KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & Ors.

Ms. Aparjitha Singh, Sr.Adv. (A.C.) Ms. Uttara Babbar, Ms. Shipra Jain, Advs. Kaleeswaram Raj, Ms. Thulasi K. Raj, Ms. Radhalakshmi R., Suvidutt M. S., Ms. Somlagna Biswas, Rishesh Sikarwar, Aman Khullar, A B C D E F G H 608 SUPREME COURT REPORTS [2023] 8 S.C.R. Mrs. Renu Yadav, Samerjit Singh Chaudhry, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Mirdula Singh Chauhan, Ms. Sandhya Singh for Ms. 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, Sr. Advs., Naman Tandon, Samarvir Singh, Presenjeet Mohapatra, Rajat Nair, Ankur Talwar, Kanu Agrawal, Anirudh Bhatt, Shyam Gopal, Ms. Monica Benjamin, Ms. Sujatha Bagadhi, Ms. Shraddha Deshmukh, Udai Khanna, Ms. Anu S., Mayank Pandey, Vinayak Mehrotra, Chitvan Singhal, Ms. Sonali Jain, Abhishek Kumar Pandey, Arvind Kumar Sharma, Mukesh Kumar Maroria, Ajay Vikram Singh, Ms. Rajshree Rai, Vinay Kumar, Shashank Rai, Arnav Mittal, Ms. Ritika Gaur, Ms. Banshika Garg, Vipin Bharti, Amrendra Kumar Singh, Ms. Priyanka Singh, Ms. Pranjali Goel, Sharjeel Ahamad, Mrs. Swarupama Chaturvedi, Pradeep Misra, Abhishek, Lakshmi Raman Singh, Advs. for the Respondents. Ranjith B. Marar, Ms. Lakshmi N. Kaimal, Arun Poomulli, Santhosh M. Jose, Keshav Raj Nair, Ashu Jain, Davesh Kumar Sharma, Ms. Preetha Chandran, Abhijith Sreekumar, Joseph Kurian, Advs. for the Intervenor. The Judgments of the Court were delivered by V. RAMASUBRAMANIAN, J. PRELUDE Said the Tamil Poet-Philosopher Tiruvalluvar of the Tamil Sangam age (31, BCE) in his classic “Tirukkural”. Emphasizing the importance of sweet speech, he said that the scar left behind by a burn injury may heal, but not the one left behind by an offensive speech. The translation of this verse by G.U. Pope in English reads thus: “In flesh by fire inflamed, nature may thoroughly heal the sore; In soul by tongue inflamed, the ulcer healeth never more.” A B C D E F G H KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J.] 609 A Sanskrit Text contains a piece of advice on what to speak and A how to speak. The meaning of this verse is: “Speak what is true; speak what is pleasing; Do not speak what is unpleasant, even if it is true; And do not say what is pleasing, but untrue; this is the eternal law.” The “Book of Proverbs” (16:24) says: “Pleasant words are a honeycomb, sweet to the soul and healing to the bones” Though religious texts of all faiths and ancient literature of all languages and geographical locations are full of such moral injunctions emphasising the importance of sweet speech (more than free speech), history shows that humanity has consistently defied those diktats. The present reference to the Constitution Bench is the outcome of such behaviour by two honourable men, who occupied the position of Ministers in two different States. I. Questions formulated for consideration

#1. By an order dated 05.10.2017, a Three Member Bench of this Court directed Writ Petition (Criminal) No.113 of 2016 to be placed before the Constitution Bench, after two learned senior counsel, appointed as amicus curiae, submitted that the questions arising for consideration in the writ petition were of great importance. Though the Bench recorded, in its order dated 05.10.2017, the questions that were submitted by the learned amicus curiae, the Three Member Bench did not frame any particular question, but directed the matter to be placed before the Constitution Bench.

#2. At this juncture, a Special Leave Petition (Diary) No.34629 of 2017 arising out a judgment of the Kerala High Court came up before the same Three Member Bench. Finding that the questions raised in the said SLP were also similar, this Court passed an order on 10.11.2017, B C D E F G H 610 SUPREME COURT REPORTS [2023] 8 S.C.R. A directing the said SLP also to be tagged with Writ Petition (Criminal) No.113 of 2016.

#3. Thereafter, the Constitution Bench, by an order dated 24.10.2019, formulated the following five questions to be decided by this Court:- “…1) Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights? 2) Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities? 3) Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? 4) Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility? 5) Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”? …” II. A brief backdrop

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

#5. Writ Petition (Criminal) No.113 of 2016 was filed under Article 32 of the Constitution praying for several reliefs including monitoring the investigation of a criminal complaint in FIR No.0838/2016 under Section 154 Cr.P.C., for the offences under Sections 395, 397 and 376-D read with the relevant provisions of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and for the trial of the case outside the State and also for registering a complaint against the B C D E F G H KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J.] 611 then Minister for Urban Development of the Government of U.P. for making statements outrageous to the modesty of the victims. The case of the petitioner in Writ Petition (Criminal) No.113 of 2016 in brief was that on 29.7.2016 when he and the members of his family were travelling from Noida to Shahjahanpur on National Highway 91 to attend the death ceremony of a relative, they were waylaid by a gang. According to the writ petitioner, the gang snatched away cash and jewelry in the possession of the petitioner and his family members and they also gang raped the wife and minor daughter of the petitioner. Though an FIR was registered on 30.7.2016 for various offences and newspapers and the television channels reported this ghastly incident, the then Minister for Urban Development of the Government of U.P. called for a press conference and termed the incident as a political conspiracy. Therefore, the petitioner apprehended that there may not be a fair investigation. The petitioner claims that he was also offended by the irresponsible statement made by the Minister and hence he was compelled to file the said writ petition for the reliefs stated supra.

#6. Insofar as Special Leave Petition (Diary) No.34629 of 2017 is concerned, the same arose out of a judgment of the Division Bench of the Kerala High Court dismissing two writ petitions. The writ petitions were filed in public interest on the ground that the then Minister for Electricity in the State of Kerala issued certain statements in February 2016, 7.4.2017 and 22.4.2017. These statements were highly derogatory of women. Though according to the petitioners in the public interest litigation, the political party to which the Minister belonged, issued a public censure, no action was taken officially against the Minister. Therefore, the petitioner in one writ petition prayed among other things for a direction to the Chief Minister to frame a Code of Conduct for the Ministers who have subscribed to the oath of office as prescribed by the Constitution with a further direction to the Chief Minister to take suitable action if any of the Ministers failed to live upto the oath. The prayer in the second writ petition was for a direction to the concerned Authorities to take action against the Minister for his utterances.

#7. Both the writ petitions were dismissed by a Division Bench of the Kerala High Court, on the ground that the prayer of the public interest writ petitioners were in the realm of moral values and that the question whether the Chief Minister should frame a code of conduct for the Ministers of his cabinet or not, is not within the domain of the Court to A B C D E F G H 612 SUPREME COURT REPORTS [2023] 8 S.C.R. A B C D E F G H decide. Therefore, challenging the said common order, the petitioner in one of those public interest writ petitions has come up with Special Leave Petition (Diary) No.34629 of 2017. Since the questions raised by the petitioner in the Special Leave Petition overlapped with the questions raised in the Writ Petition, they have been tagged together. III. Contentions

#8. We have heard Shri R. Venkataramani, learned Attorney General for India, Ms. Aparajita Singh, learned senior counsel who assisted us as amicus curiae, Shri Kaleeswaram Raj, learned counsel for the petitioner in the special leave petition and Shri Ranjith B. Marar, learned counsel appearing for the person who sought to intervene/implead. III.A. Preliminary note submitted by learned Attorney General for India

#9. The learned Attorney General for India submitted a preliminary note containing his submissions question-wise, which can be summed up as follows:- Question No.1 (i) On question No.1 it is his submission that as a matter of constitutional principle, any addition, alteration or change in the norms or criteria for imposition of restrictions on any fundamental right has to come up through a legislative process. The restrictions already enumerated in clauses (2) and (6) of Article 19 have to be taken to be exhaustive. Therefore, the Court cannot, under the guise of invoking any other fundamental right such as the one in Article 21, impose restrictions not found in Article 19(2). Under the Constitutional scheme, there can be no conflict between two different fundamental rights or freedoms. Question No. 2 (ii) The Constitution itself sets out the scheme of claims of fundamental rights against the State or its instrumentalities and it has also enacted in respect of breaches or violations of fundamental rights by persons other than State or its instrumentalities. Any proposition, to add or insert subjects or matters in respect of which claims can be made against persons other than the State, would amount to Constitutional KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. [V. RAMASUBRAMANIAN, J.] 613 change. The concept of State action propounded and applied in US Constitutional Law and the enactment of 42 US Code § 1983 have to be seen in the context of peculiar state of affairs dealing with governmental and official immunities from legal proceedings. In view of specific provisions in Articles 15(2), 17, 23 and 24 of the Indian Constitution, there may not be a strict need to take recourse to the law obtaining in the USA. Claims against persons other than the State, either through enacted law or otherwise must be confined to constitutionally enacted subjects or matters. Question No. 3 (iii) There are sufficient Constitutional and legal remedies available for a citizen whose liberty is threatened by any person. Beyond the Constitutional and legal remedy and protection available, there may not be any other additional duty to affirmatively protect the right of a citizen under Article 21. Cases of infringement of fundamental rights are taken care of under Articles 32 and 226. Question No. 4 (iv) Conduct of public servants like a Minister, if it is traceable to the discharge of public duty or the duties of the office, is subject to scrutiny of the law. Sanction for prosecution can be granted if misconduct is committed under colour of office. Such misconduct including statements that may be made by a Minister cannot be linked to the principles of collective responsibility. The concept of vicarious liability is incapable of being applied to situations and no government can ever be vicariously liable for malfeasance or misconduct of Minister not traceable to statutory duty or statutory violations for the purpose of legal remedies. Ministerial misdemeanors, which have nothing to do with the discharge of public duty and not traceable to the affairs of the State, will have to be treated as acts of individual violation and individual wrong. To extend in the abstract, the liability of the State to such situations or instances without necessary limitations can be problematic. Post M/s. Kasturi Lal Ralia Ram Jain vs. The State of Uttar Pradesh1 and following Rudul Sah vs. 1 AIR 1965 SC 1039 A B C D E F G H 614 SUPREME COURT REPORTS [2023] 8 S.C.R. A B C D E F G H State of Bihar2, this Court has treated misconduct of public servants or officers and consequent infringement of Constitutional rights as ground for grant of compensation. However, there is need for clarity and certainty as far as the conceptual basis is concerned. This may be better resorted through enacted law. Question No. 5 (v) While the principle of Constitutional tort has been conceived in Nilabati Behera (Smt.) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) vs. State of Orissa3, and subsequently applied to provide in regard to the constitutional remedies, the matter pre-eminently deserves a proper legal framework in order that the principles and procedures are coherently set out without leaving the matter open-ended or vague. III.B. Notes of submissions by Amicus

#10. Ms. Aparajita Singh, learned senior counsel and amicus curiae submitted a written note question-wise, which can be summed up as follows:- Question No. 1 (i) The right to free speech under Article 19(1)(a) is subject to clearly defined restrictions under Article 19(2). Therefore, any law seeking to limit the right under Article 19(1)(a) has to necessarily fall within the limitations provided under Article 19(2). Whenever two fundamental rights compete, the Court will balance the two to allow the meaningful exercise of both. This conundrum is not new, as the rights under Article 21 and under Article 19(1)(a) have been interpreted and balanced on numerous occasions. Take for instance the Right to Information Act, 2005. The Act balances the citizen’s right to know under Article 19(1)(a) with the right to fair investigation and right to privacy under Article 21. This careful balancing was explained by this Court in Thalappalam Service Cooperative Bank Ltd.