Case Brief: Kaushal Kishor v. State of UP

Case Name	Kaushal Kishor v. State of UP
Citation	Writ Petition (Criminal) No. 113 of 2016
Court	The Supreme Court of India
Bench	Abdul Nazeer J, B.R. Gavai J, A.S. Bopanna J, V. Ramasubramanian J, B.V. Nagarathna J
Appellate	Kaushal Kishor
Respondent	State of U.P.
Judgment on	January 3, 2023

Introduction

The Indian Supreme Court (“Court”) ruled in this case that a public official’s right to free expression may not be curtailed to protect another person’s basic rights. The Court further declared that even in the face of non-state actors, the State has an obligation to defend people’s rights to life and personal liberty.

This case resulted from two incidents in which Ministers made contentious statements disparaging crime victims. According to the victims, these statements infringed upon their Article 21 rights to life and personal freedom.

The Court ruled in a 4:1 ruling that the only legitimate constraints that might limit someone’s right to freedom of speech and expression were those listed in Article 19(2) of the Constitution. The Court decided that this was a complete list and that these grounds could not be used as justification for any additional restrictions. The horizontal application of rights to both state and non-state entities was another issue this decision addressed. According to the Court, the concept of the “right to life” has expanded over the years to encompass the rights to privacy, human dignity, and the right to be forgotten. Given the numerous important roles that non-state actors play in all facets of society, the State has an affirmative obligation to protect citizens from these entities when their right to life is violated.

Facts

In this case, the court combined two complaints involving disparaging remarks made in two unrelated incidents by state ministers from Kerala and Uttar Pradesh. The case dealt with problems pertaining to the tension between the petitioners’ right to dignity and the ministers’ freedom of speech.

A minister in the Uttar Pradesh (“UP”) government made disparaging remarks about two sex assault victims. He said that a “political controversy” against the administration stemmed from the sexual assault of a woman and her small child. In the second case, a Kerala government minister made remarks that were deemed to be “highly derogatory to women.” Both petitions claimed that governmental employees had violated their constitutionally guaranteed right to dignity (Article 21).

The Supreme Court’s three-judge panel heard both of the petitions. Both of the petitions addressed comparable topics and involved important legal concerns about how to read the Constitution. As a result, the case was assigned to the Court’s five-judge panel.

Issues

1. Is it possible to impose restrictions on the right to free speech and expression for reasons other than those listed in Article 19(2) of the Constitution?
2. Can citizens sue non-State actors, such as private persons, for violating their right to life and liberty under Article 21 of the Constitution?
3. Does the State have a duty to defend its citizens against non-State actors who violate their right to life and personal liberty?
4. If a comment made by a public official has something to do with state affairs, can it be considered official government policy?
5. Can governments be held accountable for public officials’ remarks that violate constitutional rights?

Arguments

Former Chief Justice Deepak Misra asked Fali Nariman and Harish Salve, who were supporting the court and eventually designated as amicus curiae, to remark on the matters before the court. Regarding the first point, Nariman and Salve both made the case that the freedom of speech and expression depends on having a fair trial. They both maintained that while it is one thing to impose restrictions on people’s capacity to criticize government actions, it is quite another when “non-State” actors infringe upon someone’s right to privacy.

Salve claims that under Article 19(1), no one may exercise their right to free expression if they endanger the privacy of another person. (a). The Union of India’s lawyer, Madhavi Divan, was granted permission by the Court to address this issue and expand on the justifications for restricting free speech as outlined in Article 19 of the Constitution. She argued that allowing new avenues for restriction under Article 21(a) would seriously jeopardize the right to freedom of expression, which is guaranteed by Article 19(1). She emphasized in court that it was obvious that there were restrictions on the grounds that were explicitly stated in Article 19(1)(a).

She cited a 2012 Sahara Guidelines case where it was decided that Article 19 could be applied to restrict or postpone media coverage. Subsequently, it was decided that Article 19(1)(a) was sufficiently broad to protect both the right to silence and the right to free speech in the 2005 Noise pollution case. She also cited the 1986 decision of Bijoe Emmanuel v. State of Kerala, in which it was decided that the right to free speech included the freedom not to recite the national anthem (Article 19(1) of the Constitution).

The bench remains unconvinced even after Divan has persuaded it. Senior lawyer Harish Salve asserted that the concept that one needs to be an instrument of the State or another entity in order to carry out public duties has long since vanished with relation to the second issue. This is due to the fact that corporations and private individuals are doing tasks that are essentially the province of the State. He asked for a re-evaluation of the notion that civic tasks are exclusively performed by public employees. He continued by saying that because society had developed so much, the state’s and the government’s role in people’s lives had changed and decreased. He also brought up the work being done by independent contractors.

In response to Advocate Salve’s assertion, the bench contended that private enterprises ought to be held responsible for upholding basic rights if they are assigned public duties such as overseeing railroads and toll collection. Consequently, Advocate Salve said that in order to safeguard the fundamental rights of the people, it is now vital to “marry” the constitutional principle with the authority granted to private organizations. Regarding the third worry, it was important to note the Subramanium Swamy case (2016), which upheld the decision that the right to reputation, a vital component of the right to life under Article 21, must be balanced with the freedom of speech.

Advocate Harish Salve claims that Article 19(1)(a) has limitations of its own and might not be the only rule that governs freedom of speech and expression. Concerning the fourth issue, Advocate Salve said that democracy is very fragile and survives only as long as the people believe in it. He claimed that rather than being used to defend a person, the law of contempt serves to protect the public’s confidence in the institution. In this system, a minister must utilize their freedom to free speech and expression as a citizen and fulfil their obligation under the Constitution to uphold and uphold the ideals of the document. He went on to argue that the minister’s right to free speech did not give him the right to make statements that would “emasculate” victims’ rights to a fair trial and even life itself. 

He argues that the State is required under the Constitution to ensure that citizens’ rights are upheld and that in the event that this obligation is not met, the harmed party may sue the offending public authorities for damages under the tort law.

As counsel Nariman added to the fifth quarry, if the charges against Azam are validated, he will be responsible under tort law, which encompasses the public law remedy. He went on to talk about how important it is for ministers to stand up for the civil liberties protected by Article III of the Constitution.

Judgment

In this instance, the Court ruled 4:1 that a person’s freedom of speech and expression may not be curtailed for infringing upon the dignity of another person. The Court rendered two opinions: a majority ruling and a partially concurring and partially dissenting opinion by Justice BV Nagarathna.

According to the Court’s majority ruling, when two or more basic rights clash, the court must decide how to prioritize one over the other or find a middle ground. The Court reasoned that Article 19(2) of the Constitution enumerated the justifications for limiting the freedom of speech and expression. They maintained that no new reasons could be added to the list in order to impose additional limits because this was a comprehensive list. As a result, they maintained that restricting a public official’s freedom of speech would violate that person’s right to personal dignity.

The problem of the basic rights’ horizontal application against both state and non-state actors was also taken into consideration by the majority ruling. The Court clarified that throughout the years, the meaning of the terms “right to life” and “personal liberty” in accordance with Article 21 has expanded to encompass the rights to privacy, dignity of life, and the right to be forgotten. Non-state actors can now influence fundamental rights since science and technology are permeating every aspect of life. The Court determined that the State has an affirmative obligation to defend people’ lives and liberties against private parties.

In a partially dissenting opinion, Justice Nagarathna stated that one fundamental and fundamental aspect of the rights protected by Article 21 of the Constitution is dignity. Consequently, the Constitution’s Article 19(1)(a) cannot be used as justification for restricting the rights guaranteed by Article 21. She ruled that the statement in question could not be protected under Article 19(1) since it was insulting, degrading, and resembled hate speech (a). According to her, the facts of this case dealt with an abuse of free expression that was used to assault a person’s basic rights rather than the need to balance two fundamental rights.

Conclusion

This case brought up some significant issues that the courts need to address.  The case began with Azam Khan’s Statement and concluded with inquiries into the judiciary’s role in limiting fundamental rights, the duty of a minister, the State’s liability when government officials use their right to free speech to make remarks that could influence a proceeding trial, and whether or not such individuals are subject to legal action under a constitutional tort.