Constitution of India – Arts. 19(1)(a) and 19(2) – 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 – Held: The grounds lined up in Art.19(2) for restricting the right to free speech are exhaustive – Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual.
Constitution of India – Arts. 19 and 21 – Can a fundamental right 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): A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities – Held (per B.V. Nagarathna, J.): The rights in the realm of common law, which may be similar or identical in their content to the Fundamental Rights under Article 19/21, operate horizontally – However, the Fundamental Rights under Arts. 19 and 21, may not be justiciable horizontally before the Constitutional Courts except those rights which have been statutorily recognised and in accordance with the applicable law – However, they may be the basis for seeking common law remedies – But a remedy in the form of writ of Habeas Corpus, if sought against a private person on the basis of Article 21 can be before a Constitutional Court i.e., by way of Article 226 before the High Court or Article 32 read with Article 142 before the Supreme Court.
Constitution of India – Art. 21 – Whether the State is under a duty to affirmatively protect the rights of a citizen under Art.21 even against a threat to the liberty of a citizen by the acts or omissions of 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 a duty to affirmatively protect the rights of a person under Article 21, whenever there is a threat to personal liberty, even by a non-State actor – Held (per B.V. Nagarathna, J.): The duty cast upon the State under Article 21 is a negative duty not to deprive a person of his life and personal liberty except in accordance with law – The State has an affirmative duty to carry out obligations cast upon it under statutory and constitutional law, which are based on the Fundamental Right guaranteed under Article 21 of the Constitution – Such obligations may require interference by the State where acts of a private actor may threaten the life or liberty of another individual –Failure to carry out the duties enjoined upon the State under statutory law to protect the rights of a citizen, could have the effect of depriving a citizen of his right to life and personal liberty – When a citizen is so deprived of his right to life and personal liberties, the State would have breached the negative duty cast upon it under Art.21. Doctrines / Principles – Principle of Collective Responsibility – 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 – Held (per V. Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself) : A statement made by a Minister even if traceable to any affairs of the State or for protecting the Government, cannot be attributed vicariously to the Government by invoking the principle of collective responsibility – Held (per B.V. Nagarathna, J.): A statement made by a Minister if traceable to any affairs of the State or for protecting the Government, can be attributed vicariously to the Government by invoking the principle of collective responsibility, so long as such statement represents the view of the Government also – If such a statement is not consistent with the view of the Government, then it is attributable to the Minister personally.
Tort – Constitutional Tort – Whether a statement by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort” – Held (per V. Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself) : A mere statement made by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, may not constitute a violation of the constitutional rights and become actionable as Constitutional tort – But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort – Held (Per B.V. Nagarathna, J.): A proper legal framework is necessary to define the acts or omissions which would amount to constitutional tort and the manner in which the same would be redressed or remedied 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 19 are comprehensive 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 does not fall within the four corners of Article 19(2) will be unconstitutional. [Para 28][635-E-F]
2. That the Executive cannot transgress its limits by imposing an additional restriction in the form of Executive or Departmental instruction was emphasised by this Court in Bijoe Emmanuel vs. State of Kerala. The Court made it clear that the reasonable restrictions sought to be imposed must be through “a law” having statutory force and not a mere Executive or Departmental instruction. The restraint upon the Executive not to have a back-door intrusion applies equally to Courts. While Courts may be entitled to interpret the law in such a manner that the rights existing in blue print have expansive connotations, the Court cannot impose additional restrictions by using tools of interpretation. [Para 29][635-H; 636-A-B]
3. Since the eight heads of restrictions contained in clause
(2) of Article 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, different religious beliefs/sentiments - against offending their beliefs and sentiments; (iii) classes/groups of citizens 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 - 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, and therefore the restrictions contained in clause (2) of Article 19 are exhaustive and no further restriction need to be incorporated. [Para 32][639-D-G]
4. In any event, the law imposing any restriction in terms of clause (2) of Article 19 can only be made by the State and not by the Court. The role envisaged in the Constitutional scheme for the Court, is to be a gate-keeper (and a conscience keeper) to check strictly the entry of restrictions, into the temple of fundamental rights. The role of the Court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges. Clause (2) of Article 19 saves (i) the operation of any existing law; and (ii) the making of any law by the State. Therefore, it is not for the court to add one or more restrictions than what is already found. [Para 33][639-H; 640-A-B]
5. The exercise of all fundamental rights by all citizens is possible only when each individual respects the other person’s rights. This Court has always struck a balance whenever it was found that the exercise of fundamental rights by an individual, caused inroads into the space available for the exercise of fundamental rights by another individual. The emphasis even in the Preamble on “fraternity” is an indication that the survival of all fundamental rights and the survival of democracy itself depends upon mutual respect, accommodation and willingness to co-exist in peace and tranquility on the part of the citizens. The Fundamental Duty enjoined upon every citizen of the country under Article 51-A(e) to “promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women”, is also an indicator that no one can exercise his fundamental right in a manner that infringes upon the fundamental right of another. [Para 40][640-B-E]
6. The grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive. Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual. [Para 45][652-B-D]
7. Wherever Constitutional rights regulate and impact only the conduct of the Government and Governmental actors, in their dealings with private individuals, they are said to have “a vertical effect”. But wherever Constitutional rights impact even the relations between private individuals, they are said to have “a horizontal effect”. [Para 47][652-E-F]
8. After defining the expression “the State” in Article 12 and after declaring all laws inconsistent with or in derogation of the fundamental rights to be void under Article 13, Part -III of the Constitution proceeds to deal with rights. There are some Articles in Part- III where the mandate is directly to the State and there are other Articles where without injuncting the State, certain rights are recognized to be inherent, either in the citizens of the country or in persons. In fact, there are two sets of dichotomies that are apparent in the Articles contained 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 individual without reference to the State. The other dichotomy is between
(i) citizens; and (ii) persons. The Articles of Part-III are in the form of a directive to the State, while others are not. This is an indication that some of the rights conferred by Part -III are to be honored by and also enforceable against, non--State actors. [Para 73, 74][664-C-D; 667-A]
9. The original thinking of this Court that these rights can be enforced only against the State, changed over a period of time. The transformation was from “State” to “Authorities” to “instrumentalities of State” to “agency of the Government” to “impregnation with Governmental character” to “enjoyment of monopoly status conferred by State” to “deep and pervasive control” to the “nature of the duties/functions performed”. Therefore “A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities “. [Para 78][678-F-G; 679-A]
10. The expression “the State” is not used in Article 21. This Article 21 guarantees every person that he shall not be deprived of his life and liberty except according to the procedure established by law. Going by the scheme of Part -III it is clear that the State has two obligations, (i) not to deprive a person of his life and liberty except according to procedure established by law; and (ii) to ensure that the life and liberty of a person is not deprived even otherwise. Article 21 does not say “the State shall not deprive a person of his life and liberty”, but says that “no person shall be deprived of his life or personal liberty”. [Para 81][679-D, E]
11. The understanding of this Court in A.K. Gopalan, that deprivation of personal liberty required a physical restraint, underwent a 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 a Constitution Bench of this Court held by a majority, that the right to personal liberty included the right of locomotion and right to travel abroad. It was held in the said decision that “liberty” in our Constitution bears the same comprehensive meaning as is given to the expression “liberty” by the 5th and 14th Amendments to the U.S. Constitution and the expression “personal liberty” in Article 21 only excludes the ingredients of “liberty” enshrined in Article 19 of the Constitution. The Court went on to hold that “the expression “personal liberty” in Art. 21 takes in the right of loco-motion and to travel abroad, but the right to move throughout the territories of India is not covered by it inasmuch as it is specially provided in Art. 19. [Para 88][683-F-H; 684-A]
12. Technological eavesdropping except in accordance with the procedure established by law was frowned upon by the Court. This was at a time when mobile phones had not become the order of the day and the State monopoly was yet to be replaced by private players such as intermediaries/service providers. Today, the infringement of the right to privacy is mostly by private players and if fundamental rights cannot be enforced against non--State actors, this right will go for a toss. [Para 97][688-D, E]
13. The expression “collective responsibility” can be traced to some extent, to Article 75(3) insofar as the Union is concerned and to Article 164(2) insofar as the States are concerned. But in both the Articles, it is the Council of Ministers who are stated to be collectively responsible to the House of the People/Legislative Assembly of the State. Generally collective responsibility of the Council of Ministers either to the House of the People or to the Assembly should be understood to correlate to the decisions and actions of the Council of Ministers and not to every statement made by every individual Minister. [Para 112][693-F, G]
14. What follows from the discussion is, (i) that the concept of collective responsibility is essentially a political concept; (ii) that the collective responsibility is that of the Council of Ministers; and (iii) that such collective responsibility is to the House 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 to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly. A statement made by a Minister even if traceable to any affairs of the State or for protecting the Government, cannot be attributed vicariously to the Government by invoking the principle of collective responsibility. [Para 126, 137][701-A, B; 704-E]
15. This Court and the High Courts have been consistent in invoking Constitutional tort whenever an act of omission and commission on the part of a public functionary, including a Minister, caused harm or loss. But the matter pre-eminently deserves a proper legal framework so that the principles and procedure are coherently set out without leaving the matter open ended or vague. In fact, the First Report of the Law Commission submitted a draft bill way back in 1956. This Court recommended a legislative measure in Kasturi Lal in 1965 and a bill called Government (Liability in Torts) Bill was introduced in 1967. But nothing happened in the past 55 years. In such circumstances, courts cannot turn a blind eye but may have to imaginatively fashion the remedy to be provided to persons who suffer injury or loss, without turning them away on the ground that there is no proper legal frame work. Therefore, “A mere statement made by a Minister, inconsistent with the rights of a citizen under Part -III of the Constitution, may not constitute a violation of the constitutional rights and become actionable as Constitutional tort. But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort”. [Para 153, 154][715-F-H; 716-A, B]
Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC
603 : [2012] 12 SCR 256; Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 : [2017] 10 SCR 569; A. Sanjeevi Naidu v. State of Madras (1970) 1 SCC
443 : [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 of India [1962] 3 SCR 842; Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615 : [1986] 3 SCR 518;
Ram Jethmalani v. Union of India (2011) 8 SCC 1 : [2011] 8 SCR 725; Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of 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 of India (2003) 4 SCC 399 : [2003] 2 SCR 1136; Noise Pollution (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] 14 SCR 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 of India v. Niranjan Singh (1969) 1 SCC 502 : [1969] 3 SCR 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 of India (1989) 4 SCC 286 : [1989] 3 SCR 997; Shakti Vahini 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, Jaipur Development Authority, Jaipur v. Daulat Mal Jain (1997) 1 SCC 35 : [1996] 6 Suppl. SCR 584; Vineet Narain v. Union of India (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595; Common Cause, A Registered Society v. Union of India (1999) 6 SCC 667 : [1999] 3 SCR 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. Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530; Satwant Singh Sawhney v. D. Ramarathna m, Assistant Passport 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 Mukti
Morcha v. Union of India & Ors. (1984) 3 SCC 161 : [1984] 2 SCR 67; National Human Rights Commission v. 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 Union for Civil Liberties (PUCL) v. Union of India (1997) 1 SCC 301 : [1996] 10 Suppl. SCR 321; M/s. Kasturi Lal Ralia Ram Jain v. The State of Uttar Pradesh, AIR 1965 SC 1039 : [1965] 1 SCR 375; State of Rajasthan v. Mst. Vidhyawati AIR 1962 SC 933 : [1962] Suppl. SCR 989; Rudul Sah v. State of Bihar (1983) 4 SCC
141 : [1983] 3 SCR 508; Nilabati Behera (Smt.) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee) 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 Democratic Rights v. Union of India (1982) 3 SCC 235 : [1983] 1 SCR 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 Bank of India Ltd. [1952] SCR 391; State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal (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. Sarangdharsingh Shivdassingh Chavan (2011) 1 SCC 577 : [2010] 15 SCR 1145; Manoj Narula v. Union of India (2014) 9 SCC 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) 1 SCC 585 : [1969] 3 SCR 773; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotasav Smarak Trust v. V. R. Rudani (1989) 2 SCC
691 : [1989] 2 SCR 697; M. C. Mehta v. Union of India AIR 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] 2 SCR 715; Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477 : [2014] 4 SCR 446; Kodungallur Film Society v. Union of India (2018) 10 SCC 713 : [2018] 12 SCR 695; Brij Bhushan v. The State of Delhi AIR 1950 SC 129 : [1950] SCR 605; State of Madras v. V. G. Row (1952) 1 SCC 410; Smt. Vidya Varma v. Dr. Shiv Narain Varma AIR 1956 SC 108 : [1955] 2 SCR 983; Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (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; Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212 : [1996] 2 SCR 503; Consumer Education & Research Centre & Ors. v. Union of India & Ors. (1995) 3 SCC 42 : [1995] 1 SCR 626; Vishaka v. 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; Githa
Hariharan (Ms.) & Anr. v. Reserve Bank of India & Anr. (1999) 2 SCC 228 : [1999] 1 SCR 669; Indian Medical Association v. Union of India (2011) 7 SCC
179 : [2011] 6 SCR 599; Jeeja Ghosh v. Union of India (2016) 7 SCC 761 : [2016] 4 SCR 638; Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 : [2005] 1 SCR 913; Janet Jeyapaul v. SRM University (2015) 16 SCC 530 76; A. K. Gopalan v. State of Madras AIR 1950 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 Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 : [2010] 15 SCR 201; Kharak Singh v. State of U.P. AIR 1963 SC 1295 : [1964] 1 SCR 332; Mohd. Arif Alias 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] 3 SCR 946; Suchita Srivastava & Anr. v. Chandigarh (2009) 9 SCC 1 : [2009] 13 SCR 989; Devika Biswas v. Union of India (2016) 10 SCC 726; District Registrar and Collector, Hyderabad & Anr. v. Canara Bank & Ors. (2005) 1 SCC 496 : [2004] 5 Suppl. SCR 833; Indian Woman says Gang-raped on orders of village Court published in Business and Financial News dated 23-1-2014, in Re (2014) 4 SCC 786 : [2014] 4 SCR 264; Lata Singh v. State of U.P. (2006) 5 SCC
475 : [2006] 3 Suppl. SCR 350; Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC 405 : [2011] 5 SCR 488; The State of Bihar v. Abdul Majid AIR 1954 SC 245 : [1954] SCR 786 and Khatri (II) vs. State of Bihar (1981) 1 SCC 627 : [1981] 2 SCR 408 – referred to.
John Meskell v. Córas Iompair Éireann 1973 IR 121 1972 IR 330; Murtagh Properties Limited v. Cleary 121 1972 IR 330; Shelly v. Kraemer 334 U.S. 1 (1948); Lûth Luth (1958) BVerfGE 7, 198; Gitlow v. New York
286 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); Du Plessis and Others v. De Klerk and Another 1996 ZACC 10; Khumalo v. Holomisa (2002) ZACC 12; Governing Body 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 “Ärzte Für Das Leben” v. Austria [1988] ECHR 15 X and Y v. The Netherlands [1985] ECHR 4 Marsh v. Alabama
326 US 501 (1946) – referred to.
Anup Surendranath - Article on “Life and Personal Liberty” in The Oxford Handbook of the Indian Constitution (South Asia Edition), 2016 and Frances Kamm, Morality, Mortality Vol.2, Oxford University Press, 1996 – referred to.
Per B.V. Nagarathna, J. (Partly dissenting)
HELD: 1. The freedom of speech and expression as envisaged under Article 19(1)(a) of the Constitution means the right to free speech and to express opinions through various media such as by word of mouth, through the print or electronic media, through pictographs, writings, graphics or any other manner that can be discerned by the mind. The right includes the freedom of press. The content of this right also includes propagation of ideas through publication and circulation, the right to seek information and to acquire or impart ideas. In short, the right to free speech would include every nature of right that would come within the scope and ambit of free speech. Hence, Article 19(1)(a) in very broad and in wide terms states that all citizens shall have the right to freedom of speech and expression. The said right can be curtailed only by reasonable restrictions which are enumerated in Article 19(2) thereof which can be imposed by the State under the authority of law but not by exercise of executive power in the absence of any law. Further, the nature of restrictions on right to free speech must be reasonable, and in 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 contempt of court, defamation or incitement to an offence. (Article 19(2)). For a country like ours which is a Parliamentary Democracy, freedom of speech and expression is a necessary right as well as a concomitant for the purpose of not only ensuring a healthy democracy but also to ensure that the citizens could be well informed and educated on governance. The dissemination of information through various media, including print and electronic media or audio visual form, is to ensure that the citizens are enlightened about their rights and duties, the manner in which they should conduct themselves in a democracy and for enabling a debate on the policies and actions of the Governments and ultimately for the development of the Indian society in an egalitarian way. The right to freedom of speech and expression in Article 19(1)(a) of the Constitution has its genesis in the Preamble of the Constitution which, inter alia, speaks of liberty of thought, expression, belief. Since, India is a sovereign democratic republic and we follow a parliamentary system of democracy, liberty of thought and expression is a significant freedom and right under our constitutional setup. [Para 12.3, 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 a corelative duty to abstain from interference with such right except as provided in Article 19(2) of the Constitution which are reasonable restrictions on the right conferred under Article 19(1)(a). The extent of such duty depends upon the content of speech. For instance, in respect of speech that is likely to be adverse to the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality; or speech that constitutes contempt of court, defamation or is of such nature as would be likely to incite the commission of an offence, the duty of the State to abstain from interference, is nil. This principle is Constitutionally reflected under Article 19(2) which enables the State to enact law which would impose reasonable restrictions on such speech as described under eight grounds which are the basis for reasonable restrictions. [Para 14.1][736-A-D]
3. The extent of protection of speech would depend on whether, such speech would constitute a ‘propagation of ideas’ or would have any social value. If the answer to the said question is in the affirmative, such speech would be protected under Article 19(1)(a); if the answer is in the negative, such speech would not be protected under Article 19(1)(a). In respect of speech that does not form the content of Article 19(1)(a), the State has no duty to abstain from interference having regard to Article 19(2) of the Constitution and only the grounds mentioned therein. [Para 14.1][736-G-H; 737-A]
4. Having noted that the protective perimeter within which a person can exercise his/her rights depends on the degree to which the State is duty bound to protect the right, it may also be said as a corollary that in respect of speech that does not form the content of Article 19(1)(a), the State has no duty to abstain from interference and therefore, speech such as hate speech, defamatory speech, etc. would lie outside the protective perimeter within which a person can exercise his right to freedom of speech. Such speech can be subjected to restrictions or restraints. While restrictions on the right to freedom of speech and expression are required to be made only under the grounds listed under Article 19(2), by the State, restraints on the said right, do not gather their strength from Article 19(2). Restraints on the right to freedom of speech and expression are governed by the content of Article 19(1)(a) itself; i.e., any kind of speech, which does not conform to the content of the right under Article 19(1)(a), may be restrained. Questions pertaining to the voluntary or binding nature of such restraint, the force behind the same, the persons on whom such restraints are to be imposed, the manner in which compliance thereof could be achieved, etc., are aspects left to be deliberated upon and answered by the Parliament. However, the finding made hereinabove is only to the extent of clarifying that any kind of speech, which does not form the content of Article 19(1)(a), may be restrained as such speech does not constitute an exchange of ideas, in a manner compatible with the ethos cultivated in a civilised society. Such restraints need not be traceable only to Article 19(2), which exhaustively lists eight grounds on which restrictions may be imposed on the right to freedom of speech and expression by the state. [Para 14.1][737B-H]
5. Article 19(1)(a) serves as a vehicle through which dissent can be expressed. The right to dissent, disagree and adopt varying and individualistic points of view inheres in every citizen of this Country. In fact, the right to dissent is the essence of a vibrant democracy, for it is only when there is dissent that different ideas would emerge which may be of help or assist the Government to improve or innovate upon its policies so that its governance would have a positive effect on the people of the country which would ultimately lead to stability, peace and development which are concomitants of good governance. [Para 15.2][739-C-D]
6. Equality, liberty and fraternity are the foundational values embedded in the Preamble of our Constitution. ‘Hate speech’, in the sense discussed, strikes at each of these foundational values, by marking out a society as being unequal. It also violates fraternity of citizens from diverse backgrounds, the sine-qua-non of a cohesive society based on plurality and multi-culturalism such as in India that is, Bharat. Democracy, being one of the basic features of our Constitution, it is implicit that in a rule by majority there would be a sense of security and inclusiveness. Further, the Preamble of the Constitution which envisages, inter alia, fraternity, assures that the dignity of individuals cannot be dented by means of unwarranted speech being made by fellow citizens, including public functionaries. Thus, the Preamble of the Constitution and the values thereof assuring the people of India not only justice, liberty, equality but also fraternity and unity and integrity of the nation, must remind every citizen of this Country irrespective of the office or position or power that is held, of the sublime ideals of the Constitution and to respect them in their true letter and spirit. There is an inbuilt constitutional check to ensure that the values of the Constitution are not in any way undermined or violated. It is high time that we, as a society in general and as individuals in particular, re-dedicate ourselves to the sacred values of the Constitution and promote them not only at our individual level but at the macro level. Any kind of speech which undermines the values for which our Constitution stands would cause a 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 essential parameter for distinction between the two rights and corresponding remedies. Where the interference with a recognized right is by the State or any other entity recognized under Article 12, a claim for the violation of a fundamental right would lie under Articles 32 and 226 of the Constitution before this Court or before the High Court respectively. Where interference is by an entity other than State or its instrumentalities, an action would lie under common law and to such extent, the legal scheme recognises horizontal operation of such rights. Though the content of the Fundamental Right may be identical under the Constitution with the common law right, it is only the common law right that operates horizontally except when those Fundamental Rights have been transformed into statutory rights under specific enactments or where horizontal operation has been expressly recognised under the Constitution. [Para 42, 43][780F-H; 781-A-B]
8. Recognising a horizontal approach of Fundamental Rights between citizens inter se would set at naught and render redundant, all the tests and doctrines forged by this Court to identify “State” for the purpose of entertaining claims of fundamental rights violations. Had the intention of this Court been to allow Fundamental Rights, including the rights under Articles
19 and 21, to operate horizontally, this Court would not have engaged in evolving and refining tests to determine the true meaning and scope of “State” as defined under Article 12. This Court would have simply entertained claims of fundamental rights violations against all persons and entities, without deliberating on 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 on considerations such as the nature of functions performed by the entity in question and the degree of control exercised over it by the State as such. This is significantly different from recognising horizontality of the fundamental rights under Articles 19 and 21, except while seeking a writ in the nature of habeas corpus. Such a recognition would amount to disregarding the jurisprudence evolved by this Court as to the scope of Article 12 of the Constitution. Another aspect that needs consideration is that a Writ Court, does not ordinarily adjudicate to issue Writs in cases where alternate and efficacious remedies exist under common law or statutory law particularly against private persons. Therefore, even if horizontal operation of the Fundamental Rights under Article 19/21 is recognised, such recognition would be of no avail because the claim before a Writ Court of fundamental rights violations would fail on the ground that the congruent common law 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 and efficacious remedy in common law, the horizontal claim for fundamental rights violations would fail before a Writ Court. [Para 43][785-A-G]
9. The duty cast upon the State under Article 21 is a negative duty not to deprive a person of his life and personal liberty except in accordance with law. The State has an affirmative duty to carry out obligations cast upon it under statutory and constitutional law, which are based on the Fundamental Right guaranteed under Article 21 of the Constitution. Such obligations may require interference by the State where acts of a private actor may threaten the life or liberty of another individual. Failure to carry out the duties enjoined upon the State under statutory law to protect the rights of a citizen, could have the effect of depriving a citizen of his right to life and personal liberty. When a citizen is so deprived of his right to life and personal liberties, the State would have breached the negative duty cast upon it under Article
21. [Para 44][792-D-G]
10. A statement made by a Minister if traceable to any affairs of the State or for protecting the Government, can be attributed vicariously to the Government by invoking the principle of collective responsibility, so long as such statement represents the view of the Government also. If such a statement is not consistent with the view of the Government, then it is attributable to the Minister personally. [Para 45][793-D-E]
11. A proper legal framework is necessary to define the acts or omissions which would amount to constitutional tort and the manner in which the same would be redressed or remedied on the basis of judicial precedent. Particularly, it is not prudent to treat all cases where a statement made by a public functionary resulting in harm or loss to a person/citizen, as a constitutional tort, except in the context of the answer given to Question No. 4 . It is for the Parliament in its wisdom to enact a legislation or code to restrain, citizens in general and public functionaries, in particular, from making disparaging or vitriolic remarks against fellow citizens, having regard to the strict parameters of Article 19(2) and bearing in mind the freedom under Article 19(1) (a) of the Constitution of India. [Para 66, 67][801-B-D] Pravasi Bhalai Sangathan v. Union of India (2014) 11 SC 477 : [2014] 4 SCR 446; K. S. Puttaswamy (Retd.) v. Union of India (2019) 1 SCC 1 : [2018] 8 SCR 1; Subramanian Swamy v. Union of India (2016) 7 SCC
221 : [2016] 3 SCR 865; His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala (1973) 4 SCC 225; People’s Union for Civil Liberties v. Union of India (2005) 2 SCC 436 : [2005] 1 SCR 494; P. D.
Shamdasani v. Central Bank of India Ltd. A.I.R. 1952 SC 59 : [1952] SCR 391; Zoroastrian Cooperative Housing Society Limited v. District Registrar, Cooperative Societies (Urban) (2005) 5 SCC 632 : [2005] 3 SCR 592; Ramakrishna Mission v. Kago Kunya (2019) 16 SCC 303 : [2019] 5 SCR 452;
Parmanand Katara v. Union of India A.I.R. 1989 SC 2039 : [1989] 3 SCR 997; National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742 : [1996] 1 SCR 278; Gaurav Kumar Bansal v. Union of India (2015) 2 SCC 130 : [2014] 7 SCR 725 and Swaraj Abhiyan v. Union of India (2016) 7 SCC
498 – relied on.
Romesh Thappar v. State of Madras A.I.R. 1950 SC
124 : [1950] SCR 594; S. Khushboo v. Kanniammal (2010) 5 SCC 600 : [2010] 5 SCR 322; Shreya Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963; Sakal Papers (P) Ltd. v. Union of India A.I.R. 1962 SC 305 : [1962] 3 SCR 842; Life Insurance
Corporation vs. Prof. Manubhai D. Shah (1992) 3 SCC
637 : [1992] 3 SCR 595; Kedar Nath Singh v. State of Bihar A.I.R. 1962 SC 955 : [1962] Suppl. SCR 769; Directorate General of Doordarshan v. Anand
Patwardhan (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 Nigam Limited (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 Legal Services 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 Tripathi v. Supreme Court of India (2018) 10 SCC 639 : [2018]
11 SCR 57; Union of India v. Naveen Jindal (2004) 2 SCC 510 : [2004] 1 SCR 1038; Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615 : [1986] 3 SCR 518; Amish Devgan v. Union of India (2021) 1 SCC 1; Charu Khurana v. Union of India (2015) 1 SCC 192 : [2014]
12 SCR 259; In Re. Noise Pollution (V) (2005) 5 SCC
733 : [2005] 1 Suppl. SCR 624; Additional District Magistrate, Jabalpur vs. Shivkant Shukla A.I.R. 1976 SC 1207 : [1976] Suppl. SCR 172 ; Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 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 SCC 530; Union of India v. Paul Manickam (2003) 8 SCC
342 : [2003] 4 Suppl. SCR 618; Mohd. Ikram Hussain v. 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 India v. Paul Manickam (2003) 8 SCC 342 : [2003] 4 Suppl. SCR 618; Pt. Rudul Sah v. State of Bihar (1983) 4 SCC
141 : [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’s Union 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 of Maharashtra 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 of India A.I.R. 1984 SC 1026 : [1984] 3 SCR 544; Bhim Singh, MLA v. State of Jammu and Kashmir A.I.R. 1986 SC : 494; Nilabati Behera v. State of Orissa (1993) 2 SCC 746 : [1993] 2 SCR 581; D. K. Basu v. State of West Bengal (1997) 1 SCC 416 : [1996] 10 Suppl. SCR 284; Hindustan Paper Corporation Ltd. v. Ananta Bhattacharjee (2004) 6 SCC 213; Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465 : [2000] 1 SCR 480; Kumari v. State of Tamil Nadu (1992) 2 SCC 223; 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 of Sewerage & 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; Canada Human 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 (186869) 5 Bom HCR APP 1 and Saskatchewan Human Rights Commission v. William Whatcott 2013 SCC 11 – referred to.
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