KAUSHAL KISHOR versus STATE OF UTTAR PRADESH & ORS.

[2023] 8 S.C.R. 581

KAUSHAL KISHOR

STATE OF UTTAR PRADESH & ORS.

(Writ Petition (Criminal) No. 113 of 2016)

JANUARY 03, 2023

[S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA,V. RAMASUBRAMANIAN AND B. V. NAGARATHNA, JJ.]

Constitution of India – Arts. 19(1)(a) and 19(2) – Are thegrounds specified in Article 19(2) in relation to which reasonablerestrictions on the right to free speech can be imposed by law,exhaustive, or can restrictions on the right to free speech be imposedon grounds not found in Article 19(2) by invoking other fundamentalrights – Held: The grounds lined up in Art.19(2) for restricting theright to free speech are exhaustive – Under the guise of invokingother fundamental rights or under the guise of two fundamentalrights staking competing claim against each other, additionalrestrictions not found in Article 19(2), cannot be imposed on theexercise of the right conferred by Article 19(1)(a) upon anyindividual.

Constitution of India – Arts. 19 and 21 – Can fundamentalright under Article 19 or 21 be claimed other than against the ‘State’or its instrumentalities – Held (per V. Ramasubramanian, J.) (for S.Abdul Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself): Afundamental right under Article 19/21 can be enforced even againstpersons other than the State or its instrumentalities – Held (perB.V. Nagarathna, J.): The rights in the realm of common law, whichmay be similar or identical in their content to the Fundamental Rightsunder Article 19/21, operate horizontally – However, theFundamental Rights under Arts. 19 and 21, may not be justiciablehorizontally before the Constitutional Courts except those rightswhich have been statutorily recognised and in accordance with theapplicable law – However, they may be the basis for seeking commonlaw remedies – But remedy in the form of writ of Habeas Corpus,if sought against private person on the basis of Article 21 can bebefore Constitutional Court i.e., by way of Article 226 before theHigh Court or Article 32 read with Article 142 before the SupremeCourt.581

AConstitution of India – Art. 21 – Whether the State is under aduty to affirmatively protect the rights of citizen under Art.21even against threat to the liberty of citizen by the acts or omissionsof another citizen or private agency – Held (per V.Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S.Bopanna, JJ., and himself): The State is under duty to affirmativelyBprotect the rights of person under Article 21, whenever there is athreat to personal liberty, even by non-State actor – Held (perB.V. Nagarathna, J.): The duty cast upon the State under Article 21is negative duty not to deprive person of his life and personalliberty except in accordance with law – The State has an affirmativeCduty to carry out obligations cast upon it under statutory andconstitutional law, which are based on the Fundamental Rightguaranteed under Article 21 of the Constitution – Such obligationsmay require interference by the State where acts of private actormay threaten the life or liberty of another individual –Failure tocarry out the duties enjoined upon the State under statutory law toDprotect the rights of citizen, could have the effect of depriving acitizen of his right to life and personal liberty – When citizen is sodeprived of his right to life and personal liberties, the State wouldhave breached the negative duty cast upon it under Art.21.Doctrines / Principles – Principle of Collective ResponsibilityE– Can statement made by Minister, traceable to any affairs ofState or for protecting the Government, be attributed vicariously tothe Government itself, especially in view of the principle of CollectiveResponsibility – Held (per V. Ramasubramanian, J.) (for S. AbdulNazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself) : statementFmade by Minister even if traceable to any affairs of the State orfor protecting the Government, cannot be attributed vicariously tothe Government by invoking the principle of collective responsibility– Held (per B.V. Nagarathna, J.): statement made by Minister iftraceable to any affairs of the State or for protecting theGovernment, can be attributed vicariously to the Government byGinvoking the principle of collective responsibility, so long as suchstatement represents the view of the Government also – If such astatement is not consistent with the view of the Government, then itis attributable to the Minister personally.

Tort – Constitutional Tort – Whether statement by Minister,inconsistent with the rights of citizen under Part III of theConstitution, constitutes violation of such constitutional rightsand is actionable as ‘Constitutional Tort” – Held (per V.Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S.Bopanna, JJ., and himself) : mere statement made by Minister,inconsistent with the rights of citizen under Part III of theConstitution, may not constitute violation of the constitutionalrights and become actionable as Constitutional tort – But if as aconsequence of such statement, any act of omission or commissionis done by the officers resulting in harm or loss to person/citizen,then the same may be actionable as constitutional tort – Held(Per B.V. Nagarathna, J.): proper legal framework is necessaryto define the acts or omissions which would amount to constitutionaltort and the manner in which the same would be redressed orremedied on the basis of judicial precedent.

Answering the Reference, the Court

Per V. Ramasubramanian, J. (For S. Abdul Nazeer, B.R.Gavai, and A.S. Bopanna, JJ. and himself) (Majority opinion)

HELD: 1. The restrictions under clause (2) of Article 19are comprehensive enough to cover all possible attacks on theindividual, groups/classes of people, the society, the court, thecountry and the State. This is why this Court repeatedly held thatany restriction which does not fall within the four corners of Article19(2) will be unconstitutional. [Para 28][635-E-F]

2. That the Executive cannot transgress its limits byimposing an additional restriction in the form of Executive orDepartmental instruction was emphasised by this Court in BijoeEmmanuel vs. State of Kerala. The Court made it clear that thereasonable restrictions sought to be imposed must be through“a law” having statutory force and not mere Executive orDepartmental instruction. The restraint upon the Executive notto have back-door intrusion applies equally to Courts. WhileCourts may be entitled to interpret the law in such manner thatthe rights existing in blue print have expansive connotations,the Court cannot impose additional restrictions by using tools ofinterpretation. [Para 29][635-H; 636-A-B]

A3. Since the eight heads of restrictions contained in clause(2) of Article 19 seek to protect: (i) the individual – against theinfringement of his dignity, reputation, bodily autonomy andproperty; (ii) different sections of society professing andpracticing, different religious beliefs/sentiments - againstoffending their beliefs and sentiments; (iii) classes/groups ofBcitizens 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 - againstthe breach of its security; (vi) the country - against an attack onits sovereignty and integrity; (vii) the Court – against an attemptCto undermine its authority, and therefore the restrictionscontained in clause (2) of Article 19 are exhaustive and no furtherrestriction need to be incorporated. [Para 32][639-D-G]

4. In any event, the law imposing any restriction in termsof clause (2) of Article 19 can only be made by the State and notDby the Court. The role envisaged in the Constitutional schemefor the Court, is to be gate-keeper (and conscience keeper)to check strictly the entry of restrictions, into the temple offundamental rights. The role of the Court is to protect fundamentalrights limited by lawful restrictions and not to protect restrictionsand make the rights residual privileges. Clause (2) of Article 19Esaves (i) the operation of any existing law; and (ii) the making ofany law by the State. Therefore, it is not for the court to add oneor more restrictions than what is already found. [Para 33][639-H;640-A-B]

5. The exercise of all fundamental rights by all citizens isFpossible only when each individual respects the other person’srights. This Court has always struck balance whenever it wasfound that the exercise of fundamental rights by an individual,caused inroads into the space available for the exercise offundamental rights by another individual. The emphasis even inGthe Preamble on “fraternity” is an indication that the survival ofall fundamental rights and the survival of democracy itselfdepends upon mutual respect, accommodation and willingnessto co-exist in peace and tranquility on the part of the citizens.The Fundamental Duty enjoined upon every citizen of the countryunder Article 51-A(e) to “promote harmony and the spirit ofH

common brotherhood amongst all the people of India transcendingreligious, linguistic and regional or sectional diversities and torenounce practices derogatory to the dignity of women”, is alsoan indicator that no one can exercise his fundamental right in amanner that infringes upon the fundamental right of another. [Para40][640-B-E]

6. The grounds lined up in Article 19(2) for restricting theright to free speech are exhaustive. Under the guise of invokingother fundamental rights or under the guise of two fundamentalrights staking competing claim against each other, additionalrestrictions not found in Article 19(2), cannot be imposed on theexercise of the right conferred by Article 19(1)(a) upon anyindividual. [Para 45][652-B-D]

7. Wherever Constitutional rights regulate and impact onlythe conduct of the Government and Governmental actors, in theirdealings with private individuals, they are said to have “a verticaleffect”. But wherever Constitutional rights impact even therelations between private individuals, they are said to have “ahorizontal effect”. [Para 47][652-E-F]

8. After defining the expression “the State” in Article 12and after declaring all laws inconsistent with or in derogation ofthe fundamental rights to be void under Article 13, Part -III ofthe Constitution proceeds to deal with rights. There are someArticles in Part- III where the mandate is directly to the Stateand there are other Articles where without injuncting the State,certain rights are recognized to be inherent, either in the citizensof the country or in persons. In fact, there are two sets ofdichotomies that are apparent in the Articles contained in PartIII. One set of dichotomy is between (i) what is directed againstthe State; and (ii) what is spelt out as inhering in every individualwithout reference to the State. The other dichotomy is between(i) citizens; and (ii) persons. The Articles of Part-III are in theform of directive to the State, while others are not. This is anindication that some of the rights conferred by Part -III are to behonored by and also enforceable against, non--State actors. [Para73, 74][664-C-D; 667-A]

A9. The original thinking of this Court that these rightscan be enforced only against the State, changed over period oftime. The transformation was from “State” to “Authorities” to“instrumentalities of State” to “agency of the Government” to“impregnation with Governmental character” to “enjoyment ofmonopoly status conferred by State” to “deep and pervasiveBcontrol” to the “nature of the duties/functions performed”.Therefore “A fundamental right under Article 19/21 can beenforced even against persons other than the State or itsinstrumentalities “. [Para 78][678-F-G; 679-A]

10. The expression “the State” is not used in Article 21.CThis Article 21 guarantees every person that he shall not bedeprived of his life and liberty except according to the procedureestablished by law. Going by the scheme of Part -III it is clearthat the State has two obligations, (i) not to deprive person ofhis life and liberty except according to procedure established byDlaw; and (ii) to ensure that the life and liberty of person is notdeprived even otherwise. Article 21 does not say “the State shallnot deprive person of his life and liberty”, but says that “noperson shall be deprived of his life or personal liberty”. [Para81][679-D, E]

E11. The understanding of this Court in A.K. Gopalan, thatdeprivation of personal liberty required physical restraint,underwent change in Kharak Singh and Gobind . From there,the law marched to the next stage in Satwant Singh Sawhney vs.D. Ramarathnam, Assistant Passport Officer, New Delhi where aConstitution Bench of this Court held by majority, that the rightFto personal liberty included the right of locomotion and right totravel abroad. It was held in the said decision that “liberty” inour Constitution bears the same comprehensive meaning as isgiven to the expression “liberty” by the 5th and 14th Amendmentsto the U.S. Constitution and the expression “personal liberty” inGArticle 21 only excludes the ingredients of “liberty” enshrinedin Article 19 of the Constitution. The Court went on to hold that“the expression “personal liberty” in Art. 21 takes in the rightof loco-motion and to travel abroad, but the right to movethroughout the territories of India is not covered by it inasmuchas it is specially provided in Art. 19. [Para 88][683-F-H; 684-A]H12. Technological eavesdropping except in accordance withthe procedure established by law was frowned upon by the Court.This was at time when mobile phones had not become the orderof the day and the State monopoly was yet to be replaced by privateplayers such as intermediaries/service providers. Today, theinfringement of the right to privacy is mostly by private playersand if fundamental rights cannot be enforced against non--Stateactors, this right will go for toss. [Para 97][688-D, E]

13. The expression “collective responsibility” can be tracedto some extent, to Article 75(3) insofar as the Union is concernedand to Article 164(2) insofar as the States are concerned. But inboth the Articles, it is the Council of Ministers who are stated tobe collectively responsible to the House of the People/LegislativeAssembly of the State. Generally collective responsibility of theCouncil of Ministers either to the House of the People or to theAssembly should be understood to correlate to the decisions andactions of the Council of Ministers and not to every statementmade by every individual Minister. [Para 112][693-F, G]

14. What follows from the discussion is, (i) that the conceptof collective responsibility is essentially political concept; (ii)that the collective responsibility is that of the Council ofMinisters; and (iii) that such collective responsibility is to theHouse 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 toextend this concept of collective responsibility to any and everystatement orally made by Minister outside the House of thePeople/Legislative Assembly. statement made by Ministereven if traceable to any affairs of the State or for protecting theGovernment, cannot be attributed vicariously to the Governmentby invoking the principle of collective responsibility. [Para 126,137][701-A, B; 704-E]

15. This Court and the High Courts have been consistentin invoking Constitutional tort whenever an act of omission andcommission on the part of public functionary, including

AMinister, caused harm or loss. But the matter pre-eminentlydeserves proper legal framework so that the principles andprocedure are coherently set out without leaving the matter openended or vague. In fact, the First Report of the Law Commissionsubmitted draft bill way back in 1956. This Court recommendeda legislative measure in Kasturi Lal in 1965 and bill calledBGovernment (Liability in Torts) Bill was introduced in 1967. Butnothing happened in the past 55 years. In such circumstances,courts cannot turn blind eye but may have to imaginatively fashionthe remedy to be provided to persons who suffer injury or loss,without turning them away on the ground that there is no properClegal frame work. Therefore, “A mere statement made by aMinister, inconsistent with the rights of citizen under Part -III ofthe Constitution, may not constitute violation of the constitutionalrights and become actionable as Constitutional tort. But if as aconsequence of such statement, any act of omission or commissionis done by the officers resulting in harm or loss to person/citizen,Dthen the same may be actionable as constitutional tort”. [Para153, 154][715-F-H; 716-A, B]

Sahara India Real Estate Corporation Limited v.Securities and Exchange Board of India (2012) 10 SCC603 : [2012] 12 SCR 256; Justice K.S. Puttaswamy v.EUnion of India (2017) 10 SCC 1 : [2017] 10 SCR 569;A. Sanjeevi Naidu v. State of Madras (1970) 1 SCC443 : [1970] 3 SCR 505 and State of Karnataka v.Union of India. (1977) 4 SCC 608 : [1978] 2 SCR 1 –followed.

Express Newspapers (Private) Ltd. v. The Union of India[1959] SCR 12; Sakal Papers (P) Ltd. v. The Union ofIndia [1962] 3 SCR 842; Bijoe Emmanuel v. State ofKerala (1986) 3 SCC 615 : [1986] 3 SCR 518;Ram Jethmalani v. Union of India (2011) 8 SCC 1 :G[2011] 8 SCR 725; Secretary, Ministry of Information& Broadcasting, Govt. of India v. Cricket Associationof Bengal (1995) 2 SCC 161 : [1995] 1 SCR 1036;Ramlila Maidan Incident, in re. (2012) 5 SCC 1 : [2012]4 SCR 971; R. Rajagopal alias R. R. Gopal v. State of

T.N (1994) 6 SCC 632 : [1994] 4 Suppl. SCR 353;People’s Union for Civil Liberties (PUCL) v. Union ofIndia (2003) 4 SCC 399 : [2003] 2 SCR 1136; NoisePollution (V.), in Re (2005) 5 SCC 733 : [2005] 1 Suppl.SCR 624; Thalappalam Service Cooperative Bank Ltd.v. State of Kerala (2013) 16 SCC 82 : [2013] 14SCR 475; Subramanian Swamy v. Union of India,Ministry of Law (2016) 7 SCC 221 : [2016] 3 SCR 865;Asha Ranjan v. State of Bihar (2017) 4 SCC 397 : [2017]1 SCR 945; Railway Board representing the Union ofIndia v. Niranjan Singh (1969) 1 SCC 502 : [1969] 3SCR 548; Life Insurance Corporation of India v. Prof.Manubhai D. Shah (1992) 3 SCC 637 : [1992] 3 SCR 595; S. Krishnan v. State of Madras AIR 1951 SC 301: [1951] SCR 621; Pt. Parmanand Katara v. Union ofIndia (1989) 4 SCC 286 : [1989] 3 SCR 997; ShaktiVahini v. Union of India & Ors. (2018) 7 SCC 192 :[2018] 3 SCR 770; R.K. Jain v. Union of India (1993)4 SCC 119 : [1993] 3 SCR 802; Secretary, JaipurDevelopment Authority, Jaipur v. Daulat Mal Jain(1997) 1 SCC 35 : [1996] 6 Suppl. SCR 584; VineetNarain v. Union of India (1998) 1 SCC 226 : [1997] 6Suppl. SCR 595; Common Cause, Registered Societyv. Union of India (1999) 6 SCC 667 : [1999] 3SCR 1279 and State (NCT of Delhi) v. Union of India(2018) 8 SCC 501 : [2018] 7 SCR 1 – relied on.

Amish Devgan v. Union of India (2021) 1 SCC 1 –distinguished.

Romesh Thappar v. State of Madras AIR 1950 SC 124: [1950] SCR 594; Rustom Cavasjee Cooper v. Unionof India (1970) 1 SCC 248 : [1970] 3 SCR 530;Satwant Singh Sawhney v. D. Ramarathna m, AssistantPassport Officer, New Delhi AIR 1967 SC 1836 : [1967]2 SCR 525; Maneka Gandhi v. Union of India (1978)1 SCC 248 : [1978] 2 SCR 621; Bandhua MuktiMorcha v. Union of India & Ors. (1984) 3 SCC 161 :[1984] 2 SCR 67; National Human Rights Commissionv. State of Arunachal Pradesh & Anr. (1996) 1 SCC

742 : [1996] 1 SCR 278; Mr. ‘X’ v. Hospital ‘Z’ (1998)8 SCC 296 : [1998] 1 Suppl. SCR 723; People’s Unionfor Civil Liberties (PUCL) v. Union of India (1997) 1SCC 301 : [1996] 10 Suppl. SCR 321; M/s. KasturiLal Ralia Ram Jain v. The State of Uttar Pradesh, AIR1965 SC 1039 : [1965] 1 SCR 375; State of Rajasthanv. Mst. Vidhyawati AIR 1962 SC 933 : [1962] Suppl. SCR 989; Rudul Sah v. State of Bihar (1983) 4 SCC141 : [1983] 3 SCR 508; Nilabati Behera (Smt.) AliasLalita Behera (Through the Supreme Court Legal AidCommittee) v. State of Orissa (1993) 2 SCC 746 : [1993]2 SCR 581; Jumuna Prasad Mukhariya v. Lachhi Ram[1955] 1 SCR 608; People’s Union for DemocraticRights v. Union of India (1982) 3 SCC 235 : [1983] 1SCR 456; Bodhisattwa Gautam v. Subhra Chakraborty(Ms.) (1996) 1 SC 490 : [1995] 6 Suppl. SCR 731;M. C. Mehta v. Kamal Nath (2000) 6 SCC 213 : [2000]1 Suppl. SCR 389; P. D. Shamdasani v. Central Bankof India Ltd. [1952] SCR 391; State of West Bengal v.Committee for Protection of Democratic Rights, WestBengal (2010) 3 SCC 571 : [2010] 2 SCR 979;S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574 :[1989] 2 SCR 204; Union of India v.K.M.Shankarappa (2001) 1 SCC 582 : [2000] 5 Suppl. SCR 117; Indibly Creative Private Limited v.Government of West Bengal (2020) 12 SCC 436 : [2019]5 SCR 679; State of Maharashtra vs. SarangdharsinghShivdassingh Chavan (2011) 1 SCC 577 : [2010] 15SCR 1145; Manoj Narula v. Union of India (2014) 9SCC 1 : [2014] 9 SCR 965; R. Sai Bharathi v.J. Jayalalitha (2004) 2 SCC 9 : [2003] Suppl. SCR 85;Praga Tools Corporation v. Shri C.A. Imanual (1969) 1SCC 585 : [1969] 3 SCR 773; Andi Mukta SadguruShree Muktajee Vandas Swami Suvarna JayantiMahotasav Smarak Trust v. V. R. Rudani (1989) 2 SCC691 : [1989] 2 SCR 697; M. C. Mehta v. Union of IndiaAIR 1987 SC 1086 : [1987] 1 SCR 819; Binny Ltd. v.V. Sadasivan (2005) 6 SCC 657 : [2005] 2 Suppl. SCR 421; Society for Unaided Private Schools of

Rajasthan v. Union of India (2012) 6 SCC 1 : [2012] 2SCR 715; Pravasi Bhalai Sangathan v. Union of India(2014) 11 SCC 477 : [2014] 4 SCR 446; KodungallurFilm Society v. Union of India (2018) 10 SCC 713 :[2018] 12 SCR 695; Brij Bhushan v. The State of DelhiAIR 1950 SC 129 : [1950] SCR 605; State of Madrasv. V. G. Row (1952) 1 SCC 410; Smt. Vidya Varma v. Dr.Shiv Narain Varma AIR 1956 SC 108 : [1955] 2SCR 983; Sukhdev Singh v. Bhagatram Sardar SinghRaghuvanshi (1975) 1 SCC 421 : [1975] 3 SCR 619;Lucknow Development Authority v. M.K. Gupta (1994)1 SCC 243 : [1993] 3 Suppl. SCR 615; Chairman,Railway Board & Ors. v. Chandrima Das (Mrs.) & Ors.(2000) 2 SCC 465 : [2000] 1 SCR 480; M. C. Mehta v.Kamal Nath (1997) 1 SCC 388 : [1996] 10 Suppl. SCR 12; Vellore Citizens’ Welfare Forum v. Union of India(1996) 5 SCC 647 : [1996] 5 Suppl. SCR 241; IndianCouncil for Enviro-Legal Action v. Union of India(1996) 3 SCC 212 : [1996] 2 SCR 503; ConsumerEducation & Research Centre & Ors. v. Union of India& Ors. (1995) 3 SCC 42 : [1995] 1 SCR 626; Vishakav. State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl.SCR 404; Medha Kotwal Lele & Ors. v. Union of India(2013) 1 SCC 297 : [2012] 9 SCR 895; GithaHariharan (Ms.) & Anr. v. Reserve Bank of India &Anr. (1999) 2 SCC 228 : [1999] 1 SCR 669; IndianMedical Association v. Union of India (2011) 7 SCC179 : [2011] 6 SCR 599; Jeeja Ghosh v. Union of India(2016) 7 SCC 761 : [2016] 4 SCR 638; Zee TelefilmsLtd. v. Union of India (2005) 4 SCC 649 : [2005] 1SCR 913; Janet Jeyapaul v. SRM University (2015) 16SCC 530 76; A. K. Gopalan v. State of Madras AIR1950 SC 27 : [1950] SCR 88; R. D. Shetty v.International Airport Authority (1979) 3 SCC 489 :[1979] 3 SCR 1014; Andi Mukta v. V. R. Rudani (1989)2 SCC 691 : [1989] 2 SCR 697; Siddharam SatlingappaMhetre v. State of Maharashtra (2011) 1 SCC 694 :[2010] 15 SCR 201; Kharak Singh v. State of U.P. AIR1963 SC 1295 : [1964] 1 SCR 332; Mohd. Arif Alias

[2023] 8 S.C.R.

Ashfaq v. Registrar, Supreme Court of India & Ors.(2014) 9 SCC 737 : [2014] 11 SCR 1009; Gobind v.State of Madhya Pradesh (1975) 2 SCC 148 : [1975] 3SCR 946; Suchita Srivastava & Anr. v. Chandigarh(2009) 9 SCC 1 : [2009] 13 SCR 989; Devika Biswasv. Union of India (2016) 10 SCC 726; District Registrarand Collector, Hyderabad & Anr. v. Canara Bank &Ors. (2005) 1 SCC 496 : [2004] 5 Suppl. SCR 833;Indian Woman says Gang-raped on orders of villageCourt published in Business and Financial News dated23-1-2014, in Re (2014) 4 SCC 786 : [2014] 4SCR 264; Lata Singh v. State of U.P. (2006) 5 SCC475 : [2006] 3 Suppl. SCR 350; Arumugam Servai v.State of Tamil Nadu (2011) 6 SCC 405 : [2011] 5SCR 488; The State of Bihar v. Abdul Majid AIR 1954SC 245 : [1954] SCR 786 and Khatri (II) vs. State ofBihar (1981) 1 SCC 627 : [1981] 2 SCR 408 – referredto.

John Meskell v. Córas Iompair Éireann 1973 IR 1211972 IR 330; Murtagh Properties Limited v. Cleary 1211972 IR 330; Shelly v. Kraemer 334 U.S. 1 (1948);Lûth Luth (1958) BVerfGE 7, 198; Gitlow v. New York286 US 652 (1925); “Civil Rights Cases” 109 US 3(1883); Jones v. Alfred H. Mayer Co 392 US 409 (1968);New York Times v. Sullivan 376 U.S. 254 (1964); DuPlessis and Others v. De Klerk and Another 1996 ZACC10; Khumalo v. Holomisa (2002) ZACC 12; GoverningBody of the Juma Musjid Primary School & Others v.Essay N.O. and Others (CCT 29/10) [2011] ZACC 13;2011 (8) BCLR 761 (CC); Douglas v. Hello! Ltd. [2001]QB 967; X v. Y [2004] EWCA Civ 662; Plattform “ÄrzteFür Das Leben” v. Austria [1988] ECHR 15 X and Yv. The Netherlands [1985] ECHR 4 Marsh v. Alabama326 US 501 (1946) – referred to.

Anup Surendranath - Article on “Life and PersonalLiberty” in The Oxford Handbook of the IndianConstitution (South Asia Edition), 2016 and FrancesKamm, Morality, Mortality Vol.2, Oxford UniversityHPress, 1996 – referred to.

Per B.V. Nagarathna, J. (Partly dissenting)

HELD: 1. The freedom of speech and expression asenvisaged under Article 19(1)(a) of the Constitution means theright to free speech and to express opinions through variousmedia such as by word of mouth, through the print or electronicmedia, through pictographs, writings, graphics or any othermanner that can be discerned by the mind. The right includesthe freedom of press. The content of this right also includespropagation of ideas through publication and circulation, the rightto seek information and to acquire or impart ideas. In short, theright to free speech would include every nature of right that wouldcome within the scope and ambit of free speech. Hence, Article19(1)(a) in very broad and in wide terms states that all citizensshall have the right to freedom of speech and expression. Thesaid right can be curtailed only by reasonable restrictions whichare enumerated in Article 19(2) thereof which can be imposed bythe State under the authority of law but not by exercise ofexecutive power in the absence of any law. Further, the nature ofrestrictions on right to free speech must be reasonable, and inthe interest of the sovereignty and integrity of India, security ofthe State, friendly relations with foreign States, public order,decency or morality or in relation to contempt of court, defamationor incitement to an offence. (Article 19(2)). For country likeours which is Parliamentary Democracy, freedom of speech andexpression is necessary right as well as concomitant for thepurpose of not only ensuring healthy democracy but also toensure that the citizens could be well informed and educated ongovernance. The dissemination of information through variousmedia, including print and electronic media or audio visual form,is to ensure that the citizens are enlightened about their rightsand duties, the manner in which they should conduct themselvesin democracy and for enabling debate on the policies andactions of the Governments and ultimately for the developmentof the Indian society in an egalitarian way. The right to freedomof speech and expression in Article 19(1)(a) of the Constitutionhas its genesis in the Preamble of the Constitution which, interalia, speaks of liberty of thought, expression, belief. Since, Indiais sovereign democratic republic and we follow parliamentarysystem of democracy, liberty of thought and expression is

Asignificant freedom and right under our constitutional setup. [Para12.3, 12.4, 12.5][730-E-H; 731-A-F]

2. The Constitution of India confers under Article 19(1)(a),the right to freedom of speech and expression to all its citizens.The State has corelative duty to abstain from interference withBsuch right except as provided in Article 19(2) of the Constitutionwhich are reasonable restrictions on the right conferred underArticle 19(1)(a). The extent of such duty depends upon the contentof speech. For instance, in respect of speech that is likely to beadverse to the interests of sovereignty and integrity of India, thesecurity of the State, friendly relations with foreign States, publicCorder, decency or morality; or speech that constitutes contemptof court, defamation or is of such nature as would be likely toincite the commission of an offence, the duty of the State to abstainfrom interference, is nil. This principle is Constitutionally reflectedunder Article 19(2) which enables the State to enact law whichDwould impose reasonable restrictions on such speech as describedunder eight grounds which are the basis for reasonablerestrictions. [Para 14.1][736-A-D]3. The extent of protection of speech would depend onwhether, such speech would constitute ‘propagation of ideas’Eor would have any social value. If the answer to the said questionis in the affirmative, such speech would be protected under Article19(1)(a); if the answer is in the negative, such speech would notbe protected under Article 19(1)(a). In respect of speech thatdoes not form the content of Article 19(1)(a), the State has noduty to abstain from interference having regard to Article 19(2)Fof the Constitution and only the grounds mentioned therein. [Para14.1][736-G-H; 737-A]

4. Having noted that the protective perimeter within whicha person can exercise his/her rights depends on the degree towhich the State is duty bound to protect the right, it may also beGsaid as corollary that in respect of speech that does not formthe content of Article 19(1)(a), the State has no duty to abstainfrom interference and therefore, speech such as hate speech,defamatory speech, etc. would lie outside the protective perimeterwithin which person can exercise his right to freedom of speech.HSuch speech can be subjected to restrictions or restraints. While

restrictions on the right to freedom of speech and expressionare required to be made only under the grounds listed underArticle 19(2), by the State, restraints on the said right, do notgather their strength from Article 19(2). Restraints on the rightto freedom of speech and expression are governed by the contentof Article 19(1)(a) itself; i.e., any kind of speech, which does notconform to the content of the right under Article 19(1)(a), may berestrained. Questions pertaining to the voluntary or bindingnature of such restraint, the force behind the same, the personson whom such restraints are to be imposed, the manner in whichcompliance thereof could be achieved, etc., are aspects left to bedeliberated upon and answered by the Parliament. However, thefinding made hereinabove is only to the extent of clarifying thatany kind of speech, which does not form the content of Article19(1)(a), may be restrained as such speech does not constitutean exchange of ideas, in manner compatible with the ethoscultivated in civilised society. Such restraints need not betraceable only to Article 19(2), which exhaustively lists eightgrounds on which restrictions may be imposed on the right tofreedom of speech and expression by the state. [Para 14.1][737-B-H]

5. Article 19(1)(a) serves as vehicle through which dissentcan be expressed. The right to dissent, disagree and adopt varyingand individualistic points of view inheres in every citizen of thisCountry. In fact, the right to dissent is the essence of vibrantdemocracy, for it is only when there is dissent that different ideaswould emerge which may be of help or assist the Government toimprove or innovate upon its policies so that its governance wouldhave positive effect on the people of the country which wouldultimately lead to stability, peace and development which areconcomitants of good governance. [Para 15.2][739-C-D]

6. Equality, liberty and fraternity are the foundational valuesembedded in the Preamble of our Constitution. ‘Hate speech’,in the sense discussed, strikes at each of these foundationalvalues, by marking out society as being unequal. It also violatesfraternity of citizens from diverse backgrounds, the sine-qua-nonof cohesive society based on plurality and multi-culturalism such

Aas in India that is, Bharat. Democracy, being one of the basicfeatures of our Constitution, it is implicit that in rule by majoritythere would be sense of security and inclusiveness. Further,the Preamble of the Constitution which envisages, inter alia,fraternity, assures that the dignity of individuals cannot be dentedby means of unwarranted speech being made by fellow citizens,Bincluding public functionaries. Thus, the Preamble of theConstitution and the values thereof assuring the people of Indianot only justice, liberty, equality but also fraternity and unity andintegrity of the nation, must remind every citizen of this Countryirrespective of the office or position or power that is held, of theCsublime ideals of the Constitution and to respect them in theirtrue letter and spirit. There is an inbuilt constitutional check toensure that the values of the Constitution are not in any wayundermined or violated. It is high time that we, as society ingeneral and as individuals in particular, re-dedicate ourselves tothe sacred values of the Constitution and promote them not onlyDat our individual level but at the macro level. Any kind of speechwhich undermines the values for which our Constitution standswould cause dent on our social and political values. [Para 26,27.3][762-C, D; 764-G-H; A-D]

7. The status of the violator of the right, is also an essentialEparameter for distinction between the two rights andcorresponding remedies. Where the interference with arecognized right is by the State or any other entity recognizedunder Article 12, claim for the violation of fundamental rightwould lie under Articles 32 and 226 of the Constitution beforeFthis Court or before the High Court respectively. Whereinterference is by an entity other than State or its instrumentalities,an action would lie under common law and to such extent, thelegal scheme recognises horizontal operation of such rights.Though the content of the Fundamental Right may be identicalunder the Constitution with the common law right, it is only theGcommon law right that operates horizontally except when thoseFundamental Rights have been transformed into statutory rightsunder specific enactments or where horizontal operation has beenexpressly recognised under the Constitution. [Para 42, 43][780-F-H; 781-A-B]H8. Recognising horizontal approach of Fundamental Rightsbetween citizens inter se would set at naught and renderredundant, all the tests and doctrines forged by this Court toidentify “State” for the purpose of entertaining claims offundamental rights violations. Had the intention of this Court beento allow Fundamental Rights, including the rights under Articles19 and 21, to operate horizontally, this Court would not haveengaged in evolving and refining tests to determine the truemeaning and scope of “State” as defined under Article 12. ThisCourt would have simply entertained claims of fundamental rightsviolations against all persons and entities, without deliberatingon fundamental questions as to maintainability of the writ petitions.Although this Court has significantly expanded the scope of“State” as defined under Article 12, such expansion is based onconsiderations such as the nature of functions performed by theentity in question and the degree of control exercised over it bythe State as such. This is significantly different from recognisinghorizontality of the fundamental rights under Articles 19 and 21,except while seeking writ in the nature of habeas corpus. Sucha recognition would amount to disregarding the jurisprudenceevolved by this Court as to the scope of Article 12 of theConstitution. Another aspect that needs consideration is that aWrit Court, does not ordinarily adjudicate to issue Writs in caseswhere alternate and efficacious remedies exist under commonlaw or statutory law particularly against private persons. Therefore,even if horizontal operation of the Fundamental Rights underArticle 19/21 is recognised, such recognition would be of no availbecause the claim before Writ Court of fundamental rightsviolations would fail on the ground that the congruent commonlaw 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 andefficacious remedy in common law, the horizontal claim forfundamental rights violations would fail before Writ Court. [Para43][785-A-G]

9. The duty cast upon the State under Article 21 is negativeduty not to deprive person of his life and personal liberty exceptin accordance with law. The State has an affirmative duty to carryout obligations cast upon it under statutory and constitutional

Alaw, which are based on the Fundamental Right guaranteed underArticle 21 of the Constitution. Such obligations may requireinterference by the State where acts of private actor maythreaten the life or liberty of another individual. Failure to carryout the duties enjoined upon the State under statutory law toprotect the rights of citizen, could have the effect of depriving aBcitizen of his right to life and personal liberty. When citizen isso deprived of his right to life and personal liberties, the Statewould have breached the negative duty cast upon it under Article21. [Para 44][792-D-G]

10. statement made by Minister if traceable to any affairsCof the State or for protecting the Government, can be attributedvicariously to the Government by invoking the principle ofcollective responsibility, so long as such statement representsthe view of the Government also. If such statement is notconsistent with the view of the Government, then it is attributableDto the Minister personally. [Para 45][793-D-E]

11. proper legal framework is necessary to define theacts or omissions which would amount to constitutional tort andthe manner in which the same would be redressed or remediedon the basis of judicial precedent. Particularly, it is not prudentEto treat all cases where statement made by public functionaryresulting in harm or loss to person/citizen, as constitutionaltort, except in the context of the answer given to Question No. 4. It is for the Parliament in its wisdom to enact legislation orcode to restrain, citizens in general and public functionaries, inparticular, from making disparaging or vitriolic remarks againstFfellow citizens, having regard to the strict parameters of Article19(2) and bearing in mind the freedom under Article 19(1) (a) ofthe Constitution of India. [Para 66, 67][801-B-D]

Pravasi Bhalai Sangathan v. Union of India (2014) 11SC 477 : [2014] 4 SCR 446; K. S. Puttaswamy (Retd.)Gv. Union of India (2019) 1 SCC 1 : [2018] 8 SCR 1;Subramanian Swamy v. Union of India (2016) 7 SCC221 : [2016] 3 SCR 865; His Holiness KesavanandaBharati Sripadagalvaru v. State of Kerala (1973) 4 SCC225; People’s Union for Civil Liberties v. Union of IndiaH(2005) 2 SCC 436 : [2005] 1 SCR 494; P. D.

Shamdasani v. Central Bank of India Ltd. A.I.R. 1952SC 59 : [1952] SCR 391; Zoroastrian CooperativeHousing Society Limited v. District Registrar,Cooperative Societies (Urban) (2005) 5 SCC 632 :[2005] 3 SCR 592; Ramakrishna Mission v. KagoKunya (2019) 16 SCC 303 : [2019] 5 SCR 452;Parmanand Katara v. Union of India A.I.R. 1989 SC2039 : [1989] 3 SCR 997; National Human RightsCommission v. State of Arunachal Pradesh (1996) 1SCC 742 : [1996] 1 SCR 278; Gaurav Kumar Bansalv. Union of India (2015) 2 SCC 130 : [2014] 7 SCR 725and Swaraj Abhiyan v. Union of India (2016) 7 SCC498 – relied on.

Romesh Thappar v. State of Madras A.I.R. 1950 SC124 : [1950] SCR 594; S. Khushboo v. Kanniammal(2010) 5 SCC 600 : [2010] 5 SCR 322; Shreya Singhalv. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963;Sakal Papers (P) Ltd. v. Union of India A.I.R. 1962SC 305 : [1962] 3 SCR 842; Life InsuranceCorporation vs. Prof. Manubhai D. Shah (1992) 3 SCC637 : [1992] 3 SCR 595; Kedar Nath Singh v. State ofBihar A.I.R. 1962 SC 955 : [1962] Suppl. SCR 769;Directorate General of Doordarshan v. AnandPatwardhan (2006) 8 SCC 433 : [2006] 5 Suppl.SCR 403; Hamdard Dawakhana (Wakf) Lal Kuan v.Union of India A.I.R 1960 SC 554 : [1960] 2 SCR 671; Indian Express Newspaper (Bombay) Pvt. Ltd. v.Union of India (1985) 1 SCC 641 : [1985] 2 SCR 287;Tata Press Limited v. Mahanagar Telephone NigamLimited (1995) 5 SCC 139 : [1995] 2 Suppl. SCR 467;Union of India v. Motion Picture Association A.I.R.1999 SC 2334 : [1999] 3 SCR 875; National LegalServices Authority v. Union of India (2014) 5 SCC 438: [2014] 5 SCR 119; Prabha Dutt v. Union of India(1982) 1 SCC 1 : [1982] 1 SCR 1184; Swapnil Tripathiv. Supreme Court of India (2018) 10 SCC 639 : [2018]11 SCR 57; Union of India v. Naveen Jindal (2004) 2SCC 510 : [2004] 1 SCR 1038; Bijoe Emmanuel v. Stateof Kerala (1986) 3 SCC 615 : [1986] 3 SCR 518; Amish

Devgan v. Union of India (2021) 1 SCC 1; CharuKhurana v. Union of India (2015) 1 SCC 192 : [2014]12 SCR 259; In Re. Noise Pollution (V) (2005) 5 SCC733 : [2005] 1 Suppl. SCR 624; Additional DistrictMagistrate, Jabalpur vs. Shivkant Shukla A.I.R. 1976SC 1207 : [1976] Suppl. SCR 172 ; Pradeep KumarBiswas v. Indian Institute of Chemical Biology (2002) 5SCC 111 : [ 2002] 3 SCR 100; Zee Telefilms Ltd. v.Union of India (2005) 4 SCC 649 : [2005] 1 SCR 913;Janet Jeyapaul v. S.R.M. University (2015) 16 SCC530; Union of India v. Paul Manickam (2003) 8 SCC342 : [2003] 4 Suppl. SCR 618; Mohd. Ikram Hussainv. State of Uttar Pradesh A.I.R. 1964 SC 1625 : [1964]5 SCR 86; Nirmaljit Kaur (2) v. State of Punjab (2006)9 SCC 364 : [2005] 5 Suppl. SCR 514; Union of Indiav. Paul Manickam (2003) 8 SCC 342 : [2003] 4 Suppl.SCR 618; Pt. Rudul Sah v. State of Bihar (1983) 4 SCC141 : [1983] 3 SCR 508; Sebastian M. Hongray v.Union of India (1984) 3 SCC 82 : [1984] 3 SCR 544;Bhim Singh v. State of J&K (1985) 4 SCC 677; People’sUnion for Democratic Rights v. Police Commissioner(1989) 4 SCC 730; Saheli v. Commissioner of Police(1990) 1 SCC 422 : [1989] 2 Suppl. SCR 488; State ofMaharashtra v. Ravikant S. Patil (1991) 2 SCC 373;Kumari v. State of Tamil Nadu (1992) 2 SCC 223;Shakuntala Devi v. Delhi Electric Supply Undertaking(1995) 2 SCC 369; Tamil Nadu Electricity Board v.Sumanth (2000) 4 SCC 543 : [2000] 3 SCR 708;Railway Board v. Chandrima Das (2000) 2 SCC 465 :[2000] 1 SCR 480; Sabastian M. Hongray v. Union ofIndia A.I.R. 1984 SC 1026 : [1984] 3 SCR 544; BhimSingh, MLA v. State of Jammu and Kashmir A.I.R. 1986SC : 494; Nilabati Behera v. State of Orissa (1993) 2SCC 746 : [1993] 2 SCR 581; D. K. Basu v. State ofWest Bengal (1997) 1 SCC 416 : [1996] 10 Suppl. SCR 284; Hindustan Paper Corporation Ltd. v. AnantaBhattacharjee (2004) 6 SCC 213; Chairman, RailwayBoard v. Chandrima Das (2000) 2 SCC 465 : [2000] 1

SCR 480; Kumari v. State of Tamil Nadu (1992) 2 SCC223; Tamil Nadu Electricity Board v. Sumathi Das (2000)4 SCC 543 : [2000] 3 SCR 708; and Delhi Jal Board v.National Campaign for Dignity & Rights ofSewerage & amp; Allied Workers (2011) 8 SCC 568 :[2011] 12 SCR 34 – referred to.

Chaplinsky v. State of New Hampshire 315 U.S.568(1942); R v. James Keegstra [1990] 3 SCR 697; CanadaHuman Rights Commission v. Taylor [1990] 3 SCR 892;Pat Eatock v. Andrew Bolt (2011) FCA and Peninsular;Oriental Steam Navigation Co. v. Secy. of State (1868-69) 5 Bom HCR APP 1 and Saskatchewan HumanRights Commission v. William Whatcott 2013 SCC 11 –referred to.

Case Law Reference

In the judgment of V. Ramasubramanian, J.

[2023] 8 S.C.R.

604SUPREME COURT REPORTS

[2023] 8 S.C.R.

Under Article 32 of The Constitution of India

With

Special Leave Petition @ (Diary) No. 34629 of 2017

Ms. Aparjitha Singh, Sr.Adv. (A.C.) Ms. Uttara Babbar, Ms. ShipraJain, Advs.

Kaleeswaram Raj, Ms. Thulasi K. Raj, Ms. Radhalakshmi R.,Suvidutt M. S., Ms. Somlagna Biswas, Rishesh Sikarwar, Aman Khullar,

AMrs. Renu Yadav, Samerjit Singh Chaudhry, Hitesh Kumar Sharma,Akhileshwar Jha, Ms. Mirdula Singh Chauhan, Ms. Sandhya Singh forMs. Manju Jetley, Advs. for the Petitioner.

R. Venkataramani, AG, Tushar Mehta, SG, Balbir Singh,Ms. Madhavi Divan, ASGs, R. Bala, Pradeep Rai, Ms. Garima Prasad,BSr. Advs., Naman Tandon, Samarvir Singh, Presenjeet Mohapatra, RajatNair, Ankur Talwar, Kanu Agrawal, Anirudh Bhatt, Shyam Gopal, Ms.Monica Benjamin, Ms. Sujatha Bagadhi, Ms. Shraddha Deshmukh, UdaiKhanna, Ms. Anu S., Mayank Pandey, Vinayak Mehrotra, ChitvanSinghal, Ms. Sonali Jain, Abhishek Kumar Pandey, Arvind Kumar Sharma,Mukesh Kumar Maroria, Ajay Vikram Singh, Ms. Rajshree Rai, VinayCKumar, Shashank Rai, Arnav Mittal, Ms. Ritika Gaur, Ms. BanshikaGarg, Vipin Bharti, Amrendra Kumar Singh, Ms. Priyanka Singh, Ms.Pranjali Goel, Sharjeel Ahamad, Mrs. Swarupama Chaturvedi, PradeepMisra, Abhishek, Lakshmi Raman Singh, Advs. for the Respondents.Ranjith B. Marar, Ms. Lakshmi N. Kaimal, Arun Poomulli,DSanthosh M. Jose, Keshav Raj Nair, Ashu Jain, Davesh Kumar Sharma,Ms. Preetha Chandran, Abhijith Sreekumar, Joseph Kurian, Advs. forthe Intervenor.

The Judgments of the Court were delivered by

EV. RAMASUBRAMANIAN, J.PRELUDE

Said the Tamil Poet-Philosopher Tiruvalluvar of the Tamil Sangamage (31, BCE) in his classic “Tirukkural”. Emphasizing the importanceof sweet speech, he said that the scar left behind by burn injury mayheal, but not the one left behind by an offensive speech. The translationof this verse by G.U. Pope in English reads thus:G

“In flesh by fire inflamed, nature may thoroughly heal thesore;

In soul by tongue inflamed, the ulcer healeth never more.”

Sanskrit Text contains piece of advice on what to speak andhow to speak.

The meaning of this verse is: “Speak what is true; speak whatis pleasing; Do not speak what is unpleasant, even if it is true; Anddo not say what is pleasing, but untrue; this is the eternal law.”

The “Book of Proverbs” (16:24) says:

“Pleasant words are honeycomb, sweet to the soul andhealing to the bones”

Though religious texts of all faiths and ancient literature of alllanguages and geographical locations are full of such moral injunctionsemphasising the importance of sweet speech (more than free speech),history shows that humanity has consistently defied those diktats. Thepresent reference to the Constitution Bench is the outcome of suchbehaviour by two honourable men, who occupied the position of Ministersin two different States.

I. Questions formulated for consideration

1. By an order dated 05.10.2017, Three Member Bench of thisCourt directed Writ Petition (Criminal) No.113 of 2016 to be placedbefore the Constitution Bench, after two learned senior counsel, appointedas amicus curiae, submitted that the questions arising for considerationin the writ petition were of great importance. Though the Bench recorded,in its order dated 05.10.2017, the questions that were submitted by thelearned amicus curiae, the Three Member Bench did not frame anyparticular question, but directed the matter to be placed before theConstitution Bench.

2. At this juncture, Special Leave Petition (Diary) No.34629 of2017 arising out judgment of the Kerala High Court came up beforethe same Three Member Bench. Finding that the questions raised in thesaid SLP were also similar, this Court passed an order on 10.11.2017,

[2023] 8 S.C.R.

Adirecting 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 towhich reasonable restrictions on the right to free speech can beimposed by law, exhaustive, or can restrictions on the right to freespeech be imposed on grounds not found in Article 19(2) byinvoking other fundamental rights?

2) Can fundamental right under Article 19 or 21 of theCConstitution of India be claimed other than against the ‘State’ orits instrumentalities?

3) Whether the State is under duty to affirmatively protect therights of citizen under Article 21 of the Constitution of Indiaeven against threat to the liberty of citizen by the acts orDomissions of another citizen or private agency?

4) Can statement made by Minister, traceable to any affairsof State or for protecting the Government, be attributed vicariouslyto the Government itself, especially in view of the principle ofCollective Responsibility?

5) Whether statement by Minister, inconsistent with the rightsof citizen under Part Three of the Constitution, constitutes aviolation of such constitutional rights and is actionable as‘Constitutional Tort”? …”

II. brief backdropF

4. Without brief reference to the factual matrix, the questions tobe answered by us may look abstract. Therefore, we shall now refer tothe background facts in both these cases.

5. Writ Petition (Criminal) No.113 of 2016 was filed under ArticleG32 of the Constitution praying for several reliefs including monitoring theinvestigation of criminal complaint in FIR No.0838/2016 under Section154 Cr.P.C., for the offences under Sections 395, 397 and 376-D readwith the relevant provisions of the Protection of Children from SexualOffences Act, 2012 (for short, ‘POCSO Act’) and for the trial of thecase outside the State and also for registering complaint against theH

then Minister for Urban Development of the Government of U.P. formaking statements outrageous to the modesty of the victims. The caseof the petitioner in Writ Petition (Criminal) No.113 of 2016 in brief wasthat on 29.7.2016 when he and the members of his family were travellingfrom Noida to Shahjahanpur on National Highway 91 to attend the deathceremony of relative, they were waylaid by gang. According to thewrit petitioner, the gang snatched away cash and jewelry in the possessionof the petitioner and his family members and they also gang raped thewife and minor daughter of the petitioner. Though an FIR was registeredon 30.7.2016 for various offences and newspapers and the televisionchannels reported this ghastly incident, the then Minister for UrbanDevelopment of the Government of U.P. called for press conferenceand termed the incident as political conspiracy. Therefore, the petitionerapprehended that there may not be fair investigation. The petitionerclaims that he was also offended by the irresponsible statement madeby the Minister and hence he was compelled to file the said writ petitionfor the reliefs stated supra.

6. Insofar as Special Leave Petition (Diary) No.34629 of 2017 isconcerned, the same arose out of judgment of the Division Bench ofthe Kerala High Court dismissing two writ petitions. The writ petitionswere filed in public interest on the ground that the then Minister forElectricity in the State of Kerala issued certain statements in February2016, 7.4.2017 and 22.4.2017. These statements were highly derogatoryof women. Though according to the petitioners in the public interestlitigation, the political party to which the Minister belonged, issued apublic censure, no action was taken officially against the Minister.Therefore, the petitioner in one writ petition prayed among other thingsfor direction to the Chief Minister to frame Code of Conduct for theMinisters who have subscribed to the oath of office as prescribed by theConstitution with further direction to the Chief Minister to take suitableaction if any of the Ministers failed to live upto the oath. The prayer inthe second writ petition was for direction to the concerned Authoritiesto take action against the Minister for his utterances.

7. Both the writ petitions were dismissed by Division Bench ofthe Kerala High Court, on the ground that the prayer of the public interestwrit petitioners were in the realm of moral values and that the questionwhether the Chief Minister should frame code of conduct for theMinisters of his cabinet or not, is not within the domain of the Court to

Adecide. Therefore, challenging the said common order, the petitioner inone of those public interest writ petitions has come up with Special LeavePetition (Diary) No.34629 of 2017. Since the questions raised by thepetitioner in the Special Leave Petition overlapped with the questionsraised in the Writ Petition, they have been tagged together.

BIII. Contentions

8. We have heard Shri R. Venkataramani, learned AttorneyGeneral for India, Ms. Aparajita Singh, learned senior counsel whoassisted us as amicus curiae, Shri Kaleeswaram Raj, learned counselfor the petitioner in the special leave petition and Shri Ranjith B. Marar,Clearned counsel appearing for the person who sought to intervene/implead.

III.A. Preliminary note submitted by learned AttorneyGeneral for India

9. The learned Attorney General for India submitted preliminarynote containing his submissions question-wise, which can be summed upDas follows:-

Question No.1

(i)On question No.1 it is his submission that as matter ofconstitutional principle, any addition, alteration or change inthe norms or criteria for imposition of restrictions on anyEfundamental right has to come up through legislativeprocess. 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 invokingany other fundamental right such as the one in Article 21,Fimpose restrictions not found in Article 19(2). Under theConstitutional scheme, there can be no conflict betweentwo different fundamental rights or freedoms.

Question No. 2

(ii)The Constitution itself sets out the scheme of claims ofGfundamental rights against the State or its instrumentalitiesand it has also enacted in respect of breaches or violationsof fundamental rights by persons other than State or itsinstrumentalities. Any proposition, to add or insert subjectsor matters in respect of which claims can be made againstHpersons other than the State, would amount to Constitutional

change. The concept of State action propounded and appliedin US Constitutional Law and the enactment of 42 US Code§ 1983 have to be seen in the context of peculiar state ofaffairs dealing with governmental and official immunitiesfrom legal proceedings. In view of specific provisions inArticles 15(2), 17, 23 and 24 of the Indian Constitution,there may not be strict need to take recourse to the lawobtaining in the USA. Claims against persons other thanthe State, either through enacted law or otherwise must beconfined to constitutionally enacted subjects or matters.

Question No. 3

(iii)There are sufficient Constitutional and legal remediesavailable for citizen whose liberty is threatened by anyperson. Beyond the Constitutional and legal remedy andprotection available, there may not be any other additionalduty to affirmatively protect the right of citizen underDArticle 21. Cases of infringement of fundamental rights aretaken care of under Articles 32 and 226.

Question No. 4

(iv)Conduct of public servants like Minister, if it is traceableto the discharge of public duty or the duties of the office, issubject to scrutiny of the law. Sanction for prosecution canbe granted if misconduct is committed under colour of office.Such misconduct including statements that may be madeby Minister cannot be linked to the principles of collectiveresponsibility. The concept of vicarious liability is incapableof being applied to situations and no government can everbe vicariously liable for malfeasance or misconduct ofMinister not traceable to statutory duty or statutory violationsfor the purpose of legal remedies. Ministerial misdemeanors,which have nothing to do with the discharge of public dutyand not traceable to the affairs of the State, will have to betreated as acts of individual violation and individual wrong.To extend in the abstract, the liability of the State to suchsituations or instances without necessary limitations can beproblematic. Post M/s. Kasturi Lal Ralia Ram Jain vs.The State of Uttar Pradesh[1 ]and following Rudul Sah vs.

1 AIR 1965 SC 1039

614SUPREME COURT REPORTS

State of Bihar[2], this Court has treated misconduct of publicservants or officers and consequent infringement ofConstitutional rights as ground for grant of compensation.However, there is need for clarity and certainty as far asthe conceptual basis is concerned. This may be betterresorted through enacted law.

Question No. 5

(v)While the principle of Constitutional tort has been conceivedin Nilabati Behera (Smt.) alias Lalita Behera (Throughthe Supreme Court Legal Aid Committee) vs. State ofOrissa[3], and subsequently applied to provide in regard tothe constitutional remedies, the matter pre-eminentlydeserves proper legal framework in order that theprinciples and procedures are coherently set out withoutleaving the matter open-ended or vague.

DIII.B. Notes of submissions by Amicus

10. Ms. Aparajita Singh, learned senior counsel and amicus curiaesubmitted written note question-wise, which can be summed up asfollows:-

Question No. 1E

(i)The right to free speech under Article 19(1)(a) is subject toclearly defined restrictions under Article 19(2). Therefore,any law seeking to limit the right under Article 19(1)(a) hasto necessarily fall within the limitations provided underArticle 19(2). Whenever two fundamental rights compete,Fthe Court will balance the two to allow the meaningfulexercise of both. This conundrum is not new, as the rightsunder Article 21 and under Article 19(1)(a) have beeninterpreted and balanced on numerous occasions. Take forinstance the Right to Information Act, 2005. The Actbalances the citizen’s right to know under Article 19(1)(a)Gwith the right to fair investigation and right to privacy underArticle 21. This careful balancing was explained by thisCourt in Thalappalam Service Cooperative Bank Ltd.

2 (1983) 4 SCC 141H3 (1993) 2 SCC 746

vs. State of Kerala[4]. The decision of this Court in R.Rajagopal alias R.R. Gopal vs. State of T.N.[5 ]is anotherexample of reading down the restrictions (in the form ofdefamation) on the right to free speech under Article 19(2),in its application to public officials and public figures in largerpublic interest. Again, in People’s Union for Civil Liberties(PUCL) vs. Union of India[6], the right to privacy of thespouse of the candidate contesting the election was declaredas subordinate to the citizens’ right to know under Article19(1)(a). In Jumuna Prasad Mukhariya vs. Lachhi Ram[7],a challenge to Sections 123(5) and 124(5) of theRepresentation of the People Act, 1951 (as they prevailedat that time) was rejected, on the ground that false personalattacks against the contesting candidate was not violativeof the right to free speech. But when it comes to privatecitizens who are not public functionaries, the right to privacyunder Article 21 was held to trump the right to know underArticle 19(1)(a). This was in the case of Ram Jethmalanivs. Union of India[8], which concerned the right to privacyof account holders. In Sahara India Real EstateCorporation Limited vs. Securities and Exchange Boardof India[9], this Court struck balance between the right ofthe media under Article 19(1)(a) with the right to fair trialunder Article 21. The argument that free speech underArticle 19(1)(a) was higher right than the right to reputationunder Article 21 was rejected by this Court in SubramanianSwamy vs. Union of India, Ministry of Law[10 ]in whichSection 499 IPC was under challenge. The right to freespeech was balanced with the right to pollution free life inNoise Pollution (V.), in Re[11 ]and the right to fair trial of theaccused was balanced with the right to fair trial of the victimin Asha Ranjan vs. State of Bihar[12].

4 (2013) 16 SCC 825 (1994) 6 SCC 6326 (2003) 4 SCC 3997 (1955) 1 SCR 6088 (2011) 8 SCC 19 (2012) 10 SCC 60310 (2016) 7 SCC 22111 (2005) 5 SCC 73312 (2017) 4 SCC 397

DEF

AQuestion No. 2

(ii)There are some fundamental rights which are specificallygranted against non-State actors. Article 15(2)(a) – accessto shops, public restaurants, hotels and places of publicentertainment, Article 17 – untouchability, Article 23 – forcedlabour and Article 24- prohibition of employment of childrenin factories, mines etc., are rights which are enforceableagainst private citizens also. Some aspects of Article 21such as the right to clean environment have been enforcedagainst private parties as well. The State is also under aConstitutional duty to ensure that the rights of its citizensare not violated even by non-State actors and ensure anenvironment where each right can be exercised withoutfear of undue encroachment. In People’s Union forDemocratic Rights vs. Union of India[13], while rejectingthe contention of the State that it was the obligation of theprivate party i.e., the contractor to follow the mandate ofArticle 24 of the Constitution and the relevant laws, it wasclarified that the primary obligation to protect fundamentalrights was that of the State even in the absence of aneffective legislation. In Bodhisattwa Gautam vs. SubhraChakraborty (Ms.)[14], interim compensation was awardedholding that fundamental rights under Article 21 can beenforced even against private bodies and individuals. Publiclaw remedy has been repeatedly resorted to even againstnon-State actors when their acts have violated thefundamental rights of other citizens. Award of damagesagainst non-State actors for violation of the right to cleanenvironment under Article 21 was laid down in M.C. Mehtavs. Kamal Nath[15]. Similarly, the majority and concurringopinion in Justice K.S. Puttaswamy vs. Union of India[16],while elaborating on the duty of the State and non-Stateactors to protect the rights of citizens, pointed out thatrecognition and enforcement of claims qua non-State actorsmay require legislative intervention. However, when it comes

13 (1982) 3 SCC 23514 (1996) 1 SC 49015 (2000) 6 SCC 213H16 (2017) 10 SCC 1

to Article 19, Constitution Bench in P.D. Shamdasanivs. Central Bank of India Ltd.[17], has held it to beinapplicable against private persons.

Question No. 3

(iii)Fundamental rights of citizens enshrined in the Constitutionare not only negative rights against the State but alsoconstitute positive obligation on the State to protect thoserights. The Constitution Bench in State of West Bengal vs.Committee for Protection of Democratic Rights, WestBengal[18], while upholding the power of the ConstitutionalCourt to transfer an investigation to the CBI without theconsent of the concerned State, emphasized the duty of theState to conduct fair investigation which is fundamentalright of the victim under Article 21. The majority judgmentin Justice K.S. Puttaswamy (supra), defines the positiveobligation of the State to ensure the meaningful exercise ofthe right of privacy. In S. Rangarajan vs. P. JagjivanRam[19], this Court has categorically laid down that the Statecannot plead its inability to protect the fundamental rightsof the citizens. In Union of India vs. K.M. Shankarappa[20],Section 6(1) of the Cinematograph Act, 1952 which grantedthe Central Government, the power to review the decisionof the quasi-judicial Tribunal under the Act, was sought tobe defended on the ground of law and order. The contentionwas rejected holding that it was the duty of the Governmentto ensure law and order. In Indibly Creative PrivateLimited vs. Government of West Bengal[21], the negativerestraint and positive obligation under Article 19(1) (a) hasbeen explained. In Pt. Parmanand Katara vs. Union ofIndia[22], it was held that even the doctors in Governmenthospitals are duty bound to fulfil the constitutional obligationof the State under Article 21.

17 1952 SCR 39118 (2010) 3 SCC 57119 (1989) 2 SCC 57420 (2001) 1 SCC 58221 (2020) 12 SCC 43622 (1989) 4 SCC 286

AQuestion No. 4

(iv)The Minister being functionary of the State, representsthe State when acting in his official capacity. Therefore,any violation of the fundamental rights of the citizens bythe Minister in his official capacity, would be attributable toBthe State. The State also has positive obligation to protectthe rights of citizens under Article 21, whether the violationis by its own functionaries or private person. It would bepreposterous to suggest that while the State is under anobligation to restrict private citizen from violating thefundamental rights of other citizens, its own Minister canCdo so with impunity. However, the factum of violation wouldneed to be established on the facts of given case. It wouldinvolve detailed inquiry into questions such as (a) whetherthe statement by the Minister was made in his personal orofficial capacity; (b) whether the statement was made on aDpublic or private issue; (c) whether the statement was madeon public or private platform. In Amish Devgan vs. Unionof India[23], while dealing with hate speech, the impact ofthe speech of “a person of influence” such as aGovernment functionary, was explained. State ofMaharashtra vs. Sarangdharsingh ShivdassinghEChavan[24], provides clear instance of direct interferencewith the investigation by Chief Minister. The Court heldthe action of the Chief Minister to be “whollyunconstitutional” and contrary to the oath of allegiance tothe Constitution and imposed costs on the State. TheFconcurring opinion emphasizes the responsibility that theoath of office casts on the Minister under the Constitution.In Secretary, Jaipur Development Authority, Jaipur vs.Daulat Mal Jain[25], while dealing with case involving themisuse of public office by Minister, this Court elaboratedon the responsibility and liability of the Ministerial officeGunder the Constitution. The importance of the Oath of Officeunder the Constitution was also emphasized by the

23 (2021) 1 SCC 124 (2011) 1 SCC 577H25 (1997) 1 SCC 35

Constitution Bench in Manoj Narula vs. Union of India[26].However, the Ministerial code of conduct was held to benot enforceable in court of law in R. Sai Bharathi vs. J.Jayalalitha[27], as it does not have any statutory force. Anargument can be made that the Minister is personally boundby the oath of his office to bear true faith and allegiance tothe Constitution of India under Articles 75(4) and 164(3) ofthe Constitution. The Constitution imposes solemnobligation on the Minister as Constitutional functionary toprotect the fundamental rights of the citizens. The code ofconduct 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, theRepresentation of the People Act, 1951”. Therefore, aConstitutional functionary is duty bound to act in mannerwhich is in consonance with this constitutional obligation ofthe State.

Question No. 5

(v)The State acts through its functionaries. Therefore, theofficial act of Minister which violates the fundamentalrights of the citizens, would make the State liable underconstitutional tort. The principle of sovereign immunity ofthe State for the tortious acts of its servant, has been heldto be inapplicable in the case of violation of fundamentalrights. The principle of State liability under Constitutionaltort was expounded in Nilabati Behera (supra). In CommonCause, Registered Society vs. Union of India.[28], theposition in the case of 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 thepetitioner in the special leave petition submitted an elaborate note. Thisnote is divided into several chapters dealing with the nature and extentof the freedom of speech, the restrictions on the same, the horizontality

26 (2014) 9 SCC 127 (2004) 2 SCC 928 (1999) 6 SCC 667

Aof fundamental rights, constitutional rights and constitutional values,statements made by Ministers and collective responsibility, self-regulationas the best mode of regulation, hate speech not being protected speechand the way forward. The contents of this note are summarized asfollows:-

B(i)The Constitutional mandate of freedom of expression andfree speech is to be preserved without imposingunconstitutional restrictions. It is right available to everyoneincluding political personalities.

(ii)But even while upholding such right, efforts should beCtaken to frame voluntary code of conduct for Ministersetc., to ensure better accountability and transparency;

(iii)There is an imperative need to evolve device such asOmbudsman to act as Constitutional check on the misuseof the freedom of expression by public functionaries usingDthe apparatus of the State;

(iv)The right under Article 19(1)(a) is limited by restrictionsexpressly indicated in Article 19(2), under which therestrictions should be reasonable and must be provided forby law, by the State. Therefore this Court cannot provideEfor any additional restriction by an interpretative exerciseor otherwise;

(v)It is too remote to suggest that the right of victim underArticle 21 stands violated if there is statement by someonethat the case was born out of political conspiracy. Therefore,Fthere is actually no conflict of any other right with Article21;

(vi)Unlike Article 25 which makes the right thereunder subjectto public order, morality and health, Article 19(1)(a) doesnot contain such restrictions. As held by this Court in SakalPapers (P) Ltd. vs. The Union of India[29], freedom ofGspeech can be restricted only in the interest of security ofthe 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

H29 (1962) 3 SCR 842

curtailed, in the interest of the general public, as in the caseof freedom to carry on business;

(vii)Restricting speech by public figures, such as politicians, onserious crimes will have great impact on the freedom ofspeech. Such criticism which calls out true conspiraciesand true miscarriage of justice, plays an important role in aBdemocracy;

(viii) In so far as the enforcement of fundamental rights againstnon-State actors is concerned, the vertical approach is givingway to the concept of horizontal application. The verticalapproach connotes situation where the enforceability isonly against the Government and not against private actors.But with Nation States gradually moving from laissez fairegovernance to welfare governance, the role of the State isever expanding, which justifies the shift.

(ix)While the South African Constitution has adopted horizontalDapplication by providing in Section 9(4) of the Bill of Rightsof Final Constitution of 1996 that no person may unfairlydiscriminate directly or indirectly against anyone on one ormore grounds in terms of sub-Section (3) which sets outthe grounds that bind the State, the judiciary itself hasadopted direct horizontal effect, in Ireland as could beEseen from the decisions in John Meskell vs. Córas IompairÉireann[30 ]and Murtagh Properties Limited vs. Cleary[31].In John Meskell (supra), the Irish Supreme Court granteddamages against the employer who dismissed the employeefor not joining particular union after serving due noticeFto persuade him. In Murtagh Properties Limited (supra),the High Court recognized and enforced the right to earnlivelihood without any discrimination based on sex againsta private employer. Countries like Canada and Germanyhave developed indirect horizontal application, meaningthereby that the rights regulate the laws and statutes, whichGin turn regulate the conduct of citizens;

A(x)In the Indian context, direct horizontal effect has limitedapplication as can be seen from Articles 15(2), 17 and 24;

(xi)Paradigm cases of horizontality should be distinguished fromordinary cases. For instance, the U.S. Supreme Court heldin Shelly vs. Kraemer[32 ]a covenant contained in contractBprohibiting the sale of houses in neighbourhood to African-Americans, as unenforceable, for they have the effect ofdenying equal protection under the laws. The FederalConstitutional Court of Germany took similar view in Lûth[33]case (1958) where call for boycott of film directed by aperson who had worked on anti-semitic Nazi propagandaCwas challenged. The German Court held that there was anobjective order of values that must affect all spheres oflaw;

(xii)It has been repeatedly held by this Court that the powerunder Article 226 is available not only against theDGovernment and its instrumentalities but also against “anyperson or authority”. reference may be made in thisregard to two decisions namely Praga Tools Corporationvs. Shri C.A. Imanual[34] and Andi Mukta Sadguru ShreeMuktajee Vandas Swami Suvarna Jayanti MahotasavESmarak Trust vs.V.R. Rudani[35];

(xiii) There are several instances where this Court has issuedwrits under Article 32 against non-State actors. Broadlythose cases fall under two categories, namely, (i) privateplayers performing public duties/functions; and (ii) non-StateFactors performing statutory activities that impact the rightsof citizens. Cases which fall under these two categorieshave been held by this Court to be amenable to writjurisdiction as seen from several decisions including M.C.Mehta vs. Union of India[36]. Absent any of theseparameters, the Court has refused to exercise writGjurisdiction as seen from Binny Ltd. vs. V. Sadasivan.[37];

32 334 U.S. 1 (1948)33 Luth (1958) BVerfGE 7, 19834 (1969) 1 SCC 58535 (1989) 2 SCC 69136 AIR 1987 SC 1086H37 (2005) 6 SCC 657

(xiv) Even in jurisdictions where socio economic rights have beenelevated in status to that of constitutional rights, theenforcement of those rights were made available onlyagainst the State and not against private actors, as held bythis Court in Society for Unaided Private Schools ofRajasthan vs. Union of India[38];

(xv)On the issue of potential conflict of rights, it is important tobear in mind the distinction between constitutional rightsand constitutional values. On formal level, values areunderstood teleologically as things to be promoted ormaximized. Rights, on the other hand, are not to be promotedbut rather to be respected. It would not show proper concernfor right to allow the violation of one right in order toprevent the violation of other rights. This would promotethe non-violation 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. Theyconfer individuals with sphere of liberty that is inviolable.Rights thereby act as restrictions on the government onhow to pursue values, including constitutional values. It is,therefore, crucially important that we draw distinctionbetween the constitutional rights and constitutional values.Not every increase in liberty or every improvement in leadinga dignified life is constitutional right. This position hasbeen accepted by this Court;

(xvii) As held by this Court in Justice K.S. Puttaswamy, theCourt will strike balance, wherever conflict betweentwo sets of fundamental rights is projected. Strictly speaking,what is actually conceived by some and noted in severaldecisions including Justice K.S. Puttaswamy, is not theconflict of rights in abstractum, at doctrinal level, but theconflict in the notion/invocation/practice of rights;

(xviii) On the issue of statements made by Ministers and collectiveresponsibility, reference has to be made to Articles 75(3)and 164(2). Both these Articles speak of collective

38 (2012) 6 SCC 1

39 Frances Kamm, Morality, Mortality Vol.2, Oxford University Press, 1996

624SUPREME COURT REPORTS

responsibility of the Council of Ministers. Though thelanguage employed in these Articles indicate that such acollective responsibility is to the House of the People/Legislative Assembly, it is actually responsibility to thepeople at large. Since every utterance by Minister willhave direct bearing on the policy of the Government, thereis an imperative need for voluntary code of conduct. Aspointed out by this Court in Common Cause (supra),collective responsibility has two meanings, namely, (i) thatall members of the Council of Ministers are unanimous insupport of its policies and exhibit such unanimity in public;and (ii) that they are personally and morally responsible forits success and failure;

(xix) Individual aberrations on the part of Ministers are seriousthreats to constitutional governance and as such the headof the Council of Ministers has duty to ensure that suchbreaches do not happen;

(xx)A code of conduct to self-regulate the speeches and actionsof Ministers is constitutionally justifiable and this Court candefinitely examine its requirement. Ideally, Minister is notsupposed to breach his collective responsibility towards theCabinet and the Legislature and hence, it is advisable tohave cogent code of conduct as occurring in advanceddemocracies;

(xxi) While it is not possible to impose additional restrictions onFthe freedom of speech, it is certainly desirable to have acode of conduct for public functionaries, as followed in otherjurisdictions. The Court may keep in mind the fact that thisCourt in Sahara India Real Estate Corporation Limited(supra) cautioned against framing guidelines across theboard to restrict the freedom of Press;

(xxii) Coming to hate speeches, there has been steep increasein 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 mediaplatforms have connived the proliferation of targeted hatespeech. Such speeches provide fertile ground for incitementto violence;

(xxiii) On the role of the Court in dealing with the question of hatespeech, the decisions in Pravasi Bhalai Sangathan vs.Union of India[40]; Kodungallur Film Society vs. Unionof India[41 ]and Amish Devgan (supra) lay down broadparameters;

(xxiv) At the international level, the definition of hate speech wasformulated in the UN Strategy and Plan of Action on HateSpeech, to mean

“… any kind of communication in speech, writingor behavior, that attacks or uses pejorative ordiscriminatory language with reference to personor group on the basis of who they are, in otherwords, based on their religion, ethnicity,nationality, race, colour, descent, gender or otheridentity factor.”

The Role and Responsibilities of Political Leaders inCombating Hate Speech and Intolerance (Provisionalversion) dated 12 March 2019, was submitted by theCommittee on Equality and Non-Discrimination to theParliamentary Assembly of the Council of Europe. TheAssembly passed the resolution adopting the text proposedby rapporteur Ms. Elvira Kovacs, Serbia;

(xxv) Finally, the way forward is, (i) for the legislature to adopt avoluntary model code of conduct for persons holding publicoffices, which would reflect Constitutional morality andvalues of good governance; and (ii) the creation of anappropriate mechanism such as Ombudsman, in accordancewith the Venice principles and Paris principles. Till such an

41 (2018) 10 SCC 713

EFG

Ombudsman is constituted, the National and State HumanRights Commissions have to take pro-active measures, interms of the provisions of Protection of Human Rights Act,1993.

IV. Discussion and Analysis

BQuestion No. 1

12. Question No.1 referred to us, is as to whether the groundsspecified in Article 19(2) in relation to which reasonable restrictions onthe right to free speech can be imposed by law are exhaustive, or canCrestrictions on the right to free speech be imposed on grounds not foundin Article 19(2) by invoking other fundamental rights?

History of evolution of clause (2) of Article 19

13. For finding an answer to this question, it may be necessaryDand even relevant to take peep into history. Since Dr. B.R. Ambedkar’soriginal draft in this regard followed Article 40(6) of the Irish Constitution,the original draft of the Advisory Committee included restrictions suchas public order, morality, sedition, obscenity, blasphemy and defamation.Sardar Vallabhbhai Patel suggested the inclusion of libel also. Theserestrictions were sought to be justified by citing the decision in GitlowEvs. New York[42].14. Since the country had witnessed large scale communal riotsat that time, Sir Alladi Krishnaswamy Iyer forcefully argued for theinclusion of security and defence of the State or national security as oneof the restrictions. Discussion also took place about restricting speechFthat is intended to spoil communal harmony and speech which is seditiousin nature. With suggestions, counter suggestions and objections soarticulated, the initial report of the Sub-Committee on Fundamental Rightsunderwent lot of changes. The evolution of clauses (1) and (2) ofArticle 19 stage by stage, from the time when the draft report wasGsubmitted in April 1947, upto the time when the Constitution was adopted,can be presented in tabular form[43] as follows:

42 286 US 652 (1925)

43 Sourced from the article “Arguments from Colonial Continuity- the Constitution(First Amendment) Act, 1951” (2008) of Burra, Arudra, Assistant Professor,HDepartment of Humanities and Social Sciences , IIT (Delhi),

A15. Immediately after the adoption of the Constitution, this Courthad an occasion to deal with challenge to an order passed by theGovernment of Madras in exercise of the powers conferred by Section9(1-A) of the Madras Maintenance of Public Order Act, 1949[44], banningthe entry and circulation of weekly journal called ‘Cross Roads’ printedand published in Bombay. The ban order was challenged on the groundBthat it was violative of Article 19(1)(a). The validity of the statutoryprovision under which the ban order was issued, was also attacked onthe basis of Article 13(1) of the Constitution. Seven MemberConstitution Bench of this Court, while upholding the challenge in RomeshThappar vs. State of Madras[45 ]held as follows: -C

“[12] We are therefore of opinion that unless law restrictingfreedom of speech and expression is directed solely against theundermining 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 haveDbeen conceived generally in the interests of public order. …”

16. An argument was advanced in Romesh Thappar (supra) thatSection 9(1-A) of the 1949 Act could not be considered wholly void, asthe securing of public safety or maintenance of public order would includethe security of the State and that therefore the said provision, as appliedEto the latter purpose was covered by Article 19(2). However, the saidargument was rejected on the ground that where law purports toauthorise the imposition of restrictions on fundamental right, in languagewide enough to cover restrictions, both within or without the limits ofConstitutionally permissible legislative action affecting such right, it isnot possible to uphold it even so far as it may be applied within theFConstitutional limits, as it is not severable.

17. On the same date on which the decision in Romesh Thapparwas delivered, the Constitution Bench of this Court also delivered anotherjudgment in Brij Bhushan vs. The State of Delhi[46]. It also arose out ofa writ petition under Article 32 challenging an order passed by the ChiefGCommissioner of Delhi in exercise of the powers conferred by Section7(1)(c) of the East Punjab Public Safety Act, 1949, requiring the Printerand the Publisher as well as the Editor of an English weekly by name

44 1949 Act45 AIR 1950 SC 124H46 AIR 1950 SC 129

‘Organizer’, to submit for scrutiny, before publication, all communalmatters and news and views about Pakistan including photographs andcartoons, other than those derived from the official sources. Followingthe decision in Romesh Thappar, the Constitution Bench held that theimposition of pre-censorship on journal is restriction on the liberty ofthe Press, which is an essential part of the right to freedom of speechand expression. The Bench went on to hold that Section 7(1)(c) of theEast Punjab Public Safety Act, 1949 does not fall within the reservationof clause (2) of Article 19.18. After aforesaid two decisions, the Parliament sought to amendthe Constitution through the Constitution (First Amendment) Bill, 1951.In the Statement of Objects and Reasons to the First Amendment, itwas indicated that the citizen’s right to freedom of speech and expressionguaranteed by Article 19(1)(a) has been held by some Courts to be socomprehensive as not to render person culpable, even if he advocatesmurder and other crimes of violence. Incidentally, the First Amendmentalso dealt with other issues, about which we are not concerned in thisdiscussion. Clause (2) of Article 19 was substituted by new clauseunder the Constitution (First Amendment) Act, 1951. For easyappreciation of the metamorphosis that clause (2) of Article 19 underwentafter the first amendment, we present in tabular column, Article 19(2)pre-first amendment and post-first amendment as under: -

19. It is significant to note that Section 3(1)(a) of the Constitution(First Amendment) Act, 1951, declared that the newly substituted clause(2) of Article 19 shall be deemed always to have been enacted in theamended form, meaning thereby that the amended clause (2) wasgiven 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

Aand the same fell for jural exploration within no time, in State of Madrasvs. V.G. Row[47]. The said case arose out of judgment of the MadrasHigh Court quashing Government Order declaring society known as‘People’s Education Society’ as an unlawful association and alsodeclaring as unconstitutional, Section 15(2)(b) of the Indian CriminalLaw Amendment Act, 1908, as amended by the Indian Criminal LawBAmendment (Madras) Act, 1950. While upholding the judgment of theMadras High Court, this Court indicated as to how the test ofreasonableness has to be expounded. The relevant portion of the judgmentreads as follows: -

“23. It is important in this context to bear in mind that the test ofCreasonableness, wherever prescribed, should be applied to eachindividual statute impugned, and no abstract standard, or generalpattern of reasonableness can be laid down as applicable to allcases. The nature of the right alleged to have been infringed,the underlying purpose of the restrictions imposed, theDextent and urgency of the evil sought to be remediedthereby, the disproportion of the imposition, the prevailingconditions at the time, should all enter into the judicialverdict. In evaluating such elusive factors and forming theirown conception of what is reasonable, in all thecircumstances of given case, it is inevitable that the socialEphilosophy and the scale of values of the Judgesparticipating in the decision should play an important part,and the limit to their interference with legislative judgmentin such cases can only be dictated by their sense ofresponsibility and self-restraint and the sobering reflectionFthat the Constitution is meant not only for people of theirway of thinking but for all, and that the majority of the electedrepresentatives of the people have, in authorizing theimposition of the restrictions, considered them to bereasonable.”

G21. After the First Amendment to the Constitution, the countrywitnessed cries for secession, with parochial tendencies showing theirugly head, especially from southern State. Therefore, NationalIntegration Conference was convened in September-October, 1961 tofind ways and means to combat the evils of communalism, casteism,

H47 (1952) 1 SCC 410

regionalism, linguism and narrow mindedness. This Conference decidedto set up the National Integration Council. Accordingly, it was constitutedin 1962. The constitution of the Council assumed significance in thewake of the Sino-India war in 1962. This National Integration Councilhad Committee on national integration and regionalism. This Committeerecommended two amendments to the Constitution, namely, (i) theamendment of clause (2) of Article 19 so as to include the words “thesovereignty and integrity of India” as one of the restrictions; and (ii)the amendment of 8 Forms of oath or affirmation contained in the ThirdSchedule. Until 1963, no one taking constitutional oath was required toswear that they would “uphold the sovereignty and integrity of India”.But, the Constitution (Sixteenth Amendment) Act, 1963 expanded theforms of oath to ensure that “every candidate for the membership ofa State Legislature or Parliament, and every aspirant to, andincumbent of, public office” – to quote its Statement of Objects andReasons – “pledges himself . . . to preserve the integrity andsovereignty of the Union of India.” Thus, by the Constitution (SixteenthAmendment) Act, 1963, “the sovereignty and integrity of India”, wasincluded as an additional ground of restriction on the right guaranteedunder Article 19(1)(a).

22. Having seen the history of evolution of clause (2) of Article19, let us now turn to the first question.

Two parts of Question No.1

23. Question No.1 is actually in two parts. The first part raises aposer as to whether reasonable restrictions on the right to free speechenumerated in Article 19(2) could be said to be exhaustive. The secondpart of the Question raises debate as to whether additional restrictionson the right to free speech can be imposed on grounds not found inArticle 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 19which we have captured above shows that lot of deliberations went intothe articulation of the restrictions now enumerated. The draft Report ofthe Sub-Committee on Fundamental Rights itself underwent severalchanges until the Constitution was adopted in November, 1949. In theform in which the Constitution was adopted in 1949, the restrictionsrelated to (i) libel; (ii) slander; (iii) defamation; (iv) contempt of court;

A(v) any matter which offends against decency or morality; and (vi) anymatter which undermines the security of the State or tends to overthrowthe State.

25. After the 1[st ]and 16[th ]Amendments, the emphasis is onreasonable restrictions relating to, (i) interests of sovereignty and integrityBof India; (ii) the security of the State; (iii) friendly relations with foreignstates; (iv) public order; (v) decency or morality; (vi) contempt of court;(vii) defamation; and (viii) incitement to an offence.

26. careful look at these eight heads of restrictions wouldshow that they save the existing laws and enable the State to makeClaws, restricting free speech with view to afford protection to (i)individuals (ii) groups of persons (iii) sections of society (iv) classesof citizens (v) the Court (vi) the State and (vii) the country. This canbe demonstrated by providing in table, the provisions of the IndianPenal Code that make some speech or expression punishable offence,thereby impeding the right to free speech, the heads of restriction underDwhich they fall and the category/class of person/persons sought to beprotected by the restriction:

Table of Provisions under IPC restricting freedom of speech

and expressionEFG

H48 Subject matter of challenge pending before this Court.

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

27. We have taken note of, in the above Table, only the provisionsof the Indian Penal Code that curtail free speech. There are also otherspecial enactments such as The Scheduled Castes and The ScheduledTribes (Prevention of Atrocities) Act, 1989, The Prevention of Insults toNational Honour Act, 1971 etc., which also impose certain restrictionson free speech. From these it will be clear that the eight heads ofrestrictions contained in clause (2) of Article 19 are so exhaustive thatthe laws made for the purpose of protection of the individual, sections ofsociety, classes of citizens, court, the country and the State have beensaved.

28. The restrictions under clause (2) of Article 19 arecomprehensive 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 doesnot fall within the four corners of Article 19(2) will be unconstitutional.For instance, it was held by the Constitution Bench in ExpressNewspapers (Private) Ltd. vs. The Union of India[49], that law enactedby 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 law which directly restrictsone freedom even for securing the better enjoyment of another freedom.

29. That the Executive cannot transgress its limits by imposing anadditional restriction in the form of Executive or Departmental instructionwas emphasised by this Court in Bijoe Emmanuel vs. State of Kerala[50].49 1959 SCR 12

AThe Court made it clear that the reasonable restrictions sought to beimposed must be through “a law” having statutory force and not mereExecutive or Departmental instruction. The restraint upon the Executivenot to have back-door intrusion applies equally to Courts. WhileCourts may be entitled to interpret the law in such manner that therights existing in blue print have expansive connotations, the Court cannotBimpose additional restrictions by using tools of interpretation. What thisCourt 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 makeexceptions under the peculiar circumstances of this case,Cwherein the State has acknowledged that it has not acted withthe requisite speed and vigour in the case of large volumes ofsuspected unaccounted for monies of certain individuals.There is an inherent danger in making exceptions tofundamental principles and rights on the fly. Those exceptions,Dbit by bit, would then eviscerate the content of the main rightitself. Undesirable lapses in upholding of fundamental rightsby the legislature, or the executive, can be rectified byassertion of constitutional principles by this Court. However,a decision by this Court that an exception could be carvedout remains permanently as part of judicial canon, andEbecomes part of the constitutional interpretation itself. Itcan be used in the future in manner and form that may farexceed what this Court intended or what the constitutionaltext and values can bear. We are not proposing thatConstitutions cannot be interpreted in manner that allowsFthe nation-State to tackle the problems it faces. The principleis that exceptions cannot be carved out willy-nilly, and withoutforethought as to the damage they may cause.86.One of the chief dangers of making exceptions toprinciples that have become part of constitutional law,Gthrough aeons of human experience, is that the logic, andease of seeing exceptions, would become entrenched as partof the constitutional order. Such logic would then lead toseeking exceptions, from protective walls of all fundamental

rights, on grounds of expediency and claims that there are nosolutions to problems that the society is confronting withoutthe evisceration of fundamental rights. That same logic couldthen be used by the State in demanding exceptions to slewof other fundamental rights, leading to violation of humanrights of citizens on 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 imposedonly on the basis of Article 19(2). In Ramlila Maidan Incident, inre.[52], this Court developed three-pronged test namely, (i) that therestriction can be imposed only by or under the authority of law and notby exercise of the executive power; (ii) that such restriction must bereasonable; and (iii) that the restriction must be related to the purposesmentioned in clause (2) of Article 19.

31. That the eight heads of restrictions contained in clause (2) ofArticle 19 are exhaustive can be established from another perspectivealso. The nature of the restrictions on free speech imposed by law/judicial pronouncements even in countries where higher threshold ismaintained, are almost similar. To drive home this point, we are presentingin the following table, comparative note relating to different jurisdictions:

51 (1995) 2 SCC 161

52 (2012) 5 SCC 1

638SUPREME COURT REPORTS[2023] 8 S.C.R.ABCDEFGH

32. Since the eight heads of restrictions contained in clause (2) ofArticle 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, differentreligious beliefs/sentiments - against offending their beliefs and sentiments;

(iii) classes/groups of citizens belonging to different races, linguisticidentities etc.- against an attack on their identities;

(iv) women and children – against the violation of their specialrights;

(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 19are exhaustive and no further restriction need to be incorporated.

33. In any event, the law imposing any restriction in terms ofclause (2) of Article 19 can only be made by the State and not by theCourt. The role envisaged in the Constitutional scheme for the Court,is to be gate-keeper (and conscience keeper) to check strictly

Athe entry of restrictions, into the temple of fundamental rights. Therole of the Court is to protect fundamental rights limited by lawfulrestrictions and not to protect restrictions and make the rightsresidual privileges. Clause (2) of Article 19 saves (i) the operation ofany 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 additionalrestrictions on the right to free speech can be imposed on grounds notfound in Article 19(2) by invoking other fundamental rights.

35. This part of Question No.1 already stands partly answeredwhile dealing with the first part of Question No.1. The decisions of thisCourt in Express Newspapers (Private) Ltd. (supra), the CricketAssociation of Bengal (supra)and Ramlila Maidan Incident, in re.(supra), provide complete answer to the question whether additionalDrestrictions on the right to free speech can be imposed on grounds notfound in Article 19(2).

36. The question whether additional restrictions can peep intoArticle 19(2), by invoking other fundamental rights, also stands answeredby this Court in Sakal Papers. In Sakal Papers, the Central GovernmentEissued an order called Daily Newspaper (Price and Page) Order, 1960in exercise of the power conferred under the Newspaper (Price andPage) Act, 1956, fixing the maximum number of pages that might bepublished by newspaper according to the price charged. Therefore,the publisher of Marathi Newspaper challenged the constitutionality ofboth the Act and the Order. One of the arguments raised on behalf ofFthe State in the said case was that there are two aspects of the activitiesof 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 restrictionsGon the right under Article 19(1)(g) can be placed in the interest of thegeneral public under Article 19(6), it was contended by the State in SakalPapers that the Act and the Order are saved by clause (6) of Article 19.But the said argument of the State was rejected by the ConstitutionBench in Sakal Papers, in the following words:

“It may well be within the power of the State to place, in theinterest of the general public, restrictions upon the right of citizento carry on business but it is not open to the State to achieve thisobject by directly and immediately curtailing any other freedomof that citizen guaranteed by the Constitution and which is notsusceptible of abridgement on the same grounds as are set out incl. (6) of Art. 19. Therefore, the right of freedom of speech cannotbe taken away with the object of placing restrictions on the businessactivities of citizen. Freedom of speech can be restricted only inthe interests of the security of the State, friendly relations withforeign State, public order, decency or morality or in relation tocontempt of court, defamation or incitement to an offence. It cannot,like the freedom to carry on business, be curtailed in the interestof the general public.If law directly affecting it is challengedit is no answer that the restrictions enacted by it are justifiableunder cls. (3) to (6). For, the scheme of Art. 19 is to enumeratedifferent freedoms separately and then to specify the extentof restrictions to which they may be subjected and the objectsfor securing which this could be done. citizen is entitled toenjoy each and every one of the freedoms together and cl. (1)does not prefer one freedom to another. That is the plainmeaning of this clause. It follows from this that the State cannotmake law which directly restricts one freedom even forsecuring the better enjoyment of another freedom. All thegreater reason, therefore, for holding that the State cannotdirectly restrict one freedom by placing an otherwisepermissible restriction on another freedom.”

38. We are conscious of the fact that Sakal Papers was casewhere the petitioner before the Court had two different fundamentalrights and the law made by the State fell within the permitted restrictionsupon the exercise of one of those two fundamental rights. However, therestriction 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 therestriction validly imposed upon the exercise of one fundamental rightcannot automatically become valid while dealing with anotherfundamental right of the same person, the restriction of which standsConstitutionally on different parameters.39. In Sakal Papers the conflict was neither between oneindividual’s fundamental right qua another individual’s fundamental right

Anor one fundamental right qua another fundamental right of the sameindividual. It was case where restriction validly made upon afundamental right was held invalid qua another fundamental right of thesame individual. In the cases on hand, what is sought to be projected isa possible conflict arising out of the exercise of fundamental right byone individual, in manner infringing upon the free exercise of theBfundamental right of another person. But this conflict is age old.

40. The exercise of all fundamental rights by all citizens is possibleonly when each individual respects the other person’s rights. Asacknowledged by the learned Attorney General and Ms. Aparjita Singh,learned Amicus, this Court has always struck balance whenever itCwas found that the exercise of fundamental rights by an individual, causedinroads into the space available for the exercise of fundamental rightsby another individual. The emphasis even in the Preamble on “fraternity”is an indication that the survival of all fundamental rights and the survivalof democracy itself depends upon mutual respect, accommodation andDwillingness to co-exist in peace and tranquility on the part of the citizens.Let us now see few examples. The Fundamental Duty enjoined uponevery citizen of the country under Article 51-A (e) to “promote harmonyand the spirit of common brotherhood amongst all the people ofIndia transcending religious, linguistic and regional or sectionaldiversities and to renounce practices derogatory to the dignity ofEwomen”, is also an indicator that no one can exercise his fundamentalright in manner that infringes upon the fundamental right of another.

41. As articulated by Jeevan Reddy, J. in Cricket Association ofBengal, no one can exercise his right of speech in such manner as toviolate another man’s right. In paragraph 152 of the decision in CricketFAssociation of Bengal, Jeevan Reddy, J. said : “Indeed it may be theduty of the State to ensure that this right is available to all in equalmeasure and that it is not hijacked by few to the detriment of therest. This obligation flows from the Preamble to our Constitution,which seeks to secure all its citizens liberty of thought, expression,Gbelief and worship………...Under our Constitutional scheme, theState is not merely under an obligation to respect the fundamentalrights guaranteed by Part-III but under an equal obligation to ensureconditions in which those rights can be meaningfully and effectivelyenjoyed by one and all.”

42. The above passage from the opinion of Jeevan Reddy, J., inCricket Association of Bengal, was quoted with approval by theConstitution Bench in Sahara India Real Estate Corporation Limitedcase.

43. There are several instances where this Court either struck abalance or placed on slightly higher pedestal, the fundamental right ofone over that of the other. Interestingly, the competing claims arose inmany of those cases, in the context of Article 19(1)(a) right of one personqua Article 21 right of another. Let us now take look at some of them.

(i)In R. Rajagopal (supra), the rights pitted against oneanother were the freedom of expression under Article19(1)(a) and the right to privacy of the Officers of theGovernment under Article 21. This Court propounded:

“26. We may now summarise the broad principlesflowing from the above discussion:

(1) The right to privacy is implicit in the right tolife and liberty guaranteed to the citizens of this countryby Article 21.It is “right to be let alone”. citizen hasa right to safeguard the privacy of his own, his family,marriage, procreation, motherhood, child-bearing andeducation among other matters. None can publishanything concerning the above matters without hisconsent — whether truthful or otherwise and whetherlaudatory or critical. If he does so, he would be violatingthe right to privacy of the person concerned and wouldbe liable in an action for damages. Position may,however, be different, if person voluntarily thrustshimself into controversy or voluntarily invites or raises acontroversy.

(2) The rule aforesaid is subject to the exception, thatany publication concerning the aforesaid aspectsbecomes unobjectionable if such publication is basedupon public records including court records. This is forthe reason that once matter becomes matter of publicrecord, the right to privacy no longer subsists and itbecomes legitimate subject for comment by press andmedia among others. We are, however, of the opinion

DEF

that in the interests of decency [Article 19(2)] anexception must be carved out to this rule, viz., femalewho is the victim of sexual assault, kidnap, abductionor like offence should not further be subjected to theindignity of her name and the incident being publicisedin press/media.

(3) There is yet another exception to the rule in (1) above— indeed, this is not an exception but an independentrule. In the case of public officials, it is obvious, right toprivacy, or for that matter, the remedy of action fordamages is simply not available with respect to theiracts and conduct relevant to the discharge of their officialduties. This is so even where the publication is basedupon facts and statements which are not true, unlessthe official establishes that the publication was made(by the defendant) with reckless disregard for truth. Insuch case, it would be enough for the defendant(member of the press or media) to prove that he actedafter reasonable verification of the facts; it is notnecessary for him to prove that what he has written istrue. Of course, where the publication is proved to befalse and actuated by malice or personal animosity, thedefendant would have no defence and would be liablefor damages. It is equally obvious that in matters notrelevant to the discharge of his duties, the public officialenjoys the same protection as any other citizen, asexplained in (1) and (2) above. It needs no reiteration

that judiciary, which is protected by the power to punishfor contempt of court and Parliament and legislaturesprotected as their privileges are by Articles 105 and 104respectively of the Constitution of India, representexceptions to this rule.

(4) So far as the Government, local authority and otherorgans and institutions exercising governmental powerare concerned, they cannot maintain suit for damagesfor defaming them.

(5) Rules 3 and 4 do not, however, mean that OfficialSecrets Act, 1923, or any similar enactment or provisionhaving the force of law does not bind the press or media.

(6) There is no law empowering the State or its officialsto prohibit, or to impose 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 otherwere the right to privacy of the spouse of candidatecontesting election qua the voter’s right to information. Inhis separate but near concurring opinion, P. VenkataramaReddi, J. articulated the position thus:

…When there is competition between the right toprivacy of an individual and the right to informationof the citizen, the former right has to be subordinatedto the latter right as it serves the larger publicinterest. …”

(iii)In Noise Pollution (V.), in Re (supra), the rights thatcompeted with one another, were the rights enshrined inArticle 19(1)(a) and Article 21. The clash was betweenindividuals and the persons in the neighborhood. This Courtheld:

“11. Those who make noise often take shelterbehind Article 19(1)(a) pleading freedom of speech andright to expression. Undoubtedly, the freedom of speechand right to expression are fundamental rights but therights are not absolute. Nobody can claim fundamentalright to create noise by amplifying the sound of his speechwith the help of loudspeakers. While one has right tospeech, others have right to listen or decline to listen.Nobody can be compelled to listen and nobody can claimthat he has right to make his voice trespass into theears or mind of others. Nobody can indulge into auralaggression. If anyone increases his volume of speechand that too with the assistance of artificial devices soas to compulsorily expose unwilling persons to hear anoise raised to unpleasant or obnoxious levels, then theperson speaking is violating the right of others to apeaceful, comfortable and pollution-free life guaranteed

646SUPREME COURT REPORTS

by Article 21. Article 19(1)(a) cannot be pressed intoservice for defeating the fundamental right guaranteedby Article 21. …”

(iv)In Ram Jethmalani the right to know, inhering in Article19(1)(a) and the right to privacy under Article 21, wereBseen to be in conflict. Right to privacy was asserted byindividuals holding bank accounts in other countries. Thecourt had to balance the same with the citizens’ right toknow. This Court propounded as follows:

“84. The rights of citizens, to effectively seek theprotection of fundamental rights, under clause (1)of Article 32have to be balanced against the rights ofcitizens and persons under Article 21.The latter cannotbe sacrificed on the anvil of fervid desire to findinstantaneous solutions to systemic problems such asunaccounted for monies, for it would lead to dangerouscircumstances, in which vigilante investigations,inquisitions and rabble rousing, by masses of othercitizens could become the order of the day. The right ofcitizens to petition this Court for upholding of fundamentalrights is granted in order that citizens, interalia, are evervigilant about the functioning of the State in order toprotect the constitutional project. That right cannot beextended to being inquisitors of fellow citizens. Aninquisitorial order, where citizens’ fundamental right toprivacy is breached by fellow citizens is destructive ofsocial order. The notion of fundamental rights, such as aright to privacy as part of right to life, is not merely thatthe State is enjoined from derogating from them. It alsoincludes the responsibility of the State to uphold themagainst the actions of others in the society, even in thecontext of exercise of fundamental rights by thoseothers.”

(v)In Sahara India Real Estate Corporation Limitedfreedom of press and the right to fair trial were the competingrights. In this case, the Constitution Bench was dealing witha question whether an order for postponement of publicationHof the proceedings pending before Court, would constitute

restriction under Article 19(1)(a) and as to whether suchrestriction is saved under Article 19(2). This question wasanswered by the Constitution Bench in para 42 as follows:

“42. At the outset, we must understand the nature ofsuch orders of postponement. Publicity postponementorders should be seen in the context of Article 19(1)(a)not being an absolute right. The US clash model basedon collision between freedom of expression (includingfree press) and the right to fair trial will not apply tothe Indian Constitution. In certain cases, even theaccused seeks publicity (not in the pejorative sense) asopenness and transparency is the basis of fair trial inwhich all the stakeholders who are party to litigationincluding the Judges are under scrutiny and at the sametime people get to know what is going on inside thecourtrooms. These aspects come within the scope ofArticle 19(1) and Article 21. When rights of equal weightclash, the Courts have to evolve balancing techniquesor measures based on recalibration under which boththe rights are given equal space in the constitutionalscheme and this is what the “postponement order” does,subject to the parameters mentioned hereinafter. But,what happens when the courts are required to balanceimportant public interests placed side by side. Forexample, in cases where presumption of open justicehas to be balanced with presumption of innocence, whichas stated above, is now recognised as human right.These presumptions existed at the time when theConstitution was framed [existing law under Article19(2)] and they continue till date not only as part of ruleof law under Article 14 but also as an Article 21 right.The constitutional protection in Article 21 which protectsthe rights of the person for fair trial is, in law, validrestriction operating on the right to free speech underArticle 19(1)(a), by virtue of force of it being aconstitutional provision. Given that the postponementorders curtail the freedom of expression of third parties,such orders have to be passed only in cases in whichthere is real and substantial risk of prejudice to fairness

of the trial or to the proper administration of justice whichin the words of Justice Cardozo is “the end and purposeof all laws”. However, such orders of postponementshould be ordered for limited duration and withoutdisturbing the content of the publication. They should bepassed only when necessary to prevent real andsubstantial risk to the fairness of the trial (courtproceedings), if reasonable alternative methods ormeasures such as change of venue or postponement oftrial will not prevent the said risk and when the salutaryeffects of such orders outweigh the deleterious effectsto the free expression of those affected by the priorrestraint. The order of postponement will only beappropriate in cases where the balancing test otherwisefavours non-publication for limited period. …”

(vi)In Thalapplam Service Cooperative Bank Ltd. (supra),theright to know held as part of Article 19(1)(a) and theright to privacy being part of Article 21 were perceived ascompeting with each other, in matter between holders ofaccounts in cooperative banks and members of the publicwho wanted details. This Court in paragraph 64 held:

“64. Recognising the fact that the right to privacy is asacrosanct facet of Article 21 of the Constitution, thelegislation has put lot of safeguards to protect the rightsunder Section 8(j), as already indicated. If the informationsought for is personal and has no relationship with anypublic activity or interest or it will not subserve largerpublic interest, the public authority or the officerconcerned is not legally obliged to provide thoseinformation. Reference may be made to recentjudgment of this Court in Girish Ramchandra Deshpandev. Central Information Commr., (2013) 1 SCC 212,wherein this Court held that since there is no bona fidepublic interest in seeking information, the disclosure ofsaid information would cause unwarranted invasion ofprivacy of the individual under Section 8(1)(j) of the Act.Further, if the authority finds that information sought forcan be made available in the larger public interest, then

the officer should record his reasons in writing beforeproviding the information, because the person from whominformation is sought for, has also right to privacyguaranteed under Article 21 of the Constitution.”

(vii)In Subramanian Swamy (supra), the right to freedom ofspeech of an individual guaranteed under Article 19(1)(a)qua the right to dignity and reputation of another individualguaranteed under Article 21 were the competing rights. Inthis case, the Court held as follows:

“98. Freedom of speech and expression in spiriteddemocracy is highly treasured value. Authors,philosophers and thinkers have considered it as prizedasset to the individuality and overall progression of athinking society, as it permits argument, allows dissentto have respectable place, and honours contrarystances. There are proponents who have set it on higherpedestal than life and not hesitated to barter death for it.Some have condemned compelled silence to ruthlesstreatment. William Dougles has denounced regulationof free speech like regulating diseased cattle and impurebutter. The Court has in many an authority havingrealised its precious nature and seemly glorified sanctityhas put it in meticulously structured pyramid. Freedomof speech is treated as the thought of the freest whohas not mortgaged his ideas, may be wild, to theartificially cultivated social norms; and transgressionthereof is not perceived as folly. Needless toemphasise, freedom of speech has to be allowed speciouscastle, but the question is: should it be so specious orregarded as so righteous that it would make reputationof another individual or group or collection of personsabsolutely ephemeral, so as to hold that criminalprosecution on account of defamation negates andviolates right to free speech and expression of opinion…”

(viii) In Asha Ranjan (supra), the right to free trial, of an accusedvis-à-vis the victim, came up for consideration. The Courtpropounded in paragraph 61:

EFG

“61. Be it stated, circumstances may emerge that maynecessitate for balancing between intra-fundamentalrights. It has been distinctly understood that the test thathas to be applied while balancing the two fundamentalrights or inter fundamental rights, the principles appliedmay be different than the principle to be applied in intra-conflict between the same fundamental right. Toelaborate, as in this case, the accused has fundamentalright to have fair trial under Article 21 of theConstitution. Similarly, the victims who are directlyaffected and also form part of the constituent of thecollective, have fundamental right for fair trial. Thus,there can be two individuals both having legitimacy toclaim or assert the right. The factum of legitimacy is aprimary consideration. It has to be remembered that nofundamental right is absolute and it can have limitationsin certain circumstances. Thus, permissible limitationsare imposed by the State. The said limitations are to bewithin the bounds of law. However, when there is intra-conflict of the right conferred under the same article,like fair trial in this case, the test that is required to beapplied, we are disposed to think, it would be “paramountcollective interest” or “sustenance of public confidencein the justice dispensation system”. An example can becited. group of persons in the name of “class honour”,as has been stated in Vikas Yadav v. State ofU.P., (2016) 9 SCC 541: (2016) 3 SCC (Cri) 621], cannotcurtail or throttle the choice of woman. It is becausechoice of woman in choosing her partner in life is alegitimate constitutional right. It is founded on individualchoice that is recognised in the Constitution under Article19, and such right is not expected to succumb to theconcept of “class honour” or “group thinking”. It isbecause the sense of class honour has no legitimacyeven if it is practised by the collective under some kindof notion. Therefore, if the collective interest or thepublic interest that serves the public cause and furtherhas the legitimacy to claim or assert fundamental right,then only it can put forth that their right should be

protected. There can be no denial of the fact that therights of the victims for fair trial is an inseparable aspectof Article 21 of the Constitution and when they assertthat right by themselves as well as the part of thecollective, the conception of public interest getsgalvanised. The accentuated public interest in suchcircumstances has to be given primacy, for it furthersand promotes “Rule of Law”. …”

(ix)In Railway Board representing the Union of India vs.Niranjan Singh[53], trade union worker was charged ofthe misconduct of addressing meetings within the railwaypremises, in contravention of the directions issued by theemployer. When he sought protection under clauses (a),(b) and (c) of Article 19(1), this Court rejected the same byholding “that the exercise of those freedoms will come toan end as soon as the right of someone else to hold hisproperty intervenes.” This Court went on to state that “thevalidity of that limitation is not to be judged by the testprescribed in sub-Articles (2) and (3) of Article 19”.(x)In Life Insurance Corporation of India vs. Prof.Manubhai D. Shah[54], two fundamental rights were notcompeting or in conflict with each other. But the right tofree speech and the right to propagate one’s ideas, in thecontext of censorship under the Cinematograph Act, 1952and in the context of State institution refusing to publishan Article in an in-house magazine were in question. InParagraph 23 of the Report, this Court said: “every righthas corresponding duty or obligation and so is thefundamental right of speech and expression. Thefreedom conferred by Article 19(1((a) is therefore notabsolute as perhaps in the case of the US FirstAmendment: it carries with it certain responsibilitiestowards fellow citizens and society at large. citizenwho exercises this right must remain conscious that hisfellow citizen too has similar right. Therefore, the rightmust be so exercised as not to come in direct conflictwith the right of another citizen.”

53 (1969) 1 SCC 502

54 (1992) 3 SCC 637

A44. The series of decisions discussed above shows that whenevertwo or more fundamental rights appeared either to be on collisioncourse or to be seeking preference over one another, this Court hasdealt with the same by applying well-established legal tools. Therefore,we are of the view that under the guise of invoking other fundamentalrights, additional restrictions, over and above those prescribed in ArticleB19(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 rightto free speech are exhaustive. Under the guise of invokingother fundamental rights or under the guise of twofundamental rights staking competing claim against eachother, additional restrictions not found in Article 19(2), cannotbe imposed on the exercise of the right conferred by Article19(1)(a) upon any individual.”

DQuestion No.2

46. The second question referred to us is as to whether afundamental right under Article 19 or 21 can be claimed against anyoneother than the State or its instrumentalities. Actually, the question is notabout “claim” but about “enforceability”.

E47. To use the phraseology adopted by the philosophers of Law,the question on hand is as to whether Part III of the Constitutionhas “vertical” or “horizontal” effect. Wherever Constitutional rightsregulate and impact only the conduct of the Government andGovernmental actors, in their dealings with private individuals, they areFsaid to have “a vertical effect”. But wherever Constitutional rightsimpact even the relations between private individuals, they are said tohave “a horizontal effect”.

48. In his scholarly article, “The ‘Horizontal Effect’ ofConstitutional Rights”, published in Michigan Law Review (Volume 2.Issue 3, 2003) Stephen Gardbaum, states that the horizontal position hasGbeen adopted to varying degrees in Ireland, Canada, Germany, SouthAfrica and European Union. According to the learned author, this issuehas also been the topic of sustained debate in the United Kingdomfollowing the enactment of the Human Rights Act of 1998[55].

55 Interestingly The Protection of Human Rights Act, 1993 was enacted in India fiveHyears before similar Act came in United Kingdom.

49. No jurisdiction in the world appears to be adopting, at least ason date, purely vertical approach or wholly horizontal approach. Avertical approach provides weightage to individual autonomy, choice andprivacy, while the horizontal approach seeks to imbibe Constitutionalvalues in all individuals. These approaches which appear to be bipolaropposites, raise the age-old question of ‘individual vs. society’.

50. Even in countries where the individual reigns supreme, as inthe United States, the Thirteenth Amendment making slavery andinvoluntary servitude punishable offence, has actually made inroadsinto individual autonomy. Therefore, some scholars think that theThirteenth Amendment provided shift from the ‘purely vertical’approach in direct way. Subsequently, an indirect effect of thehorizontality was found in certain decisions of the U.S. Supreme Court,two of which are of interest.

51. After the American Civil War (1861-1865), the ReconstructionEra began in the United States. During this period, the FourteenthAmendment came (1866-1868) followed by the Civil Rights Act, 1875(also called Enforcement Act or Force Act). This Civil Rights Act, 1875entitled everyone, to access accommodation, public transport and theatersregardless of race or color. Finding that despite the Act, they were excludedfrom “whites only” facilities in hotels, theaters etc., the victims ofdiscrimination (African-Americans) filed cases. All those five cases weretagged together and the U.S. Supreme Court held in (year 1883) whatcame to be known as “Civil Rights Cases”[56] that the Thirteenth andFourteenth Amendments did not empower Congress to outlaw racialdiscrimination by private individuals. But after nearly 85 years, thisdecision was overturned in Jones vs. Alfred H. Mayer Co[57 ]wherein itwas held that Congress could regulate sale of private property to preventracial discrimination. This was done in terms of 42 U.S. Code § 1982which entitled all citizens of the United States to have the same right, inevery State and Territory, as is enjoyed by white citizens thereof to inherit,purchase, lease, sell, hold, and convey real and personal property.

52. But good 20 years before the decision in Jones (supra) wasdelivered, the U.S. Supreme Court had an occasion to consider clashbetween contractual rights and Constitutional rights. It was in Shelly(supra) where an African-American family (Shellys) who purchased a56 109 US 3 (1883)57 392 US 409 (1968)

Aproperty in neighbourhood in St. Louis, Missouri was sought to berestrained from taking possession, because of racially restrictivecovenant contained in an Agreement of the year 1911 to which majorityof property owners in the neighbourhood were parties. The covenantrestricted the sale of any property or part thereof for term of 50 yearsto African-Americans and Asian-Americans. The Missouri SupremeBCourt upheld the racially restricted covenant. But the U.S. SupremeCourt reversed it holding that the enforcement of such covenants violatedthe Equal Protection Clause of the Fourteenth Amendment. In otherwords the contractual rights were trumped by the Constitutionalobligations.C[[58]]

53. Then came the decision in New York Times vs. Sullivan[[58]]. Itwas case where the City Commissioner in Montgomery, Alabamafiled an action for libel against the New York Times for publishing anallegedly defamatory statement in paid advertisement. The jury awardeddamages and the judgment was affirmed by the Supreme Court ofDAlabama. However, the U.S. Supreme Court reversed the decision andheld that the First Amendment which prohibited public official fromrecovering damages for defamatory falsehood relating to the publicofficial’s official conduct except in the case of actual malice, bound theplaintiff from exercising his private right.

E54. The above decisions of the U.S. Supreme Court were seenby scholars as indicating shift from ‘purely vertical approach’ to a‘horizontal approach’.

55. While the U.S. Constitution represented (to begin with) purelyvertical approach, the Irish Constitution was found to be on the oppositeFside of the spectrum, with the rights provided therein having horizontaleffect. Article 40 of the Irish Constitution deals with Personal Rightsunder the Chapter “Fundamental Rights”. Sub-Article (3) of Article 40states that “The State guarantees in its laws to respect, and, as faras practicable, by its laws to defend and vindicate the personalrights of the citizen”. In other words, two rights are guaranteed namelyG(i) respect for the personal rights of the citizen; and (ii) to defend andvindicate the personal rights of its citizen.

56. The second clause of sub-Article (3) of Article 40 of the IrishConstitution states that “The State shall, in particular, by its laws protect

H58 376 U.S. 254 (1964)

as best it may from unjust attack and, in the case of injustice done,vindicate the life, person, good name, and property rights of everycitizen”.

57. The above provisions have been interpreted by the IrishSupreme Court as imposing positive obligation on all State actors,including the Courts to protect and enforce the rights of individuals. Itappears that full horizontal effect was given by the Irish Supreme Courtto Constitutional rights such as freedom of association, freedom fromsex discrimination and the right to earn livelihood. For instance, theIrish Supreme Court had an occasion to consider in John Meskell, theConstitutional rights of citizens to form associations and unions guaranteedby Article 40.6.1. This case arose out of an agreement reached betweencertain trade unions and the employer to terminate the services of allworkers and to reemploy them on condition that they agree to be membersof the specified trade unions at all times. One employee whose serviceswere terminated was not reemployed, as he refused to accept the specialcondition. Therefore, he sued the company for damages and claimed adeclaration that his dismissal was violation of the Constitutional rights.Holding that the Constitutional right of citizens to form associationsand unions necessarily recognized correlative right to abstain fromjoining associations and unions, the Irish Supreme Court awardeddamages on the ground that the non-State actors actually violated theConstitutional right of the plaintiff. In other words, the Constitutionalrights were considered to have horizontal effect.

58. The Constitution of the Republic of South Africa, 1996 alsoprovides horizontal effect to certain rights. Section 8.2 of the saidConstitution states: “A provision of the Bill of Rights binds naturalor juristic person if, and to the extent that, it is applicable, takinginto account the nature of the right and the nature of any dutyimposed by the right.”

59. The manner in which Section 8.2 has to be applied is spelt outin Section 8.3. The same reads thus:

“8. Application

3. When applying provision of the Bill of Rights to natural orjuristic person in terms of subsection (2), court -

a. in order to give effect to right in the Bill, must apply, orif necessary develop, the common law to the extent thatlegislation 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 sectionB36(1).”

60. Section 9 of the Constitution of the Republic of South Africaguarantees equality before law and equal protection and the benefit ofthe law to everyone. Section 9.3 mandates the State not to unfairlydiscriminate directly or indirectly against anyone, on one or moreCgrounds including race, gender, sex, pregnancy, marital status,ethnic or social origin, colour, sexual orientation, age, disability,religion, conscience, belief, culture, language, and birth. If Section9.3 is mandate against the State, what follows in Section 9.4 is mandateagainst every person. Section 9.4 reads as follows:

D“9. Equality

4. No person may unfairly discriminate directly or indirectlyagainst anyone on one or more grounds in terms of sub-section(3). National legislation must be enacted to prevent or prohibitEunfair discrimination.”

61. Again, Section 10 recognises the right to human dignity. Whiledoing so, it employs language, which applies to non-State actorsalso. Section 10 states that “Everyone has inherent dignity and theright to have their dignity respected and protected”.

62. During the period from April 1994 to February 1997, when theRepublic of South Africa had an Interim Constitution, the ConstitutionalCourt of South Africa had an occasion to deal with defamation actionin Du Plessis and Others vs. De Klerk and Another[59]. The defamationaction was instituted by an Airline company, against newspaper forGpublishing an article implicating the Airline in the unlawful supply of armsto UNITA (National Union for the Total Independence of Angola). Afterthe Interim Constitution came into force, the defendant-newspaper raiseda defence that they were insulated against the defamation action, underSection 15 of the Constitution which protected the freedom of the press.

H59 1996 ZACC 10

The Transvaal Provincial Division of the Supreme Court referred twoissues to the Constitutional Court. One of the issues was whetherChapter 3 (fundamental rights) of the Constitution was applicableto legal relationships between private parties. The majority (11:2) ofthe Court held that Chapter 3 could not be applied directly to the commonlaw in actions between private parties. But they left open the questionwhether there were particular provisions of the Chapter that could be soapplied. However, the Court held that in terms of Section 35(3) of theInterim Constitution, Courts were obliged in the application anddevelopment of common law, to have due regard to the spirit, purportand objects of Chapter 3. The majority held that it was the task of theSupreme Court to apply and develop the common law as required bySection 35(3).

63. Interestingly, the dissenting opinion given by Kriegler, J. becamethe subject matter of lot of academic debate. To begin with, Kriegler, J.rejected the idea that the debate was one of “verticality versushorizontality”. He said that Chapter 3 rights do not operate only asagainst the State but also horizontally as between individuals whereStatutes are involved. Calling “direct horizontality” as bogeyman,Kriegler, J. said as follows:

“The Chapter has nothing to do with the ordinaryrelationships between private persons or associations. Whatit does govern, however, is all law, including that applicableto private relationships. Unless and until there is resort tolaw, private individuals are at liberty to conduct their privateaffairs exactly as they please as far as the fundamental rightsand freedoms are concerned. As far as the Chapter isconcerned landlord is free to refuse to let flat to someonebecause of race, gender or whatever; white bigot may refuseto sell property to person of colour; social club may black-ball Jews, Catholics or Afrikaners if it so wishes. An employeris at liberty to discriminate on racial grounds in theengagement of staff; hotelier may refuse to let room to ahomosexual; church may close its doors to mourners of aparticular colour or class. But none of them can invoke thelaw to enforce or protect their bigotry. One cannot claimrescission of contract or specific performance thereof ifsuch claim, albeit well-founded at common law, infringes

658SUPREME COURT REPORTS

AChapter 3 right. One cannot raise defence to claim inlaw if such defence is in conflict with protected right orfreedom. The whole gamut of private relationships is leftundisturbed. But the state, as the maker of the laws, theadministrator of laws and the interpreter and applier of thelaw, is bound to stay within the four corners of Chapter 3.BThus, if man claims to have the right to beat his wife, sellhis daughter into bondage or abuse his son, he will not beallowed to raise as defence to civil claim or criminalcharge that he is entitled to do so at common law, undercustomary law or in terms of any statute or contract. That isCa far cry from the spectre of the state placing its hand onprivate relationships. On the contrary, if it were to try to doso by legislation or administrative action, sections 4, 7(1)and the whole of Chapter 3 would stand as bastion ofpersonal rights.”

D64. After the Final Constitution was adopted and it came intoforce on February 4, 1997, the first case to come up on this issue wasKhumalo vs. Holomisa[60]. In this case, Bantu Holomisa, the leader ofthe South African opposition political party sued newspaper for publishingan article alleging as though he was under police investigation for hisinvolvement with gang of bank robbers. Heavy reliance was placed inEthis case on the majority decision of the Constitutional Court of SouthAfrica in Du Plessis (supra). But as pointed out earlier, Du Plessis wasa case which was decided at time when South Africa had only anInterim Constitution. Therefore, while dealing with Khumalo (supra),the Constitutional Court of South Africa applied the Final Constitution,Fas it had come into force by then. What is relevant for our purpose is theopinion of the Constitutional Court in paragraph 33 which dealt with theenforcement of the rights against non-State actors. Paragraph 33 readsthus:

“[33] In this case, the applicants are members of the mediaGwho are expressly identified as bearers of constitutional rightsto freedom of expression. There can be no doubt that the lawof 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

H60 (2002) ZACC 12

be occasioned by persons other than the state or organs ofstate, it is clear that the right to freedom of expression is ofdirect horizontal application in this case as contemplated bysection 8(2) of the Constitution. The first question we needthen to determine is whether the common law of defamationunjustifiably limits that right. If it does, it will be necessary todevelop the common law in the manner contemplated bysection 8(3) of the Constitution.”

65. The horizontal effect was taken to another extreme by theConstitutional Court of South Africa in Governing Body of the JumaMusjid Primary School & Others vs. Essay N.O. and Others[61 ]whereinit was held that an eviction order obtained by the owner of private landon which public school was located, could not be enforced as it wouldimpact the students’ right to basic education and the best interests of thechild under the South African Constitution (Sections 28 and 29). TheCourt held that private landowner and non-State actor has aConstitutional obligation not to impair the right to basic education underSection 29 of the Constitution. The relevant portion reads thus:

“[57] In order to determine whether the right to basic educationin terms of section 29(1)(a) binds the Trust, section 8(2) requiresthat the nature of the right of the learners to basic education andthe duty imposed by that right be taken into account. From thediscussion in the previous paragraphs of the general nature of theright and the MEC’s obligation in relation to it, the form of theduty that the right to basic education imposed on the Trusteesemerges. It is clear that there is no primary positive obligation onthe Trust to provide basic education to the learners. That primarypositive obligation rests on the MEC. There was also no obligationon the Trust to make its property available to the MEC for use asa public school. private landowner may do so, however, inaccordance with section 14(1) of the Act which provides that apublic school may be provided on private property only in termsof an agreement between the MEC and the owner of the property.

[58] This Court, in Ex Parte Chairperson of theConstitutional Assembly: In re Certification of theConstitution of the Republic of South Africa, made it clear

EFG

Athat socio-economic rights (like the right to basiceducation) may be negatively protected from improperinvasion. Breach of this obligation occurs directly whenthere is failure to respect the right, or indirectly, whenthere is failure to prevent the direct infringement of theright by another or failure to respect the existingBprotection of the right by taking measures that diminishthat protection. It needs to be stressed however that thepurpose of section 8(2) of the Constitution is not to obstructprivate autonomy or to impose on private party the dutiesof the state in protecting the Bill of Rights. It is rather toCrequire private parties not to interfere with or diminish theenjoyment of right. Its application also depends on theintensity of the constitutional right in question, coupled withthe potential invasion of that right which could be occasionedby persons other than the State or organs of State.”D66. Coming to the United Kingdom, they ratified the EuropeanConvention on Human Rights in 1951. But the rights conferred by theConvention had to be enforced by British citizens only in the EuropeanCourt of Human Rights, for long time. Finding that it took an averageof five years to get an action in the European Court of Human Rightsafter all domestic remedies are exhausted and also finding that on anEaverage, the same costed £30,000, white paper was submitted in 1997under the title “Rights Brought Home”. This led to the enactment ofthe 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 conferredFby the European Convention, so that the citizens need not go to theEuropean Court of Human Rights in Strasbourg. After the enactment ofthe Human Rights Act, the horizontal effect of Convention Rights becamethe subject matter of debate in several cases.

67. For instance, Douglas vs. Hello! Ltd.[62 ]was case whereGthe right to privacy of an individual was pitted against the right of freespeech and expression. In that case, magazine called OK! was giventhe exclusive right to publish the photographs of the wedding receptionof celebrity couple that took place at New York. On the day of thewedding, certain paparazzo had infiltrated the venue and took few

H62 [2001] QB 967

unauthorized photographs which were shared with potential competitorviz. Hello! Ltd. (another magazine). Hello! published the photographs inthe next issue of their magazine even before Ok! could publish it. Thequestion before the Court of Appeal (Civil Division) was whether therewas violation of right to privacy, among others and whether it could beenforced against private person. The Court said:

“49. It follows that the ECtHR has recognised an obligationon member states to protect one individual from anunjustified invasion of private life by another individual andan obligation on the courts of member state to interpret legislationin 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 JonathanMorgan, in Privacy, Confidence and Horizontal Effect:” Hello”Trouble (2003) CLJ 443, contend that the Human Rights Actshould be given ‘full, direct, horizontal effect’. The courtshave not been prepared to go this far.…

102. To summarise our conclusion at this stage:disregarding the effect of the OK! contract, we are satisfiedthat the Douglases’ claim for invasion of their privacy fallsto be determined according to the English law of confidence.That law, as extended to cover private and personalinformation, protected information about the Douglases’wedding.”

68. In X vs. Y[63], the Court of Appeals dealt with the case of anemployee X, who was cautioned by the Police for committing sexoffence with another man in public bathroom. The offence occurredwhen X was off duty. On finding about the incident, the employer Ysuspended X and dismissed him after disciplinary hearing. The dismissalwas challenged as violative of Convention Rights. An argument wasraised that these rights are not enforceable against private parties. Thoughon facts, the claim of the dismissed employee was dismissed, the legalissue was articulated by the Court thus:

A“55. The applicant invoked articles 8 and 14 of the Convention inrelation to his cause of action in private law.

(1) As appears from the authorities cited in section above, article8 is not confined in its effect to relations between individuals andthe state and public authorities. It has been interpreted by theBStrasbourg court as imposing positive obligation on thestate to secure the observance and enjoyment of the rightbetween private individuals.

(2) If the facts of the case fall within the ambit of article 8, thestate is also under positive obligation under article 14 to secureto private individuals the enjoyment of the right withoutCdiscrimination, including discrimination on the ground of sexualorientation.

(3) person’s sexual orientation and private sex life fall withinthe scope of the Convention right to respect for private life (seeADT v. UK [2000] 2 FLR 697) and the right to non-discriminationDin respect that right. Interference with the right within article 8.1has to be justified under article 8.2.”

69. In Plattform “Ärzte Für Das Leben” vs. Austria[64], questionarose as to the enforceability of the right to freedom of assembly againstnon-State actors, who obstructed the assembly. The case arose out ofEthese facts. On 28 December 1980, the anti-abortion NGO “Ärzte fürdas Leben” (Physicians for Life) organised religious service and amarch to the clinic of doctor who carried out abortions in Stadl-Paura.A number of counter-demonstrators disrupted the march to the hillsideby mingling with the marchers and shouting down their recitation. At theend of the ceremony, special riot-control units – which had until thenFbeen standing by – formed cordon between the opposing groups. Oneperson caught in the act of throwing eggs was fined. The associationlodged disciplinary complaint against police for failing to protect thedemonstration, which was refused. When the matter was taken to theConstitutional Court, it held that it had no jurisdiction over the case.GTherefore, the association applied to the European Commission on 13September 1982, alleging violation of Articles 9 (conscience and religion),10 (expression), 11 (association) and 13 (effective remedy) ofthe European Convention on Human Rights. The European Court onHuman Rights held:

H64 [1988] ECHR 15

“32. demonstration may annoy or give offence to personsopposed to the ideas or claims that it is seeking topromote. The participants must, however, be able to hold thedemonstration without having to fear that they will be subjectedto physical violence by their opponents; such fear would be liableto deter associations or other groups supporting common ideas orinterests from openly expressing their opinions on highlycontroversial issues affecting the community. In democracy theright to counter-demonstrate cannot extend to inhibiting theexercise of the right to demonstrate.

Genuine, effective freedom of peaceful assembly cannot,therefore, be reduced to mere duty on the part of theState not to interfere: purely negative conception wouldnot 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, evenin the sphere of relations between individuals, if need be(see, mutatis mutandis, the X and Y v. the Netherlands judgmentof 26 March 1985, Series no. 91, p. 11, § 23)”

70. In X and Y vs. The Netherlands[65], privately-run home forchildren with mental disabilities was sued on the ground that 16-year-old inmate was subjected to sexual assault. When the case was dismissedby the domestic court on technical plea, the father of the victimapproached the European Court of Human Rights. ECHR outlined theextent of State obligation on the protection of the right to life even againstprivate persons as follows:

“23. The Court recalls that although the object of Article 8 (art. 8)is essentially that of protecting the individual against arbitraryinterference by the public authorities, it does not merely compelthe State to abstain from such interference: in addition to thisprimarily negative undertaking, there may be positive obligationsinherent in an effective respect for private or family life (see theAirey judgment of 9 October 1979, Series no. 32, p. 17, para.32). These obligations may involve the adoption of measuresdesigned to secure respect for private life even in the sphereof the relations of individuals between themselves.”

71. Having taken an overview of the theoretical aspect of“verticality vs horizontality” and the approach of Constitutional Courtsin other jurisdictions, let us now come back to the Indian context.

72. Part-III of the Indian Constitution begins with Article 12 whichdefines the expression “the State” to include the Government and theBParliament of India and the Government and the Legislature of each ofthe States and all local or other authorities within the territory of India orunder the control of the Government of India.

73. After defining the expression “the State” in Article 12 andafter declaring all laws inconsistent with or in derogation of thefundamental rights to be void under Article 13, Part-III of the ConstitutionCproceeds to deal with rights. There are some Articles in Part-III wherethe mandate is directly to the State and there are other Articleswhere without injuncting the State, certain rights are recognized tobe inherent, either in the citizens of the country or in persons. Infact, there are two sets of dichotomies that are apparent in the ArticlesDcontained in Part III. One set of dichotomy is between (i) what is directed

against the State; and (ii) what is spelt out as inhering in every individualwithout reference to the State. The other dichotomy is between (i)citizens; and (ii) persons. This can be illustrated easily in the form of atable as follows:

EFGH

665ABCDEFGH

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

74. The above table would show that some of the Articles ofPart-III are in the form of directive to the State, while others are not.This is an indication that some of the rights conferred by Part-III are tobe honored by and also enforceable against, non-State actors.

75. For instance, the rights conferred by Articles 15(2)(a) and (b),17, 20(2), 21, 23, 24, 29(2) etc., are obviously enforceable against non-State actors also. The owner of shop, public restaurant, hotel or placeof entertainment, though non-State actor cannot deny access to citizenof 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 publicresort maintained wholly or partly out of State funds or dedicated to theuse of general public, in view of Article 15(2)(b). The right not to beenforced with any disability arising out of untouchability is available againstnon-State actors under Article 17. The right against double jeopardy,and the right against self-incrimination available under sub-Articles (2)and (3) of Article 20 may also be available even against non-State actorsin the case of prosecution on private complaints. We need not elaboratemore, as the table given above places all rights in perspective.76. That takes us to the question as to how the Courts in Indiahave dealt with cases where there were complaints of infringement bynon-State actors, of fundamental rights, other than those covered incolumn 2 of the Table in para 73 above. To begin with, this Court wasweary of extending the enforcement of fundamental rights against privateindividuals. But this reluctance changed over period of time. Let usnow see how the law evolved:

(i)In P.D. Shamdasani (supra), Five Member Bench ofthis Court was dealing with writ petition under Article 32,filed by person who lost series of proceedings both civiland otherwise, against the Central Bank of India Limited,which was at that time company incorporated underCompanies Act. The grievance of the petitioner in that casewas that the shares held by him in the company were soldby the bank in exercise of its right of lien for recovery of adebt. Therefore, the petitioner pitched his claim under Article19(1)(f) and Article 31(1)(which was available at thattime). But while making comparison between Article 31(1)(as it stood at that time) and Article 21, both of whichcontained declaration in the same negative form, this Court

668SUPREME COURT REPORTS

Aobserved in P.D. Shamdasani as follows: “There is noexpress reference to the State in Article 21. But could itbe suggested on that account that that Article wasintended to afford protection to life and personal libertyagainst violation by private individuals? The words“except by procedure established by law” plainlyB”exclude such suggestion.

(ii)The aforesaid principle in P.D. Shamdasani was reiteratedby another Five Member Bench of this Court in Smt. VidyaVarma vs. Dr. Shiv Narain Varma[66 ]holding that thelanguage of Article 31(1) and Article 21 are similar andCthat they do not apply to invasions of right by privateindividual and that consequently no writ will lie in such cases.

(iii)In Sukhdev Singh vs. Bhagatram Sardar SinghRaghuvanshi[67] two questions arose before ConstitutionBench of this Court. One of the questions was whether anDemployee of statutory corporation is entitled to protectionof Articles 14 and 16 against the corporation on the premisethat these statutory corporations are authorities within themeaning of Article 12. In his separate but concurring opinion,Mathew, J. pointed out that the concept of State hasEundergone drastic changes in recent years and that todayState cannot be conceived of simply as coercive machinerywielding the thunderbolt of authority. The learned Judgequoted the decision of the US Supreme Court in Marsh vs.Alabama[68], where person who was Jehovah’s witnesswas arrested for trespassing and distributing pamphlets, inFa company town owned by corporation. Though theproperty in question was private, the Court said that theoperation of town was public function and that therefore,the private rights of the corporation must be exercised withinconstitutional limitations. After quoting the decision inGMarsh, K.K. Mathew, J. went on to hold as follows:

“95. But how far can this expansion go? Except in veryfew cases, our Constitution does not, through its own

66 AIR 1956 SC 10867 (1975) 1 SCC 421H68 326 US 501 (1946)

force, set any limitation upon private action. Article 13(2)provides that no State shall make any law which takesaway or abridges the rights guaranteed by Part III. It isthe State action of particular character that isprohibited. Individual invasion of individual right is not,generally speaking, covered by Article 13(2). In otherwords, it is against State action that fundamental rightsare guaranteed. Wrongful individual acts unsupportedby State authority in the shape of laws, customs, orjudicial or executive proceeding are not prohibited.Articles 17, 23 and 24 postulate that fundamental rightscan be violated by private individuals and that the remedyunder Article 32 may be available against them. But, byand large, unless an act is sanctioned in some way bythe State, the action would not be State action. In otherwords, until some law is passed or some action is takenthrough officers or agents of the State, there is no actionby the State…”

(iv)In People’s Union for Democratic Rights (supra) thisCourt pointed out that the fundamental right guaranteedunder Article 24 is enforceable against everyone, includingthe contractors. The Court went step further by holdingthat the Union of India, the Delhi Administration and theDelhi Development Authority have duty to ensure thatthis Constitutional obligation is obeyed by the contractors.Going further, this Court held that certain fundamental rightssuch as those found in Articles 17, 23 and 24 are enforceableagainst the whole world.

(v)S. Rangarajan (supra) was case where division Benchof the Madras High Court revoked the ‘U’ certificate issuedto Tamil feature film, on the ground that it offended thereservation policy. The Government of Tamil Nadu supportedthe decision of the High Court on the ground that severalorganizations in Tamil Nadu were agitating that the filmshould be banned as it hurt the sentiments of peoplebelonging to the reserved categories. After pointing outthat this Court was amused and troubled by the standtaken by the State Government, this Court indicated that

670SUPREME COURT REPORTS

it is the duty of the State to protect the freedom ofexpression since it is liberty granted against the Stateand that the State cannot plead its inability to handlethe hostile audience problem. Holding that the State cannotnegate the rule of law and surrender to blackmail andintimidation, this Court said that it the obligatory duty of theCourt to prevent it and protect the freedom.

(vi)In Smt. Nilabati, this Court made distinction between,(i) the decision in Kasturi Lal upholding the State’s pleaof 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 fundamentalrights to which the doctrine of sovereign immunity hasno application in the constitutional scheme. In paragraph34, which contains the separate but concurring opinion ofDr. A.S. Anand, J., the law was summarised as follows:-“34. The public law proceedings serve differentpurpose than the private law proceedings. The relief ofmonetary compensation, as exemplary damages, inproceedings under Article 32 by this Court or underArticle 226 by the High Courts, for establishedinfringement of the indefeasible right guaranteed underArticle 21 of the Constitution is remedy available inpublic law and is based on the strict liability forcontravention of the guaranteed basic and indefeasiblerights of the citizen. The purpose of public law is notonly to civilize public power but also to assure the citizenthat they live under legal system which aims to protecttheir interests and preserve their rights. Therefore, whenthe court moulds the relief by granting “compensation”in proceedings under Article 32 or 226 of the Constitutionseeking enforcement or protection of fundamental rights,it does so under the public law by way of penalising thewrongdoer and fixing the liability for the public wrongon the State which has failed in its public duty to protectthe fundamental rights of the citizen. The payment ofcompensation in such cases is not to be understood, asit is generally understood in civil action for damages

under the private law but in the broader sense ofproviding relief by an order of making ‘monetary amends’under the public law for the wrong done due to breachof public duty, of not protecting the fundamental rightsof the citizen. The compensation is in the nature of‘exemplary damages’ awarded against the wrongdoerfor the breach of its public law duty and is independentof the rights available to the aggrieved party to claimcompensation under the private law in an action basedon tort, through suit instituted in court of competentjurisdiction or/and prosecute the offender under the penallaw.”

(vii)In Lucknow Development Authority vs. M.K. Gupta[69]this Court pointed out that the administrative law ofaccountability of public authorities for their arbitrary andeven ultra vires actions has taken many strides and that itis now accepted by both by this Court and English Courtsthat the State is liable to compensate for the loss or injurysuffered by citizen due to arbitrary actions of its employees.

(viii) The decision in Bodhisattwa Gautam (supra), arose underspecial circumstances. girl student of college lodged acomplaint against Lecturer for alleged offences underSections 312, 420, 493, 496 and 498-A IPC. The Lecturermoved the High Court under Section 482 Cr.P.C. forquashing the complaint. The High Court dismissed the quashpetition. When the Lecturer filed special leave petition,this Court not only dismissed the SLP but also issued noticesuo motu on the question as to why he should not be askedto pay reasonable monthly maintenance during the pendencyof the prosecution. Finally, this Court ordered payment of amonthly interim compensation after holding that what wasviolated was the fundamental right of the women underArticle 21 and that therefore remedy can be providedby this Court under Article 32 even against the non-state actor (namely the accused). This decision was citedwith approval in Chairman, Railway Board & Ors. vs.Chandrima Das (Mrs.) & Ors.[70].

69 (1994) 1 SCC 243

70 (2000) 2 SCC 465

A(ix)As rightly highlighted by the learned amicus, this Court hasawarded damages against non-State actors under theenvironmental law regime, whenever they were found tohave violated the right under Article 21. For instance thisCourt was concerned with case in M.C. Mehta vs. KamalNath[71 ]where company built club on the banks of RiverBBeas, partly taken on lease from the Government and partlyby encroaching into forest land and virtually turning thecourse of the River. Invoking the “polluter pays principle”and “precautionary principle” landscaped in VelloreCitizens’ Welfare Forum vs. Union of India[72 ]and alsoCapplied in Indian Council for Enviro-Legal Action vs.Union of India[73], this Court held the owner of the privatemotel to be liable to pay compensation towards the cost ofrestoration of the ecology of the area. Thereafter, showcause notice was issued to the motel as to why they shouldnot be asked to pay compensation to reverse the degradedDenvironment and as to why pollution fine should not beimposed. In response, the motel contended before this Courtthat though in proceedings under Article 32 it was open tothis Court to grant compensation to the victims whosefundamental rights were violated or who are victims ofEarbitrary Executive action or victims of atrocious behaviorof public authorities, the Court cannot impose any fine onthose who are guilty of that action. The motel also contendedthat fine is component of criminal jurisprudence and hencethe imposition of fine would be violative of Articles 20 and21. This Court, even while accepting the said argument inFso far as the component of fine is concerned, directed theissue of fresh notice to the motel to show cause whyexemplary damages be not awarded, in addition to thedamages already awarded. Thereafter, this Court held inM.C. Mehta vs. Kamal Nath (supra at footnote no.15) asGfollows:-

“10. In the matter of enforcement of fundamental rightsunder Article 21, under public law domain, the Court, in

71 (1997) 1 SCC 38872 (1996) 5 SCC 647H73 (1996) 3 SCC 212

exercise of its powers under Article 32 of theConstitution, has awarded damages against those whohave been responsible for disturbing the ecologicalbalance either by running the industries or any otheractivity which has the effect of causing pollution in theenvironment. The Court while awarding damages alsoenforces the “POLLUTER-PAYS PRINCIPLE” which is widelyaccepted as means of paying for the cost of pollutionand control. To put in other words, the wrongdoer, thepolluter, is under an obligation to make good the damagecaused to the environment.”

(x)In Consumer Education & Research Centre & Ors. vs.Union of India &Ors.[74], this Court held that in appropriatecases the Court could give appropriate directions to theemployer, be it the State or its undertaking or privateemployer, to make the right to life meaningful, to preventpollution of work place, protection of environment, protectionof the health of the workmen and to preserve free andunpolluted water for the safety and health of the people.The Court was dealing in that case with the occupationalhealth hazards and diseases afflicting the workmenemployed in asbestos industries. In paragraph 29 of theReport, this Court said, “…It is therefore settled law thatin public law claim for compensation is remedyavailable under Article 32 or Article 226 for theenforcement and protection of fundamental and humanrights. … It is practical and inexpensive mode ofredress available for the contravention made by theState, its servants, its instrumentalities, company or aperson in the purported exercise of their powers andenforcement of the rights claimed either under thestatutes or licence issued under the statute or for theenforcement of any right or duty under the Constitutionor the law.”

(xi)In Vishaka vs. State of Rajasthan.[75], this Court laid downguidelines, in the absence of legislation, for the enforcement

74 (1995) 3 SCC 42

75 (1997) 6 SCC 241

of the right to gender equality of working women, in classaction petition that was filed to enforce fundamental rightsof working women and to prevent sexual harassment ofwomen in workplace. The guidelines imposed an obligationupon both public and private employers not to violate thefundamental rights guaranteed to working women underArticle 14, 15, 19(1)(g) and 21. In Medha Kotwal Lele &Ors. vs. Union of India[76], this Court noted that even after15 years of the judgment in Vishaka (supra), many Stateshad not made the necessary amendments or failed toeffectively implement the guidelines. This Court issued adirection in Paragraph 44.4 :

“44.4 The State functionaries and private and publicsector undertakings/organisations/bodies/ institutions,etc. shall put in place sufficient mechanism to ensurefull implementation of Vishaka [Vishaka v. State ofRajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932]guidelines and further provide that if the alleged harasseris found guilty, the complainant victim is not forced towork with/under such harasser and where appropriateand possible the alleged harasser should be transferred.Further provision should be made that harassment andintimidation of witnesses and the complainants shall bemet with severe disciplinary action.”

(xii)In Githa Hariharan (Ms.) & Anr. vs. Reserve Bank ofIndia & Anr.[77], this Court was dealing with challenge toSection 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 guardianof the person and property of minor son and unmarrieddaughter. The mother was recognised as the natural guardianunder these provisions “after the father”. These provisionsresulted in hardship to spouses separated from each otherwhile dealing with the wards. Reading the obligations ofthe State under certain International Conventions likeCEDAW into the right to dignity of women and gender

76 (2013) 1 SCC 297H77 (1999) 2 SCC 228

equality, traceable to Article 21 and 14, this Court read downthe word “after” to mean “in the absence of”. By suchinterpretation, this Court invoked fundamental rights tointerpret word in the sphere of family law.

(xiii) In Indian Medical Association vs. Union of India.[78], thepolicy of an Army College of Medical Sciences to admitonly those who are wards of army personnel, based onscores obtained in an entrance test, was under challenge.The question that came up for consideration was whetherthis discriminatory practice by private entity would be inviolation of Article 15 of the Constitution. This Court inParagraph 187 stated:

“187. Inasmuch as education, pursuant to T.M.A. Pai[(2002) 8 SCC 481], is an occupation under sub-clause(g) of clause (1) of Article 19, and it is service that isoffered for fee that takes care of all the expenses ofthe educational institution in rendering that service, plusa reasonable surplus, and is offered to all those amongstthe general public, who are otherwise qualified, then sucheducational institutions would also be subject to thediscipline of clause (2) of Article 15. In this regard,thepurport of the above exposition of clause (2) ofArticle 15, when read in the context of egalitarianjurisprudence inherent in Articles 14, 15, 16 andArticle 38, and read with our national aspirationsof establishing society in which equality of statusand opportunity, and justice, social, economic andpolitical, would imply that the private sector whichoffers such facilities ought not to be conductingtheir affairs in manner which promote existingdiscriminations and disadvantages.”(xiv) In Society for Unaided Private Schools of Rajasthan(supra), the constitutionality of Section 12 of the Right ofChildren to Free and Compulsory Education Act, 2009 waschallenged on the ground that it violated Articles 19(1)(g)and 30 of those who had established schools in the private

676SUPREME COURT REPORTS

sector. While upholding the Constitutionality of the provision,which required all schools, private and State-funded, toreserve 25% of its intake for students from disadvantagedbackground, this Court held:

“222. The provisions referred to above and otherprovisions of international conventions indicate that therights have been guaranteed to the children and thoserights carry corresponding State obligations to respect,protect and fulfil the realisation of children’s rights. Theobligation to protect implies the horizontal right whichcasts an obligation on the State to see that it is notviolated by non-State actors. For non-State actors to’-respect childrens rights casts negative duty of nonviolation to protect children’s rights and positiveduty on them to prevent the violation of children’srights by others, and also to fulfil children’s rightsand take measures for progressive improvement. In

-other words, in the spheres of nonState activity thereshall be no violation of children’s rights.”

(xv)In Jeeja Ghosh vs. Union of India[79], the petitioner, adisabled person suffering from cerebral palsy, wasunceremoniously ordered off SpiceJet aircraft by the flightcrew on account of the disability. The petition was filed forputting in place system to ensure such violation of humandignity and inequality is not meted out to similarly placedpersons. This Court observed as follows:

“10. It is submitted by the petitioner that the Union ofIndia (Respondent 1) has an obligation to ensure that itscitizens are not subject to such arbitrary and humiliatingdiscrimination. It is violation of their fundamental rights,including the right to life, right to equality, right to movefreely throughout the territory of India, and right topractise 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 againstthe private Airline on the ground that the airline, though aprivate enterprise, ought not to have violated herfundamental right.

(xvi) In Zee Telefilms Ltd. vs. Union of India[80], this Court heldthat though BCCI does not fall within the purview of theterm “State”, it discharges public duties and that thereforeeven if remedy under Article 32 is not available, theaggrieved party can always seek remedy before theordinary courts of law or by way of writ petition underArticle 226. This Court pointed out that the violator of aconstitutional right could not go scot-free merely because itis not State. The said logic was extended by this Court toa “Deemed to be University” in Janet Jeyapaul vs. SRMUniversity[81], on the ground that though it is privateuniversity, it was discharging “public functions”, by impartingeducation.

77. All the above decisions show that on case-to-case basis, thisCourt applied horizontal effect, considering the nature of the right violatedand the extent of obligation on the part of the violator. But to enable thecourts to have certain basic guidelines in place, for dealing with suchcases, this Court developed tool in Justice K.S. Puttaswamy. Whileaffirming the right to privacy as fundamental right, this Court laid downthe landscape as follows:

“397. Once we have arrived at this understanding of the natureof fundamental rights, we can dismantle core assumption of theUnion’s argument: that right must either be common lawright or fundamental right. The only material distinctionsbetween the two classes of right—of which the nature and contentmay be the same—lie in the incidence of the duty to respect theright and in the forum in which failure to do so can be redressed.Common law rights are horizontal in their operation whenthey are violated by one’s fellow man, he can be named andproceeded against in an ordinary court of law. Constitutionaland fundamental rights, on the other hand, provide remedyagainst the violation of valued interest by the “State”, as an

80 (2005) 4 SCC 649

81 (2015) 16 SCC 530

Aabstract entity, whether through legislation or otherwise, aswell as by identifiable public officials, being individualsclothed with the powers of the State. It is perfectly possible foran interest to simultaneously be recognised as common lawright and fundamental right. Where the interference with arecognised interest is by the State or any other like entityBrecognised by Article 12, claim for the violation of afundamental right would lie. Where the author of an identicalinterference is non-State actor, an action at common lawwould lie in an ordinary court.

398. Privacy has the nature of being both common law right asCwell as fundamental right. Its content, in both forms, is identical.All that differs is the incidence of burden and the forum forenforcement 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 seenDfrom the line of judicial pronouncements listed above that after A.K.Gopalan vs. State of Madras[82] lost its hold, this Court has expandedthe width of Article 21 in several areas such as health, environment,transportation, Education and Prisoner’s life etc. As Vivian Bose, J., putit in poetic language in S. Krishnan vs State of Madras[83 ]"BrushEaside for moment the pettifogging of the law and forget for thenonce all the learned disputations about this and that, and “and”or “or “, or “may” and “must “. Look past the mere verbiage of thewords and penetrate deep into the heart and spirit of theConstitution.”. The original thinking of this Court that these rights canbe enforced only against the State, changed over period of time. TheFtransformation was from “State” to “Authorities” to “instrumentalitiesof State” to “agency of the Government” to “impregnation withGovernmental character” to “enjoyment of monopoly status conferredby State” to “deep and pervasive control”[84] to the “nature of the duties/functions performed”[85]. Therefore, we would answer Question No. 2Gas follows:

82 AIR 1950 SC 2783 AIR 1951 SC 301

84 R.D. Shetty vs International Airport Authority (1979) 3 SCC 489H85 Andi Mukta vs V.R. Rudani (1989) 2 SCC 691

“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 duty to affirmatively protect therights of citizen under Article 21 of the Constitution of India evenagainst threat to the liberty of citizen by the acts or omissions ofanother citizen or private agency?” is the third question referred to us.

80. Before we proceed further, it is necessary to make smallcorrection. Article 21 right is available not only to citizens but to all persons.Therefore, the word ‘citizen’ mentioned in Question No.3 has to beread 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 21guarantees every person that he shall not be deprived of his life andliberty except according to the procedure established by law. Going bythe scheme of Part-III which we have outlined both in the precedingparagraphs and in the Table in paragraph 73, it is clear that the State hastwo obligations, (i) not to deprive person of his life and liberty exceptaccording to procedure established by law; and (ii) to ensure that thelife and liberty of person is not deprived even otherwise. Article 21does not say “the State shall not deprive person of his life andliberty”, but says that “no person shall be deprived of his life orpersonal liberty”.

82. When the Constitution was adopted, our understanding of thewords “life” and “personal liberty” was not as it has evolved over thepast seven decades. Similarly, it was not imagined or conceived at thattime that anyone other than the State is capable of depriving the life andpersonal liberty of person, except by committing punishable offence.But with the expanding horizons of our philosophical understanding oflaw, life and liberty and the advancement of science and technology, wehave come to realize that “life is not an empty dream” and “our heartsare not muffled drums beating funeral marches to the grave”[86], noris “life tale told by an idiot, full of sound and fury signifying”[87]nothing.

86 From H.W. Longfellow in “A Psalm of life”

87 From Shakespeare in Macbeth

A83. Over period of time, this Court has interpreted ‘the right tolife’ to include, (i) livelihood; (ii) all those aspects of life which go tomake man’s life meaningful, complete and worth living; (iii) somethingmore than mere survival or animal existence; (iv) right to live (and die)with human dignity; (v) right to food, water, decent environment, medicalcare and shelter etc.; (vi) all that gives meaning to man’s life, such asBhis tradition, culture, heritage and protection of that heritage in its fullmeasure; and (vii) the right to Privacy. There are certain jurisdictionswhich have taken this right to include “the right to be forgotten” or the“right not to be remembered”.

84. When the word “life” was understood to mean only physicalCexistence, the deprivation of the same was generally conceived to bepossible only by the State, except in cases where someone committedan offence punishable under the Penal Code. But the moment the rightto life under Article 21 was developed into bouquet of rights and scienceand technology intruded into all spheres to life, the deprivation of theDright by non-State actors also became possible. Another developmentthat has taken place in the past 3 to 4 decades is that several of thefunctions of the Government have either been out-sourced to non-Stateactors or been entrusted to public-private partnerships. This is why, theHigh Courts and this Court modulated the tests to be applied for findingout the maintainability of an action under Article 226 or Article 32. OnceEupon time, the maintainability of petition under Article 32/226depended upon “who the respondent was”. Later, the focus shifted to“the nature of the duties/functions performed” by the respondent, forfinding out his amenability to the jurisdiction under Article 226.85. Life and personal liberty are two different things, even whileFbeing an integral part of 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 oromissions of another person or private agency; and (ii) the duty of theState to affirmatively protect it. Therefore, we shall, in our discussion,Gfocus more on two aspects, namely, (i) deprivation of personal libertyby non-State actors; and (ii) the duty of the State. An elaborate expositionof the expression “personal liberty” and its origin in Greek civilizationmay be found in the judgment of this Court in Siddharam SatlingappaMhetre vs. State of Maharashtra[88]. Suffice it to say for our purpose

H88 (2011) 1 SCC 694

that in this judgment, this Court identified in paragraph 53 of the Reportthat Article 21 guarantees two rights, namely, (i) right to life; and (ii)right to personal liberty. Therefore, because of the manner in whichQuestion No. 3 is framed, we shall try to confine our discussion to personalliberty, though at times both may overlap or get interchanged.

86. The expression “personal liberty” appearing in Article 21was held by this Court in A.K. Gopalan (supra) to mean freedom fromphysical restraint of person by incarceration or otherwise. However,the understanding of the expression “personal liberty” got enlarged inKharak Singh vs. State of U.P.[89] It was case where person whowas originally charged for the offence of dacoity and later released forlack of evidence, was put under surveillance by the Police, and his nameincluded in the history-sheet under the U.P. Police Regulations. As aresult, he was required to make frequent visits to the Police Station.Sometimes the Police made domiciliary visits at night to his house. Theywould knock at the door, disturb his sleep and ask to report to the Police,whenever he went out of the village. Though by majority, the ConstitutionBench held in Kharak Singh (supra) that the regulation permittingdomiciliary visits is unconstitutional, the majority upheld the Policesurveillance on the ground that (at that time) right to privacy had notbecome part of the fundamental rights. But K. Subba Rao, J. speakingfor himself and J.C. Shah, J. held that the concept of personal liberty inArticle 21 is comprehensive enough to include privacy. The thinkingreflected in A.K. Gopalan that physical restraint was necessary toconstitute infringement of personal liberty, was completely changed byK. Subba Rao, J. in his minority opinion in Kharak Singh. Giving acompletely new dimension to personal liberty, K. Subba Rao, J. said:

“(31) …The expression is wide enough to take in right to befree from restrictions placed on his movements. The expression“coercion” in the modern age cannot be construed in narrowsense. In an uncivilized society where there are no inhibitions,only physical restraints may detract from personal liberty,but as civilization advances the psychological restraints aremore effective than physical ones. The scientific methods usedto condition man’s mind are in real sense physicalrestraints, for they engender physical fear channelling one’sactions through anticipated and expected grooves. So also

Acreation of conditions which necessarily engender inhibitionsand fear complexes can be described as physical restraints.Further, the right to personal liberty takes in not only rightto be free from restrictions placed on his movements, but alsofree from encroachments on his private life. It is true ourConstitution does not expressly declare right to privacy as aBfundamental right, but the said right is an essential ingredient ofpersonal liberty. Every democratic country sanctifies domesticlife; it is expected to give him rest, physical happiness, peaceof mind and security. In the last resort, person’s house, wherehe lives with his family, is his “castle”; it is his rampart againstCencroachment on his personal liberty. The pregnant words of thatfamous Judge, Frankfurter J., in (1948) 338 US 25, pointing outthe importance of the security of one’s privacy against arbitraryintrusion by the police, could have no less application to an Indianhome as to an American one. If physical restraints on person’smovements affect his personal liberty, physical encroachmentsDon his private life would affect it in larger degree. Indeed, nothingis more deleterious to man’s physical happiness and health thana calculated interference with his privacy. We would, therefore,define the right of personal liberty in Art. 21 as right of anindividual to be free from restrictions or encroachments onEhis person, whether those restrictions or encroachments aredirectly imposed or indirectly brought about by calculatedmeasures. It so understood, all the acts of surveillance underRegulation 236 infringe the fundamental right of the petitionerunder Art. 21 of the Constitution.”

FAs pointed out by Rohinton Nariman, J., in Mohd. Arif alias"Ashfaq vs. Registrar, Supreme Court of India & Ors.[90 ]The minorityjudgment of Subba Rao and Shah, JJ. eventually became law inRustom Cavasjee Cooper vs. Union of India[91](Bank Nationalisationcase), where the 11-Judge Bench finally discarded the view expressed

in A.K. Gopalan and held that various fundamental rights containedGin different articles are not mutually exclusive …”.

87. If U.P. Police Regulations were challenged in Kharak Singh,identical Regulations issued by the State of Madhya Pradesh were

90 (2014) 9 SCC 737H91 (1970) 1 SCC 248

challenged in Gobind vs. State of Madhya Pradesh[92]. Though this Courtupheld the impugned Regulations, K.K. Mathew, J. pointed out:

“25. Rights and freedoms of citizens are set forth in theConstitution in order to guarantee that the individual, his personality,and those things stamped with his personality shall be free fromofficial interference except where reasonable basis for intrusionexists. “Liberty against Government” phrase coined by ProfessorCorwin expresses this idea forcefully. In this sense, many of thefundamental rights of citizens can be described as contributing tothe 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 theextent that they cause offence resulting from the mere thoughtthat individuals might be engaging in such activities and that such‘harm’ is not constitutionally protectible by the State.The secondis that individuals need place of sanctuary where they canbe free from societal control. The importance of such asanctuary is that individuals can drop the mask, desist for awhile from projecting on the world the image they want to beaccepted as themselves, an image that may reflect the valuesof their peers rather than the realities of their natures.[See 26Stanford Law Rev. 1161, 1187]”88. Thus, the understanding of this Court in A.K. Gopalan, thatdeprivation of personal liberty required physical restraint, underwent achange in Kharak Singh and Gobind (supra). From there, the lawmarched to the next stage in Satwant Singh Sawhney vs. D.Ramarathnam, Assistant Passport Officer, New Delhi[93 ]where aConstitution Bench of this Court held by majority, that the right topersonal liberty included the right of locomotion and right to travelabroad. It was held in the said decision that “liberty” in our Constitutionbears the same comprehensive meaning as is given to the expression“liberty” by the 5th and 14th Amendments to the U.S. Constitutionand the expression “personal liberty” in Article 21 only excludesthe ingredients of “liberty” enshrined in Article 19 of the Constitution.

92 (1975) 2 SCC 148

93 AIR 1967 SC 1836

AThe Court went on to hold that “the expression “personal liberty”in Art. 21 takes in the right of loco-motion and to travel abroad, butthe right to move throughout the territories of India is not coveredby it inasmuch as it is specially provided in Art. 19.”

89. Satwant Singh (supra) was the case of businessman, whoBwas directed to surrender his passport, with view to prevent him fromtravelling out of India, on account of an investigation pending againsthim under the Export and Import Control Act. It must be noted that thiscase was before the enactment of The Passports Act, 1967.

90. After The Passports Act came into force, the decision of theC7-Judge Bench in Maneka Gandhi vs. Union of India[94] came. It washeld therein that the right to travel abroad is part of the right to personalliberty and that the same cannot be deprived except according to theprocedure established by law.

91. Next came the decision in Bandhua Mukti Morcha vs. UnionDof India & Ors.[95]. It was case where letter addressed by an NGOto the Court exposing the plight of persons working in stone quarriesunder inhuman conditions, was treated as public interest litigation. Someof those workers were actually bonded labourers. After this Court issuednotice to the State Governments and the lessees of the quarries, apreliminary objection was raised as to the maintainability of the writEpetition. While rejecting the preliminary objection, this Court broadlyindicated how the fundamental rights of those bonded labourers wereviolated and what were the duties of the State and the Court in cases ofthat nature. The relevant portion of the decision reads thus:

“9. … We should have thought that if any citizen brings beforeFthe Court complaint that large number of peasants or workersare bonded serfs or are being subjected to exploitation by fewmine lessees or contractors or employers or are being denied thebenefits of social welfare laws, the State Government, which is,under our constitutional scheme, charged with the mission ofGbringing about new socio-economic order where there will besocial and economic justice for everyone and equality of statusand opportunity for all, would welcome an enquiry by the Court,so that if it is found that there are in fact bonded labourers or even

94 (1978) 1 SCC 248H95 (1984) 3 SCC 161

if the workers are not bonded in the strict sense of the term asdefined in the Bonded Labour System (Abolition) Act, 1976 butthey are made to provide forced labour or are consigned to lifeof utter deprivation and degradation, such situation can be setright by the State Government. Even if the State Government ison its own enquiry satisfied that the workmen are not bonded andare not compelled to provide forced labour and are living andworking in decent conditions with all the basic necessities of lifeprovided to them, the State Government should not baulk an enquiryby the Court when complaint is brought by citizen, but it shouldbe anxious to satisfy the Court and through the Court, the peopleof the country, that it is discharging its constitutional obligationfairly and adequately and the workmen are being ensured socialand economic justice. …”92. Therefore, three major breakthroughs happened, the first inKharak Singh, the second in Satwant Singh and Maneka Gandhi(supra) and the third in Bandhua Mukti Morcha (supra). The firstbreakthrough was the opinion, though of minority, that physical restraintwas not necessary sine qua non for the deprivation of personal libertyand that even psychological restraint may amount to deprivation ofpersonal liberty. The second breakthrough was the opinion in SatwantSingh and Maneka Gandhi that the right of locomotion and to travelabroad are part of the right to personal liberty. The third breakthroughwas the opinion in Bandhua Mukti Morcha that the State owed anobligation to take corrective measures when there was an infraction ofArticle 21.

93. In National Human Rights Commission vs. State ofArunachal Pradesh & Anr.[96], this Court was confronted with situationwhere private citizens, namely, the All Arunachal Pradesh Students’ Unionheld out threats to forcibly drive chakmas, out of the State. The NationalHuman Rights Commission itself filed writ petition under Article 32.While allowing the writ petition and issuing directions, this Court indicatedthe role of the State in the following words:

“20. …Thus the State is bound to protect the life and liberty ofevery human being, be he citizen or otherwise, and it cannotpermit any body or group of persons, e.g., the AAPSU, to threaten

686SUPREME COURT REPORTS

Athe Chakmas to leave the State, failing which they would be forcedto do so. No State Government worth the name can tolerate suchthreats by one group of persons to another group of persons; it isduty-bound to protect the threatened group from such assaultsand if it fails to do so, it will fail to perform its constitutional aswell as statutory obligations. Those giving such threats would beBliable to be dealt with in accordance with law. The StateGovernment must act impartially and carry out its legal obligationsto safeguard the life, health and well-being of Chakmas residingin the State without being inhibited by local politics. …”

94. In Mr. ‘X’ vs. Hospital ‘Z’[97], the appellant had accompaniedCa patient to the hospital for treatment and offered to donate blood, forthe purpose of surgery. Before allowing him to donate blood, sampleswere taken from “X”. It was detected that he was HIV positive. Thefact that Mr. “X” tested positive was disclosed by the hospital to thefiancée of Mr. “X”. Therefore, the proposal for marriage was called offDand Mr. “X” was ostracised by the community. Mr. “X” sued the hospitalfor damages, pitching his claim on the right to privacy and the duty ofconfidentiality that the hospital had in their relationship with him. Thoughthis Court partly agreed with Mr. “X” the court found that the disclosuremade by the hospital actually saved the life of lady. But while dealingwith right under Article 21 vis-à-vis the hospital (a private hospital),Ethis Court held as follows :-

“27. Right of privacy may, apart from contract, also arise outof particular specific relationship which may becommercial, matrimonial, or even political. As alreadydiscussed above, doctor-patient relationship, though basicallyFcommercial, is, professionally, matter of confidence and,therefore, doctors are morally and ethically bound to maintainconfidentiality. In such situation, public disclosure of even trueprivate facts may amount to an invasion of the right of privacywhich may sometimes lead to the clash of one person’s “right toGbe let alone” with another person’s right to be informed.

28. Disclosure of even true private facts has the tendency todisturb person’s tranquillity. It may generate many complexes inhim and may even lead to psychological problems. He may,

thereafter, have disturbed life all through. In the face of thesepotentialities, and as already held by this Court in its variousdecisions referred to above, the right of privacy is an essentialcomponent of the right to life envisaged by Article 21. The right,however, is not absolute and may be lawfully restricted for theprevention of crime, disorder or protection of health or morals orprotection of rights and freedom of others.”

95. In Pt. Parmanand Katara (supra), human rights activistfiled writ petition under Article 32 seeking direction to the Union ofIndia that every injured person brought for treatment to hospital shouldinstantaneously be given medical aid to preserve life and that theprocedural Criminal Law should be allowed to operate thereafter. Thebasis of the said writ petition was report about scooterist who gotinjured in road traffic accident, being turned away by the nearby hospitalon the ground that they were not authorized to handle medico-legal cases.Before the victim could be taken to an authorized hospital located 20kilometers away, he died, which prompted the writ petition. While issuingdirections, this Court expressed an opinion about the affirmative duty ofcourt in paragraph 8 as follows:-

“8. Article 21 of the Constitution casts the obligation on theState to preserve life. The provision as explained by this Court inscores of decisions has emphasized and reiterated with graduallyincreasing emphasis that position. doctor at the governmenthospital positioned to meet this State obligation is, therefore, dutybound to extend medical assistance for preserving life. Everydoctor whether at government hospital or otherwise has theprofessional obligation to extend his services with dueexpertise for protecting life. No law or State action can interveneto avoid/delay the discharge of the paramount obligation cast uponmembers of the medical profession. The obligation being total,absolute and paramount, laws of procedure whether in statutesor otherwise which would interfere with the discharge of thisobligation cannot be sustained and must, therefore, giveway.…”

That the State has an obligation to help preserve life, guaranteedunder Article 21 was spelt out clearly in Pt. Parmanand Katara. Whatapplies to life applies equally to personal liberty. This is because theremay be cases involving both the right to life as well as liberty.

A96. For instance, in Suchita Srivastava & Anr. vs. ChandigarhAdministration[98],this Court had an occasion to consider the reproductiverights of mentally-challenged woman. This right was read as part ofthe right to life and liberty under Article 21. In Devika Biswas vs. Unionof India.[99], this Court considered certain issues concerning the entirerange of conduct and management, under the auspices of StateBGovernments, of sterilization procedures, either in camps or in accreditedcentres and held that the right to health and reproductive rights of aperson are part of the right under Article 21. While doing so, this Courtquoted with approval the decision in Bandhua Mukti Morcha wherethe obligation of the State to ensure that the fundamental rights of weakerCsections of society are not exploited, was underlined.

97. Tapping of telephones in exercise of the power conferred bySection 5(2) of the Indian Telegraph Act, 1885 became the subject matterof challenge in People’s Union for Civil Liberties (PUCL) vs. Unionof India[100]. This Court held that conversation on telephone is an importantDfacet of man’s private life and that tapping of telephone would infringeArticle 21. Technological eavesdropping except in accordance with theprocedure established by law was frowned upon by the Court. This wasat time when mobile phones had not become the order of the day andthe State monopoly was yet to be replaced by private players such asintermediaries/service providers. Today, the infringement of the right toEprivacy is mostly by private players and if fundamental rights cannot beenforced against non-State actors, this right will go for toss.

98. In District Registrar and Collector, Hyderabad & Anr. vs.Canara Bank & Ors.[101], what was under challenge was an amendmentmade to The Indian Stamp Act, 1899 by the State of Andhra Pradesh,Fempowering public officer to inspect the registers, books, papers anddocuments kept in any premises, including private place where suchregisters, books etc., are kept. Taking cue from the decision in R.Rajagopal and Maneka Gandhi, this Court held in paragraphs 55 and56 of the decision as follows:-G“55.

“55. The A.P. Amendment permits inspection being carried outby the Collector by having access to the documents which are

98 (2009) 9 SCC 199 (2016) 10 SCC 726100 (1997) 1 SCC 301H101 (2005) 1 SCC 496

in private custody i.e. custody other than that of public officer.It is clear that this provision empowers invasion of the home ofthe person in whose possession the documents “tending” to orleading to the various facts stated in Section 73 are in existenceand Section 73 being one without any safeguards as to probableor reasonable cause or reasonable basis or materials violates theright to privacy both of the house and of the person. We havealready referred to R. Rajagopal case [(1994) 6 SCC 632]wherein the learned Judges have held that the right to personalliberty also means life free from encroachments unsustainable inlaw, and such right flowing from Article 21 of the Constitution.

56. In Maneka Gandhi v. Union of India [(1978) 1 SCC 248]a seven-Judge Bench decision, P.N. Bhagwati, J. (as His Lordshipthen was) held that the expression “personal liberty” in Article 21is of the widest amplitude and it covers variety of rights whichgo to constitute the personal liberty of man and some of themhave been raised to the status of distinct fundamental rights andgiven additional protection under Article 19 (emphasis supplied).Any law interfering with personal liberty of person must satisfya triple test: (i) it must prescribe procedure; (ii) the proceduremust withstand the test of one or more of the fundamental rightsconferred under Article 19 which may be applicable in givensituation; and (iii) it must also be liable to be tested with referenceto Article 14. As the test propounded by Article 14 pervades Article21 as well, the law and procedure authorising interference withpersonal liberty and right of privacy must also be right and justand fair and not arbitrary, fanciful or oppressive. If the procedureprescribed does not satisfy the requirement of Article 14 it wouldbe no procedure at all within the meaning of Article 21.”

99. In Indian Woman says Gang-raped on orders of villageCourt published in Business and Financial News dated 23-1-2014,in Re[102], this Court was dealing with suo motu writ petition relating tothe gang-rape of women under orders of community panchayat aspunishment for having relationship with man belonging to differentcommunity. After taking note of two earlier decisions, one in Lata Singhvs. State of U.P.[103] which dealt with honour killings of youngsters involved

102 (2014) 4 SCC 786103 (2006) 5 SCC 475

Ain inter-caste, inter-religious marriages and the other in ArumugamServai 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 assessby this Court is whether the State police machinery could haveBpossibly prevented the said occurrence. The response is certainlya “yes”. The State is duty-bound to protect the fundamentalrights of its citizens; and an inherent aspect of Article 21 ofthe Constitution would be the freedom of choice in marriage.Such offences are resultant of the State’s incapacity or inabilityto protect the fundamental rights of its citizens.”

In fact, this Court observed in the aforesaid decision that theobligation of the State does not get extinguished upon payment ofcompensation and that the rehabilitation of the victims of such naturewas must.D100. In Shakti Vahini vs. Union of India & Ors.[[105]], while dealing

D100. In Shakti Vahini vs. Union of India & Ors.[[105]], while dealingwith writ petition seeking direction to the State Governments andCentral Government to take preventive measures to combat honourcrimes and to submit National/State plan of action, this Court issued aslew of directions directing the State Governments to take both punitiveand remedial measures, on the ground that the State has positiveEobligation to protect the life and liberty of persons. In paragraph 49 thisCourt said, “We are disposed to think so, as it is the obligation of theState to have an atmosphere where the citizens are in position toenjoy their fundamental rights.” After quoting the previous decisionin S. Rangarajan (supra), which arose out of the infringement of theFfreedom of expression in respect of cinematograph film, this Courtsaid in Shakti Vahini (supra) as follows:-

We are absolutely conscious that the aforesaid passage hasbeen stated in respect of different fundamental right, butGthe said principle applies with more vigour when the life andliberty of individuals is involved. We say so reminding theStates of their constitutional obligations to comfort, nurturethe sustenance of fundamental rights of the citizens and not

104 (2011) 6 SCC 405H105 (2018) 7 SCC 192

to allow any hostile group to create any kind of trench inthem.”

101. At last, while dealing with the right to privacy, in JusticeK.S. Puttaswamy, this Court made it clear that, “it is right whichprotects the inner sphere of the individuals from interference byboth the State and non-State actors”.

102. Before we conclude this chapter, we must point out thatsome academics feel that the same level of justification for infringementby the State, for all rights recognized by the Court, end up beingproblematic[106] and that the idea of hierarchy of rights, as articulatedby Das, J. in A.K. Gopalan may have to be examined. In fact, RohintonNariman, J. articulated this idea in Mohd. Arif (supra) where thequestion was as to whether petition for review in the Supreme Courtshould be heard in open Court at least in death penalty cases. The learnedJudge said:

“36. If pyramidical structure is to be imagined, with life ontop, personal liberty (and all the rights it encompasses underthe new doctrine) immediately below it and other fundamentalrights below personal liberty it is obvious that this judgmentwill apply only to death sentence cases. In most other cases,the factors mentioned by Krishna Iyer, J. in particular theSupreme Court’s overcrowded docket, and the fact that fulloral hearing has preceded judgment of criminal appeal onmerits, may tilt the balance the other way.”

Therefore, the importance of the right to personal liberty over andabove all the other rights guaranteed under Articles 19 and 14 needhardly to be over-emphasized.

103. Therefore, our answer to Question No.3 would be thatthe State is under duty to affirmatively protect the rights of aperson under Article 21, whenever there is threat to personalliberty, even by non-State actor.

Question No.4

104. Question No.4 referred to us is this: “Can statement madeby Minister, traceable to any affairs of the State or for protecting the

106 Anup Surendranath in his Article “Life and Personal Liberty” in The OxfordHandbook of the Indian Constitution (South Asia Edition), 2016

AGovernment, be attributed vicariously to the Government itself, especiallyin view of the principle of Collective Responsibility?”

105. The above question revolves around the role and responsibilityof Minister and the vicarious liability/responsibility of Government toany statement made by him. For answering the said question, we mayBneed to understand the role of Minister under our Constitutional scheme.

106. Part V of the Constitution providing for matters connectedwith “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 ofCIndia. Part VI of the Constitution dealing with “The States” contains sixchapters, dealing respectively with, (i) general provision containing thedefinitions; (ii) the Executive; (iii) the State Legislature; (iv) Legislativepower of the Governor; (v) the High Courts in the States; and (vi)Subordinate Courts.

D107. While Articles 74 and 75 provide for, (i) ‘Council of Ministersto aid and advise the President’; and (ii) ‘Other provisions as toMinisters’, insofar as the Union is concerned, Articles 163 and 164 providefor, (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 theEGovernment of India and Article 166 provides for the conduct of businessof the Government of State. The duties of the Prime Minister are dealtwith in Article 78 and the duties of Chief Ministers are dealt with inArticle 167.

108. Article 75(3) states that “the Council of Ministers shall beFcollectively responsible to the House of the People.” Similarly, Article164(2) states “the Council of Ministers shall be collectivelyresponsible to the Legislative Assembly of the State”.

109. Generally, all executive action of the Government of Indiashall be expressed to be taken in the name of the President under ArticleG77(1). However, for more convenient transaction of the business of theGovernment of India, the President shall make Rules. These Rules shallalso provide for the allocation of the business among Ministers. This isunder Article 77(3). Similar provisions are found in sub-Articles (1) and(3) of Article 166.

110. There are special duties assigned to the Prime Minister andthe Chief Ministers, under Articles 78 and 167 respectively.

111. While dealing with the scheme of Article 166(3), theConstitution Bench of this Court pointed out in A. Sanjeevi Naidu vs.State of Madras[107], that under our Constitution, the Governor is essentiallya constitutional head and the administration of the State is run by theCouncil of Ministers. Since it is impossible for the Council of Ministersto deal with each and every matter that comes before the Government,the Governor is authorized under Article 166(3) to make Rules for themore convenient transaction of the business of the Government of theState and for allocation amongst its Ministers the business of theGovernment. In paragraph 10 of the said decision, the ConstitutionBench spoke about “joint responsibility” and not about collectiveresponsibility. The relevant portion of paragraph 10 reads as follows:“10. The cabinet is responsible to the Legislature for everyaction taken in any of the Ministries. That is the essenceof joint responsibility. That does not mean that each and everydecision must be taken by the cabinet. The political responsibilityof the Council of Ministers does not and cannot predicate thepersonal responsibility of the Council of Ministers to discharge allor any of the Governmental functions. Similarly an individualMinister is responsible to the Legislature for every action takenor omitted to be taken in his ministry. This again is politicalresponsibility and not personal responsibility. …”

112. The expression “collective responsibility” can be traced tosome extent, to Article 75(3) insofar as the Union is concerned and toArticle 164(2) insofar as the States are concerned. But in both theArticles, it is the Council of Ministers who are stated to be collectivelyresponsible to the House of the People/Legislative Assembly of the State.Generally collective responsibility of the Council of Ministers eitherto the House of the People or to the Assembly should be understoodto correlate to the decisions and actions of the Council of Ministersand not to every statement made by every individual Minister.

113. In State of Karnataka vs. Union of India.[108], SevenMember Constitution Bench of this Court, while dealing with challenge

107 (1970) 1 SCC 443108 (1977) 4 SCC 608

Amade by the State of Karnataka in the form of civil suit under Article131, to the appointment by the Central Government, of commission ofenquiry against the Chief Minister of Karnataka, had an occasion toconsider the exposition of the words “collective responsibility” appearingin Article 164(2). After indicating that collective responsibility isbasically political in origin and mode of operation, Beg, C.J. opinedBin the said case as follows:

“46. The object of collective responsibility is to make the wholebody of persons holding Ministerial office collectively, or, ifone may so put it, “vicariously” responsible for such acts ofthe others as are referable to their collective volition so that,Ceven if an individual may not be personally responsible for it,yet, he will be deemed to share the responsibility with thosewho may have actually committed some wrong. …

47. Each Minister can be and is separately responsible for hisown decisions and acts and omissions also. But, inasmuch as theDCouncil of Ministers is able to stay in office only so long as itcommands the support and confidence of majority of membersof the Legislature of the State, the whole Council of Ministersmust be held to be politically responsible for the decisions andpolicies of each of the Ministers and of his department whichEcould be presumed to have the support of the whole Ministry.Hence, the whole Ministry will, at least on issues involving mattersof policy, have to be treated as one entity so far as its answerabilityto the Legislative Assembly representing the electors is concerned.This is the meaning of the principle underlying Article 164(2) ofthe Constitution. The purpose of this provision is not to find outFfacts or to establish the actual responsibility of Chief Minister orany other Minister or Ministers for particular decisions orGovernmental acts. That can be more suitably done, whenwrongful acts or decisions are complained of, by means of inquiriesunder the Act. As already indicated above, the procedure ofGParliamentary Committees to inquire into every legally or ethicallywrong act was found to be unsatisfactory and unsound. Theprinciple of individual as well as collective ministerial responsibilitycan work most efficiently only when cases requiring proper siftingand evaluation of evidence and discussion of questions involvedhave taken place, where this is required, in proceedings before aHCommission appointed under Section 3 of the Act.48. Text-book writers on Constitutional Law have indicated howcollective ministerial responsibility to Parliament, which hasessentially political purpose and effects, developed later thanindividual responsibility of Ministers to Parliament which was alsopolitical in origin and operation. It is true that an individual Ministercould, in England, where the principle of individual and collectiveresponsibility of Ministers was evolved, be responsible either forwrongful acts done by him without the authority of the wholecabinet or of the monarch to support them, or under orders of theKing who could, in the eye of law, do no wrong. But, apart froman impeachment, which has become obsolete, or punishment forcontempts of House, which constitute only limited kind ofoffences, the Parliament does not punish the offender. Forestablishing his legal liability recourse to ordinary courts of law isindispensable.”

114. Quoting from Wade and Phillips on Constitutional Law, thisCourt pointed out in the State of Karnataka (supra) that “responsibilityto Parliament only means that the Minster may be compelled byconvention to resign.”

115. The extent to which the enforcement of collective responsibilitycan be taken was also indicated in the above decision as follows:

“50. The whole question of responsibility is related to thecontinuance of Minister or Government in office. AMinister’s own acts or omissions or those of others in thedepartment in his charge, for which he may feel morallyresponsible, or, for which others may hold him morallyresponsible, may compel him to resign. By an extension of thislogic, applied to individual Ministers at first, emerged the principleof “collective responsibility” which we find enacted in Articles75(2) and 164(2) of our Constitution. The only sanction for itsenforcement is the pressure of public opinion expressed particularlyin terms of withdrawal of political support by members ofParliament or the State Legislature as the case may be.”

116. In other words, this Court indicated that while Ministermay be compelled to resign for his individual acts of omission orcommission, the only sanction for the enforcement of collectiveresponsibility is the “pressure of public opinion”.

A117. In R.K. Jain vs. Union of India[109], this Court was concernedwith public interest litigation relating to the functioning of the Customs,Excise and Gold Control Appellate Tribunal. At that time the office ofthe President of the Tribunal was lying vacant for over six months. Butafter rule nisi was issued in the first writ petition, the Governmentappointed someone as the President of the Tribunal. Immediately, aBsecond writ petition was filed challenging the appointment and also someof the recruitment rules relating to the appointment.The file relating tothe appointment was produced in sealed cover and the Governmentclaimed privilege in terms of Section 123 of the Indian Evidence Act,1872 and Article 74(2) of the Constitution. While dealing with theCexecutive power of the President and the role of the Council of Ministers,K.Ramasamy, J., said “The principle of ministerial responsibility hasa variety of meanings precise and imprecise, authentic and vague”.Paragraphs 29 and 30 of the report in R.K. Jain (supra) may be usefullyextracted as follows:D“29. It would thus be held that the Cabinet known as Council ofMinisters headed by Prime Minister under Article 75(3) is thedriving and steering body responsible for the governance of thecountry. They enjoy the confidence of the Parliament and remainin office so long as they maintain the confidence of the majority.They are answerable to the Parliament and accountable to theEpeople. They bear collective responsibility and shall be bound tomaintain secrecy. Their executive function comprises of both thedetermination of the policy as well as carrying it into execution,the initiation of legislation, the maintenance of order, the promotionof social and economic welfare, direction of foreign policy. InFshort the carrying on or supervision of the general administrationof the affairs of Union of India which includes political activityand carrying on all trading activities, the acquisition, holding anddisposal of property and the making of contracts for any purpose.In short the primary function of the Cabinet is to formulate thepolicies of the Government in conformity with the directiveGprinciples of the Constitution for the governance of the nation;place the same before the Parliament for acceptance and to carryon the executive function of the State as per the provisions of theConstitution and the laws.

30. Collective responsibility under Article 75(3) of theConstitution inheres maintenance of confidentiality asenjoined in oaths of office and of secrecy set forth inSchedule III of the Constitution that the Minister will notdirectly or indirectly communicate or reveal to any person orpersons any matter which shall be brought under his/herconsideration or shall become known to him/her as Minister exceptas may be required for the “due discharge of his/her duty asMinister”. The base and basic postulate of its significance isunexceptionable. But the need for and effect of confidentialityhas to be nurtured not merely from political imperatives of collectiveresponsibility envisaged by Article 75(3) but also from itspragmatism.”

118. In paragraph 33 of the report in R.K. Jain, this Court indicatedthat the Cabinet as whole is collectively responsible for the advicetendered to the President and for the conduct of business of each of his/her department. The question as to what happens when an individualMinister is in total disagreement with the collective decision of the Cabinetwas also spelt out in R.K. Jain in the following words:

“33. ...Each member of the Cabinet has personal responsibility tohis conscience and also responsibility to the Government.Discussion and persuasion may diminish disagreement,reach unanimity, or leave it unaltered. Despite persistenceof disagreement, it is decision, though some memberslike it less than others. Both practical politics and goodgovernment require that those who like it less must stillpublicly support it. If such support is too great strain on aMinister’s conscience or incompatible to his/herperceptions of commitment and he/she finds it difficult tosupport the decision, it would be open to him/her to resign.So the price of the acceptance of Cabinet office is the assumptionof the responsibility to support Cabinet decisions. The burden ofthat responsibility is shared by all.”

119. In Secretary, Jaipur Development Authority, Jaipur(supra), the abuse of official position by the Minister of UrbanDevelopment and Housing Department and the officers working in theJaipur Development Authority in the matter of allotment of plots becamethe subject matter. While dealing with the question of individual and

Acollective accountability and responsibility of Ministers, this Court saidin paragraph 10 as follows:

“10. ...The Governor runs the Executive Government of Statewith the aid and advice of the Chief Minister and the Council ofMinisters which exercise the powers and performs its duties bythe individual Ministers as public officers with the assistance ofthe bureaucracy working in various departments and corporatesectors etc. Though they are expressed in the name of theGovernor, each Minister is personally and collectively responsiblefor the actions, acts and policies. They are accountable andanswerable to the people. Their powers and duties are regulatedby the law and the rules. The legal and moral responsibility orliability for the acts done or omissions, duties performed and policylaid down rest solely on the Minister of the Department. Therefore,they are indictable for their conduct or omission, or misconduct ormisappropriation. The Council of Ministers are jointly andseverally responsible to the Legislature. He/they is/are alsopublicly accountable for the acts or conducts in theperformance of duties.”

120. Again, in paragraph 11, this Court outlined the responsibilityof the Ministers as follows:

“11. The Minister holds public office though he gets constitutionalstatus and performs functions under the Constitution, law orexecutive policy. The acts done and duties performed are publicacts or duties as the holder of public office. Therefore, he owescertain accountability for the acts done or duties performed. In ademocratic society governed by rule of law, power is conferredon the holder of the public office or the authority concerned bythe Constitution by virtue of appointment. The holder of the office,therefore, gets opportunity to abuse or misuse the office. Thepolitician who holds public office must perform public duties withthe sense of purpose, and sense of direction, under rules orsense of priorities. The purpose must be genuine in freedemocratic society governed by the rule of law to further socio-economic democracy. The Executive Government should frameits policies to maintain the social order, stability, progress andmorality. 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 wasconcerned with public interest litigation under Article 32 complainingabout the inaction on the part of the Central Bureau of Investigation in amatter relating to the disclosures contained in what came to be knownas “Jain Diaries”. After taking note of the Report of Lord Nolan on“Standards in Public Life”, this Court issued certain directions, thoughconfined only to the Central Bureau of Investigation, EnforcementDirectorate and Prosecution Agency. But Lord Nolan’s Report dealtmainly with principles of public life and code of conduct.122. The decision in Common Cause was little peculiar and riddledwith some problems. The allotment of petroleum outlets by the thenMinister of State for Petroleum and Natural Gas, under what was claimedto be discretionary quota, was first set aside by this Court by judgmentreported in (1996) 6 SCC 530. Simultaneously, show-cause notice wasissued to the then Minister Capt. Satish Sharma as to why criminalcomplaint should not be lodged against him and why he should not bedirected to pay damages for his malafide action in wrongfully allottingthe petrol outlets. After the Minister responded to the show-cause notice,an order was passed, reported in (1996) 6 SCC 593, directing the Ministerto pay exemplary damages and also directing the initiation of prosecution.Later, petition for review was filed by the Minister for recalling theorder which directed payment of exemplary damages and also theregistration of case by the Central Bureau of Investigation. Thedecision in the petition for review, reported in (1999) 6 SCC 667, dealtwith the question of collective responsibility in the context of the contentionraised. It was argued by the delinquent Minister in the said case thatunder the business rules of the Cabinet, the act of Minister is to betreated as the act of the President or the Governor as the case may beand that therefore the allotment made by him should be treated to havebeen made while acting only on behalf of the President. As an extensionof this argument, it was also contended that the Minister having acted asa part of the Council of Ministers, his act should be treated to be the actof the entire Cabinet on the principle of collective responsibility. Whilerejecting the said contention, this Court held in Common Cause that theimmunity available to the President under Article 361 of the Constitutioncannot be extended to the orders passed in the name of the Presidentunder Article 77(1) or 77(2). Dealing with the concept of collectiveresponsibility, this Court held in paragraph 31 as follows:

A“31. The concept of “collective responsibility” is essentially apolitical concept. The country is governed by the party in poweron the basis of the policies adopted and laid down by it in theCabinet meeting. “Collective responsibility” has two meanings:the first meaning which can legitimately be ascribed to it is that allmembers of Government are unanimous in support of its policiesBand would exhibit that unanimity on public occasions althoughwhile formulating the policies, they might have expressed adifferent view in the meeting of the Cabinet. The other meaningis that Ministers, who had an opportunity to speak for or againstthe policies in the Cabinet are thereby personally and morallyCresponsible 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 thatthe Council of Ministers is collectively responsible to the HouseDof the People, there may be an occasion where the conduct of aMinister may be censured if he or his subordinates have blunderedand have acted contrary to law.”

124. Again in paragraph 36 this Court held as follows:

E“36. Even in England, all Ministers and servants of the Crownare accountable to the courts for the legality of their actions, andmay be held civilly and criminally liable, in their individual capacities,for tortious or criminal acts. This liability may be enforced eitherby means of ordinary criminal or civil proceedings or by means ofimpeachment, remedy which is probably obsolete. They areFalso subject to the judicial review jurisdiction of the courts.[See: Halsbury’s Laws of England, Fourth Edn., (Re-issue), Vol.8(2), para 422.]”

125. In State (NCT of Delhi) vs. Union of India[111], theConstitution Bench of this Court was concerned with the interpretationGof Article 239AA of the Constitution. The concept of collectiveresponsibility was dealt with extensively by Dipak Misra, C.J., as hethen was, from paragraphs 82 to 85. In his independent but concurringopinion Dr. D.Y. Chandrachud, J. also dealt with the question of collectiveresponsibility from paragraphs 318 onwards.

H111 (2018) 8 SCC 501

126. What follows from the above discussion is, (i) that the conceptof collective responsibility is essentially political concept; (ii) that thecollective responsibility is that of the Council of Ministers; and (iii) thatsuch collective responsibility is to the House of the People/LegislativeAssembly of the State. Generally, such responsibility correlates to (i)the decisions taken; and (ii) the acts of omission and commission done.It is not possible to extend this concept of collective responsibility to anyand every statement orally made by Minister outside the House of thePeople/Legislative Assembly.

127. Shri Kaleeswaram Raj, learned counsel appearing for thespecial leave petitioner drew our attention to the code of conduct forMinisters of the Government of Australia, code of conduct for Ministersof the Government of India and the Ministerial Code of the UnitedKingdom. However, attractive such prescriptions may be, it is not possibleto enforce such code of conduct in court of law. Government servantsstand on different footing, as any misconduct on their part with referenceto the Government Servants (Conduct) Rules, may attract disciplinaryaction under the Civil Services (Discipline and Appeal) Rules. Even inthe case of Government servants, it may not be possible to justify adismissal/removal from service on the basis of statement uttered by aGovernment servant, as it may not pass the proportionality test, viz-a-viz the gravity of the misconduct.

128. The suggestion made by Shri Kaleeswaram Raj that the PrimeMinister, in the case of Minister of the Union of India and the ChiefMinister, in the case of Minister of the State should be allowed to takeappropriate action, against the erring Minister, is just fanciful. The PrimeMinister or the Chief Minister does not have disciplinary control overthe members of the Council of Ministers. It is true that in practice, astrong Prime Minister or Chief Minister will be able to drop any Ministerout of the Cabinet. But in country like ours where there is multi-partysystem and where coalition Governments are often formed, it is notpossible at all times for Prime Minister/Chief Minister to take the whip,whenever statement is made by someone in the Council of Ministers.

129. Governments which survive on wafer-thin majority (of whichwe have seen quite bit), sometimes have individual Ministers whoare strong enough to decide the very survival of such Governments.This problem is not unique to our country.

A130. We have followed the Westminster Model but theWestminster Model itself became shaky after the United Kingdom sawthe first coalition Government in 2010, since the Churchill CaretakerMinistry of 1945. It is interesting to note that in Report submitted bythe Constitution Committee (UK) in the year 2014, under the title,“Constitutional Implications of Coalition Government” it was pointedBout that “collective ministerial responsibility has been the conventionmost affected by coalition Government”. The Report proceeds to statethat the coalition Government formed in 2010 (in UK) set out five specificissues on which the parties would agree to differ. But, in reality thenumber of areas of disagreement has been greater resulting on oneCoccasion, in Ministers being whipped to vote in opposite lobbies and onanother, in MPs on the Treasury Benches attempting to amend the Addresson the Queen’s speech.131. In the “Briefing Paper” (Number 7755, 14 November 2016)on “Collective responsibility” by Michael Everett available in the HouseDof Commons Library, (i) the early origins and development of the conceptof collective responsibility; (ii) what is collective responsibility; (iii) theconventions of collective responsibility; and (iv) departures from collectiveresponsibility are dealt with. This Paper traces early beginnings of thedoctrine of collective responsibility to the reign of George III (1760-1820). According to the Briefing Paper, the development of today’sEconcept of collective responsibility arose during the Victorian goldenage of Parliamentary Government. In fact, the Briefing Paper quotessome commentators who have questioned whether the convention ofcollective responsibility remains appropriate for the Government of today.The Briefing Paper quotes Barry Winetrobe, Research Fellow at theFConstitution Unit who said that the doctrine of collective responsibilitywas developed at time when sense of coherence was required tobe maintained among disparate ministerial forces in the face of theMonarch and that it is not necessarily appropriate in an age, notjust of democracy, but of greater and more direct participativedemocracy.G

132. It will be useful to quote portion of Chapter 2.3 under theheading “Enforcing collective responsibility” from the Briefing Paperas follows:

“…Dr Felicity Matthews, Senior Lecturer in Governance andHPublic 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 muchto politics as to propriety”.

An interesting example of this occurred in 2003 during the build-up to the Iraq war. Robin Cook, the Leader of the House ofCommons, resigned in protest in March 2003 over the then LabourGovernment’s policy toward Iraq, being unable to maintain theofficial Government position. His actions were therefore consistentwith the doctrine of collective responsibility. However, Clare Short,the Secretary of State for International Development, was allowedto stay in the Cabinet despite her own vocal opposition to militaryintervention and despite publicly denouncing the then Prime Ministeras “deeply reckless” in March 2003.

According to Felicity Matthews, despite her “extraordinary breach”of collective responsibility, Clare Short was persuaded and allowedto retain her ministerial portfolio. She then remained in the Cabinetfor further two months, until she decided to resign on 12 May2003, following perceived mistakes in the US/UK coalition afterthe invasion. This example, according to Matthews, “underlinesthe extent to which Prime Ministers have proven unwilling orunable to enforce strict interpretation of collective responsibility,even when their personal credibility has been besmirched”.

133. Thus, the convention developed in the United Kingdom forMinisters, itself appears to have gone for toss and hence, it is notpossible to draw any inspiration from the UK Model.

134. We are not suggesting for moment that any public officialincluding Minister can make statement which is irresponsible or inbad taste or bordering on hate speech and get away with it. We are onlyon the question of collective responsibility and the vicarious liability ofthe Government.

135. As all the literature on the issue shows, collective responsibilityis that of the Council of Ministers. Each individual Minister is responsiblefor the decisions taken collectively by the Council of Ministers. In otherwords, the flow of stream in collective responsibility is from the Councilof Ministers to the individual Ministers. The flow is not on the reverse,namely, from the individual Ministers to the Council of Ministers.

A136. Our attention was also drawn to the decision of this Court inAmish Devgan. Though the said decision considered extensively theimpact of the speech of “a person of influence”, we are not, in thisreference dealing with the same. This is for the reason that the saiddecision concerned “hate speech”. None of the questions referred tous, including Question No.4 with which we are presently concerned,Brelates to hate speech, and understandably so. The writ petition as wellas the special leave petition out of which this reference arose, concernedspeeches made by the Ministers of the State of Uttar Pradesh and theState of Kerala. The speech made by the Minister of the State of UttarPradesh attempted to paint case of robbery and gang-rape as politicalCconspiracy. The speech of the Minister of the State of Kerala portrayedwomen in disrespectful way. Since the statements concerned in boththe cases were attributed to the Ministers, Question No.4 referred to us,specifically relates to “statement made by Minister”. Amish Devgandid not deal with the statement of Minister traceable to any affairs ofthe State, though Minister would fall under the category of “person ofDinfluence”. Moreover, the statements attributed to the Ministers in thecases on hand may not come under the category of hate speech.Therefore, we do not wish to enlarge the scope of this reference bygoing into the questions which were answered in Amish Devgan.

137. Therefore, our answer to Question No.4 would be that aEstatement made by Minister even if traceable to any affairs of theState or for protecting the Government, cannot be attributedvicariously to the Government by invoking the principle of collectiveresponsibility.Question No.5F

138. Question No.5 referred to us for consideration is “whether astatement by Minister, inconsistent with the rights of citizen underPart-III of the Constitution, constitutes violation of such constitutionalrights and is actionable as ‘Constitutional Tort’?”

139. To begin with, we have some difficulty with the words “astatement by Minister”, appearing in Question No.5. statementmay be made by Minister either inside or outside the House of People/Legislative Assembly of the State. statement may also be made by aMinister in writing or by words spoken. statement may be made inprivate or in public. statement may also be made by Minister either

touching upon the affairs of the Ministry/ department of which he is incontrol or touching generally upon the policies of the Government ofwhich he is part. Minister may also make statement, in the form ofan opinion on matters about which he or his department is not concernedor over which he has no control. All such statements need not necessarilygive rise to an action in tort or in constitutional tort.

140. Take for instance case where Minister makes statementthat women are unfit to be employed in particular avocation. It mayreflect his insensitivity to gender equality and also may expose his lowconstitutional morality. The fact that due to his insensitivity or lack ofunderstanding or low constitutional morality, he speaks language thathas the potential to demean the constitutional rights of women, cannotbe ground for action in Constitutional tort. Needless to say that no onecan either be taxed or penalised for holding an opinion which is not inconformity with the constitutional values. It is only when his opinion getstranslated into action and such action results in injury or harm or lossthat an action in tort will lie. With this caveat, let us now get into the coreof the issue.

141. tort is civil wrong, that causes claimant to suffer loss orharm resulting in legal liability for the person who commits the tortiousact. Halsbury’s Law of England states: “Those civil rights of actionwhich are available for the recovery of unliquidated damages bypersons who have sustained injury or loss from acts, statements oromissions of others in breach of duty or contravention of rightimposed or conferred by law rather than by agreement are rights ofaction in tort.”

142. If Crown Proceedings Act, 1947 changed the course of thelaw relating to tort in England, the Federal Tort Claims Act, 1946 changedin America, the course of law relating to the liability of the State for thetortious acts of its servants. Nevertheless, the claims for damagescontinued to be resisted for long time both here and elsewhere on theprinciple of sovereign immunity. It is interesting to note that on the initiativeof the President of India, the Law Ministry took up for consideration thequestion whether legislation on the lines of the Crown Proceedings Act,1947 of the United Kingdom is needed and if so, to what extent. Afterthe constitution of the Law Commission, the Law Ministry referred thematter to the Commission for consideration and report. In its First Reportsubmitted on 11.5.1956 on “Liability of the State in Tort”, the Law

ACommission 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 ofstatutory 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 contextBof welfare State, it is necessary to establish just relation between therights of the individual and the responsibilities of the State; (ii) that whenthe Constitution was framed, the question to what extent, if any, theUnion and the States should be made liable for the tortious acts of theirservants or agents was left for future legislation; (iii) that the questionof demarcating the line up to which the State should be made liable forCthe tortious acts, involves nice balancing of considerations, so as not tounduly restrict the sphere of the activities of the State and at the sametime to afford sufficient protection to the citizen; (iv) that it is necessarythat 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 viewsDof the judges; and (v) that the old distinction between sovereign and thenon-sovereign functions or Governmental and the non-Governmentalfunctions should no longer be invoked to determine the liability of theState.144. Paragraph 66 of the First Report of the Law CommissionEcontained the principles on which appropriate legislation should proceed.It will be useful to extract paragraph 66 of the First Report of the LawCommission, to understand the sweep of constitutional tort, as it wasconceived within few years of the adoption of the Constitution. In fact,it has laid down the road map very clearly with lot of foresight. Paragraph66 reads thus:F

“66. The following shall be the principles on which

legislation should proceed:—

I. Under the general law:

Under the general law of torts i.e., the English CommonGLaw as imported into India on the principle of justice, equity andgood conscience, with statutory modifications of that law now inforce in India (vide the Principles of General Law, Appendix VI)—

(i) The State as employer should be liable for the tortscommitted by its employees and agents while acting within theHscope of their office or, employment.

(ii) The State as employer should be liable in respect ofbreach of those duties which person owes to his employees oragents under the general law by reason of being their employer.

(iii) The State should be liable for torts committed by anindependent contractor only in cases referred to in Appendix VI.

(iv) The State also should be liable for torts where acorporation owned or controlled by the State would be liable.

(v) The State should be liable in respect of breach of dutiesattached under the general law to the ownership, occupation,possession or control of immoveable properly from the momentthe State occupies or takes possession or assumes control of theproperty.

(vi) The State should be subject to the general law liabilityfor injury caused by dangerous things (chattels).

In respect of (i) to (vi) the State should be entitled to raise thesame defences, which citizen would be entitled to raise undergeneral law.

II. In respect of duties of care imposed by statute:

(i) If statute authorises the doing of an act which is initself injurious, the State should not be liable.

(ii) The State should be liable, without proof of negligence,for breach of statutory duty imposed on it or its employees whichcauses damage.

(iii) The State should be liable if in the discharge of statutoryduties imposed upon it or its employees, the employees actnegligently or maliciously, whether or not discretion is involved inthe exercise of such duty.

(iv) The State should be liable if in the exercise of the powersconferred upon it or its employees the power is so exercised as tocause nuisance or trespass or the power is exercised negligentlyor maliciously causing damage.

N.B.—Appendix V shows some of the Acts which containprotection clauses. But under the General Clauses Act thing isdeemed to be done in good faith even if it is done negligently.

Therefore, by suitable legislation the protection should be madenot to extend to negligent acts however honestly done and for thispurpose the relevant clauses in such enactments should beexamined.

(v) The State should be subject to the same duties and shouldhave the same rights as private employer under statute, whetherit is specifically binding on the State or not.

(vi) If an Act negatives or limits the compensation payableto citizen who suffered damage, coming within the scope of theAct, the liability of the State should be the same as under that Actand the injured person should be entitled only to the remedy, ifany, provided under the Act.

III. Miscellaneous:

Patents, Designs and Copyrights: The provisions of Sec. 3 ofthe Crown Proceedings Act may be adopted.

IV. General Provisions:

(i) Indemnity and contribution: To enable the State to claimindemnity or contribution, provision on the lines of Sec. 4 of theCrown Proceedings Act may be adopted.

(ii) Contributory negligence: In England, the Law Reform(Contributory Negligence) Act,1945 was enacted amending thelaw relating to contributory negligence and in view of the provisionsof the Crown Proceedings Act the said Act also binds the Crown.In India, the trend of judicial opinion is in favour of holding that therule in Merryweather v. Nixan [(1799) 8 T.R. 186] does not applyand that there is no legal impediment to one tortfeasor recoveringcompensation from another. But the law should not be left in anuncertain state and there should be legislation on the lines of theEnglish Act.

(iii) Appropriate provision should be made while revisingthe Civil Procedure Code to make it obligatory to implead as partyto suit in which claim for damages against the State is made,the employee, agent or independent contractor for whose act theState is sought to be made liable. Any claim based on indemnityor contribution by the State may also be settled in such proceedingas all the parties will be before the court.

V. Exceptions:

(i) Acts of State: The defence of “Act of State” should bemade available to the State for any act, neglect or default of itsservants or agents. “Act of State” means an act of the sovereignpower directed against another sovereign power or the subjectsof another sovereign power not owning temporary allegiance, inpursuance of sovereign rights.

(ii) Judicial acts and execution of judicial process:TheState shall not be liable for acts done by judicial officers and personsexecuting warrants and orders of judicial officers in all cases whereprotection is given to such officers and persons by Sec. 1 of theJudicial Officers Protection Act, 1850.

(iii) Acts done in the exercise of political functions ofthe State such as acts relating to:

(a) Foreign Affairs (entry 10, List I, Seventh Scheduleof the Constitution);

(b) Diplomatic, Consular and trade representation (entry

(c) United Nations Organisation(entry 12);

(d) Participation in international conferences,associations and other bodies and implementing of decisionsmade thereat (entry 13);

(e) entering into treaties and agreements with foreigncountries and implementing of treaties, agreements andconventions with foreign countries (entry 14);

(f) war and peace (entry 15);

(g) foreign jurisdiction (entry 16);

(h) anything done by the President, Governor orRajpramukh in the exercise of the following functions:

Power of summoning, proroguing and dissolving theLegislature, vetoing of laws and anything done by the Presidentin the exercise of the powers to issue Proclamations under theConstitution;

(i) Acts done under the Trading with the Enemy Act,1947;

(j) Acts done or omitted to be done under Proclamationof 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 thetime of war;

(b) Acts done in the exercise of the powers vested in theUnion for the purpose of training or maintaining the efficiency ofthe Defence Forces;

The statutes relating to these already provide for paymentof compensation and the machinery for determining thecompensation: See Manoeuvres, Field Firing and Artillery PracticeAct, 1948; Seaward Artillery Practice Act, 1949;

(c) The liability of the State for personal injury or deathcaused by member of the Armed Forces to another memberwhile on duty shall be restricted in the same manner as in England(Sec. 10 of the Crown Proceedings Act)

(v) Miscellaneous:

(a) any claim arising out of defamation, malicious prosecutionand malicious arrest,

(b) any claim arising out of the operation of quarantine law,

(c) existing immunity under the Indian Telegraph Act, 1885and 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 LawCommission, Bill known as the Government (Liability in Torts) Billwas introduced in 1967, but the same did not become the law. As aGconsequence, huge burden was cast on the Courts to develop the lawthrough judicial precedents, some of which we shall see now.

146. The judicial journey actually started off on right note withthe decision in The State of Bihar vs. Abdul Majid[112], where

Government servant who was dismissed but later reinstated, filed suitfor recovery of arrears of salary. Though the State raised defence onthe basis of the doctrine of pleasure, this Court rejected the same on theground that said doctrine based on the Latin phrase “durante beneplacito” (during pleasure) has no application in India. This decision wasfollowed in State of Rajasthan vs. Mst. Vidhyawati[113], which involveda claim for compensation by the widow of person who was fatallyknocked down by jeep owned and maintained by the State. Whensovereign immunity was pleaded, this Court observed in Vidhyawati(supra): “when the rule of immunity in favour of the Crown, basedon common law in the United Kingdom has disappeared from theland 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 tortiousacts of its servants, this Court opined in Vidhyawati, as follows:

“(10) This case also meets the second branch of the argumentthat the State cannot be liable for the tortious acts of its servants,when such servants are engaged on an activity connected withthe affairs of the State. In this connection it has to be rememberedthat under the Constitution we have established welfare state,whose functions are not confined only to maintaining law andorder, but extend to engaging in all activities including industry,public transport, state trading, to name only few of them. …”

148. But despite the decisions in Abdul Majid (supra) andVidhyawati, this Court fell into slippery slope in Kasturi Lal. It was acase where the partner of firm dealing in bullion and other goods wasarrested and detained in police custody and the gold and silver that hewas carrying was seized by the police. When he was released later, thesilver was returned but the Head Constable who effected the arrestmisappropriated the gold and fled away to Pakistan in October, 1947.The suit filed by Kasturi Lal for recovery of the value of the gold, wasresisted on the ground that this was not case of negligence of theservants of the State and that even if negligence was held proved againstthe police officers the State could not be held liable. While upholding thecontention of the State, this Court said “if tortious act is committedby public servant and it gives rise to claim for damages, the

Aquestion to ask is: was the tortious act committed by the publicservant in discharge of statutory functions which are referable to,and ultimately based on, the delegation of the sovereign powers ofthe State to such public servant? If the answer is in the affirmative,the action for damages for loss caused by such tortious act will notlie. On the other hand, if the tortious act has been committed by aBpublic servant in discharge of duties assigned to him not by virtueof the delegation of any sovereign power, an action for damageswould lie. The act of the public servant committed by him during thecourse of his employment is in this category of cases, an act of aservant who might have been employed by private individual forCthe same purpose.”

149. In fact, it was suggested by this Court in Kasturi Lal thatthe Legislatures in India should seriously consider making legislativeenactments to regulate and control their claim for immunity. Beforeproceeding further with the journey in the chronological sequence, itDmust be mentioned that the decision in Kasturi Lal was diluted to someextent after nearly 30 years which we shall take note of at the appropriatestage.

150. In Khatri (II) vs. State of Bihar.[114], which came to bepopularly known as Bhagalpur blinding case, this Court was dealingEwith brutal incident of Police atrocity which resulted in twenty-fourprisoners being blinded. Though an opportunity was provided to this Courtto signal the arrival of Constitutional tort in the said case and though thepetitioners sought compensation for the violation of their Article 21 right,this Court simply postponed the decision to future date by holding thatthey are issues of the gravest Constitutional importance, involving theFexploration of new dimension of the right to life and personal liberty.

151. But within couple of years, another opportunity arose inRudul Sah (supra), which related to the unlawful detention of prisonerfor fourteen years even after his acquittal. This shook the conscience ofthis Court. Therefore, this Court awarded compensation in an arbitraryGsum of money, even while reserving the right of the petitioner to bring asuit for recovery of appropriate damages. This Court said that the orderof compensation passed by this Court was in the nature of palliative.When it is suggested by the State that the appropriate remedy would beonly to file suit for damages, this Court said that by refusing to orderH114 (1981) 1 SCC 627

anything (towards compensation), this Court would be doing mere lip-service to the fundamental right to liberty and that one of the tellingways in which the violation of the right by the State can be reasonablyprevented, is to mulct its violators with monetary compensation.

152. After Rudul Sah, there was no looking back. Instead ofproviding elaborate details, we think it is sufficient to provide in tabularform, details of the cases where this Court awarded compensation inpublic law, invoking the principle of constitutional tort, either expresslyor impliedly.

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

153. It will be clear from the decisions listed in the Table abovethat this Court and the High Courts have been consistent in invokingConstitutional tort whenever an act of omission and commission on thepart of public functionary, including Minister, caused harm or loss.But as rightly pointed out by the learned Attorney General in his note,the matter pre-eminently deserves proper legal framework so that theprinciples and procedure are coherently set out without leaving the matteropen ended or vague. In fact, the First Report of the Law Commissionsubmitted draft bill way back in 1956. This Court recommended alegislative measure in Kasturi Lal in 1965 and bill called Government(Liability in Torts) Bill was introduced in 1967. But nothing happenedin the past 55 years. In such circumstances, courts cannot turn blindeye but may have to imaginatively fashion the remedy to be provided topersons who suffer injury or loss, without turning them away on theground that there is no proper legal frame work.

A154. Therefore, our answer to Question No. 5 is as follows:

“A mere statement made by Minister, inconsistent with therights of citizen under Part-III of the Constitution, may notconstitute violation of the constitutional rights and becomeactionable as Constitutional tort. But if as consequence of such aBstatement, any act of omission or commission is done by the officersresulting in harm or loss to person/citizen, then the same may beactionable as constitutional tort”.

SUMMING UP

156. Now that we have answered the questions, the writ petitionand the special leave petition are directed to be listed before theappropriate bench after getting orders from Hon’ble the Chief Justice ofIndia.

NAGARATHNA, J.

1. I have had the benefit of reading the erudite judgment proposedby His Lordship V. Ramasubramanian, J. While I agree with the reasoningand conclusions arrived at by his Lordship on certain questions referredto this Constitution Bench, I wish to lend different perspective to someof 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 thread;

Like the lustre shed by ruby;

Like 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 ofthe right to freedom of speech and expression under Article 19(1)(a) ofthe Constitution, particularly, by those persons holding political offices,public servants, public functionaries or others holding responsible positions

*Ed. Note : Pagination is as per the original Judgment.

Ain Indian polity and society. The concern of the petitioners is with regardto the manner in which public functionaries make disparaging and insultingremarks against certain sections of the society, against countrymen andagainst certain individuals such as women who may be victims of crime.Such indiscreet speech is cause of concern in recent times as it isthought to be hurtful and insulting. The questions raised in these mattersBare with regard to remedies available in law so as to counter such kindof hurtful or disparaging speech made, particularly, by public functionaries.4. The facts giving rise to the present petitions may be encapsulatedas under:

C4.1.Writ Petition (Crl.) No. 113 of 2016, relates to the unsavorypublic comments made by former Uttar Pradesh CabinetMinister, in the context of an alleged gang rape of womanand her minor daughter that took place on 29[th] July, 2016on the Noida-Shahjahanpur National Highway (NH 91).Relying on certain news articles, the petitioner in Writ PetitionD(Crl.) No. 113 of 2016 has brought to the notice of thisCourt the remarks made by the said public functionary,terming the alleged incident as an “opposition conspiracy,”which was proliferated merely because “elections werenear, and the desperate opposition could stoop to anyElevel to defame the government.”

4.2.In relation to such statements, First Information Report,being FIR No. 0838 of 2016 was registered against thesaid Minister on 30[th] July, 2016 by the Kotwali Police Station,Dehat, Bulandshahr, Uttar Pradesh, for offences underSections 395, 397, 376-D, 342 of the Indian Penal Code,F1860 (hereinafter referred to as ‘IPC’ for the sake ofconvenience).

4.3.In the above background, the Writ Petition has beenpreferred, praying as follows:

G“P R Y R : -

In view of the above stated submissions, it istherefore, most humbly prayed that this Hon’bleCourt; may in the interests of justice, be pleased to :-

a.Issue writ of mandamus and/or any otherAappropriate writ and/or direction against therespondents directing them to stop the infringementof the fundamental rights of the petitioner to live alawful life; in addition to passing other appropriatedirections to the respondents.

b.Direct the state to pay the appropriate compensationto the petitioner, other victims and the family membersas per Law.

c.Direct the state to provide and ensure respectableand appropriate free of cost and safe educationarrangements till the attainments of the highest degreein the interest of justice.

d.Direct the state to provide and ensure sufficient lifesecurity and appropriate job security to the petitioner,other victims and family members.

e.Summon the status report from the investigationagency in the interests of justice.

f.Monitor the investigation of FIR No.0838/2016 underSection 154 Cr. P.C. 395, 397, 376-D and POCSOAct, 342.E

g.Transfer the trial of the FIR No.0838/2016 to Delhifrom Bulandshahar in the interest of justice.

h.Pass directions to Respondent No.1 to register F.I.R.against Sh. Azam Khan, Minister for UrbanDevelopment, Govt.of UP; for making statementsbeing outrageous to the modesty of the petitioner inthe matters of the present case.

i.Direct to the Respondent No.1 for registration ofF.I.R. No.0838/2016 against erring police officialsfor disobeying the directions of law in the presentcase.

j.Pass any other or further orders as this Hon’ble Courtmay deem fit and proper in the light of the facts andcircumstances of the present case in favour of thepetitioners and against the respondents.”

A4.4.Special Leave Petition bearing Diary No. 34629 of 2017has been filed impugning the common order dated 31[st] May,2017 passed by the High Court of Kerala, at Ernakulamdismissing Writ Petition (C) No. 15869 and Writ Petition(C) No. 14712 of 2017. The said Writ Petitions were filedbefore the High Court alleging inaction on the part ofBGovernment of Kerala in connection with the derogatorystatements made on separate occasions, by the then Ministerof Electricity, Government of Kerala, against womanPrincipal of polytechnic college in Kerala, the mother ofa student who allegedly committed suicide due to the allegedCharassment by the college authorities and against womenlabourers of tea plantation. Aggrieved by the dismissal ofthe said Writ Petition, SLP bearing Diary No. 34629 of 2017came to be filed before this Court, which was directed tobe tagged with Writ Petition (Crl.) No. 113 of 2016.

D5. The questions raised for the consideration of this ConstitutionBench are enumerated as under:

“1)Are the grounds specified in Article 19(2) in relation to whichreasonable restrictions on the right to free speech can beimposed by law, exhaustive, or can restrictions on the rightEto free speech be imposed on grounds not found in Article19(2) by invoking other fundamental rights?

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

F3)Whether the State is under duty to affirmatively protectthe rights of citizen under Article 21 of the Constitution ofIndia even against threat to the liberty of citizen by theacts or omissions of another citizen or private agency?

4)Can statement made by Minister, traceable to any affairsGof State or for protecting the Government, be attributedvicariously to the Government itself, especially in view ofthe principle of Collective Responsibility?

5)Whether statement by Minister, inconsistent with therights of citizen under Part Three of the Constitution,H

constitutes violation of such constitutional rights and isactionable as ‘Constitutional Tort’?”

6. His Lordship, Ramsubramanian, J. has answered the questionsreferred to this Constitution Bench in the scholarly judgment proposedby him. My view on each of such questions, as contrasted with those ofHis Lordship’s have been expressed in tabular form hereinunder, foreasy reference.

ABCDEFGH

[2023] 8 S.C.R.

ABCDE

Submissions:

7. We have heard learned Senior Counsel, Sri Kaleeswaram Raj,Ffor the Petitioners and learned Attorney General for the Respondents,and learned Senior Counsel Ms. Aparajita Singh, amicus curiae.

Arguments on behalf of the petitioners:

8. The submissions of learned Senior Counsel, Sri KaleeswaramRaj, appearing on behalf of the Petitioners may be epitomized as under:G

8.1.That while upholding the constitutional right to freedom ofspeech and expression of Ministers, efforts should be madeto frame voluntary code of conduct for Ministers andpublic officials, which would ensure better accountabilityand transparency in their political activities and also place aHcheck on the misuse of freedom of speech and expression

exercised by public functionaries using the apparatus of theState.

8.2.That while the state’s duty to protect life and liberty broadlyfalls within the right under Article 21, it is difficult to chainthe State with responsibility in every instance where speechby public functionary strikes at the dignity of anotherBperson. That in the absence of such provision tovicariously attribute responsibility to the State, every instanceof such speech cannot be actionable and remediable throughthe judiciary. That no duty corresponding to Article 21 isimposed on individual Ministers nor such duty is imposedCon any government machinery to regulate the conduct ofindividual Ministers warranting judicial intervention.Therefore, even though no actionable breach of public dutycan be said to have taken place when statements are madeby people in power, this in turn, postulates the desirability tohave voluntary code of conduct in the better interest ofDthe government as well as the governed.

8.3.Reliance was placed on Article 75 (3) of the Constitution tocontend that Ministers have collective responsibilitytowards the legislature and thus, code of conduct to self-regulate the speech and actions of Ministers isconstitutionally justifiable. That Minister is not supposedto breach her/his collective responsibility towards theCabinet and the Legislature, hence, it is advisable to have acogent code of conduct as available in advanceddemocracies.

8.4.Learned Senior Counsel lastly submitted that the instantcases do not involve question as to conflict of any otherright with Article 19. That the question herein, in sum andsubstance, is, whether, any restraint justifiable under theConstitution, can be placed on Ministers and publicfunctionaries, 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 besummarized as under:

726SUPREME COURT REPORTS

A9.1.At the outset, Sri R. Venkataramani, Learned AttorneyGeneralfairly submitted that restrictions on the freedom ofspeech enumerated under Article 19 (2) have to be takento be exhaustive and thus, the court cannot invoke any otherfundamental right, namely, Article 21 to impose restrictionson grounds which are not enumerated under Article 19(2).BFurther, that as matter of constitutional principle, anyaddition, alteration or change in the norms or criteria forimposition of restrictions, on any fundamental right has tocome through legislative process. That the balancing offundamental rights, either to avoid overlapping or to ensureCmutual enjoyment, is different from treating one right as arestriction on another right.

9.2.It was next submitted that the Constitution of India sets outthe scheme of claims of fundamental rights against the Stateor its instrumentalities and such scheme also addressesDbreaches or violations of fundamental rights by personsother than the State or its instrumentalities. Thus, anyproposition to add or insert subjects or matters in respect ofwhich claims can be made against persons other than theState, would amount to constitutional change. That anyenlargement of such constitutional principles would haveEthe consequence of opening flood gate of constitutionallitigation.

9.3.It was further contended that there are sufficientconstitutional and legal remedies available to citizen whoseliberty is threatened by any person and beyond theFconstitutional and legal remedies, there may not be any otheradditional duty to affirmatively protect the right of citizenunder Article 21.

9.4.Learned Attorney General urged that Ministerialmisdemeanors, which have nothing to do with the dischargeGof public duty and are not traceable to the affairs of theState will have to be treated as acts of individual violationand individual wrongs. Thus, the state cannot be vicariouslyliable for the same. That the conduct of public servantlike Minister in the government, if was traceable to theHdischarge of public duty or duties of the office, was subject

to the scrutiny of law. However, such misconduct includingstatements that may be made by Minister, cannot be linkedto 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 ofspeech and expression under Article 19(1)(a) is subject toclearly defined restrictions under Article 19(2). Therefore,any law seeking to limit the right under Article 19(1)(a) hasto fall within the limitation provided under Article 19(2).

10.2. That the right to freedom of speech and expression of apublic functionary who represents the state has to bebalanced with citizen’s right to fair investigation underArticle 21 and if the exercise of Minister’s right underArticle 19(1)(a) violates citizen’s right under Article 21then the same would have to be read down to protect theright of the citizen. Thus, Minister cannot claim theprotection of Article 19(1)(a) to violate Article 21 rights ofcitizens.

10.3. Ms. Aparajita Singh next contended that Minister, being afunctionary of the State represents the State when actingin his official capacity. Therefore, any violation of thefundamental rights of citizens by the Minister in his officialcapacity, would be attributable to the State. Thus, it wouldbe preposterous to suggest that while the State is under anobligation to restrict private citizen from violating thefundamental rights of other citizens, its own Minister cando so with impunity. However, learned amicus curiaequalified such submission by stating that the factum ofviolation would need to be established on the facts of agiven case and hence the law has to evolve from case tocase. It would involve detailed inquiry into questions suchas i) whether the statement by the Minister was made inhis personal or official capacity; ii) whether the statementwas made on public or private issue; iii) whether thestatement was made on public or private platform.

EFGH

A10.4. It was submitted that Minister is personally bound by theoath of office to bear true faith and allegiance to theConstitution of India under Articles 75(4) and 164(3) of theConstitution. That the code of conduct for Ministers (bothfor Union and States) specifically lays down that the Codeis in addition to the “…observance of the provisions ofBthe Constitution, the Representation of the People Act,1951”. Therefore, constitutional functionary is duty boundto act in manner which is in consonance with theconstitutional obligations.

10.5. It was lastly submitted that the State acts through itsCfunctionaries. Therefore, an official act of Minister whichviolates the fundamental rights of the citizens, would makethe State liable by treating the said act of the Minister asaconstitutional tort. However, the principle of sovereignimmunity of the state for the tortious acts of its servants,Dhas been held to be inapplicable in the case of violation offundamental rights.

Question No. 1 referred to this Constitution Bench reads as under:

“Are the grounds specified in Article 19(2) in relation to whichreasonable restrictions on the right to free speech can beEimposed by law, exhaustive, or can restrictions on the right tofree speech be imposed on grounds not found in Article 19(2)by invoking fundamental rights?”

Preface:

F11. In my view, these casescall for an analysis of the content ofArticle 19(1)(a) of the Constitution of India which grants to all citizensof India the right to freedom of speech and expression. Before proceedingto analyse the relevant constitutional provisions, it may be appropriate topreface the discussion with the thought that freedom of speechis notcontingent only upon the laws of nation. The compulsion of socialGrelations and the informal pressures of conformity, exerted in pervasivemanner, determine to great extent, the content and limits of permissiblespeech in society. It is the laws, however, through their own uniquemethods, which reinforce social sanctions. Therefore, the Constitution,which is the fundamental law of the land, as well as the other lawswhich are measured on the touchstone of the Constitution, are to be

interpreted, having regard, inter-alia, to the content and permissible limitsof free speech in peaceful society.

It is necessary to observe that freedom of speech and expressionhas always been closely linked with certain socio-political ideals thatconstitute the foundation of democracy: respect for individual dignityand equality; fraternity; ideals of tolerance; cultural and religioussensitivity. Many of these ideals are written into the text of ourConstitution and permeate its structure through the very Preamble tothe Constitution. These ideals form the philosophical foundations of thediscourse on free speech and therefore, any analysis of the same shouldbe compatible with these ideals. It is in that background that one mustset out to examine whether additional accountability and thus, legalobligation can be cast upon public functionaries with respect to thepermissible extent of free speech. Further, it is also necessary to examinethe difference between restraints on the exercise of freedom of speechand expression, vis-à-vis restrictions thereon, and in that backgroundexamine the degree of self-restraint that needs to be exercised by everycitizen, whether public functionary or not, in exercising his/her right tofreedom of speech and expression in Country like ours which is sounique 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 certainfundamental rights to the citizens of India. Thesefundamental rights are however, subject to reasonablerestrictions as enumerated in Articles 19(2) to (6) thereofwhich could be imposed by the State. These fundamentalrights are in the nature of inalienable rights of man or basichuman rights which inhere in all citizens of free country.Yet, these rights are not unrestricted or absolute, and areregulated by restrictions,which may be imposed by the State,which have to be reasonable. The object of prescribingrestraints or reasonable restrictions on the fundamentalfreedoms is to avoid anarchy or disorder in society. Hence,the founding fathers of our Constitution while enumeratingthe fundamental rights, have alongside prescribed reasonable

restrictions in clauses (2) to (6) of Article 19 and the lawsenacted within the strict limits of such restrictions areconstitutionally permissible.

12.2. Since, these cases involve the freedom of speech andexpression, it is unnecessary to analyse the nature of theother 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 freedomof speech, etc.-

(1) All citizens shall have the right –

(a) to freedom of speech and expression;

xxxxxxxxx

(2) Nothing in sub-clause (a) of clause (a) shall affectthe operation of any existing law, or prevent the Statefrom making any law, in so far as such law imposesreasonable restrictions on the exercise of the rightconferred by the said sub-clause in the interests of thesovereignty and integrity of India, the security of theState, friendly relations with Foreign States, public order,decency or morality or in relation to contempt of court,defamation or incitement to an offence.”

12.3. The freedom of speech and expression as envisaged underArticle 19(1)(a) of the Constitution means the right to freespeech and to express opinions through various media suchas by word of mouth, through the print or electronic media,through pictographs, writings, graphics or any other mannerthat can be discerned by the mind. The right includes thefreedom of press. The content of this right also includespropagation of ideas through publication and circulation, theright to seek information and to acquire or impart ideas. Inshort, the right to free speech would include every natureof right that would come within the scope and ambit of freespeech. Hence, Article 19(1)(a) in very broad and in wideterms states that all citizens shall have the right to freedomof speech and expression. The said right can be curtailedonly by reasonable restrictions which are enumerated in

Article 19(2) there of which can be imposed by the Stateunder the authority of law but not by exercise of executivepower in the absence of any law. Further, the nature ofrestrictions on right to free speech must be reasonable, andin 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 contemptof court, defamation or incitement to an offence. (Article19(2)).

12.4. For country like ours which is Parliamentary Democracy,freedom of speech and expression is necessary right aswell as concomitant for the purpose of not only ensuringa healthy democracy but also to ensure that the citizenscould be well informed and educated on governance. Thedissemination of information through various media, includingprint and electronic media or audio visual form, is to ensurethat the citizens are enlightened about their rights and duties,the manner in which they should conduct themselves in ademocracyand for enabling debate on the policies andactions of the Governments and ultimately for thedevelopment of the Indian society in an egalitarian way.

12.5. The right to freedom of speech and expression in Article19(1)(a) of the Constitution has its genesis in the Preambleof the Constitution which, inter alia, speaks of liberty ofthought, expression, belief. Since, India is sovereigndemocratic republic and we follow parliamentary systemof democracy, liberty of thought and expression is asignificant 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 speechand expression in innumerable judgments which may behighlighted with reference to few of them.

i)In Romesh Thappar vs. State of Madras, AIR1950 SC 124, 1950 SCC 436, (“RomeshThappar”)while highlighting that the freedom ofspeech is the foundation of all democraticorganisations, held that said freedom would also

include the right to freedom of the press. Thisjudgment highlighted that the free flow of opinion andideas is necessary to sustain collective life of the wellinformed citizenry which is sine qua non foreffective governance.

ii)In S. Khushboo vs. Kanniammal, (2010) 5 SCC600, (“Khushboo”) this Court held that the freedomunder Article 19(1)(a) envisaged dissemination of allkinds of views, both popular as well as unpopular.

iii)Recently in Shreya Singhal vs. Union of India,(2015) 5 SCC 1, (“Shreya Singhal”) this Courtspeaking through Nariman, J. highlighted on thedifferences between the US First Amendment andArticle 19(1)(a) read with Article 19(2) in thefollowing words:

“15. It is significant to notice first the differencesbetween the US First Amendment and Article19(1)(a) read with Article 19(2). The first importantdifference is the absoluteness of the US FirstAmendment—Congress shall make no law whichabridges the freedom of speech. Second, whereasthe US First Amendment speaks of freedom ofspeech and of the press, without any referenceto “expression”, Article 19(1)(a) speaks offreedom of speech and expression without anyreference to “the press”. Third, under the USConstitution, speech may be abridged, whereasunder our Constitution, reasonable restrictions maybe imposed. Fourth, under our Constitution suchrestrictions have to be in the interest of eightdesignated subject-matters—that is, any lawseeking to impose restriction on the freedom ofspeech can only pass muster if it is proximatelyrelated to any of the eight subject-matters set outin Article 19(2).”

It was further observed that insofar as the first apparentdifference is concerned, the United States Supreme Court

has never giveneffect to the declaration that Congress shall,under some circumstances, make any law abridging thefreedom of speech. Insofar as the second apparentdifference is concerned, para 17 of Shreya Singhal isextracted as under:

“17. So far as the second apparent difference isconcerned, the American Supreme Court has included“expression” as part of freedom of speech and this Courthas included “the press” as being covered under Article19(1)(a), so that, as matter of judicial interpretation,both the US and India protect the freedom of speechand expression as well as press freedom. Insofar asabridgement and reasonable restrictions are concerned,both the US Supreme Court and this Court have heldthat restriction in order to be reasonable must benarrowly tailored or narrowly interpreted so as to abridgeor restrict only what is absolutely necessary. It is onlywhen it comes to the eight subject-matters that there isa vast difference. In the US, if there is compellingnecessity to achieve an important governmental orsocietal goal, law abridging freedom of speech maypass muster. But in India, such law cannot pass musterif it is in the interest of the general public. Such law hasto be covered by one of the eight subject-matters setout under Article 19(2). If it does not, and is outside thepale of Article 19(2), Indian courts will strike down suchlaw.”

In Shreya Singhal, there was challenge to Section66-A of the Information Technology Act, 2000, which wasstruck down as being violative of Article 19(1)(a) and wasnot saved under Article 19(2) on the ground of vaguenessand not providing manageable standards and clear guidancefor citizens, authorities and courts for drawing preciseline between allowable and forbidden speech, expressionor information. When law uses vague expressions capableof misuse or abuse without providing notice to persons ofcommon intelligence to guess their meaning, it leaves themin boundless sea of uncertainty, conferring wide, unfettered

Apowers on authorities to curtail freedom of speech andexpression arbitrarily.

12.7. Thepresent cases, however, are not really concerned withrestrictions on the right to freedom of speech being imposedby the State. These cases are concerned with the contentof Article 19(1)(a) of the Constitution, inasmuch as thegrievance sought to be ventilated by the petitioners is,whether, there could be an inherent constitutional restrictionon freedom of speech and expression on the citizens vis-à-vis other citizens. These cases are not with regard toreasonable restrictions that could be imposed by the Stateon the freedom of speech and expression, rather, what wouldbe the content of free speech that should not be exercisedas right by an individual citizen which would not in anyway give riseto cause of action to another citizen to seeka remedy.

13. The content of free speech right, as describedhereinabove, is to be understood in terms of the structural elementsor components of free speech right. Only when free speech rightis understood as such, deductions can be made as to the preciseboundaries thereof and the basis on which such right can be limitedEor restrained. Stephen Gradbaum, in his essay titled “The Structureof Free Speech Right,” in the Oxford Handbook of Freedom ofSpeech has discussed six components of free speech right, in thefollowing words:

“The first is the ‘force’ of free speech right. This includes whatFtype of legal right to free speech is formally recognized or atissue: for example, common law, statutory, or constitutional. Thisin turn helps to determine whether and how easily free speechright can be legally superseded. Another aspect of force is whetherand how the right is judicially enforceable. The second componentis the ‘subject’ of free speech rights, or who are the rights-holders:Gfor example, all persons within jurisdiction or only citizens; legalpersons including corporations or only natural persons? The thirdis the ‘scope’ of free speech right: right to say or do whatexactly? Does it include falsehoods, hate speech, or baking cake?The fourth, as distinct structural element concerning content,addresses whether the right includes not only negative

prohibitions on relevant others but also positive obligations,such as duty to affirmatively protect the free speech of rights-holders from third-party threats? The fifth component is the‘object’ of free speech right: who are these ‘relevant others’that are bound by the holder’s rights? Against whom can the rightbe validly asserted? Finally, there is the ‘limitation’ of freespeech right. If the prior questions have all been answered to theeffect that free speech right is implicated and infringed in aparticular situation, when, if ever, might there be legally justifiedlimitation of that right? Is the right an absolute bar or ‘trump’against inconsistent action and, if not, what presumptive weightattaches to it? How, when, and why can the presumption berebutted? Collectively, by constituting and expressing the underlyingstructure of the right to free speech, the answers to these sixquestions help to define the nature and extent of any particularsuch right in given legal system.”

(Emphasis by me)

Referring to the aspect of limitation of free speech right, thelearned author has observed that the teleology of Constitutional order,can also play role in fashioning the contours of free speech protections.That is to say, free speech right may be fashioned to serveConstitutional commitments.

14. According to Wesley Hohfeld’s analysis of the form of rights,every right has complex internal structure, and such structuredetermines what the rights mean for those who hold them. Such rightsare ordered arrangements of basic components. One of the componentsof right, is correlative duty. That is to say, if X has right, he is legallyprotected from interference in respect of such right and such right carrieswith 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 interferingwith the exercise of right, then such right is not ‘right’ in the strictHohfeldian sense. The boundaries of the protective perimeter withinwhich person can exercise their rights, depend on the degree to whichthe State is duty bound to protect the right.

14.1. What emerges from the Hohfeldian conception of rightsand corelative duties, qua the right to freedom of speechand expression may be summed up as follows:

Aa)The Constitution of India confers under Article 19(1)(a),the right to freedom of speech and expression to all itscitizens. The State has corelative duty to abstain frominterference with such right except as provided in Article19(2) of the Consitution which are reasonable restrictionson the right conferred under Article 19(1)(a). The extent ofBsuch duty depends upon the content of speech. For instance,in respect of speech that is likely to be adverse to theinterests of sovereignty and integrity of India, the securityof the State, friendly relations with foreign States, publicorder, decency or morality; or speech that constitutesCcontempt of court, defamation or is of such nature as wouldbe likely to incite the commission of an offence, the duty ofthe State to abstain from interference, is nil. This principleis Constitutionally reflected under Article 19(2) whichenables the State to enact law which would imposereasonable restrictions on such speech as described underDthe eight grounds listed hereinabove which are the basisfor reasonable restrictions.

b)Per contra, in respect of speech and expression whichconstitutes an exchange of ideas, including dissent ordisagreement, and such ideas are expressed in mannerEcompatible with the ethos cultivated in civilised society,the duty of the State to abstain from interference, is high.

c)Similarly, in respect of commercial speech, the State iscompletely free to recall or curb commercial speech whichis false, misleading, unfair or deceptive. Therefore, theFthreshold of tolerance towards commercial speech oradvertisements depends on the content of such speech andthe object of the material sought to be propagated/circulated.The duty of the State to abstain from interference wouldalso depend upon the nature and effect of the commercialGspeech.

d)As is evident from the above illustrations, the extent ofprotection of speech would depend on whether, such speechwould constitute ‘propagation of ideas’ or would haveany social value. If the answer to the said question is in theHaffirmative, such speech would be protected under Article

19(1)(a); if the answer is in the negative, such speech wouldnot be protected under Article 19(1)(a). In respect of speechthat does not form the content of Article 19(1)(a), the Statehas no duty to abstain from interference having regard toArticle 19(2) of the Constitution and only the groundsmentioned therein.

Having noted that the protective perimeter within which aperson can exercise his/her rights depends on the degreeto which the State is duty bound to protect the right, it mayalso be said as corollary that in respect of speech thatdoes not form the content of Article 19(1)(a), the State hasno duty to abstain from interference and therefore, speechsuch as hate speech, defamatory speech, etc. would lieoutside the protective perimeter within which person canexercise his right to freedom of speech. Such speech canbe subjected to restrictions or restraints. While restrictionson the right to freedom of speech and expression arerequired to be made only under the grounds listed underArticle 19(2), by the State,restraints on the said right, donot gather their strength from Article 19(2). Restraints onthe right to freedom of speech and expression are governedby the content of Article 19(1)(a) itself; i.e., any kind ofspeech, which does not conform to the content of the rightunder Article 19(1)(a), may be restrained. Questionspertaining to the voluntary or binding nature of such restraint,the force behind the same, the persons on whom suchrestraints are to be imposed, the manner in which compliancethereof could be achieved, etc., are aspects left to bedeliberated upon and answered by the Parliament. However,the finding made hereinabove is only to the extent of clarifyingthat any kind of speech, which does not form the content ofArticle 19(1)(a), may be restrained as such speech doesnot constitute an exchange of ideas, in manner compatiblewith the ethos cultivated in civilised society. Such restraintsneed not be traceable only to Article 19(2), whichexhaustively lists eight grounds on which restrictions maybe imposed on the right to freedom of speech and expressionby the state.

AThe Content of Article 19(1)(a):

15. The freedom of speech and expression under Article 19(1)(a)is right with diverse facets, both with regard to the content of speechand expression, and the medium through which communication takesplace. It is also dynamic concept that has evolved with time andBadvances in technology. In short, Article 19(1)(a) covers the right toexpress oneself by word of mouth, through writing, pictorial form, graphics,or in any other manner. It includes the freedom of communication andthe right to propagate or publish one’s views and opinions. Thecommunication of ideas may be through any medium such as book,newspaper, magazine or movie, including electronic and audio-visualCmedia.

15.1. Right to Circulate:

Freedom of the press takes within its fold number ofrights and one such right is the freedom of publication.Publication also means dissemination and circulation; indeed,without circulation, publication would be of little value, videRomesh Thappar; Sakal Papers (P) Ltd. vs. Union ofIndia, A.I.R. 1962 SC 305 (“Sakal Papers (P) Ltd.”).

In Life Insurance Corporation vs. Prof. ManubhaiD. Shah,(1992) 3 SCC 637 (“Prof. Manubhai D.Shah”)this Court reiterated that the freedom of speech andexpression under Article 19(1)(a) must be understood totake within its ambit the freedom to circulate one’s view.That such circulation could be by word of mouth, in writingor through audio-visual media. The freedom to ‘air one’sview’ was declared as “lifeline of any democraticinstitution” and the Court expressed strong criticism at anyattempt aimed at stifling or suffocating the right to circulation.In the said case, the appeals concerned separate instancesof state-controlled entities (LIC and Doordarshan) refusingto publish or broadcast work that criticized the government.The Court reasoned that government-controlled means ofpublication have greater burden to recognize an individual’sright to defend themselves and if state censors content,then it is obligated to provide reasons valid in law. Thatwhen state-controlled entity refuses to circulate through

its magazine or other platform, one’s views, including one’sdefence, the right to circulate is violated.

This Court has therefore, on several occasionsrecognised the right to circulation, as facet of the right tofreedom of speech. The right to circulation includes, theright to optimise/maximise the volume of such circulationand also determine the content and reach thereof.

15.2. Right to dissent:

Article 19(1)(a) serves as vehicle through whichdissent can be expressed. The right to dissent, disagreeand adopt varying and individualistic points of viewinheres in every citizen of this Country. In fact, the rightto dissent is the essence of vibrant democracy, for it isonly when there is dissent that different ideas wouldemerge which may be of help or assist the Governmentto improve or innovate upon its policies so that itsgovernance would have positive effect on the peopleof the country which would ultimately lead to stability,peace and development which are concomitants of goodgovernance.

15.3. The following judgments of this Court on the right todissent are noteworthy:

Edissent are noteworthy:(i)In Romesh Thappar, this Court recognised thatcriticism or dissent directed against theGovernment, was not to be curtailed and anyattempt to do so could not be justified as aFreasonable restriction under Article 19 (2) of theConstitution. This declaration by this Courtcemented the idea that the freedom of speech andexpression covers the right to dissent or criticise,even when such right is employed with respect tocriticism of governmental policy or action orGinaction. It is now recognised that the right todissent is an essential pre-requisite of healthydemocracy and 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 challenge to Sections 124-A and 505of the IPC, which criminalised attempts targetedat exciting disaffection towards the Government,by words, or through writing and publicationswhich may disturb public tranquillity. Although thisCourt dismissed the challenge to the vires of theaforestated provisions, it was clarified that criticismof measures adopted by the government, wouldbe within the limits of, and consistent with thefreedom of speech and expression.

(iii)Subsequently, in Directorate General ofDoordarshan vs. Anand Patwardhan, (2006) 8SCC 433 (“Anand Patwardhan”) this Courtobserved that the State cannot prevent opendiscission, even when such discussion was highlycritical of governmental policy.

(iv)The right of an individual to hold unpopular orunconventional views was once again upheld inKhushboo wherein this Court quashed FirstInformation Reports (FIRs) registered pertainingto offences under Sections 292, 499, 500, 504, 505,509 of the IPC, based on complaints regarding theunpopular comments made by the appellanttherein,an actor, in news magazine on the subject ofpre-marital sex wherein she had urged women andgirls to take necessary precautions to avoid thetransmission of venereal diseases. In doing so, thisCourt observed that criminal law could not be setinto motion in manner as would interfere withthe domain of personal autonomy. The Courtupheld the appellant’s freedom of speech andexpression and quashed the FIRs, expressing theneed 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 goodsfor sale, services offered, etc., through any medium, suchas newspaper, television or other electronic media, etc.,

in order to encourage people to buy or use them. In otherwords, it is to draw attention to any product or service.“Advertisement” is public notice, announcement,picture in newspaper or on wall or hoarding in thestreet etc., which advertises something. In short, it is toadvert attention to something and in the commercialsense, to draw attention to goods for sale or servicesoffered. In that sense, an advertisement is commercialspeech.

glimpse of the following cases would be useful:

(i) In Hamdard Dawakhana (Wakf) Lal Kuan vs.Union of India, A.I.R 1960 SC 554(“HamdardDawakhana”) this Court held that an advertisement isa form of speech, but its true character is reflected bythe object for the promotion of which it is employed.However, this Court qualified its observations with thecaveat that when advertisement takes the form ofcommercial advertisement which has an element of tradeor commerce, it no longer falls within the concept offreedom of speech, for, the object is not propagation ofideas - social, political or economic or furtherance ofliterature or human thought; but the commendation ofthe efficacy, value and importance of the product it seeksto advertise. In the said case, this Court did not recognizecommercial speech on par with other forms of speechby holding that it did not have the same value as politicalor creative expression. That broadly, the right to publishand distribute commercial advertisements advertising anindividual’s personal business is part of freedom ofspeech guaranteed by the Constitution, but not everyadvertisement is matter which comes within the scopeof freedom of speech, nor can it be said that it is anexpression of ideas. In every case, one has to see whatis the nature of advertisement and what is the business/commercial activity falling under Article 19(1)(g) it seeksto further.

In the aforesaid case, what was challenged was theDrugs and Magic Remedies (Objectionable

Advertisements) Act, 1954. It was held that the objectof the Act was the prevention of self-medication andself-treatment by prohibiting advertisements, which maybe used to advocate the same or which tended to spreadthe evil. It was further held that the advertisements ofHamdard Dawakhana, appellant in the said case, wererelating to commerce or trade and not propagation ofideas. Such advertising of prohibited drugs or commoditiesthe sale of whichwas not in the interest of the generalpublic, cannot be “speech” within the meaning of freedomof speech and would not fall within Article 19(1)(a).

It is therefore evident that this Court in the said caseplaced weight on the aspect as to whether, theadvertisement sought to be protected, did in fact constitute‘propagation of ideas.’ The true content and object ofthe material sought to be propagated/circulated was tobe assessed, in order to declare whether such contentwould enjoy the protection of Article 19(1)(a).

(ii) Subsequently, in Indian Express Newspaper(Bombay) Pvt. Ltd. vs. Union of India, (1985) 1 SCC641 (“Indian Express Newspaper (Bombay) Pvt.Ltd.”), this Court considered the decision in HamdardDawakhana and observed that the main plank of saiddecision was the type of advertisement or the contentthereof and that particular advertisement did not carrywith it the protection of Article 19(1)(a). It was furtherclarified that the observations made in HamdardDawakhana are too broadly stated. That all commercialadvertisements cannot be denied the protection of Article19(1)(a) of the Constitution merely because they areissued by businessmen.

(iii)Subsequently, in Tata Press Limited vs. MahanagarTelephone Nigam Limited,(1995) 5 SCC 139 (“TataPress Limited”), this Court clarified that commercialspeech, which is entitled to protection under the FirstAmendment in USA is also protected under Article19(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 andwhich proposes illegal transactions in USA. But, underthe Indian Constitution, commercial speech which isdeceptive, unfair, misleading and untruthful, would be hitby 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 compelsa person to state thing. It is in the form of “mustcarry” provision in statute. An example of compelledspeech is provision mandating printing of the ingredients,its measure and such other details on food product orpharmaceutical item. The object is to inform and, in somecases, warn potential consumer about the nature ofthe product. Such compelled speech cannot be violationof the freedom of speech and expression. But if the Statecompels citizen to carry out propaganda or point ofview contrary to his wish then it may be restriction onhis freedom of speech and expression, which must bejustified as per Article 19(2) of the Constitution. But, ifthe “must carry” provision furthers informed decisionmaking, which is the essence of free speech andexpression, then it will not amount to violation of Article19(1)(a). The following judgments could be cited in theaforesaid context:(i)In Union of India vs. Motion Picture Association,A.I.R. 1999 SC 2334 (“Motion PictureAssociation”), this Court held that whethercompelled speech will or will not amount to violationof the freedom of speech and expression, woulddepend upon the nature of “must carry” provision.It observed that,if “must carry” provision furtherinformed decision-making, which is the essence ofthe right to free speech and expression, it will notamount to any violation of the fundamental freedomof speech and expression. However, if such aprovision compels person to carry out propagandaor project partisan or distorted point of view,

FGH

contrary to his wish, it may amount to restraint onhis freedom of speech and expression. It may alsoviolate other fundamental rights such as Article 19(1) (g) or right against self-incrimination which isprotected under Article 20 (3) of the Constitution.

(ii)Therefore, this Court, in the said case, once againlaid stress on the ideas and information sought to becommunicated, by way of compelling the transmissionof such ideas. The content of the information whichis compelled to be carried was found to be highlyrelevant.

Thus, the right under Article 19(1)(a) is multi-faceted freedom and includes within its expanse,inter-alia, the right to gender identity as facet of freedom ofexpression, vide National Legal Services Authority vs.Union of India, (2014) 5 SCC 438 (“National LegalServices Authority”); the right of the press to conductinterviews, vide Prabha Dutt vs. Union of India,(1982) 1 SCC 1 (“Prabha Dutt”); the right to attendproceedings in Court and report the same, vide SwapnilTripathi vs. Supreme Court of India, (2018) 10 SCC639 (“Swapnil Tripathi”); the right to fly the nationalflag vide Union of India vs. Naveen Jindal, (2004) 2SCC 510 (“Naveen Jindal”). The right to silence, oftenregarded as the very converse of ‘speech,’ is also implicitin the freedom of speech under Article 19(1)(a), asrecognised 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 tojudgments of this Court as under:

Learned counsel appearing for the petitioner, SriKaleeswaram Raj submitted that, the contention of thepetitioners in these cases is that the right to free speechwhich is right against the State would also bring within itsfold, duty vis-à-vis not only the State but other citizens

also in the matter of exercising the said freedom. In otherwords, what is sought to be addressed in these cases iswhat are the components or elements of the fundamentalright of free speech and whether there could be limits onthe right to free speech de hors Article 19(2) of theConstitution, with view to check, what has ubiquitouslycome to be known as ‘hate speech’ or ‘disparaging speech’.By this I do not restrict the scope of consideration in theinstant cases only to speech made by public functionaries,but the same shall also extend to speech by ordinary citizens,especially on social media.

16.2. This Court, in Pravasi Bhalai Sangathan vs. Union ofIndia, (2014) 11 SC 477(“Pravasi Bhalai Sangathan”)speaking through Dr. B.S. Chauhan, J., has dealt with ‘hatespeech’ as having an innate relationship with the idea ofdiscrimination. That the impact of such speech is notmeasured by its abusive value alone, but rather by howsuccessfully and systematically it marginalises people.The definition of ‘hate speech’ as propounded by thisCourt in the aforesaid case, is extracted hereinunder:

“Hate speech is an effort to marginalise individualsbased on their membership in group. Usingexpression that exposes the group to hatred,hate speech seeks to delegitimise groupmembers in the eyes of the majority, reducingtheir social standing and acceptance withinsociety. Hate speech, therefore rises beyond causingdistress to individual group members. It can have asocietal impact. Hate speech lays the groundwork forlater, broad attacks on [the] vulnerable that can rangefrom discrimination, to ostracism, segregation,deportation, violence and, in the most extreme cases,to genocide. Hate speech also impacts protectedgroup’s ability to respond to the substantive ideasunder debate, thereby placing serious barrier to theirfull participation in our democracy.”

(Emphasis by me)

EFG

This Court referred to the judgment of the SupremeCourt of Canada in Saskatchewan Human RightsCommission vs.William Whatcott, 2013 SCC 11(“Saskatchewan”)(Canada) wherein it was held thathuman rights obligations form the basis for the control ofpublication of “hate speeches.” The Canadian SupremeCourt further declared that the repugnancy of the ideasbeing expressed is not sufficient to justify restricting theexpression, and whether or not the author of the expressionintended to incite hatred or discriminatory treatment, isirrelevant. That the key is to determine the likely effect ofthe expression on its audience, keeping in mind the legislativeobjectives to reduce or eliminate discrimination. Placingreliance on the observations of the Canadian Supreme Court,this Court in Pravasi Bhalai Sangathan observed thatthe offence of hate speech is not limited to causing individualdistress but would target persons who are members ofcertain groups or sections of society which breedsdiscrimination and consequently, hostility.

16.3. In India, human dignity is not only value but right that isenforceable. In human-dignity-based democracy, freedomof speech and expression must be exercised in mannerthat would protect and promote the rights of fellow-citizens.But hate speech, whatever its content may be, denies humanbeings the right to dignity. In this regard, it may be appositeto refer to recent decision of this Court in Amish Devganvs. 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 antitheticalto, and incompatible with the foundations of human dignity.Protection of ‘Dignity’ as justification for criminalizationof ‘hate speech’ was discussed as follows:

“46. […] Dignity, in the context of criminalisation ofspeech with which we are concerned, refers to aperson’s basic entitlement as member of society ingood standing, his status as social equal and as bearerof human rights and constitutional entitlements. It givesassurance of participatory equality in inter-personal

relationships between the citizens, and between the Stateand the citizens, and thereby fosters self-worth. Dignityin this sense does not refer to any particular level ofhonour or esteem as an individual, as in the case ofdefamation which is individualistic.

47. Preamble to the Constitution consciously putstogether fraternity assuring dignity of the individual andthe unity and integrity of the nation. Dignity of individualand unity and integrity of the nation are linked, one inthe form of rights of individuals and other in the form ofindividual’s obligation to others to ensure unity andintegrity of the nation. The unity and integrity of the nationcannot be overlooked and slighted, as the acts that‘promote’ or are ‘likely’ to ‘promote’ divisiveness,alienation and schematism do directly and indirectlyimpinge on the diversity and pluralism, and when theyare with the objective and intent to cause public disorderor to demean dignity of the targeted groups, they haveto be dealt with as per law. The purpose is not to curtailright to expression and speech, albeit not gloss overspecific egregious threats to public disorder and inparticular the unity and integrity of the nation. Suchthreats not only insidiously weaken virtue and superiorityof diversity, but cut-back and lead to demands dependingon the context and occasion, for suppression of freedomto express and speak on the ground of reasonableness.Freedom and rights cannot extend to create publicdisorder or armour those who challenge integrityand unity of the country or promote and inciteviolence. Without acceptable public order, freedomto speak and express is challenged and would getrestricted for the common masses and law-abidingcitizens. This invariably leads to State responseand, therefore, those who indulge in promotion andincitement of violence to challenge unity andintegrity of the nation or public disorder tend totrample upon liberty and freedom of others.”

(Emphasis by me)

Further, referring to the views of Alice E. Marwick andRoss Millers in the report titled “Online Harassment,defamation, and Hateful Speech: Primer of the LegalLandscape,” this Court in Amish Devgan elucidated asfollows on three distinct elements that legislatures and courtscan use to define and identify ‘hate speech’:

“72.1. The content-based element involves open use ofwords and phrases generally considered to be offensiveto particular community and objectively offensive tothe society. It can include use of certain symbols andiconography. By applying objective standards, one knowsor has reasonable grounds to know that the content wouldallow anger, alarm or resentment in others on the basisof race, colour, creed, religion or gender.

72.2. The intent-based element of ‘hate speech’ requiresthe speaker’s message to intend only to promote hatred,violence or resentment against particular class or groupwithout communicating any legitimate message. Thisrequires subjective intent on the part of the speaker totarget the group or person associated with the class/group.

72.3. The harm or impact-based element refers to theconsequences of the ‘hate speech’, that is, harm to thevictim which can be violent or such as loss of self-esteem,economic or social subordination, physical and mentalstress, silencing of the victim and effective exclusionfrom the political arena.

72.4. Nevertheless, the three elements are not watertightsilos and do overlap and are interconnected and linked.Only when they are present that they produce structuralcontinuity to constitute ‘hate speech’.”

It was further clarified that the effect of the words mustbe judged from the standard of “reasonable, strong-minded,firm and courageous men and not those who are weak andones with vacillating minds, nor those who scent danger inevery hostile point of view.” That in order to ensuremaximisation of free speech, the assessment should be fromthe perspective of reasonable member of the public.

16.4. Further, in landmark Judgment of the United States’Supreme Court in the matter of Chaplinsky vs. State ofNew Hampshire, 315 U.S. 568 (1942)(“Chaplinsky”)”hate speech” was defined by Murphy J. to mean “fightingwords, which by their very utterance inflict injury ortend to incite an immediate breach of peace. It has beenobserved that such utterances are no essential part ofany exposition of ideas, and are of slight social valueas step to truth that any benefit that may be derivedfrom them is clearly outweighed by the social interest inorder and morality.”

16.5. The term ‘hate speech’ does not find specific place inArticle 19(2) of the Constitution and it appears that it doesnot constitute specific exception to the freedom of speechand expression under Article 19(1)(a). Possibly the framersof the Constitution did not find the same to be of relevancein the Indian social mosaic considering that the othercherished values of our Constitution such as fraternity anddignity of the individual would be strong factors which wouldnegate any form of hate speech to be uttered in ourCountry.This may be having regard to our social and cultural values.However, with the passage of time, wide range of Indianstatutes have been enacted with view to control hatespeech. It may be useful to refer to few of such provisions,with view to examine the sufficiency of the existingframework in checking ‘hate speech’ although, the said termhas not yet been precisely defined till date by the Parliament.

i)The Indian Penal Code (“IPC”) contains provisionswhich prohibit hate speech. Section 153-A penalisesthe promotion of class hatred. Section 153-B penalises“imputations, assertions prejudicial to nationalintegration”. Section295-A penalises insults to religionand to religious beliefs. Section 298 makes it penaloffence to utter words, makes sounds or gestureswith the deliberate intention of wounding the religiousfeelings of another. Section 505 makes it penaloffence to incite any class or community againstanother. Chapter XXII, IPC punishes criminalintimidation.

ii)Section 95 of the Code of Criminal Procedure,1973 (“CrPC”) empowers the State Government toforfeit publications that are punishable under Sections124-A, 153-A, 153-B, 292, 293 or 295-A of the IPC.Section 107 empowers the Executive Magistrate toprevent person from committing breach of peaceor disturbing public tranquillity or doing any wrongfulact that may cause breach of peace or disturb publictranquillity. Section 144 empowers the DistrictMagistrate, Sub-divisional Magistrate or any otherExecutive Magistrate specially empowered by theState Government in this behalf to issue orders inurgent cases of nuisance or apprehended danger. Theabove offences are cognizable.

iii)Section 7 of the Protection of Civil Rights Act, 1955penalises incitement to, and encouragement ofuntouchability 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 religiousinstitutions to allow the use of any premises belongingto, or under their control for promoting or attemptingto promote disharmony, feelings of enmity, hatred,ill-will between different religious, racial, linguistic orregional groups or castes or communities.

v)Section 3(1)(x) of theScheduled Castes and theScheduled Tribes (Prevention of Atrocities) Act,1989 punishes an intentional insult or intimidation withintent to humiliate member of Scheduled Casteor Tribe in any place within public view.

vi)Section 8 of theRepresentation of the People Act,1951 disqualifies person from contesting electionsif he is convicted for indulging in acts amounting toillegitimate use of freedom of speech and expression.Section 123(3-A) of the same Act declares “thepromotion of, or attempt to promote, feelings of enmityor hatred between different classes of the citizens ofIndia on grounds of religion, race, caste, community,

or language, by candidate or his agent or any otherperson with the consent of candidate or his electionagent for the furtherance of the prospects of theelection of that candidate or for prejudicially affectingthe election of any candidate”, “corrupt practice”.

vii)The Cable Television Networks (Regulation) Act,1995 requires that all programmes andadvertisements telecast on television conform to theProgramme Code and the Advertisement Code. Rule6, Cable Television Networks Rules, 1994 laysdown the Programme Code and prohibits the carryingof any programme on the cable service which:

(a)contains an attack on religion or communitiesor contains visuals or words contemptuous ofreligious groups or which promotes communalattitudes;

(b)is likely to encourage or incite violence orcontains anything against maintenance of lawand order or which promotes anti-nationalattitudes;

(c)criticises, maligns or slanders any individual inperson or certain groups, segments of social,public and moral life of the country;

(d)contains visuals or words which reflect aslandering, ironical and snobbish attitude in theportrayal of certain ethnic, linguistic andregional groups.

Similarly, the Advertising Code under Rule 7of theCable Television Networks Rules, 1994prohibits the carriage of advertisements on the cableservice which hurt the religious susceptibilities ofsubscribers, which derides any race, caste, colour,creed or nationality, or incite violence or disorder orbreach of law.

The Cable Television Networks (Regulation)Act, 1995 empowers the authorised officer appointed

under the Act to prohibit the transmission of aprogramme or channel, if it is not in conformity withthe Programme Code or the Advertisement Code;or if it is likely to promote disharmony or feelings ofenmity, hatred or ill-will between different religious,racial, linguistic or regional groups; or is likely todisturb public tranquillity. Further, the CentralGovernment is empowered to prohibit the transmissionor re-transmission of any channel or programme inthe interest of the sovereignty, integrity or securityof India or of public order.

viii)Under the Cinematograph Act, 1952, film can bedenied certification on various grounds, including onthe ground that it is likely to incite the commission ofan offence or that it is against the interests of thesovereignty and integrity of India or public order.

ix)The Information Technology Act, 2000 (IT Act)allows the interception of information by theauthorities in the interest of public order, or thesovereignty and integrity of India, or for the purposeof preventing incitement to the commission of acognizable offence. Section 66-A of the same Actwhich sought to penalise information that is ”grosslyoffensive” or of “menacing character” or despiteknowledge that it is false, is sent to cause annoyance,inconvenience, danger, obstruction, insult, criminalintimidation, enmity, hatred or ill-will, was struck downin Shreya Singhal on the ground of, inter alia,vagueness.x)Norms of Journalistic Conduct, 2010 issued bythe Press Council of India (constituted under thePress Council Act, 1978) contain extensive guidelineson the reporting of communal incidents.

The content of speech is sought to be controlledin all the aforesaid statutes when the same is madenot only by public functionaries but any ordinarycitizen also through whatever medium ofdissemination.

16.6. One of the recommendations of the 267[th] Law Commissionwas to insert Sections 153C and 505A and associatedprovisions in the CrPC to deal with ‘Hate Speech’. As perthe Law Commission report, the proposed provisions wouldread as under:

“153-C- Whoever on grounds of religion, race, casteor community, sex, gender identity, sexualorientation, place of birth, residence, language,disability or tribe–

(a) uses gravely threatening words either spoken orwritten, signs, visible representations within thehearing or sight of person with the intention tocause, fear or alarm; or

(b) advocates hatred by words either spoken orwritten, signs, visible representations, that causesincitement to violence shall be punishable withimprisonment of either description for term whichmay extend to two years, and fine up to Rs 5000, orwith both.”

“505-A- Causing fear, alarm, or provocation ofviolence in certain cases: Whoever in publicintentionally on grounds of religion, race, caste orcommunity, sex, gender, sexual orientation, place ofbirth, residence, language, disability or tribe useswords, or displays any writing, sign, or other visiblerepresentation which is gravely threatening, orderogatory;

(i)within the hearing or sight of person, causingfear or alarm, or;

(ii) with the intent to provoke the use of unlawfulviolence, against that person or another,shall bepunished with imprisonment for term which mayextend to one year and/or fine up to Rs 5000, orboth”.

The proposed provisionunder Section 505-A, seeks tocontrol not only speech that could potentially incite violence

or hurt the feelings of community or dampen nationalintegrity, but also seeks to check threatening or derogatoryremarks, made on grounds of religion, race, caste orcommunity, sex, gender, sexual orientation, place of birth,residence, language, disability or tribe, and which cause fearor alarm. While speech of the former category has beentraditionally regarded as ‘hate speech,’ generally vitriolicor ‘derogatory’ statements, which are made on the groundsof religion, race, caste or community, sex, gender, sexualorientation, place of birth, residence, language, disability ortribe, have traditionally not been considered to qualify as‘hate speech,’ no matter how unwarranted or disparagingsuch statements may be.

16.7. Traditionally, ‘hate speech’ is the term used to describespeech that can potentially cause actual materialharmthrough potential social, economic and politicalmarginalisation of community as declared by this Court

in Pravasi Bhalai Sangathan. However, in the presentcase, in my opinion, we are concerned with moreoverarching area of derogatory, vitriolic and disparagingspeech, which is actually not ‘hate speech’ simplicitor ashas been traditionally sought to be defined and understood.I

am concerned with speech that may not belinked tosystematic discrimination and eventual politicalmarginalisation of community, but which maynonetheless have insidious effects on the societalperception of human dignity, values of social cohesion,fraternity and equality cherished by “We the people” ofIndia.

16.8. Andrew F. Sellars, in his essay published by HarvardUniversity, titled ‘Defining Hate Speech,’ has examinedthe concept of ‘hate speech’ in different democraticjurisdictions.The author has identified that certain remarks,which, although may not be ‘hate speech’ in the strict senseof the term, border on the said term. That even tacitelements of intent of the speaker to cause harm, mayconstitute some species of hate speech. Intent may referto non-physical aspects like to demean, vilify, humiliate, or

being persecutorial, disregarding or hateful. The author hasalso recognised that in some contexts, “at home speeches”may themselves amount to hate speeches as such speechcannow be uploaded and circulated in the virtual worldthrough internet etc. The only pre-requisite is that the speechshould have no redeeming purpose, which means that “thespeech primarily carries no meaning other than hatred,hostility and ill-will.”

Beyond ‘hate speech’:

17. The expansive scope of ‘hate speech’ as set out above,would include within its sweep not only ‘hate speech’simplicitor whichis defined as speech aimed at systematic discrimination and eventualpolitical marginalisation of community, but also other species ofderogatory, vitriolic and disparaging speech.

18. philosophical justification to control and restrain derogatory,vitriolic and disparaging speech has been very poignantly conveyed byLau Tzu, celebrated Chinese philosopher and writer, in the followingwords:

“Watch your thoughts; they becomewords.

Watch your words; they becomeactions.

Watch your actions; theybecome habit.

Watch your habits; theybecome character.

Watch yourcharacter; it becomes your destiny.”

19. Theoretical and doctrinal underpinnings justifying restraintson derogatoryand disparaging speech, may be traced to two primaryfactors: human dignity as value as well as right;the Preambular goalsof ‘equality’ and ‘fraternity.’

Human dignity as value as well as right under theConstitution of India:

20. As discussed supra, human dignity is not only value but aright that is enforceable under Article 21 of the Constitution of India. Ina human-dignity-based democracy, freedom of speech and expressionmust be exercised in manner that would protect and promote the rightsof fellow-citizens.

AInternational practice:

21. In attempting to justify restraints on free speech, on theargument founded on considerations of autonomy, dignity and self-worthof 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 proceedson the basis of inviolability of human dignity as its paramountvalue and specifically limits the freedom of expression whennecessary to protect the right to personal honour. TheCanadian approach emphasises on multiculturalism andgroup equality, as it places greater emphasis on culturaldiversity and promotes the idea of an ethnic mosaic.Interestingly, the Canadian position, as discernible from theCanadian Supreme Court’s verdict in R vs. JamesKeegstra, (1990) 3 SCR 697(“Keegstra”)(Canada)considers the likely impact of hate speech on both thetargeted groups and non-targeted groups. The former arelikely to be degraded and humiliated and experience injuriesto their sense of self-worth and acceptance in the largersociety and may well, as consequence, avoid contact withmembers of the other group within the polity. The non-targeted members of the group, sometimes representingsociety at large, on the other hand, may gradually becomede-sensitised and may in the long run start accepting andbelieving the messages of hate directed towards racial andreligious groups. These insidious effects pose serious threatsto social cohesion in the long run rather than merelyprojecting immediate threats to violence.

Further, Dixon C.J. of the Canadian Supreme Court inCanada Human Rights Commission vs. Taylor, (1990)3 SCR 892 (“Taylor”) (Canada)has observed as follows,as regards the interrelationship between messages of hatepropaganda and the values of dignity and equality:

“...messages of hate propaganda undermine the dignityand self-worth of targeted group members and, moregenerally, contribute to disharmonious relations amongvarious racial, cultural and religious groups, as resulteroding the tolerance and open mindedness that must

flourish in multicultural society which is committed tothe idea of equality.”

ii)Australia: The position of lawin Australia is substantiallyaligned with that in Canada. The Australian Federal Court,in the case of Pat Eatock vs. Andrew Bolt, (2011) FCA1103 (“Pat Eatock”) (Australia) followed the dictum inKeegstra in holding that the right to freedom of expressioncould be restricted vide legislation which made racial hatreda criminal offence. The Australian Federal Court stated thatthe rationale for legislation restraining free speech wasas follows:

“(a) The justification from pursuit of truth does notsupport the protection of hate propaganda, and may evendetriment our search for truth. The more erroneous ormendacious statement, the less its value in the questof truth. We must not overemphasise that rationality willovercome all falsehoods.

(b) Self-fulfilment and autonomy, in large part, comefrom one’s ability to articulate and nurture an identitybased on membership in cultural or religious group.The extent to which this value furthers free speech shouldbe modulated insofar as it advocates an intolerant andprejudicial disregard for the process of individual self-development and human flourishing.

(c) The justification from participation in democracyshows shortcoming when expression is employed topropagate ideas repugnant to democratic values, thusundermining the commitment to democracy. Hatepropaganda argues for society with subversion ofdemocracy and denial of respect and dignity to individualsbased on group identities.”

iii)

South Africa: The position which regards dignity as aparamount constitutional value has been recognised in SouthAfrica. The Constitutional Courthas expressed willingnessto subjugate freedom of expression when the samesufficiently undermines dignity. The constitutional provision,therefore, enjoins the legislature and the court to limit free

speech rights and the exercise of those rights which depriveothers of dignity.

iv)Germany: The German law on the subject posits thatfreedom of expression is one amongst several rights whichis limited by principles of equality, dignity andmulticulturalism. Further, value of personal honour alwaystriumphs over the right to utter untrue statements or factsmade with the knowledge of their falsity. Also,if truestatements of fact invade the intimate personal sphere ofan individual, the right to personal honour triumphs over thefreedom of speech. If the expression of opinion as opposedto fact constitutes serious affront to the dignity of

person, the value of dignity triumphs over the speech.Therefore, German application strikes balance betweenrights and duties, between the individual and the communityon the one hand and between the self-expression needs ofthe speaker and the self-respect and dignity of the listenerson the other. It recognises the content-based speechregulation and also recognises the difference between factand opinion.

The inalienability of ‘human dignity’ under the ConstitutionEof India vis-à-vis the right to freedom of speech and expression:

22. In Charu Khurana vs. Union of India, (2015) 1 SCC 192(“Charu Khurana”), this Court declared that dignity is the quintessentialquality of personality and basic constituent of the rights guaranteedand protected under Article 21. Dignity is part of the individual rightsFthat form the fundamental fulcrum of collective harmony and interest ofa society. That while the right to speech and expression is absolutelysacrosanct, dignity as part of Article 21 has its own significance. Thatdignity of an individual cannot be overridden and blotched by malice andvile and venal attacks to tarnish and destroy the reputation of another bystating that the same curbs and puts unreasonable restriction on theGfreedom of speech and expression.

Further, in In Re. Noise Pollution (V), (2005) 5 SCC 733 it wasobserved that Article 19(1)(a) cannot be cited as justification fordefeating the fundamental right guaranteed by Article 21. That personspeaking cannot violate the rights of others to enjoy peaceful,

comfortable and (noise) pollution free environment,guaranteed byArticle 21.

Having regard to the unequivocal declaration of this Court,to theeffect that Article 21 could not be sacrificed at the altar of securing thewidest amplitude of free speech rights, this premise can serve as atheoretical justification for prescribing restraints on derogatory anddisparaging speech. Human dignity, being primary element under theprotective umbrella of Article 21, cannot be negatively altered on accountof derogatory speech, which marks out persons as unequal and vilifiesthemleading to indignity.

23. Rule of Law, includes certain minimum requirements withoutwhich legal system cannot exist. Professor Lon L. Fuller, renownedAmerican legal philosopher, has described these requirements collectivelyas the ‘inner morality of law’. Such an understanding of the concept ofRule of Law places much emphasis on the centrality of individual dignityin society governed by the Rule of Law. Justice Aharon Barak, formerChief Justice of Israel, has lucidly explained this facet of Rule of law inthe following manner:“The Rule of law is not merely public order, the Rule of law issocial justice based on public order. The law exists to ensure propersocial life. Social life, however, is not goal in itself but meansto allow the individual to live in dignity and develop himself. Thehuman being and human rights underlie this substantive perceptionof the Rule of law, with proper balance among the differentrights 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 balance betweensociety’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, andhis human dignity on the other. The Judge must protectthis 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”), substantive aspectof the Rule of Law is the balance between the individual and society. In

EFG

Athat background, this Court discussed the scope of Constitutional rightsunder our Constitutional scheme and the extent of their protection. Whileemphasising that there are no absolute constitutional rights, this Courtlaid down, in the following words that one of the only rights which istreated as “absolute” is the right to human dignity:

“62. It is now almost accepted that there are no absoluteconstitutional rights [Though, debate on this vexed issuestill continues and some constitutional experts claim thatthere are certain rights, albeit very few, which can still betreated as “absolute”. Examples given are:(a) Right tohuman dignity which is inviolable,(b) Right not to be subjectedto torture or to inhuman or degrading treatment or punishment.Even in respect of such rights, there is thinking that in largerpublic interest, the extent of their protection can be diminished.However, so far such attempts of the States have been thwartedby the judiciary.] and all such rights are related. As per the analysisof Aharon Barak [Aharon Barak,Proportionality: ConstitutionalRights and Their Limitation (Cambridge University Press 2012).],two key elements in developing the modern constitutional theoryof recognising positive constitutional rights along with its limitationsare the notions of democracy and the Rule of law. Thus, therequirement of proportional limitations of constitutional rights by

sub-constitutional law i.e. the statute, is derived from aninterpretation of the notion of democracy itself. Insofar as theIndian Constitution is concerned, democracy is treated as the basicfeature of the Constitution and is specifically accorded aconstitutional status that is recognised in the Preamble of theConstitution itself. It is also unerringly accepted that this notion ofdemocracy includes human rights which is the cornerstone ofIndian democracy. Once we accept the aforesaid theory (andthere cannot be any denial thereof), as fortiori, it has also to beaccepted that democracy is based on balance betweenconstitutional rights and the public interests. In fact, such provisionin Article 19 itself on the one hand guarantees some certainfreedoms in Clause (1) of Article 19 and at the same timeempowers the State to impose reasonable restrictions on thosefreedoms in public interest. This notion accepts the modernconstitutional theory that the constitutional rights are related. Thisrelativity means that constitutional licence to limit those rights is

granted where such limitation will be justified to protect publicinterest or the rights of others. This phenomenon—of both theright and its limitation in the Constitution—exemplifies the inherenttension between democracy’s two fundamental elements. On theone hand is the right’s element, which constitutes fundamentalcomponent of substantive democracy; on the other hand is thepeople element, limiting those very rights through theirrepresentatives. These two constitute fundamental componentof the notion of democracy, though this time in its formal aspect.How can this tension be resolved? The answer is that this tensionis not resolved by eliminating the “losing” facet from theConstitution. Rather, the tension is resolved by way of properbalancing of the competing principles. This is one of the expressionsof the multi-faceted nature of democracy. Indeed, the inherenttension between democracy’s different facets is “constructivetension”. It enables each facet to develop while harmoniouslycoexisting with the others. The best way to achieve this peacefulcoexistence is through balancing between the competing interests.Such balancing enables each facet to develop alongside the otherfacets, not in their place. This tension between the twofundamental aspects—rights on the one hand and itslimitation on the other hand—is to be resolved by balancingthe two so that they harmoniously coexist with each other.This balancing is to be done keeping in mind the relativesocial values of each competitive aspects when consideredin proper context.”

[Emphasis by me]

25. It is clarifiedthat at this juncture that it is not necessary toengage in the exercise of balancing our concern for the free flow ofideas and the democratic process, with our desire to further equality andhuman dignity. This is because no question would arise as to the conflictof two seemingly competing rights, being the right to freedom of speechand expression, vis-à-vis the right to human dignity and equality. Thereason for the same is because, the restraint that is called for, is only inrelation to unguided, derogatory, vitriolic speech, which in no way can beconsidered as an essential part of exposition of ideas, which has littlesocial value. This discourse, in no way seeks to pose potential dangerto peaceful dissenters, who exercise their right to freedom of speechand expression in critical, but measured fashion.

AThe present cases pertain specifically to derogatory, disparagingspeech, which closely resembles hate speech. Such speech does not fallwithin the protective perimeter of Article 19(1)(a) and does not constitutethe content of the free speech right. Therefore, when such speech hasthe effect of infringing the fundamental right under Article 21 of anotherindividual, it would not constitute case which requires balancing ofBconflicting rights, but one wherein abuse of the right to freedom of speechby person has attacked the fundamental rights of another.

The Preambular goals of ‘equality’ and ‘fraternity’:

26. Equality, liberty and fraternity are the foundational valuesCembedded in the Preamble of our Constitution. ‘Hate speech’, in thesense discussed hereinabove, strikes at each of these foundational values,by marking out society as being unequal. It also violates fraternity ofcitizens from diverse backgrounds, the sine-qua-non of cohesive societybased on plurality and multi-culturalism such as in India that is, Bharat.

D27. Fraternity is based on the idea that citizens have reciprocalresponsibilities towards one another. The termtakeswithin its sweep,inter-alia, the ideals of tolerance, co-operation, and mutual aid.

27.1. The meaning of the term fraternity, in the context of criminaldefamation and restraints on the freedom of speech andEexpression has been examined by this Court inSubramanian Swamy vs. Union of India, (2016) 7 SCC221(“Subramanian Swamy”) wherein it was observedthat fraternity under the Constitution expects every citizento respect the dignity of the other. Mutual respect is thefulcrum of fraternity that assures dignity. This Court qualifiedFits observations with the caveat that ‘fraternity’ does notmean that there cannot be dissent or difference, more sobecause all citizens have the right to freedom of speechand expression. However, it was unequivocally declaredthat constitutional value which is embedded in the idea ofGfraternity is dignity of the individual, which is required to berespected by fellow citizens. That the Preamble consciouslychooses to assure the dignity of the individual, in the contextof fraternity and therefore, rights enshrined in Part III haveto be exercised by individuals against the back drop of theideal 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 criminaldefamation, on the touchstone of the concept ofconstitutional fraternity, this Court speaking through DipakMisra, J.(as his Lordship then was)observed in paragraphs155 and 163, as follows:

“155. It is constitutional value which is to becultivated by the people themselves as part oftheir social behavior. There are two schools ofthought; one canvassing individual liberalization and theother advocating for protection of an individual as amember of the collective. The individual should have allthe rights under the Constitution but simultaneously hehas the responsibility to live upto the constitutional valueslike essential brotherhood-the fraternity-that strengthensthe societal interest. Fraternity means brotherhood andcommon interest. Right to censure and criticize doesnot conflict with the constitutional objective to promotefraternity. Brotherliness does not abrogate and rescindthe concept of criticism. In fact, brothers can and shouldbe critical. Fault finding and disagreement is requiredeven when it leads to an individual disquiet or groupdisquietude. Enemies Enigmas Oneginese on the part ofsome does not create dent in the idea of fraternity but,a significant one, liberty to have discordant note doesnot confer right to defame the others.”

“163. We have referred to two concepts, namely,constitutional fraternity and the fundamental duty, as theyconstitute core constitutional values. Respect for thedignity of another is constitutional norm. It would notamount to an overstatement if it is said thatconstitutional fraternity and the intrinsic valueinhered in fundamental duty proclaim theconstitutional assurance of mutual respect andconcern for each other’s dignity. The individualinterest of each individual serves the collectiveinterest and correspondingly the collective interestenhances the individual excellence. Action against

764SUPREME COURT REPORTS

the State is different than an action taken by onecitizen against the other. The constitutional valuehelps in structuring the individual as well as thecommunity interest. Individual interest is stronglyestablished when constitutional values arerespected. The Preamble balances different anddivergent rights. Keeping in view theconstitutional value, the legislature has notrepealed Section 499 and kept the same alive as acriminal offence. The studied analysis from variousspectrums, it is difficult to come to conclusion that theexistence of criminal defamation is absolutely obnoxiousto freedom of speech and expression. As prescription,it neither invites the frown of any of the Articles of theConstitution nor its very existence can be regarded asan unreasonable restriction.”

D(Emphasis by me)

27.2. The decision of this Court in Subramanian Swamyestablishes precedent of justifying restraint on free speech,on the ground of promotion of fraternity. It has beenrecognized that the constitutional value of fraternity imputesan obligation on all citizens to subserve collective interestand 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 preservingthe Preambular ideal of fraternity. It is also to be noted thatthis Court in the said case recognized that fraternity as avalue is to be cultivated by citizens themselves as part oftheir social behavior by refraining from uttering defamatorystatements. This chord of the said judgment, acknowledgesthe idea of self-restraint or inherent restraints as being readinto the right to freedom of speech and expression.

27.3. Democracy, being one of the basic features of ourConstitution, it is implicit that in rule by majority therewould be sense of security and inclusiveness. Further,the Preamble of the Constitution which envisages,inter alia,fraternity, assuresthat the dignity of individuals cannot bedented by means of unwarranted speech being made by

fellow citizens, including public functionaries. Thus, thePreamble of the Constitution and the values thereof assuringthe people of India not only justice, liberty, equality but alsofraternity and unity and integrity of the nation, must remindevery citizen of this Country irrespective of the office orposition or power that is held, of the sublime ideals of theConstitution and to respect them in their true letter and spirit.There is an inbuilt constitutional check to ensure that thevalues of the Constitution are not in any way underminedor violated. It is high time that we, as society in generaland as individuals in particular, re-dedicate ourselves to thesacred values of the Constitution and promote them notonly at our individual level but at the macro level. Any kindof speech which undermines the values for which ourConstitution stands would cause dent on our social andpolitical values.

Employing the Fundamental Duties under Part IV-A of theConstitution as means to check disparaging, unwarranted speech:

28. Every right engulfs and incorporates duty to respect another’sright and secure mutual compatibility and conviviality of the individualsbased on collective harmony, resulting in social order. The concept offraternity under the Constitution expects every citizen to respect thedignity of the other. Mutual respect is the fulcrum of fraternity that assuresdignity. In the context of constitutional fraternity, fundamental dutiesengrafted under Article 51-A of the Constitution gain significance. Sub-clause (c),(e) and (j) of Article 51-A of the Constitution which are relevantto these cases read as follows:

“Article 51-A. Fundamental Duties- .—It shall be the duty ofevery citizen of India—

(a)xxx

(b)xxx

(c)to uphold and protect the sovereignty, unity and integrityof India;

(d)xxx

(e)to promote harmony and the spirit of commonbrotherhood amongst all the people of India transcendingH

religious, linguistic and regional or sectional diversities;to renounce practices derogatory to the dignity ofwomen;

(f)xxx

(g)xxx

(h)xxx

(i)xxx

(j)to strive towards excellence in all spheres of individualand collective activity so that the nation constantly risesCto higher levels of endeavour and achievement;”

Fundamental duties also constitute core Constitutional values forgood citizenship in democracy such as ours. The duties enumeratedabove, enjoin all citizens with the obligations of promoting fraternity,harmony, unity, collective welfare etc. Fundamental duties have keenDbond of sorority with the Constitutional goals and must therefore berecognised not merely as Constitutional norms or precepts but asobligations, corelative to rights. In short, the permissible content of theright to freedom of speech and expression, ought to be tested on thetouchstone of fraternity and fundamental duties as envisaged under ourConstitution.E

29. Although the questions for consideration before the Constitutionbench, were with specific regard to the possible restraints on unwarrantedand disparaging speech by public functionaries, the observations madehereinabove, will apply with equal force to public functionaries, celebrities/influencers as well as all citizens of India, more so because technologyFis being used as medium of communication which has wide spectrumof impact across the globe.

30. The internet represents communication revolution and hasenabled us to communicate with millions of people worldwide, with nomore difficulty than communicating with single person, at click or byGtouch on screen. Ironically, the very qualities of the internet that haverevolutionised communication are amenable to misuse. The internet,through various social media platforms has accelerated the pace as wellas the reach of messages, comments and posts to such an extent thatthe difference between celebrity and common man, has beenHpractically negated, in so far as the reach of their speech is concerned.

31. However, given the specific submission of the petitioners hereinthat disparaging and vitriolic speech expressed at various levels of politicalauthority have exacerbated climate bordering on intolerance and tensionin the society, which perhaps may lead to insecurity, it may be appropriateto sound strong word of warning in this regard.

32. It may be appropriate at this juncture to refer to the writingsof Michael Rosenfeld, on the key variables which determine the impactof hate speech. One of the key variables highlighted by the learnedauthor in his paper titled “Hate Speech in Constitutional Jurisprudence:A Comparative Analysis,” published in Cardozo Law Review, is thequestion as to “who” the speaker is. The learned author notes that speechmade by person of influence, such as top government or executivefunctionary, opposition leader, political or social leader of following, or acredible anchor on TV show carries far more credibility and impactthan statement made by common person.

Public functionaries and other persons of influence and celebrities,having regard to their reach, real or apparent authority and the impactthey wield on the public or on certain section thereof, owe duty to thecitizenry at large to be more responsible and restrained in their speech.They are required to understand and measure their words, having regardto the likely consequences thereof on public sentiment and behaviour,and also be aware of the example they are setting for fellow citizens tofollow.

33. While there are no infallible rules that can be formulated bythe Court to define the precise threshold of acceptable speech, everycitizen’s conscious attempt to abide by the Constitutional values, and topreserve in letter and spirit the culture contemplated under the Constitutionwill significantly contribute in eliminating instances of societal discord,friction and disharmony, on account of disparaging, vitriolic and derogatoryspeech, particularly when made by public functionaries and/or publicfigures. This does not in any way imply that ordinary citizens who formthe great mass of the citizenry of this Country can shun responsibility forvitriolic, unnecessarily critical, diabolical speech, bordering on all thoseaspects mentioned under Article 19 (2) either against public functionaries/ figures or against other citizens in general or against particularindividuals.

34. Every citizen of India must consciously be restrained in speech,and exercise the right to freedom of speech and expression under Article

A19(1)(a) only in the sense that it was intended by the framers of theConstitution, to be exercised. This is the true content of Article 19(1)(a)which does not vest with citizens unbridled liberty to utter statementswhich are vitriolic, derogatory, unwarranted, have no redeeming purposeand which, in no way amount to communication of ideas. Article 19(1)(a)vests multi-faceted right, which protects several species of speechBand expression from interference by the State. However, it is no brainerthat the right to freedom speech and expression, in human-rights baseddemocracy does not protect statements made by citizen, which strikeat the dignity of fellow citizen. Fraternity and equality which lie at thevery base of our Constitutional culture and upon which the superstructureCof rights are built, do not permit such rights to be employed in mannerso as to attack the rights of another.Verse 15 of Chapter 17 of the Srimad Bhagavad Gita describeswhat constitutes discipline of speech or ‘vâE-maya tapas:’

Anudvega-karaA vâkyaA satyaA priya-hitaA cha yat

SvâdhyâyâbhyasanaA chaiva vâE-mayaA tapa uchyateEWords that do not cause distress, are truthful, inoffensive,pleasing and beneficial, are said to be included within the disciplineof speech, and are likened to regular recitation of the Vedicscriptures.F35. The discussion presented hereinabove was with view to

F35. The discussion presented hereinabove was with view torekindle some ideas on the content of Article 19 (1) (a) of the Constitutionand on other pertinent issues surrounding the right to free speechguaranteed under the aforesaid Article. However, as far as the substantialanalysis of Question No. 1 is concerned, I respectfully agree with thereasoning and conclusions proposed by His Lordship,GRamasubramanian, J.

Re: Question No. 2:Can fundamental right under Article19 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 inalienablerights and among such rights are right to life and liberty, including libertyof thought and expression. These rights have been recognized asinalienable rights, having regard to the supreme value of human personality.Incidentally, some of such rights have come to be Constitutionallyrecognized under Part III of the Constitution of India. Fundamental Rightswere selected from what were previously natural rights and were latertermed as common law rights. However, it is to be noted that Part III ofthe Constitution, is not the sole repository of such rights. Even aftersome of such inalienable rights have come to be Constitutionallyrecognised as Fundamental Rights under the Constitution of India, thecongruent rights under common law or natural law have not beenobliterated. It also follows, that the corresponding remedies available incommon law, are also not obliterated. The object of elevating certainnatural and common law rights, as Fundamental Rights under theConstitution was to make them specifically enforceable against the Stateand its agencies through Courts of law. These observations gainlegitimacy from the judgment of Mathew, J. in His Holiness KesavanadaBharati Sripadagalvaru vs. State of Kerala, (1973) 4 SCC 225(Kesavanada Bharati) wherein His Lordship recognized the object ofConstitutions to declare recognised natural rights as applicable qua thestate. Adopting the picturesque language of Roscoe Pound, the followingobservations were made:

“1514. While dealing with natural rights, Roscoe Pound states onpage 500 of Vol. I of his Jurisprudence:

“Perhaps nothing contributed so much to create and fosterhostility to courts and law and Constitutions as this conceptionof the courts as guardians of individual natural rights againstthe state and against society; this conceiving of the law as afinal and absolute body of doctrine declaring these individualnatural rights; this theory of Constitutions as declaratoryof common-law principles, which are also natural-lawprinciples, anterior to the state and of superior validityto enactments by the authority of the state; this theoryof Constitutions as having for their purpose to guaranteeand maintain the natural rights of individuals against thegovernment and all its agencies. In effect, it set up thereceived traditional social, political, and economic ideals of the

legal profession as super-Constitution, beyond the reach ofany agency but judicial decision.

1515. I may also in this connection refer to passage on theinherent and inalienable rights in History of American PoliticalTheories by C. Marriam: By the later thinkers the idea that menpossess inherent and inalienable rights of political or quasi-political character which are independent of the state, has beengenerally given up. It is held that these natural rights can have noother than an ethical value, and have no proper place in politics.There never was, and there never can be,’ says Burgess, ‘anyliberty upon this earth and among human beings, outside of stateorganization’. In speaking of natural rights, therefore, it is essentialto remember that these alleged rights have no political forcewhatever, unless recognized and enforced by the state. It isasserted by Willoughby that ‘natural rights’ could not have even amoral value in the supposed ‘state of nature’; they would reallybe 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 provisionsof the Constitution relating to the fundamental rights cannot bedenied by describing the fundamental rights as natural rights orhuman rights. The basic dignity of man does not depend uponthe codification of the fundamental rights nor is suchcodification prerequisite for dignified way of living. Therewas no Constitutional provision for fundamental rightsbefore January 26, 1950 and yet can it be said that theredid not exist conditions for dignified way of living for Indiansduring the period between August 15, 1947 and January26,. 1950. The plea that provisions of the Constitution, includingthose of Part III, should be given retrospective effect has beenrejected by this Court. Article 19 which makes provision forfundamental rights, is not applicable to persons who are not citizensof India. Can it, in view of that, be said that the non-citizens cannotwhile staying in India lead dignified life? It would, in my opinion,be not correct approach to say that amendment of theConstitution relating to abridgement or taking away of thefundamental rights would have the effect of denuding human beings

of basic dignity and would result in the extinguishment of essentialvalues of life.”

[Emphasis by me]

37. This proposition was further highlighted in the enlightenedminority opinion of His Lordship, H.R. Khanna, J, in Additional DistrictMagistrate, Jabalpur vs. Shivakant Shukla, A.I.R. 1976 SC1207(“ADM Jabalpur”) wherein while refusing to subscribe to theview that when the right to enforce Fundamental Right under Article 21is suspended, the result would be that there would be no remedy againstdeprivation of person’s life or liberty by the State even though suchdeprivation is without the authority of law, observed, that Article 21 wasnot the sole repository of the right to life and personal liberty. That suchrights inhered in men even prior to the enactment of the Constitution,and were not created for the first time by enacting the Constitution. Itwas also recognised that though the Constitutionally recognised remedyunder Article 32, for infringement of the Right under Article 21 may notbe available as the said rights remained suspended or notionallysurrendered on account of declaration of an Emergency, remedies underthe laws which were in force prior to the coming into effect of theConstitution would still operate to ensure that no person could be deprivedof his life or liberty except in accordance with law. In that context, itwas held that the rights Constitutionally recognised under Article 21,represented ‘higher values’ which were elementary to any civilised Stateand therefore the sanctity of life and liberty was not traceable only tothe Constitution. The relevant portions of His Lordship’s judgment canbe usefully extracted hereinunder:

“152. The effect of the suspension of the right to move any courtfor the enforcement of the right conferred by Article 21, in myopinion, is that when petition is filed in court, the court wouldhave to proceed upon the basis that no reliance can be placedupon that Article for obtaining relief from the court daring theperiod of emergency. Question then arises as to whether the rulethat no one shall be deprived of ins life or personal liberty withoutthe authority of law stiff survives during the period: of emergencydespite the Presidential order suspending the right to move anycourt for the enforcement of the-right contained in Article 21.The answer to this question is linked with the answer to the questionas to whether Article 21 is, the sole repository of the right to life

and personal liberty. After giving the matter my earnestconsideration, I am of the opinion that Article 21 cannot beconsidered” to be the sole repository of the right to lifeand; personal liberty. The right to life, and personal: libertyis the most precious right of human beings in civilisedsocieties governed by the rule of law. Many modernconstitutions incorporate certain fundamental rights,including the one relating to personal freedom.”

xxx

“155. Sanctity of life and liberty was not something new whenthe Constitution was drafted. It represented fact of highervalues which mankind began to cherish in its evolution froma state of tooth and claw to civilized existence. Likewise,the principle that no one shall be deprived of ins life andliberty without the authority of law was not the gift of theConstitution. It was necessary corollary of the concept relatingto the sanctity of life and liberty; it existed and was in force beforethe coming into force, of the Constitution. The idea about thesanctity of life and liberty as well as the principle that no one shallbe deprived of his life and liberty without the authority of law areessentially two facets of the same concept. This concept grewand acquired dimensions in response to the inner urges and noblerimpulses with the march of civilisation. Great writers and teachers,philosophers and political thinkers nourished and helped in theefflorescence of the concept by rousing the conscience of mankindand by making it conscious of the necessity of the concept asnecessary social discipline in self-interest and for orderly existence.According even to the theory of social compact many aspects ofwhich have now been discredited, individuals have surrendered apart of their theoretically unlimited freedom in return or theblessings of the government. Those blessings include governancein accordance with certain norms in the matter of life and libertyof the citizens. Such norms take the shape of the rule of law.Respect for law, we must bear in mind, has mutual relationshipwith respect for government. Erosion of the respect for law, ithas 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 peopleor their representatives. Law thus emerges as norm limiting theapplication of power by the government over the citizen or bycitizens over their fellows. Theoretically all men are equal beforethe law and are equally bound by it regardless of their status,class, office or authority. At the same time that the law enforcesduties it also protects rights, even against the sovereign.”

xxx

158. I am unable to subscribe to the view that when right toenforce the right under Article 21 is suspended, the resultwould be that there would be no remedy against deprivationof person’s life or liberty by the State even though suchdeprivation is without the authority of law or even in flagrantviolation of the provisions of law. The right not to bedeprived of one’s life or liberty without the authority of lawwas not the creation of the Constitution. Such right existedbefore the Constitution came into force. The fact that theframers of the Constitution made an aspect of such right apart of the fundamental rights did not have the effect ofexterminating the independent identity of such right and ofmaking Article 21 to be the sole repository of that right. Itsreal effect was to ensure that law under which person can bedeprived of ins life or personal liberty should prescribe procedurefor such deprivation or, according to the dictum laid down byMukherjea, J. in Gopalan’s case, such law should be valid lawnot violative of fundamental rights guaranteed by Part III of theConstitution. Recognition as fundamental right of one aspectof the pre-Constitutional right cannot have the effect ofmaking things less favourable so far as the sanctity of lifeand personal liberty is concerned compared to the positionif an aspect of such right had not been recognised asfundamental right because, of the vulnerability offundamental rights accruing from Article 359. I am also unableto agree that in view of the Presidential Order in the matter ofsanctity of life and liberty, things would be worse off compared tothe state of law as it existed before the coining into force of theConstitution.”

CDE

“162. It has been pointed out above that even before the cominginto force of the Constitution, the position under the common lawboth in England and in India was that the State could not deprivea person of ins life and liberty without the authority of law. Thesame was the position under the penal laws of India. It was anoffence under the Indian Penal Code, as already mentioned, todeprive person of ins life or liberty unless such course wassanctioned by the laws of the land. An action was also maintainableunder the law of torts for wrongful confinement in case any personwas deprived of ins personal liberty without the authority of law.In addition to that, we had Section 491 of the CrPC which providedthe remedy of habeas corpus against detention without the authorityof law. Such laws continued to remain in force in view of Article372 after the coming into force of the Constitution. According tothat article, notwithstanding the repeal by this Constitution of theenactments referred to in Article 395 but subject to the otherprovisions of this Constitution, all the law in force in the territoryof India immediately before the commencement of thisConstitution shall continue in force therein until altered or repealedor amended by competent legislature or other competentauthority. The law in force, as observed by the majority of theConstitution Bench in the case of Director of Rationing andDistribution v. The Corporation of Calcutta and Ors. 1960 CriLJ1684, include not only the statutory law but also custom or usagehaying the force of law as also the common law of England which,was adopted as the law of the country before the coming intoforce of the Constitution. The position thus seems to be firmlyestablished that at the time, the Constitution came into force, thelegal position was that no one could be deprived of ins life orliberty without the- authority of law.

163. It is difficult to accede to the contention that becauseof Article 21 of the Constitution, the law which was alreadyin force that no one could be deprived of ins life or libertywithout the authority of law was obliterated and ceased toremain in force. No rule of construction interpretationwarrants such an inference. Section 491 of the CrPCcontinued to remain an integral part of that Code despitethe fact that the High Courts were vested with the power

of issuing writs of habeas corpus under Article 226. Nosubmission was ever advanced on the score that the said provisionhad become dead letter of enforceable because of the fact thatArticle 226 was made part of the Constitution, indeed, in thecase of Makhan Singh (supra) Gajendragadkar J. speaking forthe majority stated that after the coming into force of theConstitution, party could avail of either the remedy of Section491 of the CrPC or that of Article 226 of the Constitution. Theabove observations clearly go to show that constitutionalrecognition of the remedy of writ of habeas corpus did not obliterateor abrogate the statutory remedy of writ of habeas corpus. Section491 of the CrPC continued to be part of that Code till that Codewas replaced by the new Code. Although the remedy of writ ofhabeas corpus is not now available under the new CrPC, 1973,the same remedy is still available under Article 226 of theConstitution.”

[Emphasis by me]

In holding thus, H.R.Khanna, J. refused to subscribe to the majorityview in the said casethat once right is recognised and embodied in theConstitution and forms part of it, it could not have any separate existenceapart from the Constitution, unless it were also enacted as statutoryprinciple by some positive law of the State. His Lordship rejected theproposition that the intention of the Constitution was not to preservesomething concurrently in the field of natural law or common law; it wasto exclude all other control or to make the Constitution the sole repositoryof ultimate control over those aspects of human freedom which wereguaranteed therein.38. The strength of H.R. Khanna, J’s minority opinion wassubsequently acknowledged and affirmed by this Court inPuttaswamy,wherein it was held that the rights to life and personal libertywere ‘primordial rights’ and were not bounties which were conferred bythe State and created by the Constitution. That the right to life existedeven before the advent of the Constitution and in recognising such right,the Constitution did not become the sole repository of such rights. Thatevery constitutional democracy including our country, is rooted in anundiluted assurance that the Rule of law will protect their rights andliberties against any invasion by the State and that judicial remedies wouldbe available when citizen has been deprived of most precious inalienable

Arights. Dr.D.Y.Chandrachud.J. (as His Lordship then was) enunciatedthe aforesaid principles in the following words:

“119. The judgments rendered by all the four judges constitutingthe majority in ADM Jabalpur are seriously flawed. Life andpersonal liberty are inalienable to human existence. These rightsare, as recognised in Kesavananda Bharati, primordial rights.They constitute rights under natural law. The human element inthe life of the individual is integrally founded on the sanctity oflife. Dignity is associated with liberty and freedom. No civilizedstate can contemplate an encroachment upon life and personalliberty without the authority of law. Neither life nor liberty arebounties conferred by the state nor does the Constitution createthese rights. The right to life has existed even before the adventof the Constitution. In recognising the right, the Constitution doesnot become the sole repository of the right. It would be preposterousto suggest that democratic Constitution without Bill of Rightswould leave individuals governed by the state without either theexistence of the right to live or the means of enforcement of theright. The right to life being inalienable to each individual,it existed prior to the Constitution and continued in forceUnder Article 372 of the Constitution. Justice Khanna wasclearly right in holding that the recognition of the right tolife and personal liberty under the Constitution does notdenude the existence of that right, apart from it nor canthere be fatuous assumption that in adopting theConstitution the people of India surrendered the mostprecious aspect of the human persona, namely, life, libertyand freedom to the state on whose mercy these rights woulddepend. Such construct is contrary to the basic foundationof the Rule of law which imposes restraints upon the powersvested in the modern state when it deals with the libertiesof the individual. The power of the Court to issue Writ ofHabeas Corpus is precious and undeniable feature of the Ruleof law.

120. constitutional democracy can survive when citizens havean undiluted assurance that the Rule of law will protect their rightsand liberties against any invasion by the state and that judicialremedies would be available to ask searching questions and expect

answers when citizen has been deprived of these, most preciousrights. The view taken by Justice Khanna must be accepted, andaccepted in reverence for the strength of its thoughts and thecourage 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 beenaccorded secure position under the Constitution so as toprotect such rights against undue encroachments by organsof State. The object of elevation of such common law rights/natural rights to the Constitutional plane was to make themspecifically enforceable against the State and its agenciesthrough Courts of Law.

ii)Notwithstanding that such rights have been placed in PartIII of the Constitution of India, the rights are concurrentlypreserved in the field of natural law or common law.Remedies available in common law for actualising such rightsare also preserved. There are therefore two spheres ofrights, and corresponding remedies: first, relatable to theFundamental Rights enshrined under Part III the Constitutionof India, which correspond to the remedies under Article32 and Article 226 of the Constitution of India; second,inalienable/natural/common law rights, which are pre-constitutional rights, and may be protected by havingrecourse to common law remedies.

iii)While the content of certain common law right, may beidentical to Fundamental Right, the two rights would bedistinct in two respects: first, incidence of the duty to respectsuch right; and second, the forum which would be calledupon to adjudicate on the failure to respect such right. Whilethe content of the right violated may be identical, the statusof the violator, is what is relevant.

With that primer, I shall proceed to consider whether theFundamental Rights under Article 19 or 21 of the Constitution of Indiacan be claimed against any person other than the State or itsinstrumentalities.

A40. With historical and political changes and the advent ofdemocracy and of Constitutional government, the “State”was createdunder and by constitution and placed at position which renders itcapable of interfering with natural and common law rights. On the otherhand, as is evident from the text of the Preamble of the Constitution ofIndia, the “We the People of India created the State as an entity to serveBtheir interests. In order to reconcile the competing effects of creation ofthe State, certaincommon law rights were elevated to the constitutionalplane by accommodating them in Part III of the Constitution of India tomake them specifically enforceable against the State and its agenciesthrough the Courts. Part III of the Constitution was therefore enacted toCdictate the relationship between citizens and the State- this is the truecharacter and utility of Part III. This idea has also found resonance inPuttaswamy, wherein it was observed as follows:

“251. Constitutions address the rise of the new political hegemonthat they create by providing for means by which to guard againstDits capacity for invading the liberties available and guaranteed toall civilized peoples. Under our constitutional scheme, these means- declared to be fundamental rights - reside in Part III, and aremade effective by the power of this Court and the High CourtsUnder Articles 32 and 226 respectively. This narrative of theprogressive expansion of the types of rights available to individualsEseeking to defend their liberties from invasion - from natural rightsto common law rights and finally to fundamental rights - isconsistent with the account of the development of rights thatimportant strands in constitutional theory present.”Therefore, the primary object of Part III of the Constitution wasFto forge new relationship between the citizens and the State, whichwas the new site of Governmental power. The realm of interactionbetween citizens inter-se, was governed by common law prior to theenactment of the Constitution and continued to be so governed evenafter the commencement of the Constitution because as recognisedGhereinabove, the common rights and remedies were not obliterated evenafter the Constitution was enacted. These inalienable rights, althoughsubsequently placed in Part III of the Constitution, retained their identityin the arena of common law and continued to regulate relationshipsbetween citizens and entities, other than the State or its instrumentalities.It is therefore observed that the incidence of the duty to respectH

Constitutional and Fundamental Rights of citizens is on the State and theConstitution provides remedies against violation of Fundamental Rightsby the State. These observations are in consonance with the recognitionby this Court in People’s Union for Civil Liberties vs. Union of India,(2005) 2 SCC 436 (“People’s Union for Civil Liberties”) that theobjective of Part III is to place citizens at centre stage and make thestate accountable to them.

41. On the other hand, common law rights, regulate the relationshipbetween citizens inter-se. Although the content of common law rightmay be similar to Fundamental Right, the two rights are distinct in sofar as, the incidence of duty to respect common law right is on citizensor entities other than State or its instrumentalities; while the incidence ofduty to respect Fundamental Right, except where expressly otherwiseprovided, is on the State. Remedies against violation of FundamentalRights by the State are Constitutionally prescribed under Articles 32 and226; while common law remedies, some of which are statutorilyrecognised, are available against violation of common law rights. Suchremedies are available even as against fellow citizens or entities otherthan State or its instrumentalities. To this extent, horizontality is recognisedin common law. Further to some extent certain Fundamental Rights arerecognised statutorily and some others are expressly recognised in theConstitution as being applicable as horizontal rights between citizensinter se such as Articles 15(2), 17, 23, 24. similar declaration as regardsthe right to privacy is found in the decision of this Court in Puttaswamy.The relevant excerpts from the said decision have been reproducedhereinunder:

“253. Once we have arrived at this understanding of the nature offundamental rights, we can dismantle core assumption of theUnion’s argument: that right must either be common law rightor fundamental right. The only material distinctions between thetwo classes of right - of which the nature and content may be thesame - lie in the incidence of the duty to respect the right and inthe forum in which failure to do so can be redressed. Commonlaw rights are horizontal in their operation when they areviolated by one’s fellow man, he can be named andproceeded against in an ordinary court of law. Constitutionaland fundamental rights, on the other hand, provide remedyagainst the violation of valued interest by the ‘state’, as

Aan abstract entity, whether through legislation or otherwise,as well as by identifiable public officials, being individualsclothed with the powers of the state. It is perfectly possiblefor an interest to simultaneously be recognized as commonlaw right and fundamental right. Where the interferencewith recognized interest is by the state or any other likeBentity recognized by Article 12, claim for the violation ofa fundamental right would lie. Where the author of anidentical interference is non-state actor, an action atcommon law would lie in an ordinary court.254. Privacy has the nature of being both common law right asCwell as fundamental right. Its content, in both forms, is identical.All that differs is the incidence of burden and the forum forenforcement for each form.”

[Emphasis by me]

DIt has therefore been unequivocally declared by this Court thatwhile the content of right recognised under Part III of the Constitutionmay coincide or overlap with common law right, the remedies availableagainst violation of the respective form of right, operate in differentspheres of law. That is, although the content of common law right anda fundamental right may be almost identical, the remedy against violationEof common law right, shall lie under common law and not under theConstitution; similarly, the remedy against violation of FundamentalRight is provided for under the Constitution itself expressly against theState under Article 19(2) thereof.

42. The status of the violator of the right, is also an essentialFparameter for distinction between the two rights and correspondingremedies. Where the interference with recognized right is by the Stateor any other entity recognized under Article 12, claim for the violationof fundamental right would lie under Articles 32 and 226 of theConstitution before this Court or before the High Court respectively.GWhere interference is by an entity other than State or its instrumentalities,an action would lie under common law and to such extent, the legalscheme recognises horizontal operation of such rights.

43. Though the content of the Fundamental Right may be identicalunder the Constitution with the common law right, it is only the commonlaw right that operates horizontally except when those Fundamental RightsH

have been transformed into statutory rights under specific enactmentsor where horizontal operation has been expressly recognised under theConstitution. This is because, the following difficulties would surface ifthe Fundamental Rights enshrined under Article 19 and 21 are permittedto operate horizontally so as to seek the remedy by way of writ petitionbefore Constitutional Court:

i)No recognition that Fundamental Rights enshrined underArticle 19 and 21 are permitted to operate horizontally canbe made except by ignoring the elementary differencesbetween Fundamental Right and the congruent commonlaw right. Such recognition could proceed only by ignoringCthe fact that the incidence of the duty to respect aFundamental Right is on the State and its instrumentalities.Recognition of horizontal enforceability of FundamentalRights would also ignore the status of the violator of theright except when Fundamental Right is also recognisedas statutory right against another person or citizen.DTherefore, such recognition is misplaced as it proceedswith total disregard to the elementary differences in statusof the two forms of rights, incidence of duty to respecteach of such forms of rights, and the forum which wouldbe called upon to adjudicate on the failure to respect eachEof such rights.

ii)The following decisions of this Court are demonstrative ofits disinclination or reluctance in recognising thatFundamental Rights enshrined under Article 19 and 21 arepermitted to operate horizontally:

a)In P.D. Shamdasani vs. Central Bank of India Ltd.,A.I.R. 1952 SC 59, Constitution Bench of this Courtrefused to entertain Writ Petition filed under Article 32 ofthe Constitution, wherein prayer was made to enforcethe right under Article 19(1)(f) and Article 31(1), as theythen stood, against private entity. In that context, it washeld that the language and structure of Article 19 and itssetting in Part III of the Constitution clearly show that theArticle was intended to protect those freedoms against Stateaction. This Court declared that violation of rights ofproperty by individuals or entities other than the State and

its instrumentalities, was not within the purview of Article19(1)(f).

Further, this Court made comparison between Article31(1), as it then stood, and Article 21 as both Articles casta negative duty on the State. In that context it was held thatalthough there is no express reference to the State in Article21, it could not be suggested that the Article was intendedto afford protection to life and liberty against violation byprivate individuals. That the words “except by procedureestablished by law” exclude such suggestion that Article21 would operate horizontally.

The aforesaid decision is illustrative of this Court’sreluctance to hold that the Fundamental Rights under Articles19 or 21 of the Constitution, would operate horizontally. Itis also to be noted that in the aforesaid case, this Court hasacknowledged that suitable remedy exists under statutorylaw to redress the infraction complained of. Therefore, whilethis Court was mindful that the rights in the realm of commonlaw, some of which have gained statutory recognition,operate horizontally, the Fundamental Rights under Articles19 and 21, do not, except in the case of seeking writ in thenature of habeas corpus.

(b)In Zoroastrian Cooperative Housing Society Limited vs.District Registrar, Cooperative Societies (Urban), (2005)5 SCC 632, the Petitioner society was registered societywith its own bye-laws, under its parent legislation, theBombay Cooperative Societies Act. As per bye-law 7, onlymembers of the Parsi community were eligible to becomemembers of the Society. The effect of this was that sincehousing shares could be transferred only to members,effectively, only Parsis could buy plots under the aegis ofthe Cooperative Society. This restrictive covenant in thebye-laws became the subject matter of challenge beforethis Court, inter-alia, on the ground that it violated the rightto equality enshrined in the Constitution. This Court refusedto accept such challenge and held that the Society’s bye-laws were in the nature of Articles of Association of acompany and were not like statute. The bye-laws were

iii)

only “binding between the persons affected by them.”That private contractual agreement is not subject to generalscrutiny under Part III of the Constitution. This Court furtherdistinguished between discriminatory legislation passedby the State and discriminatory bye-laws of society orassociation, which is not ‘State’. Accordingly, it held thatwhile legislation may be subject to challenge on thetouchstone of Part III of the Constitution, bye-laws of asociety or association, could not.

This decision is also demonstrative of this Court’sdisapproval of horizontal operation of fundamental rights,making them directly applicable to interactions, whethercontractual or otherwise, between private parties.

I am however mindful of the fact that over the years, theconception of “State” as defined under Article 12 of theConstitution has undergone significant metamorphosis.Through its jurisprudential labour, this Court has devisedseveral principles and doctrines, so as to enable citizens toenforce their fundamental rights not only against “State”as defined in the strict sense to mean “agency of theGovernment,” but also against entities imbued with publiccharacter, or entitles which perform functions which closelyresemble governmental functions. [See: Pradeep KumarBiswas 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 ofArticle 12 of the Constitution so as to ensure that privateentity, which performs public duty/function and thereforeinforms our national life, does not get away scott-free merelybecause it is not “State” stricto sensu. Such entitles areimbued with constitutional obligations on account of thepublic or statutory functions performed by them. At thisjuncture, it is necessary to reflect on the difference betweenholding that Fundamental Rights may be enforced againsta private entity on account of the public nature of itsfunctions, as contrasted with universal operation of

fundamental rights claims against all persons. private body,acting in private capacity, fulfilling private function, cannotbe axiomatically amenable to the claims of fundamentalrights violations.

The decision of this Court in Ramakrishna Missionvs. Kago Kunya, (2019) 16 SCC 303 is also highlyinstructive on the issue of amenability of actions of privateentities, to judicial review under Article 226 of theConstitution of India. In the said case, the issue before thisCourt was whether the Hospital run by the PetitionerMission performed public function that made it amenableto writ jurisdiction under Article 226. This Court found thatthe Hospital and the Mission were not amenable to writjurisdiction under Article 226 since running hospital wouldnot constitute public function. This Court further highlightedthat even when private entity performs public function,the Court would be required to enquire as to whether thegrant in aid received by the said entity covers significantportion of its expenditure. This Court went on to declarethat regulation of private body by statute does not giveit the colour of public function. public function was heldto 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 notperforming public function since the functions it performedwere not “akin to those solely performed by Stateauthorities.” It was held that medical services were providedby private as well as State entities and therefore, the natureof medical services was not such that they could be carriedout solely by State authorities.

Thus, according to the decision of this Court inRamakrishna Mission, regulation by the State eitherthrough statute or otherwise; receipt of meagre amountof aid from the State; receipt of concessions by the State;do not make private entity amenable to the writ jurisdictionof Courts under Article 226 of the Constitution.

Thus, recognising horizontal approach of FundamentalRights between citizens inter sewould set at naught and

render redundant, all the tests and doctrines forged by thisCourt to identify “State” for the purpose of entertainingclaims of fundamental rights violations. Had the intentionof this Court been to allow Fundamental Rights, includingthe rights under Articles 19 and 21, to operate horizontally,this Court would not have engaged in evolving and refiningtests to determine the true meaning and scope of “State”as defined under Article 12. This Court would have simplyentertained claims of fundamental rights violations againstall persons and entities, without deliberating on fundamentalquestions as to maintainability of the writ petitions. Althoughthis Court has significantly expanded the scope of “State”as defined under Article 12, such expansion is based onconsiderations such as the nature of functions performedby the entity in question and the degree of control exercisedover it by the State as such. This is significantly differentfrom recognising horizontality of the fundamental rightsunder Articles 19 and 21, except while seeking writ in thenature of habeas corpus. Such recognition would amountto disregarding the jurisprudence evolved by this Court asto the scope of Article 12 of the Constitution.

Another aspect that needs consideration is that Writ Court,does not ordinarily adjudicate to issue Writs in cases wherealternate and efficacious remedies exist under common lawor statutory law particularly against private persons.Therefore, even if horizontal operation of the FundamentalRights under Article 19/21 is recognised, such recognitionwould be of no avail because the claim before Writ Courtof fundamental rights violations would fail on the groundthat the congruent common law right which is identical incontent to the Fundamental Right, may be enforced byhaving recourse to common law remedies. Therefore, onthe ground that there exists an alternate and efficaciousremedy in common law, the horizontal claim for fundamentalrights violations would fail before Writ Court.

This may be better understood by way of an illustration.Let me assume for the purpose of argument that theFundamental Right under Article 19(1)(a) read with Article

A21 is allowed to operate horizontally. person would thenbe eligible to file writ petition, against another privateindividual or entity for violation of such right. The violationmay for instance be verbal attack at the aggrieved person,which may have the effect of undermining such person’sdignity or reputation. Dignity and reputation are essentialBfacets of the right to life under Article 21; at the same time,they are also recognised as common law rights as they arefundamental attributes of human personality which isregarded as supreme value in common law. Common lawremedies, including declarations, injunctions and damages,Care available to redress any injury to common law rights,including the right to dignity and reputation. Such remediesare also statutorily recognised under the Specific Relief Act,1963 and the Indian Penal Code. Therefore, on account ofavailability of an alternate remedy under common law, theCourts would be reluctant to entertain writ petition underDArticles 226 or 32, as the case may be.

v)Further, it is trite that Writ Courts do not enter intoadjudication of disputed questions of fact. But, questionsregarding infringement of the fundamental rights underArticle 19/21, by private entity, would invariably involvedisputed questions of fact. Therefore, this is another difficultythat must be borne in mind while determining the horizontaloperation of such rights in writ proceeding.

However, there is another aspect of the matter that requires to bediscussed. writ of habeas corpus is an order directing the person whoFhas detained another to produce the detainee before the court in orderfor the court to ascertain on what ground or for what reason he hasbeen confined, and to release him if there is no legal justification for thedetention. writ of habeas corpus is granted ex debito justiae and theapplicant must only demonstrate prima-facie, unlawful detention ofGhimself or any other person. If there is no justification for the detentionand the same is unlawful, writ is issued as of right vide Union ofIndia vs. Paul Manickam, (2003) 8 SCC 342. The importance of awrit of habeas corpus is the duty being cast on Constitutional Court toissue the writ to safeguard the freedom of citizen against illegal andarbitrary detention. In my humble view, an illegal detention is violation

of Article 21 of the Constitution, irrespective of whether the detention isby the State or by private person.

petition under Article 226 of the Constitution would thereforelie before the High Court, not only when the person has been detainedby the State but also when he/she is detained by private individual videMohd. Ikram Hussain vs. State of Uttar Pradesh, A.I.R. 1964 SC1625 at 1630. In my view, such petition under Article 32 of theConstitution would also lie before this Court for seeking writ of habeascorpus in terms of Article 32 (2). Such writ could be issued not justagainst the State which may have illegally detained person, but evenas against private person. Hence, in the context of illegal detention,Article 21 would operate horizontally against private persons also. Sucha departure has to be made although Fundamental Rights are normallyenforced against the State under Article 32 of the Constitution. Otherwise,the remedy by way of writ of habeas corpus would be renderedincomplete if the said remedy is not available against private personunder Article 32 of the Constitution. Hence in the context of illegaldetention, even by private person, I would opine that Article 21 wouldoperate horizontally and the writ of habeas corpus could be issued againsta private person just as under Article 226 of the Constitution, the HighCourt can issue such writ against any person or authority. But even inthe context of Article 32(2) of the Constitution, it may not be proper torestrict the said remedy only as against the State but the same may bemade available even as against private persons, in which event the powerexercised by this Court could be in accordance with Article 142 (1) ofthe Constitution to do complete justice in the matter. For ease of referenceArticle 142(1) may be extracted as under:

vi)“142. Enforcement of decrees and orders of SupremeCourt and unless as to discovery, etc. - ( 1 ) TheSupreme Court in the exercise of its jurisdiction may passsuch decree or make such order as is necessary for doingcomplete justice in any cause or matter pending before it,and any decree so passed or orders so made shall beenforceable throughout the territory of India in such manneras may be prescribed by or under any law made byParliament and, until provision in that behalf is so made, insuch manner as the President may by order prescribe.”

ATherefore, writ of habeas corpus could be issued by this Courtunder Article 32 of the Constitution, not only against the ‘State’ as definedunder Article 12 of the Constitution but also against private individual.This is because illegal detention by private person is tort and of anature similar to constitutional tort. The reason for saying so is becausean illegal detention whether by State or private person has directBand identical effect on the detainee. The detainee loses his liberty andthere may be threat to his life.

Directions in the nature of writs of habeas corpus have been issuedby this Court on previous occasions, against private individuals, particularlyin cases of kidnapping, child custody etc. [See for instance: NirmaljitCKaur (2) vs. State of Punjab, (2006) 9 SCC 364] In such cases,resorting to the process of instituting criminal case before policestation, may prove to be futile because the need of the hour in suchcases is swift action. The writ of habeas corpus under Article 226 aswell as Article 32 of the Constitution, is festium remidium, i.e., speedyDremedy, and such remedy needs to be made available even as against aprivate individual.

It is appropriate that the High Court concerned under whosejurisdiction the illegal detention has occurred should be approached first.In order to invoke jurisdiction of this Court under Article 32 of theEConstitution by approaching this Court directly, it has to be shown by thePetitioner as to why the concerned High Court has not been approached.In cases where it would be futile to approach the High Court, and wheresatisfactory reasons are indicated in this regard, petition seekingissuance of writ of habeas corpus, may be entertained. However, inthe absence of such circumstances, filing petition under Article 32 ofFthe Constitution is not to be encouraged, vide Union of India vs. PaulManickam, (2003) 8 SCC 342.

The judicial precedent referred to above are aligned with theaforesaid discussion.

GIn light of the aforesaid discussion, Question No. 2 is answeredas follows:

“The rights in the realm of common law, which may be similaror identical in their content to the Fundamental Rights under Article19/21, operate horizontally: However, the Fundamental Rights underArticles 19 and 21, may not be justiciable horizontally before theH

Constitutional Courts except those rights which have been statutorilyrecognised and in accordance with the applicable law. However,they may be the basis for seeking common law remedies. But aremedy in the form of writ of Habeas Corpus, if sought against aprivate person on the basis of Article 21 of the Constitution can bebefore Constitutional Court i.e., by way of Article 226 before theHigh Court or Article 32 read with Article 142 before the SupremeCourt.”

Re: Question No. 3: Whether the State is under duty toaffirmatively protect the rights of citizen under Article 21 of theConstitution of India even against threat to the liberty of citizenby the acts or omissions of another citizen or private agency?

44. In order to answer this question, it may be prudent to considerthe circumstances under which this Court has previously observed thatthe 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. 1989SC 2039, this Court was confronted with the question asto whether doctor has the professional obligation toinstantaneously extend his services to person brought formedical treatment, without any delay on the pretext ofcompliance with procedural criminal law. This court declaredEthat the obligation of doctor to extend his services withdue expertise, for protecting life was paramount and absoluteand any laws of procedure which would interfere with thedischarge of this obligation, would be antithetical to Article21 of the Constitution. It was further observed that whereFthere is delay on the part of medical professionals toadminister treatment in emergencies, state action canintervene.

ii)In National Human Rights Commission vs. State ofArunachal Pradesh, (1996) 1 SCC 742, this Courtconsidered writ petition filed under Article 32 of theConstitution, pertaining to the threats held out by the AllArunachal Pradesh Students’ Union, to force Chakmas outof the State of Arunachal Pradesh. It was the case of thePetitioner therein that large number of Chakmas from

erstwhile East Pakistan (now Bangladesh) were displacedby the Kaptai Hydel Power Project in 1964. They had takenshelter in Assam and Tripura. Most of them were settled inthese States and became Indian citizens in due course oftime. Since large number of refugees had taken shelter inAssam, the State Government had expressed its inability torehabilitate all of them and requested assistance in thisregard from certain other States. As result of suchconsultations between the North Eastern States, somepopulation of Chakmas began residing in ArunachalPradesh. It was also stated that many of such persons hadmade representations for the grant of citizenship underSection 5(1)(a) of the Citizenship Act, 1955, however, nodecision was communicated in this regard. In the interim,relations between citizens residing in Arunachal Pradeshand the Chakmas deteriorated and the latter were beingsubjected to repressive measures with view toforcibly expel them from the State. In that background, awrit petition came to be filed, alleging, inter-alia,unwillingness on the part of the State to contain the hostilesituation. In that background, this Court issued writ ofmandamus, inter-alia, directing the State of ArunachalPradesh to ensure that the life and liberty of every Chakmaresiding in the State is protected, and any attempt byorganised groups to evict or drive them out of the State isrepelled, if necessary, by requisitioning the service of para-military or police force. It was also directed that theapplication made by Chakmas for the grant of citizenshipunder Section 5(1)(a) of the Citizenship Act, 1955 beconsidered, and pending such consideration, no Chakmashall be evicted from the State.

It is to be noted that in the said case, this Court cited theFundamental Rights of persons under Article 21 in directingthe State to protect the rights of Chakmas from threats byprivate actors. The said directions were issued in thebackdrop of the State’s inaction to mobilise the availablemachinery to contain the hostile situation and such inactionhad or could have had the effect of depriving Chakmas oftheir right to life and personal liberties. It was in that context

that this Court declared that the State is bound to protectthe life and liberty of every human being, be he citizen orotherwise.

iii)In Gaurav Kumar Bansal vs. Union of India, (2015) 2SCC 130, this Court, in directing the respondents therein toprovide ex gratiamonetary compensation to the families ofthe deceased who have succumbed to the pandemic ofCovid-19, in view of Section 12 of the Disaster ManagementAct, 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 writ of mandamus to the Union of India, toeffectively implement the National Food Security, 2013 incertain parts of the country which had been affected dueto drought.

The aforesaid cases illustrate that this Court has observed thatthe State is bound to protect the life and liberty of every human being, inthe following contexts:

a)Where inaction on the part of the State, to contain hostilesituation between private actors, could have had the effectof depriving persons of their right to life and liberty;

b)Where the State had failed to carry out its obligations undera statute or policy or scheme, and such failure could havehad the effect of depriving persons of their right to life andliberty.

c)It is therefore clear that the acknowledgement of this Courtof the duty of the State under Article 21, only pertains to anegative duty not to deprive person of his right to life andpersonal liberty, except in accordance with law. This Courthas not recognised an affirmative duty on the part of theState under Article 21 of the Constitution to protect therights of citizen, against threat to the liberty of citizenby the acts or omissions of another citizen or private agency.Of course, there exist plethora of statutes which cast anobligation on the State and its machinery to contain hostilesituations between private actors; to repel any action byprivate actors which would undermine the life and liberty

792SUPREME COURT REPORTS

Aof other persons etc. This Court has, on several occasions,issued writs of mandamus directing State authorities to carryout such statutory obligations. In directing so, this Courtmay have referred to the right to life and personal libertiesunder Article 21. However, such reference to Article 21 isnot to be construed as an acknowledgement by the CourtBof an affirmative duty on the part of the State under Article21 of the Constitution to protect the rights of citizen, againsta threat to the liberty of citizen by the acts or omissions ofanother citizen or private agency.Given that Article 21 onlyimposes negative duty, violation of the same would occurConly when the State undertakes an obligation by enacting astatute or scheme, but does not fulfil it. Thus, the violationwill only occur when scheme has been initiated but is notbeing appropriately implemented, as was noted in theaforecited cases.DIn light of the aforesaid discussion, Question No. 3 is answeredas follows:

“The duty cast upon the State under Article 21 is negativeduty not to deprive person of his life and personal libertyexcept in accordance with law. The State has an affirmativeEduty to carry out obligations cast upon it under statutory andconstitutional law, which are based on the Fundamental Rightguaranteed under Article 21 of the Constitution. Suchobligations may require interference by the State where actsof private actor may threaten the life or liberty of anotherindividual. Failure to carry out the duties enjoined upon theFState under statutory law to protect the rights of citizen,could have the effect of depriving citizen of his right to lifeand personal liberty. When citizen is so deprived of his rightto life and personal liberties, the State would have breachedthe negative duty cast upon it under Article 21.”

Re: Question No. 4: Can statement made by Minister,traceable to any affairs of State or for protecting theGovernment, be attributed vicariously to the Government itself,especially in view of the principle of Collective Responsibility?

45. Minster may make statements in two capacities: first, in hisHpersonal capacity; second, in his official capacity and as delegate of

the Government. It is no brainer that in respect of the former categoryof statements, no vicarious liability may be attributed to the Governmentitself. The latter category of statements may be traceable to any affairof the State or may be made with view to protect the Government. Ifsuch statements are disparaging or derogatory and represent not onlythe personal views of the individual Minister making them, but alsoembody the views of the Government, then, such statements can beattributed vicariously to the Government itself, especially in view of theprinciple of Collective Responsibility. In other words, if such views areendorsed not only in the statements made by an individual Minister, butare also reflective of the Government’s stance, such statements may beattributed vicariously to the Government. However, if such statementsare stray opinions of an individual Minister and are not consistent withthe views of the Government, then they shall be attributable to the Ministerpersonally and not to the Government.

Therefore, Question No. 4 is answered as follows:

“A statement made by Minister if traceable to any affairs ofthe State or for protecting the Government, can be attributedvicariously to the Government by invoking the principle ofcollective responsibility, so long as such statement representsthe view of the Government also. If such statement is notconsistent with the view of the Government, then it isattributable to the Minister personally.”

Re: Question No. 5: Whether statement by Minister,inconsistent with the rights of citizen under Part Three ofthe Constitution, constitutes violation of such constitutionalrights and is actionable as ‘Constitutional Tort’?

46. While public law and private law are in theory, treated asanalytically different, in practice, the divide between the two spheres isoften blurred. As result, ideas, concepts and devices from one sphere,influence the other. Such an intermingling has given rise to the doctrineof horizontal effects as discussed hereinabove, wherein constitutionaldirective or norm (Fundamental Right) is interpreted by Courts to applybetween individuals.

47. Another concept which can be traced to the interactionbetween public law and private law is that of Constitutional tort, whichin essence attributes vicarious liability on the State for acts and omissions

Aof its agents which result in violation of fundamental rights of an individualor group. constitutional tort is violation of one’s constitutional rights,particularly fundamental rights, by an agent of the government, acting inhis/her official capacity. The alleged constitutional violation creates acause of action that is distinct from any other available state tort remedy.It however, carries with it, the essential element of tort law, which seeksBto redress harm or injury by awarding monetary compensation by acompetent court of law.

Writ Petition: Principles of Procedure

48. Normally the filing of writ petition invoking Article 32 of theCConstitution before the Supreme Court or Article 226 before the HighCourt is resorted to seeking an extraordinary remedy. The prerogativepowers of the High Court are not exercised for enforcement of privaterights of the parties but are for the purpose of ensuring that publicauthorities act within the limits of law. Writ remedy is thus not privatelaw remedy except writ of habeas corpus. Thus, writ petition would lieDagainst the State including local authorities and other authorities as definedunder Article 12 of the Constitution which is an inclusive definition whichtakes within its scope and ambit all statutory bodies instrumentalities andauthorities or persons charged with, or expected to exercise, publicfunctions or discharge public duties. writ petition may be instituted forEthe enforcement of any fundamental rights guaranteed by Part III of theConstitution under Article 32 before the Supreme Court but under Article226 of the Constitution, the jurisdiction of the High Courts is wider thanthe jurisdiction of the Supreme Court inasmuch as the said Article maybe invoked for enforcement of fundamental rights as also “for any otherpurpose”.F

Tortious liability:

49. In India, the government can be held liable for tortious acts ofits servants and can be ordered to be paid compensation to the personssuffering as result of the legal wrong. Article 294(b) of the ConstitutionGdeclares that the liability of the Union Government or the StateGovernment may arise “out of any contract or otherwise”. The wordotherwise implies that the said liability may arise for tortious acts aswell. Article 300 enables institution of appropriate proceedings againstthe government for enforcing such liability.

50. Even prior to the commencement of the Constitution, the liabilityof the Government for tortious acts of its servants or agents wererecognised vide Peninsular & Oriental Steam Navigation Co. vs.Secy. Of State, (1868-69) 5 Bom HCR APP 1. After thecommencement of the Constitution, there have been several cases inwhich the Union of India and State Governments were held liable fortortious acts of their employees, servants and agents. All those caseswere not necessarily by invoking the writ jurisdiction of the SupremeCourt and the High Courts. Though, the Government is liable for tortiousacts of its officers, servants or employees, normally, such liability cannotbe enforced by Writ Court. An aggrieved party has the right to approachthe competent court or authority to seek damages or compensation inaccordance with the law of the land.

51. But if fundamental rights have been violated, and if the courtis satisfied that the grievance of the petitioner is well founded, it maygrant the relief by enforcing person’s fundamental right. Such reliefmay be in the form of monetary compensation/damages. Instances ofsuch cases are Rudul Sah vs. State of Bihar, (1983) 4 SCC 141;Sebastian M. Hongray vs. Union of India, (1984) 3 SCC 82; BhimSingh vs. State of J&K, (1985) 4 SCC 677; People’s Union forDemocratic Rights vs. Police Commissioner, (1989) 4 SCC 730;Saheli vs. Commissioner of Police, (1990) 1 SCC 422; State ofMaharashtra vs. Ravikant S. Patil, (1991) 2 SCC 373; Kumari vs.State of Tamil Nadu, (1992) 2 SCC 223; Shakuntala Devi vs. DelhiElectric Supply Undertaking, (1995) 2 SCC 369; Tamil NaduElectricity Board vs. Sumanth, (2000) 4 SCC 543; Railway Boardvs. Chandrima Das, (2000) 2 SCC 465.

52. Article 21 has played significant role in shaping the law ontortious liability of the Government. This Court has asserted that theconcept of sovereign function, which acts as an exception to attractingtortious liability, ends where Article 21 begins. Therefore, this Court hasbeen willing to defend life and liberty of persons against state lawlessnessby holding that where Article 21 is violated, the State has to paycompensation and the concept of sovereign function does not prevail inthis area.

53. This proposition may be specifically traced to early PILs, whichbegan in India in the 1980s, primarily in cases where officials of theState, such as prison officials had mistreated prisoners. The focus of the

Afirst phase of PIL in India was on exposure of repression by the agenciesof the state, notably the police, prison, and other custodial authorities.These early PILs were essentially Constitutional tort actions whichconcerned allegations of violation of protected fundamental rights, as aresult 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 underBthe rubric of PIL, and this Court began allowing successful petitioners torecover monetary damages from the State for infraction of theirfundamental rights. In such cases, there may have been statutory rightsof persons also which would then be an enunciation of an aspect ofFundamental Rights particularly under Article 21 of the Constitution.C

54. In Rudul Sah vs. State of Bihar, (1983) 4 SCC 141, Y.V.Chandrachud, CJ., gave further momentum to fundamental rights tocombat state lawlessness by granting cash compensation to victim ofunlawful incarceration for fourteen years. It is to be noticed that HisLordship, in the said case, took note of the dilemma in allowing litigantDto seek damages in writ petition/PIL action against the State. HisLordship noted that this could have the effect of ordinary civil actionbeing circumvented on routine basis, by invoking writ jurisdiction ofthe High Courts and the Supreme Court as an alternative to ordinarycivil action. However, it was recognized that granting such remedieswould enhance the legitimacy of the vehicle of PIL. Therefore, thisECourt in Rudul Sah ultimately chose to grant monetary damages, inorder to ‘mulct’ the violators, as well as to offer ‘palliative’ for victims.Subsequent to the decision in Rudul Sah, compensatory relief has beengranted as means to ‘civilize public power’in several cases involvingabrogation of Fundamental Rights, [See for instance, Sabastian M.FHongray 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 proceedingunder Article 32 or Article 226 of the Constitution is remedy availableGin public law based on strict liability for contravention of fundamentalrights. In respect of such actions, the doctrine of sovereign immunitydoes not apply, though it may be available as defence in private lawin an action based on tort. Drawing distinction between proceedingsunder the private and public law, it was observed that public lawproceeding may serve different purpose than private law proceeding.HPublic law proceedings are based on the concept of strict liability forcontravention of guarantee basic and indivisible rights of the citizens bythe State. The purpose of public law is not only to civilise governmentalpower and but also to assure the citizens that they live under legalsystem 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 seekingenforcement or protection of fundamental rights, it does so under publiclaw by way of employing elements of the law of torts and fixing theliability on the State which has been negligent and has failed in its publicduty to protect the fundamental rights of the citizens. The payment ofcompensation under such cases is not to be understood as it is generallyunderstood in civil action for damages under private law, but in thebroader sense of providing relief by ordering monetary amounts to bepaid for the wrong done due to breach of public duty which would havethe effect of violation of fundamental rights of citizens. Such grant ofdamages in exercise of writ jurisdiction by the constitutional courts isindependent of the rights available to the aggrieved party to claimcompensation under private law in an action based on tort. Therefore, asuit may be instituted in competent court of law or proceedings may beinitiated to prosecute the offender under the penal law.

56. Though, in D.K.Basu vs. State of West Bengal, (1997) 1SCC 416 monetary compensation was granted, in Hindustan PaperCorporation Ltd. vs. Ananta Bhattacharjee, (2004) 6 SCC 213 thisCourt cautioned that direction to pay compensation under Article 226of the Constitution is permissible as public law remedy and resorted toonly when there is violation by the State or its agents acting in officialcapacity of the fundamental right guaranteed by Article 21 of theConstitution, and not otherwise. It was further observed that it is notevery violation of the provisions of the Constitution or statute whichwould enable the court to direct grant of compensation. The power ofthe court to grant compensation in public law is limited. Therefore,normally in case of tortious liability, the person aggrieved has to approacha civil court for ventilating his grievances and he cannot invoke the writjurisdiction of the Supreme Court or High Court. However, if the dutybreached is of public nature or there is violation or breach or infringementof fundamental right by an act or omission on the part of the authority,it is open to the party who has suffered “legal wrong” to invoke thejurisdiction of the Supreme Court or High Court by instituting the writ

Apetition. In that case, the court, in exercise of its extraordinary jurisdictionand discretion judiciously may grant relief to the person wronged withoutrelegating him to avail remedy, otherwise available to him under privatelaw having regard to the facts and circumstances of the particular case.

57. In Chairman, Railway Board vs. Chandrima Das, (2000)B2 SCC 465, this Court was presented with an appeal against an order ofthe Calcutta High Court in writ petition filed by civil rights lawyer onbehalf of foreign national-victim of rape, allegedly committed by railwayemployees at government-owned railway station. The events in questionhappened when the employees were off duty, but were present at thepremises owned and operated by the Government (Railways) . The writCpetition was filed against the employer, in addition to initiating criminalproceedings against the individuals. specific prayer was made in thewrit petition for monetary compensation for the victim, payable by theGovernment, alleging that its failure to protect the victim and prevent thecrime, had violated the victim’s fundamental right. The High CourtDawarded 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 bythe Railway employees. An appeal against the said judgment waspreferred before this Court.

E58. This Court dismissed the appeal holding that where publicfunctionaries are involved and the matter relates to violation ofFundamental Rights, or the enforcement of public duties, the remedywould be available under public law, notwithstanding that suit could befiled under private law, for damages. Since the crime of rape amountedto violation of the victim’s right to life under Article 21 of the Constitution,Fthis Court concluded that public law remedy was wholly appropriate.

59. The decisions in Rudul Sah and Chandrima Das establishthat public law action seeking monetary compensation for violation offundamental rights was no longer an action in lieu of private law claim,but was to serve an independent and more important purpose. However,Git cannot be ignored that the decisions of Courts to award compensationin such cases, proceed on the basis of lower evidentiary standards, asnoted by this Court in Kumari vs. State of Tamil Nadu, (1992) 2 SCC223.

60. In Tamil Nadu Electricity Board vs. Sumathi Das, (2000)H4 SCC 543, this Court held that exercise of writ jurisdiction would be

inappropriate where there were disputed questions of fact that requiredproof through substantial evidence. However, it has been clarified thatthe restriction applied only to the higher judiciary’s writ jurisdiction underArticles 32 and 226, and that it did not restrain this Court’s power toaddress the matter under Article 142, which allows this Court to passany order ‘necessary for doing complete justice in any cause or matter.’

Therefore, this Court has recognised that factual disputes couldoperate as limit on the Courts’ ability to treat matter as being actionableas Constitutional tort but has nevertheless awarded monetarycompensation in certain cases possibly having regard to the glaring factsof those cases by exercising power under Article 142 of the Constitution.

61. Scholarly views suggest that the concept of Constitutional tortchallenges the ability of law to deter socially harmful behaviour of differentkinds, by forcing the perpetrator to internalise the costs of their actions.However, in case of Constitutional tort action, the entity saddled withthe cost, is not the same as the entity who is to be deterred. This absurdityis stated to be threatening to the corrective justice idea that tort lawembodies. In other words, an actor’s direct ability to alter the injury-causing behaviour is critical to the foundation of tort law. However, giventhat an action of Constitutional tort imposes the burden of damages onan entity, other than the violator of the right, doubt has been cast on itseffectiveness in serving as vehicle of corrective justice.

62. In light of the aforesaid discussion, it is observed that it is notprudent to treat all cases where statement made by public functionaryresulting in harm or loss to person/citizen, as constitutional tort. Regardmust 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 permittedtreating an act or omission as constitutional tort only where there hasbeen an infraction of fundamental right as direct result of such act oromission. Therefore the causal connection between the act or omissionand the resultant infraction of fundamental rights, is central to anydetermination 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 Courtrefused to entertain matter against an interim order passed by theDelhi High Court in writ petition, whereby the Petitioner Board hadbeen directed to deposit compensation in favour of the family of

Asewerage worker who had died while performing his duties. Dismissingthe case, this Court held that since the deceased had died due toinsensitivity on the part of the State apparatus, to the safety and well-being of its employees, the State would be liable to pay compensation tothe family of the deceased. This Court invoked Article 142 of theConstitution to enhance the amount of compensation payable.B

64. At this juncture, it may be apposite to sound word of cautionas regards the approach of the Courts in granting monetary compensationas means for vindication of fundamental rights. It is to be noted that inthe absence of clear, cogent and comprehensive legal framework basedon judicial precedent, which would clarify what harm or injury isCactionable as constitutional tort, such device is to be resorted to onlyin cases where there are brutal violations of fundamental rights, such asthe violations that were involved in Rudul Sah and Chandrima Das.This Court has acknowledged such view in Sebastian M. Hongray,by noting that compensation was being awarded in the said case havingDregard to “torture, the agony and the mental oppression” which the familyof the victim therein had to endure due his death by an encounter. Similarly,this Court, in Bhim Singh stated that the compensation was awardedby taking note of the “bizzare acts” of police lawlessness. As alreadyhighlighted, compensation was awarded in Delhi Jal Board, byexercising power under Article 142. Thus, the remedy provided is on aEcase to case basis on an evolution of the concept of constitutional tortthrough judicial dicta.65. While it is true that the Courts must mould their tools to dealwith particularly extreme and threatening situations, and the device of a‘constitutional tort’ has evolved through such an exercise, it must beFborne in mind that the tool of treating an action as constitutional tortmust not be wielded only in instances wherein state lawlessness andindifference to the right to life and personal liberties have caused immensesuffering. The law would have to evolve in this regard, in respect ofviolation of other Fundamental Rights apart from issuance of theprerogative writs.G

66. Therefore, it is observed that presently invocation of writjurisdiction to grant damages, by treating acts and omissions of agenciesof the State as Constitutional torts, must be an exception rather than arule. The remedy before competent court or under criminal law is, inany case available as per the existing legal framework.H

In light of the aforesaid discussion, Question No. 5 is answeredas follows:

“A proper legal framework is necessary to define the acts oromissions which would amount to constitutional tort and themanner in which the same would be redressed or remediedon the basis of judicial precedent. Particularly, it is not prudentto treat all cases where statement made by publicfunctionary resulting in harm or loss to person/citizen, as aconstitutional tort, except in the context of the answer givento Question No. 4 above.”

67. In light of the above discussion as well as the answers givento the questions referred, the following other conclusions are drawn:

a)It is for the Parliament in its wisdom to enact legislationor code to restrain, citizens in general and publicfunctionaries, in particular, from making disparaging orvitriolic remarks against fellow citizens, having regard tothe strict parameters of Article 19(2) and bearing in mindthe freedom under Article 19(1) (a) of the Constitution ofIndia. Hence, I am not inclined to issue any guideline in thisregard, but the observations made hereinabove may be bornein mind.

b)It is also for the respective political parties to regulate andcontrol the actions and speech of its functionaries andmembers. This could be through enactment of Code ofConduct which would prescribe the limits of permissiblespeech by functionaries and members of the respectivepolitical parties.

c)Any citizen, who is prejudiced by any form of attack, as aresult of speech/expression through any medium, targetedagainst her/himor by speech which constitutes ‘hate speech’or any species thereof, whether such attack or speech isby public functionary or otherwise, may approach theCourt of Law under Criminal and Civil statutes and seekappropriate remedies. Whenever permissible, civil remediesin the nature of declaratory remedies, injunctions as well aspecuniary damages may be awarded as prescribed underthe relevant statutes.

AHowever, answers given to Question Nos. 4 and 5 may have abearing in the context of collective responsibility of government andConstitutional tort.

Writ Petition (Crl.) No.113 of 2016 and Special Leave Petition(Civil) bearing Diary No.34629 of 2017 are directed to be listed beforeBan appropriate Bench after seeking orders of Hon’ble the Chief Justiceof India.

Bibhuti Bhushan Bose(Assisted by : Sirgapoor Sahil Reddy, Shriya Chakravarthyand Mahendra Yadav, LCRAs)

Reference answered.