Kaushal Kishor v State of UP (2023)

Kaushal Kishor v State of UP (2023) is a crucial case for understanding the boundaries of free speech in India. It examines the conflict between an individual’s right to freely express themselves and the need to protect other fundamental rights. The case also addresses whether the restrictions on free speech are exhaustive or if additional restrictions can be imposed by the judiciary. 

Another major issue explored in the case is whether ministers’ statements, especially those related to government affairs, can be attributed to the Government itself under the principle of collective responsibility. The judgement has broader implications for how fundamental rights are enforced in India, particularly in relation to non-State actors.

Facts of Kaushal Kishor vs State of UP

The case began with several writ petitions filed against the then Minister for Urban Development of Uttar Pradesh, who made derogatory statements regarding the victims of a gang rape case. These statements were seen as undermining the dignity of the victims and were widely condemned.

At the same time, two writ petitions were filed in the Kerala High Court against the then Minister of Electricity in Kerala, who made similar statements that were seen as harmful to the reputation of the victims involved. However, the Kerala High Court dismissed these petitions on the grounds that they dealt with moral issues, which were not within the court’s jurisdiction to decide.

As the issues raised by both petitions overlapped, they were brought together before the Supreme Court, which took up the matter under a Special Leave Petition (SLP). The Court decided to refer the case to a Constitutional Bench to address key constitutional questions, particularly around the right to freedom of speech and expression.

Key Issues of Kaushal Kishor v State of UP

Several important constitutional questions were raised before the Court in Kaushal Kishor v State of UP:

1. Whether the restrictions under Article 19(2) of the Constitution are exhaustive.
2. Whether fundamental rights under Articles 19 or 21 can be enforced against non-State actors.
3. Whether the State is under a duty to protect citizens’ rights under Article 21, even against threats from non-State actors.
4. Whether a statement made by a minister, which relates to government affairs, can be attributed to the Government under the principle of collective responsibility.
5. Whether a statement by a minister that contradicts the rights of citizens under Part III of the Constitution can be considered a violation and actionable as a constitutional tort.

Legal Issues

The main legal issues raised in Kaushal Kishor v State of UP are as follows:

Exhaustiveness of Restrictions under Article 19(2)

Article 19(1)(a) guarantees every citizen the right to freedom of speech and expression. However, this right is subject to reasonable restrictions as laid down in Article 19(2). The issue here is whether the restrictions specified in Article 19(2) are exhaustive or if the courts can impose additional restrictions based on other constitutional provisions.

Horizontal Enforcement of Fundamental Rights

Another issue revolves around whether fundamental rights, such as those under Article 19 and Article 21, can be enforced against private individuals or entities, or whether they can only be enforced against the State and its instrumentalities.

State’s Duty to Protect Personal Liberty

The case also addresses the State’s duty to protect personal liberty under Article 21. The question is whether the State must protect the personal liberty of citizens even when the threat comes from non-State actors, particularly in today’s context where many services are outsourced to private entities.

Collective Responsibility and Ministerial Statements

The case examines whether a statement made by a minister, which is related to the affairs of the State or is made to protect the Government, can be attributed to the State under the principle of collective responsibility.

Constitutional Tort

The final issue is whether a statement made by a minister that violates the fundamental rights of citizens under Part III of the Constitution can be considered a constitutional tort, and if such a statement can lead to legal action.

Arguments Presented

Petitioner’s Arguments

The petitioner in Kaushal Kishor v State of UP argued that:

• Exhaustiveness of Restrictions: The restrictions outlined in Article 19(2) are exhaustive. No further restrictions can be imposed by the courts under the guise of invoking other fundamental rights. The petitioner contended that any attempt to add new restrictions would be unconstitutional.
• Horizontal Enforcement: The petitioner argued that fundamental rights, particularly those under Articles 19 and 21, should be enforceable against non-State actors. The petitioner relied on the argument that, over time, the interpretation of fundamental rights has expanded to include enforcement against private parties as well.
• State’s Duty to Protect: The petitioner further argued that the State has a duty to ensure that citizens’ fundamental rights are protected from infringement by non-State actors. This duty includes both a negative obligation not to violate rights and an affirmative duty to protect them.
• Ministerial Accountability: The petitioner contended that a minister’s statement related to State affairs should be attributed to the Government under the principle of collective responsibility. This would ensure accountability for ministers’ statements.
• Constitutional Tort: The petitioner argued that a statement by a minister, even if not directly violating the rights of citizens, could lead to harmful actions by State officers, which would constitute a constitutional tort.

Respondent’s Arguments

The respondents, represented by the Attorney General and Solicitor General, argued:

• Exhaustiveness of Restrictions: The respondents maintained that the restrictions under Article 19(2) are exhaustive, and any attempt to impose additional restrictions is a legislative matter, not a judicial one.
• Limited Horizontal Application: The respondents argued that while some fundamental rights can be enforced against non-State actors, the scope of horizontal enforcement should be limited. Only certain rights, like those under Articles 15(2), 17, and 21, can be applied to private entities.
• State’s Duty to Protect: The respondents acknowledged the State’s duty to protect citizens’ rights but contended that this duty is primarily focused on the State’s direct actions. They argued that the private sector’s role in infringing rights is not something the State can be held accountable for in all cases.
• Ministerial Accountability: The respondents contended that the principle of collective responsibility applies only to decisions taken collectively by the Council of Ministers in the legislative context. A minister’s statements made outside of this context should not automatically be attributed to the Government.
• Constitutional Tort: The respondents argued that a minister’s statement alone does not constitute a constitutional tort. For a constitutional tort to exist, there must be an actionable harm or injury caused by the statement.

Kaushal Kishor v State of UP Judgement

Exhaustiveness of Restrictions

The majority of the Supreme Court in Kaushal Kishor v State of UP, comprising Justices V. Ramasubramaniam, S. Abdul Nazeer, B.R. Gavai, and A.S. Bopanna, held that the restrictions outlined in Article 19(2) are exhaustive. The Court concluded that any attempt to impose further restrictions on free speech beyond those specified in Article 19(2) would be unconstitutional. 

This ruling reaffirmed the protection of free speech in its fullest sense while also recognising that certain reasonable restrictions are necessary for maintaining public order and protecting individual rights.

Horizontal Enforcement of Fundamental Rights

On the issue of horizontal enforcement, the majority held that fundamental rights under Articles 19 and 21 can be enforced against non-State actors. The Court acknowledged that the interpretation of fundamental rights has evolved, and some rights now extend to interactions between private individuals and entities. This progressive stance ensures that citizens can hold private entities accountable for violating their constitutional rights.

State’s Duty to Protect Personal Liberty

The majority also concluded that the State has a dual duty to protect personal liberty under Article 21. Not only must the State refrain from infringing upon an individual’s liberty, but it also has an affirmative duty to protect citizens from actions by non-State actors that might infringe upon their rights. This ruling aligns with the growing role of the State in regulating private entities that have a significant impact on individual rights.

Collective Responsibility and Ministerial Statements

The Court in Kaushal Kishor v State of UP ruled that the principle of collective responsibility cannot be extended to every statement made by a minister. The majority clarified that collective responsibility applies to the decisions made by the Council of Ministers in the legislative context, but not to individual statements made outside that context. Therefore, the minister’s statement, even if related to State affairs, cannot be attributed to the Government.

Constitutional Tort

The majority held that a minister’s statement alone does not constitute a violation of constitutional rights unless it results in tangible harm or injury caused by the actions of State officers. The Court concluded that while ministers’ statements may not automatically amount to a constitutional tort, any subsequent harm caused by those statements could lead to actionable claims.

Conclusion

Kaushal Kishor v State of UP is a landmark case that addresses several important constitutional issues related to free speech, the protection of personal liberty, and State accountability. The Supreme Court, through its majority opinion, reinforced the exhaustive nature of the restrictions under Article 19(2), confirmed the horizontal application of fundamental rights, and clarified the State’s duty to protect citizens’ rights even against non-State actors.