Note: The Court addressed two related matters: Writ Petition (Criminal) No.113 of 2016, referred to the Constitution Bench on 05.10.2017, and Special Leave Petition (Diary) No.34629 of 2017 from the Kerala High Court, later tagged with the writ petition due to common issues.

Facts:

• Mr. Kaushal Kishor was the Petitioner, and the State of Uttar Pradesh was the Respondent.
• On July 29, 2016, while travelling from Noida to Shahjahanpur on National Highway 91, the Petitioner and his family were intercepted by a gang that allegedly robbed them and gang-raped his wife and minor daughter.
• An FIR was registered on July 30, 2016, and the incident was widely reported across various media platforms. During a press conference, the then U.P. Urban Development Minister labelled the incident a political conspiracy.
• The Petitioner filed Writ Petition (Criminal) No. 113 of 2016 under Article 32 of the Constitution seeking relief, including monitoring the FIR investigation, trial outside the State, and action against the then U.P. Minister for outraging the modesty of the victims.
• The Three-Member Bench did not frame any question but directed the matter before the Constitution Bench.

Background:

Present Writ Petition (Criminal) No. 113 of 2016 before the Three-Judges Bench of the Supreme Court:

• The Petitioner filed Writ Petition (Criminal) No. 113 of 2016 under Article 32 of the Constitution before the Supreme Court. Two learned senior counsel, appointed as amicus curiae, submitted that the issues arising for consideration in the writ petition were of significant importance. On October 5, 2017, a Three-Member Bench directed that the matter in Writ Petition (Criminal) No. 113 of 2016 be referred to the Constitution Bench.

Special Leave Petition @ (Diary) No. 34629 of 2017 before the Kerala High Court:

• Two writ petitions were filed in public interest, alleging that the former Kerala Minister for Electricity made derogatory statements against women on February 2016, April 7, 2017, and April 22, 2017.
• The Petitioner sought a Code of Conduct for Ministers before the Division Bench of the Kerala High Court, which dismissed the petitions, ruling that framing such a code is a matter of moral value and, hence, beyond the Court's jurisdiction.
• The Petitioner, aggrieved by the common order, filed Special Leave Petition (Diary) No. 34629 of 2017 before the Supreme Court.

Writ Petition (Criminal) No. 113 of 2016 & Special Leave Petition @ (Diary) No. 34629 of 2017 before the Constitutional Bench of the Supreme Court:

• The Three-Member Bench of the Supreme Court tagged the common order of the Division Bench of the Kerala High Court with the present writ petition due to common issues.

Relevant Sections:

The Constitution of India, 1950

• Article 14: Equality before law.
• Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
• Article 17: Abolition of Untouchability
• Article 19: Protection of certain rights regarding freedom of speech, etc.
• Article 21: Protection of life and personal liberty
• Article 32: Remedies for enforcement of rights conferred by this Part.
• Article 75: Other provisions as to Ministers – The Union
• Article 164: Other provisions as to Ministers – The State
• Article 226: Power of High Courts to issue certain writs

Overview of written submissions by Shri Kaleeswaram Raj, Advocate for the SLP petitioner:

• The Constitutional mandate of freedom of expression must be preserved, and a voluntary code of conduct for Ministers and an Ombudsman is vital for ensuring accountability and preventing misuse of the freedom of expression. (Paragraph 11 i-iii)
• Importance was placed on freedom of expression, with reference to Sakal Papers (P) Ltd. vs Union of India (1962) 3 SCR 842, asserting that restrictions on freedom of speech must be justified under Article 19(2). It was argued that statements alleging political conspiracy do not inherently breach rights under Article 21 (Paragraph 11 iv-vi)
• The Petitioner emphasised the horizontal effect of fundamental rights, noting a shift from the vertical to horizontal effect where rights apply not only against the State but also to private actors. (Paragraph 11-viii)
• Referring to Praga Tools Corporation vs C.A. Imanual (1969) 1 SCC 585 and Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotasav Smarak Trust vs V.R. Rudani (1989) 2 SCC 691 and several other cases, it was established that Articles 226 and 32 apply to "any person or authority," and the Court can issue writs against non-State actors. (Paragraph 11-xii)
• Articles 75(3) and 164(2) mandate the Council of Ministers' collective responsibility to the House and the public. As highlighted in Common Cause A Registered Society vs. Union of India (1999) 6 SCC 667, this entails (i) unanimous public support by all Council members for its policies and (ii) personal and moral accountability for its outcomes. (Paragraph 11-xviii)
• The State's duty to protect life and liberty falls under Article 21; it cannot be held accountable for every instance where a public functionary's speech affects another person's dignity. (Page 11 Paragraph 8.2 - Justice Nagarthana’s Judgment)
• The cases before the Court did not address conflicts with Article 19. The core question was whether constitutional restraints can be imposed on Ministers and public functionaries to regulate their speech. (Page 12 Paragraph 8.4 - Justice Nagarthana’s Judgment)

Overview of arguments by the Amicus Curiae:

• Reliance was placed on case laws to assert the State's duty to protect citizens' rights from non-state actors and balance conflicting fundamental rights effectively. (Paragraph 10 – Question )
• The State has a Constitutional duty to protect citizens' rights from violations by non-state actors, ensuring an environment where rights are exercised without fear of undue interference or encroachment. (Paragraph 10 – Question 2)
• Reliance on Justice K. S. Puttaswamy vs Union of India (2017) 10 SCC 1 and other cases established that fundamental rights under the Constitution impose a positive obligation on the State to protect beyond mere negative duties. (Paragraph 10 – Question 3)
• As a State functionary, a Minister represents the State in official capacities. Any violation of fundamental rights by the Minister in such capacity is attributable to the State contingent upon detailed inquiry into:

1. whether the statement was made in a personal or official capacity;
2. whether the statement addressed a public or private issue;
3. whether the statement was made on a public or private platform. (Paragraph 10 – Question 4)

• Relying on R. Sai Bharathi vs. J. Jayalalitha (2004) 2 SCC 9, it was contended that a Constitutional functionary is obligated to act in accordance with the constitutional duties of the State. (Paragraph 10 – Question 4)
• Referring to Nilabati Behera vs. State of Orissa (1993) 2 SCC 746 and Common Cause A Registered Society vs. Union of India (1999) 6 SCC 667, it was established that the State is liable under constitutional tort for official acts of a Minister violating fundamental rights. (Paragraph 10 – Question 5)

Overview of arguments by the Attorney General of India: Respondent

• The restrictions in Articles 19 (2) and 19 (6) are exhaustive. Consequently, the Court cannot invoke Article 21 to impose additional restrictions on freedom of speech beyond those specified in Article 19(2).
• As a constitutional principle, any addition, alteration, or change in the norms or criteria for imposing restrictions on fundamental rights must occur through a legislative process. (Paragraph 9 – Question 1)
• Constitutional and legal remedies under Articles 32 and 226 adequately safeguard citizens' liberty. Therefore, there is no additional affirmative duty to protect rights under Article 21. (Paragraph 9 – Question 3)
• Ministerial misconduct, which is not related to statutory duties or public office, cannot invoke collective responsibility. Such acts must be treated as individual violations, carrying personal accountability for legal consequences. (Paragraph 9 – Question 4)
• The principle of Constitutional tort, established in Nilabati Behera vs. State of Orissa (1993) 2 SCC 746, requires a clear legal framework to ensure coherent procedures and principles, preventing ambiguity in providing constitutional remedies for rights violations. (Paragraph 9 – Question 5)

Main Issues:

Issue 1: Are the grounds mentioned in Article 19(2) that allow for reasonable restrictions on the right to free speech exhaustive? Can additional restrictions be imposed on grounds beyond those specified in Article 19(2) by invoking other fundamental rights? (Paragraph 3)