CASE COMMENT- KAUSHAL KISHOR VS STATE OF UTTAR PRADESH &ORS

KAUSHAL KISHOR VS STATE OF UTTAR PRADESH &ORS

BRIEF INSIGHT ABOUT THE CASE –
Case Name – Kaushal Kishor vs State of Uttar Pradesh & Ors
Citation -Writ Petitioner (Criminal) No.113 Of 2016
Bench - Adbul Nazeer J, B.R. Gavai J, A.S. Bopanna J, V Ramasubramanian J, and B.V. Nagarathna J
Decided on -3-01-2023

FACTS OF THE CASE–
This case before the Constitutional bench dealt with an issue arising from statements made by two government officials from states. These statements, made under the pretext of speech infringed upon the rights, to life and personal freedom of the victims involved. The petitioner cited Article 32 in a petition against Azam Khan, the Urban Development Minister in Uttar Pradesh for making statements outrageous to the modesty of women. Khan had dismissed a rape incident on Highway 91 as a tactic by opposition parties to discredit his government. The petitioner, whose wife and daughter were victimized by highway robbers and subjected to assault including rape believed that Khans comments could undermine an investigation. As a result, the petitioner sought justice against Khan for his remarks and violation of the victim's basic rights.
Following an order from the Supreme Court Azam Khan issued an apology. Subsequently, another related special writ petition was combined with this case presenting issues before the Supreme Court Constitutional bench. In proceedings, the Kerala High Court rejected two petitions filed by the petitioner against the Electricity Minister in Kerala. Despite making derogatory remarks about women, no official measures were taken against him.
One request called on the Chief Minister to ensure that ministers uphold their oath while the other requested measures to be taken against the minister for his remarks by formulating a code of conduct for ministers. However, the Kerala High Court, through a division bench, ruled that establishing a code of conduct for cabinet ministers fell beyond the court's jurisdiction, precluding the issuance of directives in this regard.

ISSUES-

1-Whether other grounds besides those specified in Article 19(2) be invoked to restrict Freedom of speech and expression?
2-Whether non-state entities violate fundamental rights under articles 19 and 21?
3-Whether the state must protect Article 21 of the citizens against acts and omissions of non-state entities?
4- Whether a government is vicariously liable for a statement made by a minister related to affairs of the state considering the principle of collective responsibility?
5-Whether a statement made by a Minister, which is inconsistent with the rights granted to the citizen under Part III of the Constitution, constitutes a violation of such Fundamental Rights and is actionable as a ‘Constitutional Tort’?

PROVISIONS –

The Constitution of India
Article 19 (1) All citizens shall have the right— (a) to freedom of speech and expression.
Article 19(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 4 [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or about contempt of court, defamation or incitement to an offense.]
Article 216 Protection of life and liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

CONTENTIONS BY PETITIONER AND RESPONDENT –

The learned Senior Counsel, Sri Kaleeswaram Raj, argued on behalf of the petitioners, and behalf of the respondent, Attorney General Sri R. Venkataramani put forward the arguments on the legal issues.
On the issue of imposition of reasonable restriction on article 19 raised Petitioner argued that the voluntary code of conduct should be made in respect of their freedom of speech and expression for the ministers or public officials to exercise their right under article 19(1)(a). However, the Respondent argued that there can not be any further restrictions imposed on Article 19(1)(a). The reasonable restrictions already placed under Article 19(2) are exhaustive and any further restriction can be imposed only through the legislative process.

On the other issue, the respondent argued that if non-state entities are actionable for infringing the fundamental rights of the person then that would amount to a fundamental change to the constitutional principles. Such a change would open the door for litigation on non-state entities. The petitioner argued that fundamental rights impose duties on the states for non-infringement of such rights but the absence of a provision to regulate the speech of individual ministers makes the speech non-actionable for violation of fundamental rights in a court of law. Thus voluntary code of conduct is mandated as well as the need of the hour.

The respondent further argued that for the protection of Article 21, many legal remedies have been already provided by the constitution for the infringement of Article 21under Articles 32 and 226 , thus it can’t be expected to put an additional duty on the state to protect such right i.e right of life and liberty.
On the issue of collective responsibility, the Petitioner argued directed to article 75(3) which shows that ministers have a collective responsibility towards their government, hence all the misconduct statements given by them, should make their government vicariously liable considering the principle of collective responsibility. The petitioners also highlighted a common cause case for the elaborative meaning of collective responsibility. But the Respondent argued that ministers' remarks that are not related to any of his state or public duty, such statements or remarks cannot be associated with the principle of collective responsibility.

RATIONALE –

The five-judge constitution bench consists of Adbul Nazeer J, B.R. Gavai J, A.S. Bopanna J, V Ramasubramanian J, and B.V. Nagarathna J gave a sound opinion on the five questions listed in legal issues to examine the misuse of freedom of speech and expression.
The Judges decided that the grounds listed under Article 19(2) for the regulation of freedom of speech and expression is an exhaustive list, and no further restrictions can be added to that list, which means that Article 19 (1)(a) can only be regulated from article 19(2).

On another issue, the bench decided that non-state entities can violate fundamental rights under Articles 19 and 21, which means that Articles 19 and 21 are enforceable against non-state entities i.e., private persons, and private agencies. But Justice B.V. Nagarathna had a dissenting opinion and stated that a remedy to file a habeas corpus writ petition had been already provided against the private entity in case of violation of Article 21, Thus, Articles 19 and 21 are not enforceable against non-state entities that do not fall under the definition of Article 12.

On the third legal issue, the bench decided that the state must protect Article 21 of its citizens against the acts and omissions of non-state entities, placing the affirmative duty of the state. But article 21 shows the negative duty of the state to not deprive any person of life and liberty, except by the law. Justice BV Nagarathna with this view opined that such interference by the state to protect Article 21 from private actors will infringe on the negative duty that is placed upon the state.

On the fourth legal issue, the majority bench decided that the statement related to affairs of state made by the minister can't make the government vicariously liable for it. But Justice BV Nagarathna opined differently and stated that the government can be made vicariously liable for his minister's misconduct remarks related to affairs of government, However, if the statement is not related or consistent with the view of the government then there can be no vicarious liability on the government.

Further, on the fifth legal issue, the bench decided that if the statement made by the minister violates the fundamental right of the citizen, then it may be actionable under constitutional tort but only if that statement or remark leads to any loss or harm to the citizen.
Thus, the judgment was passed unanimously on all the legal issues with different points and views of Justice B V Nagarathna.

INFERENCE –

This landmark judgment is a significant victory for freedom of speech and expression. The Supreme Court has rightly refused to impose any additional restrictions on Article 19 (1)(a) apart from those already mentioned in Article 19 (2). By doing so, the judiciary has once again stood up for citizens and chosen not to curtail their right to freedom of speech and expression. This is important because if Article 21 had been considered as one of the restrictions on freedom of speech and expression under Article 19(1)(a), liberty would have been compromised. The scope of Article 21 is so broad that if it had been deemed a restriction on freedom of speech and expression, the fabric of society and state would have been compromised. And as far as remarks on rape victim is concerned, the restriction on Article 19(2) which is made on decency, morality, defamation is broad enough to cover the remarks on rape victims.
But if free speech cannot be curtailed then what are the other ways that should be opted for protecting citizens from such derogatory remarks of the ministers or public officials when as per the judgement state cannot be vicariously liable for the remarks of ministers related to affairs of state. Ministers are using their right of free speech to abuse or deliver hate speech while hiding behind position or parliamentary privilege. Someone needs to take charge of this because the impact of hate speech is adverse and it will surely disturb the harmony and brotherhood among the people. So, In my opinion, any citizen whether public officials, private entities, or general people attacking any individual verbally or giving hate speech against any community or class of people must be punished by the law.
Hence, while liberty is a fundamental right, it should not be used as an excuse for barbaric and uncivilized behavior. Constitutional values must prevail.

REFERENCES
1 Kaushal Kishore v The state of Uttar Pradesh Writ Petition (Crim) No 113/2016.
2 Constitution of India 1950, .
3 Kaushal Kishore v The state of Uttar Pradesh Special Leave Petition No 34629/2017.
4 Common cause ,A Registered Society vs Union of India (1999) 6 SCC 667
5 Kanika Meena and Anjali Singh,Case comment: Kaushal Kishor vs The State of Uttar Pradesh, Jus Corpus law Journal (Feb 19, 2024, 3:45) https://www.juscorpus.com/wp-content/uploads/2023/02/180.-Kanika-Meena.pdf