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Kaushal Kishor vs The State of Uttar Pradesh & Ors.

Writ Petition (Criminal) · 2023 INSC 4Decided 3 Jan 2023
Writ Petition (Criminal) No. 113 of 2016
S. Abdul Nazeer · B.R. Gavai · A.S. Bopanna · V. Ramasubramanian · B.V. Nagarathna delivering a separate

Background

In July 2016, a family travelling on National Highway 91 near Bulandshahr, Uttar Pradesh, was waylaid by a gang that robbed them and gang-raped the petitioner's wife and minor daughter. While the case was under investigation, the then Urban Development Minister of Uttar Pradesh held a press conference calling the incident a "political conspiracy". The petitioner came to the Supreme Court fearing an unfair investigation and seeking action against the Minister for his remarks. A tagged petition from Kerala concerned a State Electricity Minister who had made derogatory statements about women; the Kerala High Court had refused to direct the Chief Minister to frame a code of conduct for Ministers. A three-judge bench referred five constitutional questions to a Constitution Bench, chiefly whether extra limits can be placed on a Minister's free speech, and whether the government is answerable for what a Minister says.

Decision Breakdown

The majority answered the five questions as follows. (1) The grounds in Article 19(2) for restricting free speech are exhaustive: no additional restrictions can be imposed on a Minister or anyone else by invoking other fundamental rights such as Article 21 or by pitting two fundamental rights against each other. (2) The rights under Articles 19 and 21 can be enforced even against private persons, not only the State. (3) The State has an affirmative duty to protect a person's life and personal liberty under Article 21 even where the threat comes from a private actor. (4) A Minister's statement, even one connected to the affairs of the State, cannot be attributed to the government under the doctrine of collective responsibility: the Minister answers for it personally. (5) A mere statement by a Minister that is inconsistent with a citizen's fundamental rights is not by itself a "constitutional tort" actionable in damages; but if officials then act, or fail to act, because of that statement and cause harm, that may be actionable. The Court refused to lay down a code of conduct for Ministers. Justice Nagarathna agreed on Question 1 but differed on the rest: in her view fundamental rights under Articles 19 and 21 are generally not enforceable "horizontally" against private persons in constitutional courts (except through statutory remedies or a habeas corpus writ); the State's Article 21 duty is primarily a negative duty not to deprive life or liberty, plus its statutory obligations; a Minister's statement made in the course of State affairs can be attributed to the government if it reflects the government's view, otherwise it is personal; and whether hateful or disparaging speech by public functionaries should be curbed is a matter for Parliament and political parties' own codes of conduct, with affected citizens free to seek civil and criminal remedies. The petitions were sent back to a regular bench for disposal.

Lesson Learnt

Ministers enjoy the same freedom of speech as any citizen, restricted only by the specific grounds in Article 19(2), and the government is not legally responsible for a Minister's offensive remarks, but a Minister can be held personally answerable, and a citizen whose life or liberty is threatened, even by a private person, can insist that the State act to protect them. The Court also confirmed that fundamental rights are not only a shield against the government but can be asserted against private individuals too.

Official source (sci.gov.in)View Judgment (PDF)

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