental Right under Article 19(1)(a) read with Article 21
is allowed to operate horizontally. A person would then be
eligible to file a writ petition, against another private individual
or entity for violation of such right. The violation may for
instance be a verbal attack at the aggrieved person, which may
have the effect of undermining such person’s dignity or
reputation. Dignity and reputation are essential facets of the
right to life under Article 21; at the same time, they are also
recognised as common law rights as they are fundamental
attributes of human personality which is regarded as a
supreme value in common law. Common law remedies,
including declarations, injunctions and damages, are available
to redress any injury to common law rights, including the right
to dignity and reputation. Such remedies are also statutorily
recognised under the Specific Relief Act, 1963 and the Indian
Penal Code. Therefore, on account of availability of an
alternate remedy under common law, the Courts would be
reluctant to entertain a writ petition under Articles 226 or 32,
as the case may be.
97
v) Further, it is trite that Writ Courts do not enter into
adjudication of disputed questions of fact. But, questions
regarding infringement of the fundamental rights under Article
19/21, by a private entity, would invariably involve disputed
questions of fact. Therefore, this is another difficulty that must
be borne in mind while determining the horizontal operation of
such rights in a writ proceeding.
However, there is another aspect of the matter that requires to be
discussed. A writ of habeas corpus is an order directing the person who
has detained another to produce the detainee before the court in order
for the court to ascertain on what ground or for what reason he has
been confined, and to release him if there is no legal justification for the
detention. A writ of habeas corpus is granted ex debito justiae and the
applicant must only demonstrate prima-facie, unlawful detention of
himself or any other person. If there is no justification for the detention
and the same is unlawful, a writ is issued as of right vide Union of
India vs. Paul Manickam, (2003) 8 SCC 342. The importance of a writ
of habeas corpus is the duty being cast on a Constitutional Court to
issue the writ to safeguard the freedom of a citizen against illegal and
arbitrary detention. In my humble view, an illegal detention is a
violation of Article 21 of the Constitution, irrespective of whether the
detention is by the State or by a private person.
98
A petition under Article 226 of the Constitution would therefore lie
before the High Court, not only when the person has been detained by
the State but also when he/she is detained by a private individual vide
Mohd. Ikram Hussain vs. State of Uttar Pradesh , A.I.R. 1964 SC
1625 at 1630. In my view, such a petition under Article 32 of the
Constitution would also lie before this Court for seeking a writ of habeas
corpus in terms of Article 32 (2). Such a writ could be issued not just
against the State which may have illegally detained a person, but even
as against a private person. Hence, in the context of illegal detention,
Article 21 would operate horizontally against private persons also. Such
a departure has to be made although Fundamental Rights are normally
enforced against the State under Article 32 of the Constitution.
Otherwise, the remedy by way of a writ of habeas corpus would be
rendered incomplete if the said remedy is not available against a private
person under Article 32 of the Constitution. Hence in the context of
illegal detention, even by a private person, I would opine that Article 21
would operate horizontally and the writ of habeas corpus could be
issued against a private person just as under Article 226 of the
Constitution, the High Court can issue such a writ against any person
or authority. But even in the context of Article 32(2) of the Constitution,
it may not be proper to restrict the said remedy only as against the State
but the same may be made available even as against private persons, in
which event the power exercised by this Court could be in accordance
99
with Article 142 (1) of the Constitution to do complete justice in the
matter. For ease of reference Article 142(1) may be extracted as under:
vi) “142. Enforcement of decrees and orders of Supreme
Court and unless as to discovery, etc. - ( 1 ) The
Supreme Court in the exercise of its jurisdiction may
pass such decree or make such order as is necessary for
doing complete justice in any cause or matter pending
before it, and any decree so passed or orders so made
shall be enforceable throughout the territory of India in
such manner as may be prescribed by or under any law
made by Parliament and, until provision in that behalf is
so made, in such manner as the President may by order
prescribe.”
Therefore, a writ of habeas corpus could be issued by this Court
under Article 32 of the Constitution, not only against the ‘State’ as
defined under Article 12 of the Constitution but also against a private
individual. This is because illegal detention by a private person is a tort
and of a nature similar to a constitutional tort. The reason for saying so
is because an illegal detention whether by a State or a private person
has a direct and identical effect on the detainee. The detainee loses his
liberty and there may be a threat to his life.
Directions in the nature of writs of habeas corpus have been issued
by this Court on previous occasions , against private individuals,
particularly in cases of kidnapping, child custody etc. [See for instance:
Nirmaljit Kaur (2) vs. State of Punjab, (2006) 9 SCC 364] In such
cases, resorting to the process of instituting a criminal case before a
police station, may prove to be futile because the need of the hour in
such cases is swift action. The writ of habeas corpus under Article 226
100
as well as Article 32 of the Constitution, is festium remidium, i.e., a
speedy remedy, and such remedy needs to be made available even as
against a private individual.
It is appropriate that the High Court concerned under whose
jurisdiction the illegal detention has occurred should be approached
first. In order to invoke jurisdiction of this Court under Article 32 of the
Constitution by approaching this Court directly, it has to be shown by
the Petitioner as to why the concerned High Court has not been
approached. In cases where it would be futile to approach the High
Court, and where satisfactory reasons are indicated in this regard, a
petition seeking issuance of a writ of habeas corpus, may be
entertained. However, in the absence of such circumstances, filing a
petition under Article 32 of the Constitution is not to be encouraged,
vide Union of India vs. Paul Manickam, (2003) 8 SCC 342.
The judicial precedent referred to above are aligned with the
aforesaid discussion.
In light of the aforesaid discussion, Question No. 2 is answered as
follows:
“The rights in the realm of common law, which may be
similar or identical in their content to the Fundamental Rights
under Article 19/21, operate horizontally: However, the
Fundamental Rights under Articles 19 and 21, may not be
justiciable horizontally before the Constitutional Courts except
those rights which have been statutorily recognised and in
accordance with the applicable law. However, they may be the
101
basis for seeking common law remedies. But a remedy in the
form of writ of Habeas Corpus, if sought against a private person
on the basis of Article 21 of the Constitution can be before a
Constitutional Court i.e., by way of Article 226 before the High
Court or Article 32 read with Article 142 before the Supreme
Court.”
Re: Question No. 3: Whether the State is under a duty to
affirmatively protect the rights of a citizen under Article 21 of the
Constitution of India even against a threat to the liberty of a
citizen by the acts or omissions of another citizen or private
agency?
44. In order to answer this question, it may be prudent to consider
the circumstances under which this Court has previously observed that
the State is bound to protect the life and liberty of every human being,
from the following judgments:
i) In Pt. Parmanand Katara vs. Union of India, A.I.R. 1989 SC
2039, this Court was confronted with the question as to whether a
doctor has the professional obligation to instantaneously extend
his services to a person brought for medical treatment, without any
delay on the pretext of compliance with procedural criminal law.
This court declared that the obligation of a doctor to extend his
services with due expertise, for protecting life was paramount and
absolute and any laws of procedure which would interfere with the
discharge of this obligation, would be antithetical to Article 21 of
the Constitution. It was further observed that where there is delay
102
on the part of medical professionals to administer treatment in
emergencies, state action can intervene.
ii) In National Human Rights Commission vs. S tate of Arunachal
Pradesh, (1996) 1 SCC 742, this Court considered a writ petition
filed under Article 32 of the Constitution, pertaining to the threats
held out by the All Arunachal Pradesh Students’ Union, to force
Chakmas out of the State of Arunachal Pradesh. It was the case of
the Petitioner therein that a large number of Chakmas from
erstwhile East Pakistan (now Bangladesh) were displaced by the
Kaptai Hydel Power Project in 1964. They had taken shelter in
Assam and Tripura. Most of them were settled in these States and
became Indian citizens in due course of time. Since a large number
of refugees had taken shelter in Assam, the State Government had
expressed its inability to rehabilitate all of them and requested
assistance in this regard from certain other States. As a result of
such consultations between the North Eastern State s, some
population of Chakmas began residing in Arunachal Pradesh. It
was also stated that many of such persons had made
representations for the grant of citizenship under Section 5(1)(a) of
the Citizenship Act, 1955, however, no decision was communicated
in this regard. In the interim, relations between citizens residing in
Arunachal Pradesh and the Chakmas deteriorated and the latter
were being subjected to repressive measures with a view to
forcibly expel them from the State. In that background, a writ
103
petition came to be filed, alleging, inter-alia, unwillingness on the
part of the State to contain the hostile situation. In that
background, this Court issued a writ of mandamus, inter-alia,
directing the State of Arunachal Pradesh to ensure that the life and
liberty of every Chakma residing in the State is protected, and any
attempt by organised groups to evict or drive them out of the State
is repelled, if necessary, by requisitioning the service of para-
military or police force. It was also directed that the application
made by Chakmas for the grant of citizenship under Section
5(1)(a) of the Citizenship Act, 1955 be considered, and pending
such consideration, no Chakma shall be evicted from the State.
It is to be noted that in the said case, this Court cited the
Fundamental Rights of persons under Article 21 in directing the
State to protect the rights of Chakmas from threats by private
actors. The said directions were issued in the backdrop of the
State’s inaction to mobilise the available machinery to contain the
hostile situation and such inaction had or could have had the effect
of depriving Chakmas of their right to life and personal liberties. It
was in that context that this Court declared that the State is bound
to protect the life and liberty of every human being, be he a citizen
or otherwise.
iii) In Gaurav Kumar Bansal vs. Union of India , (2015) 2 SCC 130,
this Court, in directing the respondents therein to provide ex gratia
104
monetary compensation to the families of the deceased who have
succumbed to the pandemic of Covid-19, in view of Section 12 of
the Disaster Management Act, 2005, relied on Article 21 of the
Constitution.
iv) Similarly, in Swaraj Abhiyan vs. Union of India , (2016) 7 SCC
498, this Court relied on Article 21 of the Constitution, in issuing
a writ of mandamus to the Union of India, to effectively implement
the National Food Security, 2013 in certain parts of the country
which had been affected due to drought.
The aforesaid cases illustrate that this Court has observed that
the State is bound to protect the life and liberty of every human being,
in the following contexts:
a) Where inaction on the part of the State, to contain a hostile
situation between private actors, could have had the effect of
depriving persons of their right to life and liberty;
b) Where the State had failed to carry out its obligations under a
statute or a policy or scheme, and such failure could have had the
effect of depriving persons of their right to life and liberty.
c) It is therefore clear that the acknowledgement of this Court of the
duty of the State under Article 21, only pertains to a negative duty
not to deprive a person of his right to life and personal liberty,
except in accordance with law. This Court has not recognised an
affirmative duty on the part of the State under Article 21 of the
105
Constitution to protect the rights of a citizen, against a threat to
the liberty of a citizen by the acts or omissions of another citizen or
private agency. Of course, there exist a plethora of statutes which
cast an obligation on the State and its machinery to contain hostile
situations between private actors; to repel any action by private
actors which would undermine the life and liberty 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 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 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.
In light of the aforesaid discussion, Question No. 3 is answered
as follows:
106
“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
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 p rivate 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
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.”
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
personal capacity; second, in his official capacity and as a delegate of
the Government. It is a no brainer that in respect of the former category
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 embody
the views of the Government, then, such statements can be
107
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
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 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 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’?
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
108
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
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 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
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
against the State including local authorities and other authorities as
defined under Article 12 of the Constitution which is an inclusive
109
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 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”.
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
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.
50. Even prior to the commencement of the Constitution, the liability
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
110
of India and State Governments were held liable for 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 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 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 v s.
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.
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52. Article 21 has played a significant role in shaping the law on
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 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 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 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.
112
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
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 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.
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 in
public law based on strict liability for contravention of fundamental
rights. In respect of such actions, the doctrine of sovereign immunity
113
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.
Public law proceedings are based on the concept of strict liability for
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,
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 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 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
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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
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
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 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 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,
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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) 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 empl oyees were off duty, but were
present at the premises owned and operated by the Government
(Railways) . The writ 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 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.
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
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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, 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, 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) 4
SCC 543, this Court held that exercise of writ jurisdiction would be
inappropriate where there were disputed questions of fact that required
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.’
Therefore, this Court has recognised that factual disputes could
operate as a limit on the Courts’ ability to treat a matter as being
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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.
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 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.
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 treating an act or omission as a
constitutional tort only where there has been an infraction of
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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.
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
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.
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 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
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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 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 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
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.
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
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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.
In light of the aforesaid discussion, Question No. 5 is answered 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 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:
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 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 control
the actions and speech of its functionaries and members. This could
be through enactment of a Code of Conduct which would prescribe
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the limits of permissible speech by functionaries and members of
the respective political parties.
c) Any citizen, who is prejudiced by any form of attack, as a result of
speech/expression through any medium, targeted against her/him
or 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 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.
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 an
appropriate Bench after seeking orders of Hon’ble the Chief Justice of
India.
…………..….………J.
B.V. NAGARATHNA
NEW DELHI,
03 JANUARY, 2023.
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