INTRODUCTION
In the case of Kaushal Kishore v State of Uttar Pradesh, a five-judge bench the court has interpreted articles 19 and 21 in the context of members of parliament and members of legislative assembly. In addition to that Justice Nagarathna has delivered a separate opinion dissenting on some issues. The case addresses the application of rights (horizontally as well as vertically) to both state and non-state actors.
FACTS
In this case, the Court combined two separate instances involving derogatory statements made by State Ministers of Uttar Pradesh and Kerala. The case has its start when a cabinet minister of Uttar Pradesh, Mr. Azam Khan made a derogatory statement on a gang rape case (Bulandshahr rape case) and following that a petition was filed against that statement. The case revolves around the relationship between two rights: freedom of speech (article 19) and right to life (article 21). Mr. Azam Khan made derogatory comments, claiming that the assault on a woman and her minor child was a ‘political conspiracy’ against the government. Later, he was ordered by the Supreme court to issue an apology in 2017 and the matter was referred to a constitutional bench. Moving on the case did not rest on just one minister’s comment, a minister in the government of Kerala also issued statements that were ‘highly derogatory to women’. Following these instances petitions were raised against these ministers claiming that they violated the right to life (dignity) in Article 21 of the Constitution.
Initially, the two petitions were before a three-judge bench of the Supreme Court but later as these petitions raised important legal questions, the case was referred to a five-judge bench. The decision in this case was merely on the issue of freedom of speech and its relationship with other fundamental rights and under which circumstances can this freedom be restricted.
ISSUES RAISED
In the case of Kaushal Kishore v State of Uttar Pradesh several important issues were raised.
1.Whether the list of restrictions in article 19(2) (freedom of speech) are exhaustive or not? The questions ask whether the list is complete.
2.The second issue is whether articles 19 and 21 can also be claimed against non-state entities.
3.Did the statements made by the ministers contribute vicariously to the government itself keeping in mind the principle of collective responsibility?
4.Lastly can a statement made by ministers inconsistent with Fundamental rights be actionable as a “constitutional tort” (as we can refer to the statement as a violation of constitutional rights.)
CONTENTION
The case of Kaushal Kishor v. The State of Uttar Pradesh is important as it discusses the balance between freedom of speech and the right to life under the Indian constitution. The major legal provisions involved in this case are article 19 (freedom of speech), article 21 (right to life), article 75(3) and 164(2) (collective responsibility of ministers). India being a democratic country, gives its citizens a crucial right, freedom of speech but that right has certain restrictions. The debate surrounds whether the list of restrictions is reasonable, what makes those restrictions not arbitrary and is the list of restrictions a complete list that cannot be further revised. Basically the supreme court had to decide whether the restrictions already in place to limit freedom of speech (listed in article 19 (2) of the constitution) were enough.
The court’s judgement on this, declared that the list of restrictions (article 19 (2)) is exhaustive and cannot be imposed on any other grounds, which meant that the violation of other fundamental rights through freedom of speech cannot be used as a reason to restrict freedom of speech, basically additional restrictions which are not found in article 19(2) cannot be imposed. This decision by the supreme court shows the commitment of upholding the law.
Furthermore the court held that fundamental rights can also be enforced against non-state entities which meant that individuals can seek legal remedies if their rights are violated by private persons or agencies as well (4:1 majority). The court also held that the government will not be held vicariously responsible for ministers’ statements. Lastly the court held that a mere statement by a minister cannot be held actionable as a constitutional tort and be held as a violation of constitutional rights unless the such statement results in harm or loss as a consequence then, the same may be actionable as a constitutional tort.
RATIONALE
Justice Nagarathna (4:1 majority) gave a separate opinion with regard to the list of restrictions being exhaustive. She dissented and acknowledged that certain forms of speech can have a direct conflict with principles of equality and fraternity such as hate speech. She also remarked that all citizens under article 51A of the constitution have certain fundamental duties, which include the duty to promote harmony and common brotherhood and most importantly to renounce practices which are derogatory to women in particular. Given the impact these ministers and other public officials have through their speeches and actions, Justice Nagarathna argued that they have a duty to be responsible through their words and actions.
Justice Nagarathna also had a separate opinion with regard to fundamental rights being imposed against non-state entities. She explained that fundamental rights can be enforced against non-state entities only if they are recognised by a statute or a common law right. The court also held that the state has a duty to protect the rights of individuals even when those rights are threatened or violated by someone other than the state itself, which means that the state has been given the responsibility to take action to prevent violations of fundamental rights by non-state entities such as by private individuals or organisations. Justice Nagarathna added to this that this duty is limited, limited to situations where state inaction would lead to hostile situations or failure to fulfil obligations under a scheme or a policy. For example if a state has implemented a policy to protect the safety of women and the state fails to take an action when these rights are violated by non-state actors, then the state can be considered to have breached its duty. However the state does not have an obligation to take care of its duties.
DEFECTS OF LAW
The court’s decision of affirming the exhaustiveness of the restrictions listed under Article 19(2) of the Indian Constitution may be seen as a defect. As the law is considered to evolve and adapt overtime to the needs of the nation, I believe that by not allowing for judicial expansion of the restrictions listed, the court restricted its own ability to adapt to evolving societal norms. The petitioners in this case argued for a code of conduct for public officials for exercising their article 19 responsibility (Learned Senior Counsel Sri Kaleeswaram Raj represented the petitioners). However, the respondent contended that the restrictions under Article 19(2) are exhaustive and any further restrictions require legislative action. As the court refrained from setting guidelines or codes of conduct, with this decision the court limits judicial intervention and having in mind the impact these public officials hold through their speeches the court neglects regulating the speech of public officials. While the court acknowledged the state’s duty to protect fundamental rights against non-state actors, the judgement lacks clarity on the issue of enforcement of the same.
INFERENCE
Can we conclude from the judgement of the court that, that it is still unclear as to how the state will bridge the gap between this freedom of speech being used as a license to abuse others and violate their rights. “As ‘Parens Patriae,’ the Supreme Court refused to extend the list of ‘reasonable restrictions’ and affirmed the existing list under Article 19(2) as exhaustive. It is expected from the judiciary to protect the rights of individuals and defend them against state arbitrariness. Balancing Article 19(1)(a) with Article 21 is important, as Article 21 could otherwise undermine freedom of expression. The major challenge here is preventing the misuse of free speech while maintaining liberty and constitutional values. From this case one can draw that there is a need for accountability and a mechanism is required for having control over hate speech and insults while balancing that with freedom of speech and expression, as one cannot argue that freedom of speech can easily be misused and hurt others rights.
I believe that specific laws such as codes of conduct against hate speech passing of derogatory remarks are needed given the impact that these hate speeches and insults hold. The judiciary, legislature and executive together must ensure justice is available to all and upholds Fundamental Rights and Duties. As Edmund Burke said, ‘Liberty does not exist with the absence of morality.’ Liberty comes with reasonable restrictions, and we must abide by them to maintain a civilized society.”
REFERENCES
- Kaushal Kishore v. State of Uttar Pradesh & Ors., (2023) 4 S.C.C. 1 (India), https://privacylibrary.ccgnlud.org/case/kaushal-kishore-vs-state-of-uttar-pradesh-ors
- “Kaushal Kishore v State Of Uttar Pradesh: Case Background,” Supreme Court Observer https://www.scobserver.in/cases/kaushal-kishor-uttar-pradesh-azam-khan-freedom-of-speech-and-expression-case-background/
- Kanika Meenaa & Anjali Singh, “Case Comment: Kaushal Kishor vs The State of Uttar Pradesh,” Jus Corpus (2023). https://www.juscorpus.com/wp-content/uploads/2023/02/180.-Kanika-Meena.pdf
- Kaushal Kishore v. State of Uttar Pradesh, (2020) 16 SCC 146. https://blog.ipleaders.in/kaushal-kishore-vs-state-uttar-pradesh-restrictions-article-191a/
SUBMITTED BY : JEEVANJOT KAUR BEDI (OP JINDAL GLOBAL UNIVERSITY)