Author: Bhavya Singh, Dr. B.R. Amebdkar National Law University, Sonepat
LinkedIn Profile: https://www.linkedin.com/in/bhavya-singh-136348325?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app
Introducing the revision of the boundaries of freedom of speech and expression
The freedom of speech and expression is a cornerstone of Indian democracy, enshrined under Article 19(1)(a) of the Constitution. It ensures that every individual reserves their right to speak their mind without fear of retribution, fostering a healthy democratic environment. However, this right is not absolute; rather, it is subject to some “reasonable restrictions,” as outlined in Article 19(2), to strike a balance between individual freedom and other intricacies.
In recent years, the growth of misinformation and hate speech, along with their impact on society, has raised serious concerns. The landmark case of Kaushal Kishore v. State of U.P. (2023) 4 SCC 1 presents a similar instance in this context. It not only revisits the boundaries of Article 19(1)(a) but also addresses crucial questions surrounding statutory accountability and the horizontal application of fundamental rights. This article aims to examine the implications of this judgment, particularly the Court’s nuanced approach in maintaining the limits of Article 19(2) while expanding the doctrinal reach of fundamental rights and ministerial responsibility.
Factual Matrix: Procedural history and background
This writ petition was filed, and the Court clubbed together two cases relating to derogatory statements made by State Ministers of Uttar Pradesh and Kerala in two unrelated instances. The focal issue in this case involved the right to freedom of speech and expression of the statutory officers, as well as the right to dignity of the petitioners.
The initial case featured Azam Khan, the former Minister for Urban Development in Uttar Pradesh, who made derogatory and callous remarks about two sexual assault victims. He labelled the incident a “political conspiracy” against the ruling party, adversely affecting both the integrity of the investigation and the dignity of the individuals involved.
The second instance focused on two writ petitions submitted to the Kerala High Court, as the then Minister of Electricity in Kerala made derogatory remarks. Both petitions were dismissed by the Division Bench of the Kerala High Court on the grounds that they pertained to moral values and thus fell outside the court’s jurisdiction. The petitioner subsequently filed a special leave appeal with the Supreme Court. Given the overlapping issues in both petitions, they were consolidated and reviewed by a Constitution Bench of the Supreme Court.
Statutes and concepts involved
Article 19(1)(a) – Freedom of Speech and Expression
Article 19(1)(a) protects the fundamental right of Indian citizens to freedom of speech and expression. This right includes the freedom to share opinions, ideas, and beliefs through various forms, including speech, writing, the press, or other media. It plays a crucial role in a functioning democracy by facilitating public discourse, allowing criticism of government policies, and enabling the spread of information. Nevertheless, this right is not unlimited and is subject to reasonable restrictions as outlined in Article 19(2).
Article 19(2) – Reasonable Restrictions on Free Speech
Article 19(2) allows the government to set reasonable limits on freedom of speech for the following reasons:
The sovereignty and integrity of India
State security
Maintaining friendly relations with foreign nations
Public order, decency, and morality
Preventing contempt of court, defamation, and incitement to offenses
These limitations are in place to ensure that free speech does not threaten national security, societal harmony, or personal reputations.
Article 21 – Right to Life and Personal Liberty
Article 21 states that no one shall be deprived of life or personal liberty except according to procedure established by law, and this is not a comprehensive list. Judicial interpretations have gradually broadened this right to encompass several implied rights, such as:
Right to privacy
Right to education
Right to a fair trial
Right to live with dignity
Right to a clean environment
This provision acts as a safeguard against arbitrary state action, ensuring that individuals enjoy a life of dignity and freedom.
Article 32 – Right to Constitutional Remedies (Supreme Court)
Article 32 provides citizens the right to seek enforcement of fundamental rights from the Supreme Court. It grants the highest court the authority to issue various writs, including Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto, to protect these rights. Dr. B.R. Ambedkar described this article as the “heart and soul” of the Constitution, emphasising that fundamental rights are not just theoretical but enforceable by law.
Article 226 – Power of High Courts to Issue Writs
Article 226 allows High Courts to issue writs for enforcing not only fundamental rights but also other legal rights. In contrast to Article 32, which focuses solely on fundamental rights, Article 226 covers a wider range, encompassing both statutory and constitutional infringements. High Courts can step in even when fundamental rights are not explicitly at stake, making this provision an essential instrument for ensuring justice at the state level.
Principle of collective responsibility
This principle falls under one of the fundamental principles of parliamentary governance. Articles 75(3) and 174(2) outline the obligation of the council of ministers, at both the central and state levels, to be collectively responsible to their respective legislatures for their overall actions concerning state affairs. This fosters unity and discipline within the council of ministers.
Constitutional Tort
When government officials or their representatives commit a tortious act, it is termed a “constitutional tort,” making the state vicariously liable. Constitutional provisions, including Article 294(b) and 300(1), outline this accountability and uphold the principle by the tortious actions of its employees when established in court.
Key Issues before the Court
Whether the court can impose restrictions on the right to freedom of speech and expression that exceed the reasonable limitations outlined in Article 19(2) of the Constitution?
Can freedom of speech and expression and the right to life and personal liberty be enforced against anyone other than the “state” or its instrumentalities?
Whether the State is under a duty to affirmatively protect citizens’ rights under Article 21 affirmatively, even against threats from non-State actors?
Whether a statement made by a minister, which relates to government affairs, can be attributed directly to the Government itself under the principle of collective responsibility?
Whether a minister’s statement that conflicts with citizen rights under Part III of the Constitution can be seen as a violation and treated as a constitutional tort?
Arguments of the respective Parties
Petitioners argued that the minister’s statement was not merely a personal opinion, but one supported by the authority of his public office. As a representative of the government, his speech had the potential to prejudice the investigation and violate the right to a fair trial and dignity under Article 21. They further contended that the State should be held liable for the wrongful acts or speech of its functionaries, particularly when such speech is delivered in a public setting.
Conversely, the State and the minister argued that free speech under Article 19(1)(a) encompasses the right to express personal opinions, even if they are unpopular. They contended that the statement was made in a personal capacity, and thus the State cannot be vicariously liable. Their main argument centred on the formulation of a code of conduct to ensure better accountability and transparency, as their every utterance might impact government policy. Moreover, they emphasised that Article 19(2) provides an exhaustive list of grounds for restricting speech, and any expansion would constitute judicial overreach.
The Supreme Court’s Call: A Constitutional Milestone
In this instance, the Court, in a 4:1 verdict, ruled that an individual’s right to freedom of speech and expression could not be restricted on the grounds of infringing upon the dignity of another individual. The Court delivered two opinions: one majority opinion and another from Justice BV Nagarathna, who partly agreed and partly disagreed.
The Court’s majority judgment concluded that when two or more fundamental rights conflict, it must either balance them or prioritise one. It acknowledged that the reasons for limiting freedom of speech and expression are defined in Article 19(2) of the Constitution. The Court determined that this list is exhaustive, meaning no additional restrictions can be introduced. As a result, it ruled that a public official’s right to freedom of speech cannot be limited solely to uphold an individual’s right to dignity.
The majority judgment also considered the horizontal application of fundamental rights in relation to state and non-state actors. The Court explained that the interpretations of the right to life and ‘personal liberty’ under Article 21 have developed over time to include the right to live with dignity, the right to privacy, and the right to be informed of one’s past. As science and technology permeate various aspects of life, it has become feasible for non-state actors to impact these rights. The Court determined that the State has a proactive obligation to safeguard the life and personal liberty of citizens from private individuals as well.
Justice Nagarathna, in a partly dissenting judgement, opined that dignity is a quintessential and fundamental constituent of the rights guaranteed under Article 21 of the Constitution. Therefore, Article 19(1)(a) of the Constitution cannot be cited as a reason for curtailing the rights under Article 21. She maintained that since the speech in this case was disparaging, derogatory, and resembled hate speech, it could not be protected under Article 19(1)(a). Moreover, she asserted that the facts of this case did not necessitate balancing two fundamental rights but rather addressed an abuse of freedom of speech used to attack the basic rights of an individual.
Conclusion
The ruling of Kaushal Kishore v. State of U.P. marks a significant milestone in Indian constitutional law. By emphasising that limits on free speech must adhere to the provisions of Article 19(2), the Supreme Court upheld the integrity of the Constitution while acknowledging the ethical responsibilities of public officials. Although the Court appropriately rejected extending State liability for ministers’ personal comments, it also affirmed the State’s proactive obligation to safeguard citizens’ fundamental rights against non-State actors. Justice Nagarathna’s dissenting opinions underscored the importance of human dignity under Article 21, advocating for a statutory code of conduct for public officials. Consequently, this judgment carefully balances the preservation of democratic freedoms with the need for accountability, reminding us that constitutional principles should shape both laws and public discourse in a constitutional democracy. It presents a thoughtful yet progressive stance in today’s increasingly polarised digital landscape.
FAQS
1. What was the main legal issue in Kaushal Kishore v. State of U.P.?
The central issue was whether a public official’s freedom of speech under Article 19(1)(a) can be restricted beyond the grounds mentioned in Article 19(2)—particularly, if it can be curtailed for violating another individual’s dignity under Article 21.
2. What triggered the case?
The case arose after derogatory remarks were made by two State Ministers (from U.P. and Kerala) concerning sensitive issues, including a sexual assault case. The petitioners argued that such statements violated the dignity and fair trial rights of the victims under Article 21.
3. Can ministers’ statements be attributed to the government?
No. The Court held that statements made in personal capacity by ministers cannot be directly attributed to the government unless made in an official capacity or as government policy.
4. Can the State be held vicariously liable for a minister’s personal remarks?
No. The Supreme Court ruled that the State cannot be held constitutionally liable for personal remarks of ministers that are not part of official government policy or action.
5. What is the doctrine of horizontal application of fundamental rights?
It refers to the application of fundamental rights to relationships between private individuals (non-state actors), and not just between the individual and the State. The Court recognised that the State has a duty to protect citizens from violations by non-State actors.
6. Did the Court expand the scope of Article 19(2)?
No. The Court held that the grounds for restricting free speech under Article 19(2) are exhaustive, and no new grounds (like individual dignity) can be judicially added.
7. What was Justice B.V. Nagarathna’s dissenting view?
Justice Nagarathna argued that dignity under Article 21 is fundamental and should override the right to free speech in cases of hate or derogatory speech by public officials. She asserted that such speech cannot be shielded under Article 19(1)(a).
8. What is the significance of this judgment for ministerial conduct?
The judgment has renewed the call for a legally enforceable code of conduct for ministers, stressing the need for greater accountability and ethical responsibility, especially in public communication.
9. How does the ruling affect the balance between Articles 19 and 21?
The majority judgment upheld the primacy of Article 19(2) limitations, while Justice Nagarathna’s dissent highlighted the growing need to balance or prioritise dignity (Article 21) over unrestrained speech in specific contexts. The case thus opens a discourse on the resolution of inter-fundamental rights conflicts.
10. What broader constitutional principles did the Court reaffirm?
The Court reaffirmed:
The exhaustive nature of Article 19(2) restrictions.
The importance of individual dignity under Article 21.
The State’s affirmative duty to protect fundamental rights from violations by non-State actors.
The non-attribution principle in ministerial statements unless officially endorsed.
