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TMI Blog2023 (1) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights? - HELD THAT:- 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. Whether a fundamental right under Article 19 or 21 can be claimed against anyone other than the State or its instrumentalities? - HELD THAT:- A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? - HELD THAT:- 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve political parties. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? - HELD THAT:- Any citizen, who is prejudiced by any form of attack, as a result of speech/expression through any medium, targeted against her/him or by speech which constitutes hate speech or any species thereof, whether such attack or speech is by a public functionary or otherwise, may approach the Court of Law under Criminal and Civil statutes and seek appropriate remedies. Whenever permissible, civil remedies in the nature of declaratory remedies, injunctions as well as pecuniary damages may be awarded as prescribed under the relevant statutes. 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 THAT:- 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that 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. v) On question 5, majority held that 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 constitutional rights and become actionable as a Constitutional tort. whereas Hon ble Nagarathna. J held that A proper legal framework is necessary to define the acts or omissions which would amount to constitutional torts, and the manner in which the same would be redressed or remedied on the basis of judicial precedent. 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 constitutional torts. Petitions are directed to be listed before an appropriate Bench after seeking orders of Hon ble the Chief Justice of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eech. The translation of this verse by G.U. Pope in English reads thus: "In flesh by fire inflamed, nature may thoroughly heal the sore; In soul by tongue inflamed, the ulcer healeth never more." A Sanskrit Text contains a piece of advice on what to speak and how to speak. सत्यं ब्रूयात् प्रियं ब्रूयान्न ब्रूयात् सत्यमप्रियम्। प्रियं च नानृतं ब्रूयादेष धर्मः सनातनः।। satyam bruyat priyam bruyan na bruyat satyam apriyam | priyam ca nanrtam bruyad eSa dharmah sanatanah || The meaning of this verse is: "Speak what is true; speak what is pleasing; Do not speak what is unpleasant, even if it is true; And do not say what is pleasing, but untrue; this is the eternal law." The " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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? 5) Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as 'Constitutional Tort"? …" II. A brief backdrop 4. Without a brief reference to the factual matrix, the questions to be answered by us may look abstract. Therefore, we shall now refer to the background facts in both these cases. 5. Writ Petition (Criminal) No.113 of 2016 was filed under Article 32 of the Constitution praying for several reliefs including monitoring the investigation of a criminal complaint in FIR No.0838/2016 under Section 154 Cr.P.C., for the offences under Sections 395, 397 and 376D read with the relevant provisions of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act') and for the trial of the case outside the State and also for registering a complaint against the then Minister for Urban Development of the Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were in the realm of moral values and that the question whether the Chief Minister should frame a code of conduct for the Ministers of his cabinet or not, is not within the domain of the Court to decide. Therefore, challenging the said common order, the petitioner in one of those public interest writ petitions has come up with Special Leave Petition (Diary) No.34629 of 2017. Since the questions raised by the petitioner in the Special Leave Petition overlapped with the questions raised in the Writ Petition, they have been tagged together. III. Contentions 8. We have heard Shri R. Venkataramani, learned Attorney General for India, Ms. Aparajita Singh, learned senior counsel who assisted us as amicus curiae, Shri Kaleeswaram Raj, learned counsel for the petitioner in the special leave petition and Shri Ranjith B. Marar, learned counsel appearing for the person who sought to intervene/implead. III.A. Preliminary note submitted by learned Attorney General for India 9. The learned Attorney General for India submitted a preliminary note containing his submissions questionwise, which can be summed up as follows: Question No.1 (i) On question No.1 it is his submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles of collective responsibility. The concept of vicarious liability is incapable of being applied to situations and no government can ever be vicariously liable for malfeasance or misconduct of Minister not traceable to statutory duty or statutory violations for the purpose of legal remedies. Ministerial misdemeanors, which have nothing to do with the discharge of public duty and not traceable to the affairs of the State, will have to be treated as acts of individual violation and individual wrong. To extend in the abstract, the liability of the State to such situations or instances without necessary limitations can be problematic. Post M/s. Kasturi Lal Ralia Ram Jain vs. The State of Uttar Pradesh [AIR 1965 SC 1039] and following Rudul Sah vs. State of Bihar [(1983) 4 SCC 141] this Court has treated misconduct of public servants or officers and consequent infringement of Constitutional rights as ground for grant of compensation. However, there is need for clarity and certainty as far as the conceptual basis is concerned. This may be better resorted through enacted law. Question No. 5 (v) While the principle of Constitutional tort has been conceived in Nilabati Behera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to privacy under Article 21 was held to trump the right to know under Article 19(1)(a). This was in the case of Ram Jethmalani vs. Union of India [(2011) 8 SCC 1], which concerned the right to privacy of account holders. In Sahara India Real Estate Corporation Limited vs. Securities and Exchange Board of India [(2012) 10 SCC 603], this Court struck a balance between the right of the media under Article 19(1)(a) with the right to fair trial under Article 21. The argument that free speech under Article 19(1)(a) was a higher right than the right to reputation under Article 21 was rejected by this Court in Subramanian Swamy vs. Union of India, Ministry of Law [(2016) 7 SCC 221] in which Section 499 IPC was under challenge. The right to free speech was balanced with the right to pollution free life in Noise Pollution (V.), in Re [(2005) 5 SCC 733] and the right to fair trial of the accused was balanced with the right to fair trial of the victim in Asha Ranjan vs. State of Bihar [(2017) 4 SCC 397] Question No. 2 (ii) There are some fundamental rights which are specifically granted against nonState actors. Article 15(2)(a) - access to shops, public restaurants, hotels and plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pholding the power of the Constitutional Court to transfer an investigation to the CBI without the consent of the concerned State, emphasized the duty of the State to conduct a fair investigation which is a fundamental right of the victim under Article 21. The majority judgment in Justice K.S. Puttaswamy (supra), defines the positive obligation of the State to ensure the meaningful exercise of the right of privacy. In S. Rangarajan vs. P. Jagjivan Ram.[ (1989) 2 SCC 574], this Court has categorically laid down that the State cannot plead its inability to protect the fundamental rights of the citizens. In Union of India vs. K.M. Shankarappa.[ (2001) 1 SCC 582], Section 6(1) of the Cinematograph Act, 1952 which granted the Central Government, the power to review the decision of the quasijudicial Tribunal under the Act, was sought to be defended on the ground of law and order. The contention was rejected holding that it was the duty of the Government to ensure law and order. In Indibly Creative Private Limited vs. Government of West Bengal.[ (2020) 12 SCC 436], the negative restraint and positive obligation under Article 19(1) (a) has been explained. In Pt. Parmanand Katara vs. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bharathi vs. J. Jayalalitha.[ (2004) 2 SCC 9], as it does not have any statutory force. An argument can be made that the Minister is personally bound by the oath of his office to bear true faith and allegiance to the Constitution of India under Articles 75(4) and 164(3) of the Constitution. The Constitution imposes a solemn obligation on the Minister as a Constitutional functionary to protect the fundamental rights of the citizens. The code of conduct for Ministers (Both for Union and States) specifically lays down that the Code is in addition to the ". . . observance of the provisions of the Constitution, the Representation of the People Act, 1951". Therefore, a Constitutional functionary is duty bound to act in a manner which is in consonance with this constitutional obligation of the State. Question No. 5 (v) The State acts through its functionaries. Therefore, the official act of a Minister which violates the fundamental rights of the citizens, would make the State liable under constitutional tort. The principle of sovereign immunity of the State for the tortious acts of its servant, has been held to be inapplicable in the case of violation of fundamental rights. The princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot be curtailed, in the interest of the general public, as in the case of freedom to carry on business; (vii) Restricting speech by public figures, such as politicians, on serious crimes will have great impact on the freedom of speech. Such criticism which calls out true conspiracies and true miscarriage of justice, plays an important role in a democracy; (viii) In so far as the enforcement of fundamental rights against nonState actors is concerned, the vertical approach is giving way to the concept of horizontal application. The vertical approach connotes a situation where the enforceability is only against the Government and not against private actors. But with Nation States gradually moving from laissez faire governance to welfare governance, the role of the State is ever expanding, which justifies the shift. (ix) While the South African Constitution has adopted a horizontal application by providing in Section 9(4) of the Bill of Rights of Final Constitution of 1996 that no person may unfairly discriminate di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) private players performing public duties/functions; and (ii) nonState actors performing statutory activities that impact the rights of citizens. Cases which fall under these two categories have been held by this Court to be amenable to writ jurisdiction as seen from several decisions including M.C. Mehta vs. Union of India.[AIR 1987 SC 1086] . Absent any of these parameters, the Court has refused to exercise writ jurisdiction as seen from Binny Ltd. vs. V. Sadasivan.[(2005) 6 SCC 657]; (xiv) Even in jurisdictions where socio economic rights have been elevated in status to that of constitutional rights, the enforcement of those rights were made available only against the State and not against private actors, as held by this Court in Society for Unaided Private Schools of Rajasthan vs. Union of India.[ (2012) 6 SCC 1]; (xv) On the issue of potential conflict of rights, it is important to bear in mind the distinction between constitutional rights and constitutional values. On a formal level, values are understood teleologically as things to be promoted or maximized. Rights, on the other hand, are not to be promoted but rather to be respected. It would not show proper concern f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsure that such breaches do not happen; (xx) A code of conduct to selfregulate the speeches and actions of Ministers is constitutionally justifiable and this Court can definitely examine its requirement. Ideally, a Minister is not supposed to breach his collective responsibility towards the Cabinet and the Legislature and hence, it is advisable to have a cogent code of conduct as occurring in advanced democracies; (xxi) While it is not possible to impose additional restrictions on the freedom of speech, it is certainly desirable to have a code of conduct for public functionaries, as followed in other jurisdictions. The Court may keep in mind the fact that this Court in Sahara India Real Estate Corporation Limited (supra) cautioned against framing guidelines across the board to restrict the freedom of Press; (xxii) Coming to hate speeches, there has been a steep increase in the number of hate speeches since 2014. From May2014 to date, there have been 124 reported instances of derogatory speeches by 45 politicians. Social media platforms have connived the proliferation of targeted hate speech. Such speeches provide fertile ground for incitement to violence; (xxiii) On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enity, blasphemy and defamation. Sardar Vallabhbhai Patel suggested the inclusion of libel also. These restrictions were sought to be justified by citing the decision in Gitlow vs. New York.[286 US 652 (1925] 14. Since the country had witnessed large scale communal riots at that time, Sir Alladi Krishnaswamy Iyer forcefully argued for the inclusion of security and defence of the State or national security as one of the restrictions. Discussion also took place about restricting speech that is intended to spoil communal harmony and speech which is seditious in nature. With suggestions, counter suggestions and objections so articulated, the initial report of the Sub Committee on Fundamental Rights underwent a lot of changes. The evolution of clauses (1) and (2) of Article 19 stage by stage, from the time when the draft report was submitted in April 1947, upto the time when the Constitution was adopted, can be presented in a tabular form[1] as follows: Draft Provision Draft Report of the Subcommittee on Fundamental Rights, April 1947 (BSR II, 139) 9. There shall be liberty for the exercise of the following rights subject to public order and morality: (a) The right of every citiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against decency or morality or undermines the authority or foundation of the State. Proposal introduced in the Constituent Assembly in October 1948 (BSR IV, 39) 13. (1) Subject to the other provisions of this Article, all citizens shall have the right - (a) to freedom of speech and expression; … (2) Nothing in subclause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the security of, or tends to overthrow, the State. Revised Draft Constitution, introduced and adopted in November 1949 (BSR IV, 755) 19. (1) All citizens shall have the right (a) to freedom of speech and expression; … (2) Nothing in subclause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. 15. Immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Editor of an English weekly by name 'Organizer', to submit for scrutiny, before publication, all communal matters and news and views about Pakistan including photographs and cartoons, other than those derived from the official sources. Following the decision in Romesh Thappar, the Constitution Bench held that the imposition of precensorship on a journal is a restriction on the liberty of the Press, which is an essential part of the right to freedom of speech and expression. The Bench went on to hold that Section 7(1)(c) of the East Punjab Public Safety Act, 1949 does not fall within the reservation of clause (2) of Article 19. 18. After aforesaid two decisions, the Parliament sought to amend the Constitution through the Constitution (First Amendment) Bill, 1951. In the Statement of Objects and Reasons to the First Amendment, it was indicated that the citizen's right to freedom of speech and expression guaranteed by Article 19(1)(a) has been held by some Courts to be so comprehensive as not to render a person culpable, even if he advocates murder and other crimes of violence. Incidentally, the First Amendment also dealt with other issues, about which we are not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads as follows: "23. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the peopl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (2) of Article 19 which we have captured above shows that lot of deliberations went into the articulation of the restrictions now enumerated. The draft Report of the Sub-Committee on Fundamental Rights itself underwent several changes until the Constitution was adopted in November, 1949. In the form in which the Constitution was adopted in 1949, the restrictions related to (i) libel; (ii) slander; (iii) defamation; (iv) contempt of court; (v) any matter which offends against decency or morality; and (vi) any matter which undermines the security of the State or tends to overthrow the State. 25. After the 1st and 16th Amendments, the emphasis is on reasonable restrictions relating to, (i) interests of sovereignty and integrity of India; (ii) the security of the State; (iii) friendly relations with foreign states; (iv) public order; (v) decency or morality; (vi) contempt of court; (vii) defamation; and (viii) incitement to an offence. 26. A careful look at these eight heads of restrictions would show that they save the existing laws and enable the State to make laws, restricting free speech with a view to afford protection to (i) individuals (ii) groups of persons (iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... people from undermining the authority of the court. Section 228A of the IPC Disclosure of identity of the victim of certain offences etc 1. Public Order 2. Decency and Morality Individual persons (Victims of offences u/s 376) Protection of identity of women and minors. Section 295A of the IPC Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs 1. Public order, 2. Decency and morality Sections of society professing and practicing different religious beliefs/sentiments. Section 298 of the IPCUttering words, etc., with deliberate intent to wound religious feelings 1. Public order, 2. Decency and morality Sections of society professing and practicing different religious beliefs/sentiments. Section 351 of the IPC - Assault. The definition of assault includes some utterances, as seen from the Explanation under the Section. Explanation: Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. 1. Public Order 2. Decency and morality Individual Persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commission of offences against the State and protection of public tranquility. Section 505(1)(c) of the IPC Statement intended to incite any class or community of persons to commit any offence against any other class or community Public Order Class/community of people. Protection from incitement to commit violence against class or community. Section 509 of the IPC - Word, Gesture or Act intended to insult the modesty of a woman 1. Defamation 2. Decency or Morality Individual persons - Protection of Modesty of a Woman. 27. We have taken note of, in the above Table, only the provisions of the Indian Penal Code that curtail free speech. There are also other special enactments such as The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, The Prevention of Insults to National Honour Act, 1971 etc., which also impose certain restrictions on free speech. From these it will be clear that the eight heads of restrictions contained in clause (2) of Article 19 are so exhaustive that the laws made for the purpose of protection of the individual, sections of society, classes of citizens, court, the country and the State have been saved. 28. The restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, and becomes a part of the constitutional interpretation itself. It can be used in the future in a manner and form that may far exceed what this Court intended or what the constitutional text and values can bear. We are not proposing that Constitutions cannot be interpreted in a manner that allows the nationState to tackle the problems it faces. The principle is that exceptions cannot be carved out willynilly, and without forethought as to the damage they may cause. 86.One of the chief dangers of making exceptions to principles that have become a part of constitutional law, through aeons of human experience, is that the logic, and ease of seeing exceptions, would become entrenched as a part of the constitutional order. Such logic would then lead to seeking exceptions, from protective walls of all fundamental rights, on grounds of expediency and claims that there are no solutions to problems that the society is confronting without the evisceration of fundamental rights. That same logic could then be used by the State in demanding exceptions to a slew of other fundamental rights, leading to violation of human rights of citizens on a massive scale." 30. Again, in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1957). 2.Child Pornography as held in Ashcroft v. Free Speech Coalition, 435 U.S. 234 (2002). 3. Fighting Words and True Threat as held in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) and Virginia v. Black, 538 U.S. 343, 363 (2003), respectively. Australia Australian Constitution does not expressly speak about freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals. Australia is a party to seven core international human rights treaties. The right4. Public order, to freedom of opinion and expression is contained in Articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR)and Articles 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , Articles 12 and 13 of the Convention on the Rights of the Child (CRC) and Article 21 of the Convention on the Rights of Persons with Disabilities (CRPD). 1. Article 19(3), 20 of the ICCPR contains mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, we think that the restrictions contained in clause (2) of Article 19 are exhaustive and no further restriction need to be incorporated. 33. 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 gatekeeper (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same grounds as are set out in cl. (6) of Art. 19. Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged it is no answer that the restrictions enacted by it are justifiable under cls. (3) to (6). For, the scheme of Art. 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and cl. (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending 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. 41. As articulated by Jeevan Reddy, J. in Cricket Association of Bengal, no one can exercise his right of speech in such a manner as to violate another man's right. In paragraph 152 of the decision in Cricket Association of Bengal, Jeevan Reddy, J. said : "Indeed it may be the duty of the State to ensure that this right is available to all in equal measure and that it is not hijacked by a few to the detriment of the rest. This obligation flows from the Preamble to our Constitution, which seeks to secure all its citizens liberty of thought, expression, belief and worship………...Under our Constitutional scheme, the State is not merely under an obligation to respect the fundamental rights guaranteed by PartIII but under an equal obligation to ensure conditions in which those rights can be meaningfully and effectively enjoyed by one and all." 42. The above passage from the opinion of Jeevan Reddy, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21. …" (iv) In Ram Jethmalani the right to know, inhering in Article 19(1)(a) and the right to privacy under Article 21, were seen to be in conflict. Right to privacy was asserted by individuals holding bank accounts in other countries. The court had to balance the same with the citizens' right to know. This Court propounded as follows: "84. The rights of citizens, to effectively seek the protection of fundamental rights, under clause (1) of Article 32 have to be balanced against the rights of citizens and persons under Article 21. The latter cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems such as unaccounted for monies, for it would lead to dangerous circumstances, in which vigilante investigations, inquisitions and rabble rousing, by masses of other citizens could become the order of the day. The right of citizens to petition this Court for upholding of fundamental rights is granted in order that citizens, interalia, are ever vigilant about the functioning of the State in order to protect the constitutional proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed [existing law under Article 19(2)] and they continue till date not only as part of rule of law under Article 14 but also as an Article 21 right. The constitutional protection in Article 21 which protects the rights of the person for a fair trial is, in law, a valid restriction operating on the right to free speech under Article 19(1)(a), by virtue of force of it being a constitutional provision. Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is "the end and purpose of all laws". However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal than life and not hesitated to barter death for it. Some have condemned compelled silence to ruthless treatment. William Dougles has denounced regulation of free speech like regulating diseased cattle and impure butter. The Court has in many an authority having realised its precious nature and seemly glorified sanctity has put it in a meticulously structured pyramid. Freedom of speech is treated as the thought of the freest who has not mortgaged his ideas, may be wild, to the artificially cultivated social norms; and transgression thereof is not perceived as a folly. Needless to emphasise, freedom of speech has to be allowed specious castle, but the question is: should it be so specious or regarded as so righteous that it would make reputation of another individual or a group or a collection of persons absolutely ephemeral, so as to hold that criminal prosecution on account of defamation negates and violates right to free speech and expression of opinion…" (viii) In Asha Ranjan (supra), the right to free trial, of an accused visàvis the victim, came up for consideration. The Court propounded in paragraph 61: "61. Be it stated, circumstances may emer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eption of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes "Rule of Law". …" (ix) In Railway Board representing the Union of India vs. Niranjan Singh.[(1969) 1 SCC 502], a trade union worker was charged of the misconduct of addressing meetings within the railway premises, in contravention of the directions issued by the employer. When he sought protection under clauses (a), (b) and (c) of Article 19(1), this Court rejected the same by holding "that the exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes." This Court went on to state that "the validity of that limitation is not to be judged by the test prescribed in subArticles (2) and (3) of Article 19". (x) In Life Insurance Corporation of India vs. Prof. Manubhai D. Shah.[(1992) 3 SCC 637], two fundamental rights were not competing or in conflict with each other. But the right to free speech and the right to propagate one's ideas, in the context of censorship under the Cinematograph Act, 1952 and in the context of a State institution refusing to publish an Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zontal Effect' of Constitutional Rights", published in Michigan Law Review (Volume 2. Issue 3, 2003) Stephen Gardbaum, states that the horizontal position has been adopted to varying degrees in Ireland, Canada, Germany, South Africa and European Union. According to the learned author, this issue has also been the topic of sustained debate in the United Kingdom following the enactment of the Human Rights Act of 1998.[Interestingly The Protection of Human Rights Act, 1993 was enacted in India five years] 49. No jurisdiction in the world appears to be adopting, at least as on date, a purely vertical approach or a wholly horizontal approach. A vertical approach provides weightage to individual autonomy, choice and privacy, while the horizontal approach seeks to imbibe Constitutional values in all individuals. These approaches which appear to be bipolar opposites, raise the ageold question of 'individual vs. society'. 50. Even in countries where the individual reigns supreme, as in the United States, the Thirteenth Amendment making slavery and involuntary servitude a punishable offence, has actually made inroads into individual autonomy. Therefore, some scholars think that the Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Clause of the Fourteenth Amendment. In other words the contractual rights were trumped by the Constitutional obligations. 53. Then came the decision in New York Times vs. Sullivan.[376 U.S. 254 (1964] . It was a case where the City Commissioner in Montgomery, Alabama filed an action for libel against the New York Times for publishing an allegedly defamatory statement in a paid advertisement. The jury awarded damages and the judgment was affirmed by the Supreme Court of Alabama. However, the U.S. Supreme Court reversed the decision and held that the First Amendment which prohibited a public official from recovering damages for a defamatory falsehood relating to the public official's official conduct except in the case of actual malice, bound the plaintiff from exercising his private right. 54. The above decisions of the U.S. Supreme Court were seen by scholars as indicating a shift from a 'purely vertical approach' to a 'horizontal approach'. 55. While the U.S. Constitution represented (to begin with) a purely vertical approach, the Irish Constitution was found to be on the opposite side of the spectrum, with the rights provided therein having horizontal effect. Article 40 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right." 59. The manner in which Section 8.2 has to be applied is spelt out in Section 8.3. The same reads thus: "8. Application … 3. When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2) a court a. in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and b. may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)." 60. Section 9 of the Constitution of the Republic of South Africa guarantees equality before law and equal protection and the benefit of the law to everyone. Section 9.3 mandates the State not to unfairly discriminate directly or indirectly against anyone, on one or more grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dea that the debate was one of "verticality versus horizontality". He said that Chapter 3 rights do not operate only as against the State but also horizontally as between individuals where Statutes are involved. Calling "direct horizontality" as a bogeyman, Kriegler, J. said as follows: "The Chapter has nothing to do with the ordinary relationships between private persons or associations. What it does govern, however, is all law, including that applicable to private relationships. Unless and until there is a resort to law, private individuals are at liberty to conduct their private affairs exactly as they please as far as the fundamental rights and freedoms are concerned. As far as the Chapter is concerned a landlord is free to refuse to let a flat to someone because of race, gender or whatever; a white bigot may refuse to sell property to a person of colour; a social club may blackball Jews, Catholics or Afrikaners if it so wishes. An employer is at liberty to discriminate on racial grounds in the engagement of staff; a hotelier may refuse to let a room to a homosexual; a church may close its doors to mourners of a particular colour or class. But none of them can invoke the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the state or organs of state, it is clear that the right to freedom of expression is of direct horizontal application in this case as contemplated by section 8(2) of the Constitution. The first question we need then to determine is whether the common law of defamation unjustifiably limits that right. If it does, it will be necessary to develop the common law in the manner contemplated by section 8(3) of the Constitution." 65. The horizontal effect was taken to another extreme by the Constitutional Court of South Africa in Governing Body of the Juma Musjid Primary School & Others vs. Essay N.O. and Others.[(CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC)] wherein it was held that an eviction order obtained by the owner of a private land on which a public school was located, could not be enforced as it would impact the students' right to basic education and the best interests of the child under the South African Constitution (Sections 28 and 29). The Court held that a private landowner and nonState actor has a Constitutional obligation not to impai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Human Rights, for a long time. Finding that it took an average of five years to get an action in the European Court of Human Rights after all domestic remedies are exhausted and also finding that on an average, the same costed £30,000, a white paper was submitted in 1997 under the title "Rights Brought Home". This led to the enactment of the Human Rights Act, 1998 by the Parliament of the United Kingdom. It came into force on 2.10.2000 (coincidentally Gandhi Jayanti Day). This Act sought to incorporate into the domestic law, the rights conferred by the European Convention, so that the citizens need not go to the European Court of Human Rights in Strasbourg. After the enactment of the Human Rights Act, the horizontal effect of Convention Rights became the subject matter of debate in several cases. 67. For instance, Douglas vs. Hello! Ltd.[[2001] QB 967] was a case where the right to privacy of an individual was pitted against the right of free speech and expression. In that case, a magazine called OK! was given the exclusive right to publish the photographs of the wedding reception of a celebrity couple that took place at New York. On the day of the wedding, certain pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been interpreted by the Strasbourg court as imposing a positive obligation on the state to secure the observance and enjoyment of the right between private individuals. (2) If the facts of the case fall within the ambit of article 8, the state is also under a positive obligation under article 14 to secure to private individuals the enjoyment of the right without discrimination, including discrimination on the ground of sexual orientation. (3) A person's sexual orientation and private sex life fall within the scope of the Convention right to respect for private life (see ADT v. UK [2000] 2 FLR 697) and the right to nondiscrimination in respect that right. Interference with the right within article 8.1 has to be justified under article 8.2." 69. In Plattform "Ärzte Für Das Leben" vs. Austria.[[1988] ECHR 15], a question arose as to the enforceability of the right to freedom of assembly against nonState actors, who obstructed the assembly. The case arose out of these facts. On 28 December 1980, the antiabortion NGO "Ärzte für das Leben" (Physicians for Life) organised a religious service and a march to the clinic of a docto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of State obligation on the protection of the right to life even against private persons as follows: "23. The Court recalls that although the object of Article 8 (art. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see the Airey judgment of 9 October 1979, Series A no. 32, p. 17, para. 32). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves." 71. Having taken an overview of the theoretical aspect of "verticality vs horizontality" and the approach of Constitutional Courts in other jurisdictions, let us now come back to the Indian context. 72. PartIII of the Indian Constitution begins with Article 12 which defines the expression "the State" to include the Government and the Parliament of India and the Government and the Legislature of each of the States and all local or other author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 6. - Article 17 abolishes untouchability and forbids the practice of the same in any form and declares it to be a punishable offence. Neither the word "citizen" nor the word "person" is mentioned in Article 17. It means that what is abolished is the practice and any violation of this injunction is punishable. 7. - Six types of rights are listed in Article 19(1), as available to all citizens. Citizens 8. Article 20 confers three different rights namely (i) not to be convicted except by the application of a law in force at the time of the commission of offence; (ii) not to be prosecuted and punished for the same offence more than once; and (iii) right against self incrimination. - Persons 9. - Article 21 protects life and liberty of all persons. Persons 10. Article 21A mandates the State to provide free and compulsory education to all children of the age of six to fourteen years. - Children 11. Article 22 provides protection against arrest and detention generally and saves preventive detention with certain limitations. - All persons except an enemy alien (Article 22(3) (a) makes the provision inapplicable to an enemy alien). 12. - Article 23(1) proh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot. This is an indication that some of the rights conferred by PartIII are to be honored by and also enforceable against, nonState actors. 75. For instance, the rights conferred by Articles 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) etc., are obviously enforceable against nonState actors also. The owner of a shop, public restaurant, hotel or place of entertainment, though a nonState actor cannot deny access to a citizen of India on grounds only of religion, race etc., in view of Article 15(2)(a). So is the case with wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public, in view of Article 15(2)(b). The right not to be enforced with any disability arising out of untouchability is available against non-State actors under Article 17. The right against double jeopardy, and the right against self incrimination available under sub-Articles (2) and (3) of Article 20 may also be available even against non-State actors in the case of prosecution on private complaints. We need not elaborate more, as the table given above places all rights in perspecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the concept of State has undergone drastic changes in recent years and that today State cannot be conceived of simply as a coercive machinery wielding the thunderbolt of authority. The learned Judge quoted the decision of the US Supreme Court in Marsh vs. Alabama.[326 US 501 (1946)], where a person who was a Jehovah's witness was arrested for trespassing and distributing pamphlets, in a company town owned by a corporation. Though the property in question was private, the Court said that the operation of a town was a public function and that therefore, the private rights of the corporation must be exercised within constitutional limitations. After quoting the decision in Marsh, K.K. Mathew, J. went on to hold as follows: "95. But how far can this expansion go? Except in very few cases, our Constitution does not, through its own force, set any limitation upon private action. Article 13(2) provides that no State shall make any law which takes away or abridges the rights guaranteed by Part III. It is the State action of a particular character that is prohibited. Individual invasion of individual right is not, generally speaking, covered by Article 13(2). In other words, it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State's liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme. In paragraph 34, which contains the separate but concurring opinion of Dr. A.S. Anand, J., the law was summarised as follows: "34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the learned amicus, this Court has awarded damages against nonState actors under the environmental law regime, whenever they were found to have violated the right under Article 21. For instance this Court was concerned with a case in M.C. Mehta vs. Kamal Nath [(1997) 1 SCC 388] where a company built a club on the banks of River Beas, partly taken on lease from the Government and partly by encroaching into forest land and virtually turning the course of the River. Invoking the "polluter pays principle" and "precautionary principle" landscaped in Vellore Citizens' Welfare Forum vs. Union of India.[ (1996) 5 SCC 647].and also applied in Indian Council for EnviroLegal Action vs. Union of India.[(1996) 3 SCC 212], this Court held the owner of the private motel to be liable to pay compensation towards the cost of restoration of the ecology of the area. Thereafter, a show cause notice was issued to the motel as to why they should not be asked to pay compensation to reverse the degraded environment and as to why a pollution fine should not be imposed. In response, the motel contended before this Court that though in proceedings under Article 32 it was open to this Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law." (xi) In Vishaka vs. State of Rajasthan.[(1997) 6 SCC 241], this Court laid down guidelines, in the absence of a legislation, for the enforcement of the right to gender equality of working women, in a class action petition that was filed to enforce fundamental rights of working women and to prevent sexual harassment of women in workplace. The guidelines imposed an obligation upon both public and private employers not to violate the fundamental rights guaranteed to working women under Article 14, 15, 19(1)(g) and 21. In Medha Kotwal Lele & Ors. vs. Union of India.[ (2013) 1 SCC 297],this Court noted that even after 15 years of the judgment in Vishaka (supra), many States had not made the necessary amendments or failed to effectively implement the guidelines. This Court issued a direction in Paragraph 44.4 : "44.4 The State functionaries and private and public sector undertakings/organisations/b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (2) of Article 15. In this regard, the purport of the above exposition of clause (2) of Article 15, when read in the context of egalitarian jurisprudence inherent in Articles 14, 15, 16 and Article 38, and read with our national aspirations of establishing a society in which equality of status and opportunity, and justice, social, economic and political, would imply that the private sector which offers such facilities ought not to be conducting their affairs in a manner which promote existing discriminations and disadvantages." (xiv) In Society for Unaided Private Schools of Rajasthan (supra), the constitutionality of Section 12 of the Right of Children to Free and Compulsory Education Act, 2009 was challenged on the ground that it violated Articles 19(1)(g) and 30 of those who had established schools in the private sector. While upholding the Constitutionality of the provision, which required all schools, private and Statefunded, to reserve 25% of its intake for students from disadvantaged background, this Court held: "222. The provisions referred to above and other provisions of international conventions indicate that the rights have been guaranteed to the children ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Janet Jeyapaul vs. SRM University.[(2015) 16 SCC 530], on the ground that though it is a private university, it was discharging "public functions", by imparting education. 77. All the above decisions show that on a casetocase basis, this Court applied horizontal effect, considering the nature of the right violated and the extent of obligation on the part of the violator. But to enable the courts to have certain basic guidelines in place, for dealing with such cases, this Court developed a tool in Justice K.S. Puttaswamy. While affirming the right to privacy as a fundamental right, this Court laid down the landscape as follows: "397. Once we have arrived at this understanding of the nature of fundamental rights, we can dismantle a core assumption of the Union's argument: that a right must either be a common law right or a fundamental right. The only material distinctions between the two classes of right--of which the nature and content may be the same--lie in the incidence of the duty to respect the right and in the forum in which a failure to do so can be redressed. Common law rights are horizontal in their operation when they are violated by one's fellow m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we would answer Question No. 2 as follows: "A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities" Question No. 3 79. "Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?" is the third question referred to us. 80. Before we proceed further, it is necessary to make a small correction. Article 21 right is available not only to citizens but to all persons. Therefore, the word 'citizen' mentioned in Question No.3 has to be read as 'person'. 81. As we have pointed out in the Table under paragraph 73 above, 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 PartIII which we have outlined both in the preceding paragraphs and in the Table in paragraph 73, it is clear that the State has two obligations, (i) not to deprive a person of his life and lib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tsourced to nonState actors or been entrusted to publicprivate partnerships. This is why, the High Courts and this Court modulated the tests to be applied for finding out the maintainability of an action under Article 226 or Article 32. Once upon a time, the maintainability of a petition under Article 32/226 depended upon "who the respondent was". Later, the focus shifted to "the nature of the duties/functions performed" by the respondent, for finding out his amenability to the jurisdiction under Article 226. 85. Life and personal liberty are two different things, even while being an integral part of a whole and they have different connotations. Question No. 3 is so worded that the focus is not on 'deprivation of life' but on (i) 'deprivation of personal liberty' and that too by the acts or omissions of another person or private agency; and (ii) the duty of the State to affirmatively protect it. Therefore, we shall, in our discussion, focus more on two aspects, namely, (i) deprivation of personal liberty by nonState actors; and (ii) the duty of the State. An elaborate exposition of the expression "personal liberty" and its origin in Greek civilization may be fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man's mind are in a real sense physical restraints, for they engender physical fear channelling one's actions through anticipated and expected grooves. So also creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his "castle"; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in (1948) 338 US 25, pointing out the importance of the security of one's privacy against arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the State.The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures.[See 26 Stanford Law Rev. 1161, 1187]" 88. Thus, 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 (supra). From there, the law marched to the next stage in Satwant Singh Sawhney vs. D. Ramarathnam, Assistant Passport Officer, New Delhi.[AIR 1967 SC 1836] 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 exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act, 1976 but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such a situation can be set right by the State Government. Even if the State Government is on its own enquiry satisfied that the workmen are not bonded and are not compelled to provide forced labour and are living and working in decent conditions with all the basic necessities of life provided to them, the State Government should not baulk an enquiry by the Court when a complaint is brought by a citizen, but it should be anxious to satisfy the Court and through the Court, the people of the country, that it is discharging its constitutional obligation fairly and adequately and the workmen are being ensured social and economic justice. …" 92. Therefore, three major breakthroughs happened, the first in Kharak Singh, the second in Satwant Singh and Maneka Gandhi (supra) and the third in Bandhua Mukti Morcha (supra). The first breakthrough was the opinion, though of a minority, that physical res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the right to privacy and the duty of confidentiality that the hospital had in their relationship with him. Though this Court partly agreed with Mr. "X" the court found that the disclosure made by the hospital actually saved the life of a lady. But while dealing with a right under Article 21 visàvis the hospital (a private hospital), this Court held as follows : "27. Right of privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, doctorpatient relationship, though basically commercial, is, professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of the right of privacy which may sometimes lead to the clash of one person's "right to be let alone" with another person's right to be informed. 28. Disclosure of even true private facts has the tendency to disturb a person's tranquillity. It may generate many complexes in him and may even lead to psychological problems. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases involving both the right to life as well as liberty. 96. For instance, in Suchita Srivastava & Anr. vs. Chandigarh Administration.[(2009) 9 SCC 1],this Court had an occasion to consider the reproductive rights of a mentallychallenged woman. This right was read as part of the right to life and liberty under Article 21. In Devika Biswas vs. Union of India.(2016) 10 SCC 726], this Court considered certain issues concerning the entire range of conduct and management, under the auspices of State Governments, of sterilization procedures, either in camps or in accredited centres and held that the right to health and reproductive rights of a person are part of the right under Article 21. While doing so, this Court quoted with approval the decision in Bandhua Mukti Morcha where the obligation of the State to ensure that the fundamental rights of weaker sections of society are not exploited, was underlined. 97. Tapping of telephones in exercise of the power conferred by Section 5(2) of the Indian Telegraph Act, 1885 became the subject matter of challenge in People's Union for Civil Liberties (PUCL) vs. Union of India.[(1997) 1 SCC 301].This Court held that conversation on telep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21." 99. In Indian Woman says Gangraped on orders of village Court published in Business and Financial News dated 2312014, in Re.[(2014) 4 SCC 786], this Court was dealing with a suo motu writ petition relating to the gangrape of a women under orders of a community panchayat as punishment for having a relationship with a man belonging to a different community. After taking note of two earlier decisions, one in Lata Singh vs. State of U.P.[(2006) 5 SCC 475] which dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uttaswamy, this Court made it clear that, "it is a right which protects the inner sphere of the individuals from interference by both the State and nonState actors". 102. Before we conclude this chapter, we must point out that some academics feel that the same level of justification for infringement by the State, for all rights recognized by the Court, end up being problematic.[Anup Surendranath in his Article "Life and Personal Liberty" in The Oxford Handbook of the Indian Constitution (South Asia Edition), 2016] and that the idea of a hierarchy of rights, as articulated by Das, J. in A.K. Gopalan may have to be examined. In fact, Rohinton Nariman, J. articulated this idea in Mohd. Arif (supra) where the question was as to whether a petition for review in the Supreme Court should be heard in open Court at least in death penalty cases. The learned Judge said: "36. If a pyramidical structure is to be imagined, with life on top, personal liberty (and all the rights it encompasses under the new doctrine) immediately below it and other fundamental rights below personal liberty it is obvious that this judgment will apply only to death sentence cases. In most other cases, the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Ministers are dealt with in Article 167. 108. Article 75(3) states that "the Council of Ministers shall be collectively responsible to the House of the People." Similarly, Article 164(2) states "the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State". 109. Generally, all executive action of the Government of India shall be expressed to be taken in the name of the President under Article 77(1). However, for more convenient transaction of the business of the Government of India, the President shall make Rules. These Rules shall also provide for the allocation of the business among Ministers. This is under Article 77(3). Similar provisions are found in subArticles (1) and (3) of Article 166. 110. There are special duties assigned to the Prime Minister and the Chief Ministers, under Articles 78 and 167 respectively. 111. While dealing with the scheme of Article 166(3), the Constitution Bench of this Court pointed out in A. Sanjeevi Naidu vs. State of Madras.[ (1970) 1 SCC 443], that under our Constitution, the Governor is essentially a constitutional head and the administration of the State is run by the Council of Ministers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The object of collective responsibility is to make the whole body of persons holding Ministerial office collectively, or, if one may so put it, "vicariously" responsible for such acts of the others as are referable to their collective volition so that, even if an individual may not be personally responsible for it, yet, he will be deemed to share the responsibility with those who may have actually committed some wrong. … 47. Each Minister can be and is separately responsible for his own decisions and acts and omissions also. But, inasmuch as the Council of Ministers is able to stay in office only so long as it commands the support and confidence of a majority of members of the Legislature of the State, the whole Council of Ministers must be held to be politically responsible for the decisions and policies of each of the Ministers and of his department which could be presumed to have the support of the whole Ministry. Hence, the whole Ministry will, at least on issues involving matters of policy, have to be treated as one entity so far as its answerability to the Legislative Assembly representing the electors is concerned. This is the meaning of the principle underlying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich others may hold him morally responsible, may compel him to resign. By an extension of this logic, applied to individual Ministers at first, emerged the principle of "collective responsibility" which we find enacted in Articles 75(2) and 164(2) of our Constitution. The only sanction for its enforcement is the pressure of public opinion expressed particularly in terms of withdrawal of political support by members of Parliament or the State Legislature as the case may be." 116. In other words, this Court indicated that while a Minister may be compelled to resign for his individual acts of omission or commission, the only sanction for the enforcement of collective responsibility is the "pressure of public opinion". 117. In R.K. Jain vs. Union of India.[(1993) 4 SCC 119], this Court was concerned with a public interest litigation relating to the functioning of the Customs, Excise and Gold Control Appellate Tribunal. At that time the office of the President of the Tribunal was lying vacant for over six months. But after rule nisi was issued in the first writ petition, the Government appointed someone as the President of the Tribunal. Immediately, a second writ petition was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e "due discharge of his/her duty as Minister". The base and basic postulate of its significance is unexceptionable. But the need for and effect of confidentiality has to be nurtured not merely from political imperatives of collective responsibility envisaged by Article 75(3) but also from its pragmatism." 118. In paragraph 33 of the report in R.K. Jain, this Court indicated that the Cabinet as a whole is collectively responsible for the advice tendered to the President and for the conduct of business of each of his/her department. The question as to what happens when an individual Minister is in total disagreement with the collective decision of the Cabinet was also spelt out in R.K. Jain in the following words: "33. ...Each member of the Cabinet has personal responsibility to his conscience and also responsibility to the Government. Discussion and persuasion may diminish disagreement, reach unanimity, or leave it unaltered. Despite persistence of disagreement, it is a decision, though some members like it less than others. Both practical politics and good government require that those who like it less must still publicly support it. If such support is too great a strain on a M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f appointment. The holder of the office, therefore, gets opportunity to abuse or misuse the office. The politician who holds public office must perform public duties with the sense of purpose, and a sense of direction, under rules or sense of priorities. The purpose must be genuine in a free democratic society governed by the rule of law to further socioeconomic democracy. The Executive Government should frame its policies to maintain the social order, stability, progress and morality. All actions of the Government are performed through/by individual persons in collective or joint or individual capacity. Therefore, they should morally be responsible for their actions." 121. In Vineet Narain vs. Union of India.[(1998) 1 SCC 226], this Court was concerned with a public interest litigation under Article 32 complaining about the inaction on the part of the Central Bureau of Investigation in a matter relating to the disclosures contained in what came to be known as "Jain Diaries". After taking note of the Report of Lord Nolan on "Standards in Public Life", this Court issued certain directions, though confined only to the Central Bureau of Investigation, Enforcement Directorate an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Collective responsibility" has two meanings: the first meaning which can legitimately be ascribed to it is that all members of a Government are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure." 123. After having dealt with the concept of collective responsibility, this Court carved out an exception in paragraph 34 as follows: "34. From the above, it will be seen that in spite of the fact that the Council of Ministers is collectively responsible to the House of the People, there may be an occasion where the conduct of a Minister may be censured if he or his subordinates have blundered and have acted contrary to law." 124. Again in paragraph 36 this Court held as follows: "36. Even in England, all Ministers and servants of the Crown are accountable to the courts for the legality of their actions, and may be held civilly and criminally liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aleeswaram Raj that the Prime Minister, in the case of a Minister of the Union of India and the Chief Minister, in the case of a Minister of the State should be allowed to take appropriate action, against the erring Minister, is just fanciful. The Prime Minister or the Chief Minister does not have disciplinary control over the members of the Council of Ministers. It is true that in practice, a strong Prime Minister or Chief Minister will be able to drop any Minister out of the Cabinet. But in a country like ours where there is a multiparty system and where coalition Governments are often formed, it is not possible at all times for a Prime Minister/Chief Minister to take the whip, whenever a statement is made by someone in the Council of Ministers. 129. Governments which survive on waferthin majority (of which we have seen quite a bit), sometimes have individual Ministers who are strong enough to decide the very survival of such Governments. This problem is not unique to our country. 130. We have followed the Westminster Model but the Westminster Model itself became shaky after the United Kingdom saw the first coalition Government in 2010, since the Churchill Caretaker M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard "owing as much to politics as to propriety". An interesting example of this occurred in 2003 during the buildup to the Iraq war. Robin Cook, the Leader of the House of Commons, resigned in protest in March 2003 over the then Labour Government's policy toward Iraq, being unable to maintain the official Government position. His actions were therefore consistent with the doctrine of collective responsibility. However, Clare Short, the Secretary of State for International Development, was allowed to stay in the Cabinet despite her own vocal opposition to military intervention and despite publicly denouncing the then Prime Minister as "deeply reckless" in March 2003. According to Felicity Matthews, despite her "extraordinary breach" of collective responsibility, Clare Short was persuaded and allowed to retain her ministerial portfolio. She then remained in the Cabinet for a further two months, until she decided to resign on 12 May 2003, following perceived mistakes in the US/UK coalition after the invasion. This example, according to Matthews, "underlines the extent to which Prime Ministers have proven unwilling or unable to enforce a strict interpretation of collective r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference by going into the questions which were answered in Amish Devgan. 137. Therefore, our answer to Question No.4 would be that 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. Question No.5 138. Question No.5 referred to us for consideration is "whether a statement by a Minister, inconsistent with the rights of a citizen under PartIII of the Constitution, constitutes a violation of such constitutional rights and is actionable as 'Constitutional Tort'?" 139. To begin with, we have some difficulty with the words "a statement by a Minister", appearing in Question No.5. A statement may be made by a Minister either inside or outside the House of People/Legislative Assembly of the State. A statement may also be made by a Minister in writing or by words spoken. A statement may be made in private or in public. A statement may also be made by a Minister either touching upon the affairs of the Ministry/ department of which he is in control or touching generally upon the policies of the Government of which he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n "Liability of the State in Tort", the Law Commission took note of (i) the existing law in India; (ii) law in England; (iii) law in America; (iv) law in Australia; (v) law in France; (vi) rule of statutory construction; and (vii) conclusions and proposals. 143. In Chapter VIII containing the conclusions and proposals, the First Report of the Law Commission suggested: (i) that in the context of a welfare State, it is necessary to establish a just relation between the rights of the individual and the responsibilities of the State; (ii) that when the Constitution was framed, the question to what extent, if any, the Union and the States should be made liable for the tortious acts of their servants or agents was left for future legislation; (iii) that the question of demarcating the line up to which the State should be made liable for the tortious acts, involves a nice balancing of considerations, so as not to unduly restrict the sphere of the activities of the State and at the same time to afford sufficient protection to the citizen; (iv) that it is necessary that the law should, as far as possible, be made certain and definite, instead of leaving it to courts to develop the law acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, for breach of a statutory duty imposed on it or its employees which causes damage. (iii) The State should be liable if in the discharge of statutory duties imposed upon it or its employees, the employees act negligently or maliciously, whether or not discretion is involved in the exercise of such duty. (iv) The State should be liable if in the exercise of the powers conferred upon it or its employees the power is so exercised as to cause nuisance or trespass or the power is exercised negligently or maliciously causing damage. N.B.--Appendix V shows some of the Acts which contain protection clauses. But under the General Clauses Act a thing is deemed to be done in good faith even if it is done negligently. Therefore, by suitable legislation the protection should be made not to extend to negligent acts however honestly done and for this purpose the relevant clauses in such enactments should be examined. (v) The State should be subject to the same duties and should have the same rights as a private employer under a statute, whether it is specifically binding on the State or not. (vi) If an Act negatives or limits the compensation payable to a citizen who suffered da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution); (b) Diplomatic, Consular and trade representation (entry 11); (c) United Nations Organisation(entry 12); (d)Participation in international conferences, associations and other bodies and implementing of decisions made thereat (entry 13); (e) entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries (entry 14); (f) war and peace (entry 15); (g) foreign jurisdiction (entry 16); (h) anything done by the President, Governor or Rajpramukh in the exercise of the following functions: Power of summoning, proroguing and dissolving the Legislature, vetoing of laws and anything done by the President in the exercise of the powers to issue Proclamations under the Constitution; (i) Acts done under the Trading with the Enemy Act, 1947; (j) Acts done or omitted to be done under a Proclamation of Emergency when the security of the State is threatened. (iv) Acts done in relation to the Defence Forces: (a) Combatant activities of the Armed Forces during the time of war; (b) Acts done in the exercise of the powers vested in the Union for the purpose of training or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he argument that the State cannot be liable for the tortious acts of its servants, when such servants are engaged on an activity connected with the affairs of the State. In this connection it has to be remembered that under the Constitution we have established a welfare state, whose functions are not confined only to maintaining law and order, but extend to engaging in all activities including industry, public transport, state trading, to name only a few of them. …" 148. But despite the decisions in Abdul Majid (supra) and Vidhyawati, this Court fell into a slippery slope in Kasturi Lal. It was a case where the partner of a firm dealing in bullion and other goods was arrested and detained in police custody and the gold and silver that he was carrying was seized by the police. When he was released later, the silver was returned but the Head Constable who effected the arrest misappropriated the gold and fled away to Pakistan in October, 1947. The suit filed by Kasturi Lal for recovery of the value of the gold, was resisted on the ground that this was not a case of negligence of the servants of the State and that even if negligence was held proved against the police officers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit for recovery of appropriate damages. This Court said that the order of compensation passed by this Court was in the nature of palliative. When it is suggested by the State that the appropriate remedy would be only to file a suit for damages, this Court said that by refusing to order anything (towards compensation), this Court would be doing mere lipservice to the fundamental right to liberty and that one of the telling ways in which the violation of the right by the State can be reasonably prevented, is to mulct its violators with monetary compensation. 152. After Rudul Sah, there was no looking back. Instead of providing elaborate details, we think it is sufficient to provide in a tabular form, details of the cases where this Court awarded compensation in public law, invoking the principle of constitutional tort, either expressly or impliedly. Sr. No. Case Law Decision 1. Sebastian M.Hongray vs. Union of India (1984) 3 SCC 82 • Two men who were taken for questioning by 21st Sikh Regiment never returned home. • When a writ of habeas corpus was filed by a JNU student, this Court directed that the missing men be produced before the Court. This order cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e custody. • This Court directed the State to pay compensation of Rs.1.5 lacs. 7. Arvinder Singh Bagga vs. State of U.P. & Ors. (1994) 6 SCC 565 • A married woman was detained and physically assaulted in a police station with a view to coerce her to implicate her husband and his family in a case of abduction and forcible marriage. • After taking her statement, her husband and his family were also harassed by the police. • This Court observed that the police had exhibited highhandedness and uncivilized behaviour and awarded the woman a compensation of Rs.10,000 and members of her family Rs.5,000 each. 8. N. Nagendra Rao & Co. vs. State of A.P. (1994) 6 SCC 205 • Appellant was in the business of food grains and fertiliser. On an inspection by the concerned authorities, his stocks were seized. • As was the practice, the food grains in custody were sold and the proceeds deposited in the Treasury, but the fertilisers were not dealt with in the same manner causing great loss to the Petitioner. • In a suit for negligence and misfeasance of public authorities, this Court further developed the concept of Constitutional Tort and limited the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 as rightly pointed out by the learned Attorney General in his note, the matter preeminently 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. 154. Therefore, our answer to Question No. 5 is as follows: "A mere statement made by a Minister, inconsistent with the rights of a citizen under PartIII of the Constitution, may not constitute a violation of the constitutional rights and become actionable as Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement made by a Minister, inconsistent with the rights of a citizen under PartIII 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. 156. Now that we have answered the questions, the writ petition and the special leave petition are directed to be listed before the appropriate bench after getting orders from Hon'ble the Chief Justice of India. …..…………....................J. (S. Abdul Nazeer) …..…………....................J. (B.R. Gavai) …..…………....................J. (A.S. Bopanna) .…..………......................J. (V. Ramasubramanian) JUDGMENT PER NAGARATHNA, J. I have had the benefit of reading the erudite judgment proposed by His Lordship V. Ramasubramanian, J. While I agree with the reasoning and conclusions arrived at by his Lordship on certain questions referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30th July, 2016 by the Kotwali Police Station, Dehat, Bulandshahr, Uttar Pradesh, for offences under Sections 395, 397, 376-D, 342 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for the sake of convenience). 4.3. In the above background, the Writ Petition has been preferred, praying as follows: "P R A Y E R : - In view of the above stated submissions, it is therefore, most humbly prayed that this Hon'ble Court; may in the interests of justice, be pleased to :- a. Issue a writ of mandamus and / or any other appropriate writ and / or direction against the respondents directing them to stop the infringement of the fundamental rights of the petitioner to live a lawful life; in addition to passing other appropriate directions to the respondents. b. Direct the state to pay the appropriate compensation to the petitioner, other victims and the family members as per Law. c. Direct the state to provide and ensure respectable and appropriate free of cost and safe education arrangements till the attainments of the highest degree in the interest of justice. d. Direct the state to provide and ensure sufficient life security and appropriate job security to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e' or its instrumentalities? 3) Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? 4) 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? 5) Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as 'Constitutional Tort'?" 6. His Lordship, Ramsubramanian, J. has answered the questions referred to this Constitution Bench in the scholarly judgment proposed by him. My view on each of such questions, as contrasted with those of His Lordship's have been expressed in a tabular form hereinunder, for easy reference. Questions His Lordship's views My views 1)Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 however has an affirmative duty to carry out obligations cast upon it under constitutional and statutory law. Such obligations may require interference by the State where acts of a private party may threaten the life or liberty of another individual. Hence, failure to carry out the duties enjoined upon the State under constitutional and 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 liberty, the State would have breached the negative duty cast upon it under Article 21. 4) 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? 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary code of conduct for Ministers and public officials, which would ensure better accountability and transparency in their political activities and also place a check on the misuse of freedom of speech and expression exercised by public functionaries using the apparatus of the State. 8.2. That while the state's duty to protect life and liberty broadly falls within the right under Article 21, it is difficult to chain the State with responsibility in every instance where speech by a public functionary strikes at the dignity of another person. That in the absence of such a provision to vicariously attribute responsibility to the State, every instance of such speech cannot be actionable and remediable through the judiciary. That no duty corresponding to Article 21 is imposed on individual Ministers nor such duty is imposed on any government machinery to regulate the conduct of individual Ministers warranting judicial intervention. Therefore, even though no actionable breach of public duty can be said to have taken place when statements are made by people in power, this in turn, postulates the desirability to have a voluntary code of conduct in the better interest of the government as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a flood gate of constitutional litigation. 9.3. It was further contended that there are sufficient constitutional and legal remedies available to a citizen whose liberty is threatened by any person and beyond the constitutional and legal remedies, there may not be any other additional duty to affirmatively protect the right of a citizen under Article 21. 9.4. Learned Attorney General urged that Ministerial misdemeanors, which have nothing to do with the discharge of public duty and are not traceable to the affairs of the State will have to be treated as acts of individual violation and individual wrongs. Thus, the state cannot be vicariously liable for the same. That the conduct of a public servant like a Minister in the government, if was traceable to the discharge of a public duty or duties of the office, was subject to the scrutiny of law. However, such misconduct including statements that may be made by a Minister, cannot be linked to the principles of collective responsibility. Submissions of learned amicus curiae, Ms. Aparajita Singh, Senior Advocate: 10. The submissions of learned amicus curiae, Ms. Aparajita Singh, may be summarized as under: 10.1. At the outset s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, an official act of a Minister which violates the fundamental rights of the citizens, would make the State liable by treating the said act of the Minister as a constitutional tort. However, the principle of sovereign immunity of the state for the tortious acts of its servants, has been held to be inapplicable in the case of violation of fundamental rights. Question No. 1 referred to this Constitution Bench reads as under: "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 fundamental rights?" Preface: 11. In my view, these cases call for an analysis of the content of Article 19(1)(a) of the Constitution of India which grants to all citizens of India the right to freedom of speech and expression. Before proceeding to analyse the relevant constitutional provisions, it may be appropriate to preface the discussion with the thought that freedom of speech is not contingent only upon the laws of a nation. The compulsion of social relations and the informal pressures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by restrictions, which may be imposed by the State, which have to be reasonable. The object of prescribing restraints or reasonable restrictions on the fundamental freedoms is to avoid anarchy or disorder in society. Hence, the founding fathers of our Constitution while enumerating the fundamental rights, have alongside prescribed reasonable restrictions in clauses (2) to (6) of Article 19 and the laws enacted within the strict limits of such restrictions are constitutionally permissible. 12.2. Since, these cases involve the freedom of speech and expression, it is unnecessary to analyse the nature of the other fundamental rights in Article 19(1) of the Constitution. Articles 19(1) (a) and 19(2) of the Constitution read as under: "19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall have the right - (a) to freedom of speech and expression; xxx xxx xxx (2) Nothing in sub-clause (a) of clause (a) 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 subclause in the interests of the sovereignty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eamble 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. 12.6. This Court has, since the enforcement of the Constitution, been zealously upholding the right to freedom of speech and expression in innumerable judgments which may be highlighted with reference to a few of them. i) In Romesh Thappar vs. State of Madras, AIR 1950 SC 124, 1950 SCC 436, ("Romesh Thappar") while highlighting that the freedom of speech is the foundation of all democratic organisations, held that said freedom would also include the right to freedom of the press. This judgment highlighted that the free flow of opinion and ideas is necessary to sustain collective life of the well informed citizenry which is a sine qua non for effective governance. ii) In S. Khushboo vs. Kanniammal, (2010) 5 SCC 600, ("Khushboo") this Court held that the freedom under Article 19(1)(a) envisaged dissemination of all kinds of views, both popular as well as unpopular. iii) Recently in Shre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uster. But in India, such law cannot pass muster if it is in the interest of the general public. Such law has to be covered by one of the eight subject-matters set out under Article 19(2). If it does not, and is outside the pale of Article 19(2), Indian courts will strike down such law." In Shreya Singhal, there was a challenge to Section 66-A of the Information Technology Act, 2000, which was struck down as being violative of Article 19(1)(a) and was not saved under Article 19(2) on the ground of vagueness and not providing manageable standards and clear guidance for citizens, authorities and courts for drawing a precise line between allowable and forbidden speech, expression or information. When a law uses vague expressions capable of misuse or abuse without providing notice to persons of common intelligence to guess their meaning, it leaves them in a boundless sea of uncertainty, conferring wide, unfettered powers on authorities to curtail freedom of speech and expression arbitrarily. 12.7. The present cases, however, are not really concerned with restrictions on the right to freedom of speech being imposed by the State. These cases are concerned with the content of Article 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation' of a free speech right. If the prior questions have all been answered to the effect that a free speech right is implicated and infringed in a particular situation, when, if ever, might there be a legally justified limitation of that right? Is the right an absolute bar or 'trump' against inconsistent action and, if not, what presumptive weight attaches to it? How, when, and why can the presumption be rebutted? Collectively, by constituting and expressing the underlying structure of the right to free speech, the answers to these six questions help to define the nature and extent of any particular such right in a given legal system." (Emphasis by me) Referring to the aspect of limitation of a free speech right, the learned author has observed that the teleology of a Constitutional order, can also play a role in fashioning the contours of free speech protections. That is to say, a free speech right may be fashioned to serve Constitutional commitments. 14. According to Wesley Hohfeld's analysis of the form of rights, every right has a complex internal structure, and such structure determines what the rights mean for those who hold them. Such rights are ordered arrangements o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisements depends on the content of such speech and the object of the material sought to be propagated/circulated. The duty of the State to abstain from interference would also depend upon the nature and effect of the commercial speech. d) As is evident from the above illustrations, 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. e) 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination and circulation; indeed, without circulation, publication would be of little value, vide Romesh Thappar; Sakal Papers (P) Ltd. vs. Union of India, A.I.R. 1962 SC 305 ("Sakal Papers (P) Ltd."). In Life Insurance Corporation vs. Prof. Manubhai D. Shah, (1992) 3 SCC 637 ("Prof. Manubhai D. Shah") this Court reiterated that the freedom of speech and expression under Article 19(1)(a) must be understood to take within its ambit the freedom to circulate one's view. That such circulation could be by word of mouth, in writing or through audio-visual media. The freedom to 'air one's view' was declared as a "lifeline of any democratic institution" and the Court expressed strong criticism at any attempt aimed at stifling or suffocating the right to circulation. In the said case, the appeals concerned separate instances of state-controlled entities (LIC and Doordarshan) refusing to publish or broadcast work that criticized the government. The Court reasoned that government-controlled means of publication have a greater burden to recognize an individual's right to defend themselves and if a state censors content, then it is obligated to provide reasons valid in law. That when a state- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Doordarshan vs. Anand Patwardhan, (2006) 8 SCC 433 ("Anand Patwardhan") this Court observed that the State cannot prevent open discission, even when such discussion was highly critical of governmental policy. (iv) The right of an individual to hold unpopular or unconventional views was once again upheld in Khushboo wherein this Court quashed First Information Reports (FIRs) registered pertaining to offences under Sections 292, 499, 500, 504, 505, 509 of the IPC, based on complaints regarding the unpopular comments made by the appellant therein, an actor, in a news magazine on the subject of premarital sex wherein she had urged women and girls to take necessary precautions to avoid the transmission of venereal diseases. In doing so, this Court observed that criminal law could not be set into motion in a manner as would interfere with the domain of personal autonomy. The Court upheld the appellant's freedom of speech and expression and quashed the FIRs, expressing the need for tolerance even qua unpopular views. 15.4. Right to advertise (commercial speech): As per the dictionary meaning, the expression "advertise" means, to draw attention to, or describe goods for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in the said case, were relating to commerce or trade and not propagation of ideas. Such advertising of prohibited drugs or commodities the sale of which was not in the interest of the general public, cannot be "speech" within the meaning of freedom of speech and would not fall within Article 19(1)(a). It is therefore evident that this Court in the said case placed weight on the aspect as to whether, the advertisement sought to be protected, did in fact constitute 'propagation of ideas.' The true content and object of the material sought to be propagated/circulated was to be assessed, in order to declare whether such content would enjoy the protection of Article 19(1)(a). (ii) Subsequently, in Indian Express Newspaper (Bombay) Pvt. Ltd. vs. Union of India, (1985) 1 SCC 641 ("Indian Express Newspaper (Bombay) Pvt. Ltd."), this Court considered the decision in Hamdard Dawakhana and observed that the main plank of said decision was the type of advertisement or the content thereof and that particular advertisement did not carry with it the protection of Article 19(1)(a). It was further clarified that the observations made in Hamdard Dawakhana are too broadly sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if such a provision compels a person to carry out propaganda or project a partisan or distorted point of view, contrary to his wish, it may amount to a restraint on his freedom of speech and expression. It may also violate other fundamental rights such as Article 19 (1) (g) or right against self-incrimination which is protected under Article 20 (3) of the Constitution. (ii) Therefore, this Court, in the said case, once again laid stress on the ideas and information sought to be communicated, by way of compelling the transmission of such ideas. The content of the information which is compelled to be carried was found to be highly relevant. Thus, the right under Article 19(1)(a) is a multi-faceted freedom and includes within its expanse, inter-alia, the right to gender identity as a facet of freedom of expression, vide National Legal Services Authority vs. Union of India, (2014) 5 SCC 438 ("National Legal Services Authority"); the right of the press to conduct interviews, vide Prabha Dutt vs. Union of India, (1982) 1 SCC 1 ("Prabha Dutt"); the right to attend proceedings in Court and report the same, vide Swapnil Tripathi vs. Supreme Court of India, (2018) 10 SCC 639 ("Swapnil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group's ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy." (Emphasis by me) This Court referred to the judgment of the Supreme Court of Canada in Saskatchewan Human Rights Commission vs. William Whatcott, 2013 SCC 11 ("Saskatchewan") (Canada) wherein it was held that human rights obligations form the basis for the control of publication of "hate speeches." The Canadian Supreme Court further declared that the repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment, is irrelevant. That the key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination. Placing reliance on the observations of the Canadian Supreme Court, this Court in Pravasi Bhalai Sangathan observed that the offence of hate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speech, albeit not gloss over specific egregious threats to public disorder and in particular the unity and integrity of the nation. Such threats not only insidiously weaken virtue and superiority of diversity, but cut-back and lead to demands depending on the context and occasion, for suppression of freedom to express and speak on the ground of reasonableness. Freedom and rights cannot extend to create public disorder or armour those who challenge integrity and unity of the country or promote and incite violence. Without acceptable public order, freedom to speak and express is challenged and would get restricted for the common masses and law-abiding citizens. This invariably leads to State response and, therefore, those who indulge in promotion and incitement of violence to challenge unity and integrity of the nation or public disorder tend to trample upon liberty and freedom of others." (Emphasis by me) Further, referring to the views of Alice E. Marwick and Ross Millers in the report titled "Online Harassment, defamation, and Hateful Speech: A Primer of the Legal Landscape," this Court in Amish Devgan elucidated as follows on three distinct elements that legislatures and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific place in Article 19(2) of the Constitution and it appears that it does not constitute a specific exception to the freedom of speech and expression under Article 19(1)(a). Possibly the framers of the Constitution did not find the same to be of relevance in the Indian social mosaic considering that the other cherished values of our Constitution such as fraternity and dignity of the individual would be strong factors which would negate any form of hate speech to be uttered in our Country. This may be having regard to our social and cultural values. However, with the passage of time, a wide range of Indian statutes have been enacted with a view to control hate speech. It may be useful to refer to a few of such provisions, with a view to examine the sufficiency of the existing framework in checking 'hate speech' although, the said term has not yet been precisely defined till date by the Parliament. i) The Indian Penal Code ("IPC") contains provisions which prohibit hate speech. Section 153-A penalises the promotion of class hatred. Section 153-B penalises "imputations, assertions prejudicial to national integration". Section 295- A penalises insults to religion and to relig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate", a "corrupt practice". vii) The Cable Television Networks (Regulation) Act, 1995 requires that all programmes and advertisements telecast on television conform to the Programme Code and the Advertisement Code. Rule 6, Cable Television Networks Rules, 1994 lays down the Programme Code and prohibits the carrying of any programme on the cable service which: (a) contains an attack on religion or communities or contains visuals or words contemptuous of religious groups or which promotes communal attitudes; (b) is likely to encourage or incite violence or contains anything against maintenance of law and order or which promotes anti-national attitudes; (c) criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country; (d) contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups. Similarly, the Advertising Code under Rule 7 of the Cable Television Networks Rules, 1994 prohibits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed provisions would read as under: "153-C- Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe- (a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or (b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both." "505-A- Causing fear, alarm, or provocation of violence in certain cases: Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory; (i)within the hearing or sight of a person, causing fear or alarm, or; (ii) with the intent to provoke the use of unlawful violence, against that person or another, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , "at home speeches" may themselves amount to hate speeches as such speech can now be uploaded and circulated in the virtual world through internet etc. The only pre-requisite is that the speech should have no redeeming purpose, which means that "the speech primarily carries no meaning other than hatred, hostility and ill-will." Beyond 'hate speech': 17. The expansive scope of 'hate speech' as set out above, would include within its sweep not only 'hate speech' simplicitor which is defined as speech aimed at systematic discrimination and eventual political marginalisation of a community, but also other species of derogatory, vitriolic and disparaging speech. 18. A philosophical justification to control and restrain derogatory, vitriolic and disparaging speech has been very poignantly conveyed by Lau Tzu, a celebrated Chinese philosopher and writer, in the following words: "Watch your thoughts; they become words. Watch your words; they become actions. Watch your actions; they become habit. Watch your habits; they become character. Watch your character; it becomes your destiny." 19. Theoretical and doctrinal underpinnings justifying restraints on derogatory and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hate propaganda undermine the dignity and self-worth of targeted group members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open mindedness that must flourish in a multicultural society which is committed to the idea of equality." ii) Australia: The position of law in Australia is substantially aligned with that in Canada. The Australian Federal Court, in the case of Pat Eatock vs. Andrew Bolt, (2011) FCA 1103 ("Pat Eatock") (Australia) followed the dictum in Keegstra in holding that the right to freedom of expression could be restricted vide legislation which made racial hatred a criminal offence. The Australian Federal Court stated that the rationale for a legislation restraining free speech was as follows: "(a) The justification from pursuit of truth does not support the protection of hate propaganda, and may even detriment our search for truth. The more erroneous or mendacious a statement, the less its value in the quest of truth. We must not overemphasise that rationality will overcome all falsehoods. (b) Self-fulfilment and autonomy, in a large part, come from one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the rights guaranteed and protected under Article 21. Dignity is a part of the individual rights that form the fundamental fulcrum of collective harmony and interest of a society. That while the right to speech and expression is absolutely sacrosanct, dignity as a part of Article 21 has its own significance. That dignity of an individual cannot be overridden and blotched by malice and vile and venal attacks to tarnish and destroy the reputation of another by stating that the same curbs and puts unreasonable restriction on the freedom of speech and expression. Further, in In Re. Noise Pollution (V), (2005) 5 SCC 733 it was observed that Article 19(1)(a) cannot be cited as a justification for defeating the fundamental right guaranteed by Article 21. That a person speaking cannot violate the rights of others to enjoy a peaceful, comfortable and (noise) pollution free environment, guaranteed by Article 21. Having regard to the unequivocal declaration of this Court, to the effect that Article 21 could not be sacrificed at the altar of securing the widest amplitude of free speech rights, this premise can serve as a theoretical justification for prescribing restraints on derogatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continues and some constitutional experts claim that there are certain rights, albeit very few, which can still be treated as "absolute". Examples given are:(a) Right to human dignity which is inviolable,(b) Right not to be subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts of the States have been thwarted by the judiciary.] and all such rights are related. As per the analysis of Aharon Barak [Aharon Barak,Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press 2012).], two key elements in developing the modern constitutional theory of recognising positive constitutional rights along with its limitations are the notions of democracy and the Rule of law. Thus, the requirement of proportional limitations of constitutional rights by a sub-constitutional law i.e. the statute, is derived from an interpretation of the notion of democracy itself. Insofar as the Indian Constitution is concerned, democracy is treated as the basic feature of the Constitution and is sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... social values of each competitive aspects when considered in proper context." [Emphasis by me] 25. It is clarified that at this juncture that it is not necessary to engage in the exercise of balancing our concern for the free flow of ideas and the democratic process, with our desire to further equality and human dignity. This is because no question would arise as to the conflict of two seemingly competing rights, being the right to freedom of speech and expression, vis-à-vis the right to human dignity and equality. The reason for the same is because, the restraint that is called for, is only in relation to unguided, derogatory, vitriolic speech, which in no way can be considered as an essential part of exposition of ideas, which has little social value. This discourse, in no way seeks to pose a potential danger to peaceful dissenters, who exercise their right to freedom of speech and expression in a critical, but measured fashion. The present cases pertain specifically to derogatory, disparaging speech, which closely resembles hate speech. Such speech does not fall within the protective perimeter of Article 19(1)(a) and does not constitute the content of the free speech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in paragraphs 155 and 163, as follows: "155. It is a constitutional value which is to be cultivated by the people themselves as a part of their social behavior. There are two schools of thought; one canvassing individual liberalization and the other advocating for protection of an individual as a member of the collective. The individual should have all the rights under the Constitution but simultaneously he has the responsibility to live upto the constitutional values like essential brotherhoodthe fraternity-that strengthens the societal interest. Fraternity means brotherhood and common interest. Right to censure and criticize does not conflict with the constitutional objective to promote fraternity. Brotherliness does not abrogate and rescind the concept of criticism. In fact, brothers can and should be critical. Fault finding and disagreement is required even when it leads to an individual disquiet or group disquietude. Enemies Enigmas Oneginese on the part of some does not create a dent in the idea of fraternity but, a significant one, liberty to have a discordant note does not confer a right to defame the others." "163. We have referred to two concepts, namely, constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse 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. Employing the Fundamental Duties under Part IV-A of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact across the globe. 30. The internet represents a communication revolution and has enabled us to communicate with millions of people worldwide, with no more difficulty than communicating with a single person, at a click or by touch on a screen. Ironically, the very qualities of the internet that have revolutionised communication are amenable to misuse. The internet, through various social media platforms has accelerated the pace as well as the reach of messages, comments and posts to such an extent that the difference between a celebrity and a common man, has been practically negated, in so far as the reach of their speech is concerned. 31. However, given the specific submission of the petitioners herein that disparaging and vitriolic speech expressed at various levels of political authority have exacerbated a climate bordering on intolerance and tension in the society, which perhaps may lead to insecurity, it may be appropriate to sound a strong word of warning in this regard. 32. It may be appropriate at this juncture to refer to the writings of Michael Rosenfeld, on the key variables which determine the impact of hate speech. One of the key variables highlighted by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulti-faceted right, which protects several species of speech and expression from interference by the State. However, it is a no brainer that the right to freedom speech and expression, in a human-rights based democracy does not protect statements made by a citizen, which strike at the dignity of a fellow citizen. Fraternity and equality which lie at the very base of our Constitutional culture and upon which the superstructure of rights are built, do not permit such rights to be employed in a manner so as to attack the rights of another. Verse 15 of Chapter 17 of the Srimad Bhagavad Gita describes what constitutes discipline of speech or 'vāṅ-maya tapas:' अनुद्वेगकरं वाक्यं सत्यं प्रियहितं च यत्| स्वाध्यायाभ्यसनं चैव वाङ्मयं तप उच्यते || Anudvega-karaṁ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate. Adopting the picturesque language of Roscoe Pound, the following observations were made: "1514. While dealing with natural rights, Roscoe Pound states on page 500 of Vol. I of his Jurisprudence: "Perhaps nothing contributed so much to create and foster hostility to courts and law and Constitutions as this conception of the courts as guardians of individual natural rights against the state and against society; this conceiving of the law as a final and absolute body of doctrine declaring these individual natural rights; this theory of Constitutions as declaratory of commonlaw principles, which are also natural-law principles, anterior to the state and of superior validity to enactments by the authority of the state; this theory of Constitutions as having for their purpose to guarantee and maintain the natural rights of individuals against the government and all its agencies. In effect, it set up the received traditional social, political, and economic ideals of the legal profession as a super-Constitution, beyond the reach of any agency but judicial decision. 1515. I may also in this connection refer to a passage on the inherent and inalienable rights in A History of Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la, A.I.R. 1976 SC 1207 ("ADM Jabalpur") wherein while refusing to subscribe to the view that when the right to enforce Fundamental Right under Article 21 is suspended, the result would be that there would be no remedy against deprivation of a person's life or liberty by the State even though such deprivation is without the authority of law, observed, that Article 21 was not the sole repository of the right to life and personal liberty. That such rights inhered in men even prior to the enactment of the Constitution, and were not created for the first time by enacting the Constitution. It was also recognised that though the Constitutionally recognised remedy under Article 32, for infringement of the Right under Article 21 may not be available as the said rights remained suspended or notionally surrendered on account of declaration of an Emergency, remedies under the laws which were in force prior to the coming into effect of the Constitution would still operate to ensure that no person could be deprived of his life or liberty except in accordance with law. In that context, it was held that the rights Constitutionally recognised under Article 21, represented 'higher values' which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and political thinkers nourished and helped in the efflorescence of the concept by rousing the conscience of mankind and by making it conscious of the necessity of the concept as necessary social discipline in self-interest and for orderly existence. According even to the theory of social compact many aspects of which have now been discredited, individuals have surrendered a part of their theoretically unlimited freedom in return or the blessings of the government. Those blessings include governance in accordance with certain norms in the matter of life and liberty of the citizens. Such norms take the shape of the rule of law. Respect for law, we must bear in mind, has a mutual relationship with respect for government. Erosion of the respect for law, it has accordingly been said, affects the respect for the government. Government under the law means, as observed by Macdonald, that the power to govern shall be exercised only, under conditions laid down in constitutions and laws approved by either the people or their representatives. Law thus emerges as a norm limiting the application of power by the government over the citizen or by citizens over their fellows. Theoretically all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberty unless such a course was sanctioned by the laws of the land. An action was also maintainable under the law of torts for wrongful confinement in case any person was deprived of ins personal liberty without the authority of law. In addition to that, we had Section 491 of the CrPC which provided the remedy of habeas corpus against detention without the authority of law. Such laws continued to remain in force in view of Article 372 after the coming into force of the Constitution. According to that article, notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority. The law in force, as observed by the majority of the Constitution Bench in the case of Director of Rationing and Distribution v. The Corporation of Calcutta and Ors. 1960 CriLJ 1684, include not only the statutory law but also custom or usage haying the force of law as also the common law of England whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uaranteed therein. 38. The strength of H.R. Khanna, J's minority opinion was subsequently acknowledged and affirmed by this Court in Puttaswamy, wherein it was held that the rights to life and personal liberty were 'primordial rights' and were not bounties which were conferred by the State and created by the Constitution. That the right to life existed even before the advent of the Constitution and in recognising such right, the Constitution did not become the sole repository of such rights. That every constitutional democracy including our country, is rooted in an undiluted assurance that the Rule of law will protect their rights and liberties against any invasion by the State and that judicial remedies would be available when a citizen has been deprived of most precious inalienable rights. Dr. D.Y. Chandrachud. J. (as His Lordship then was) enunciated the aforesaid principles in the following words: "119. The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst undue encroachments by organs of State. The object of elevation of such common law rights/natural rights to the Constitutional plane was to make them specifically enforceable against the State and its agencies through Courts of Law. ii) Notwithstanding that such rights have been placed in Part III of the Constitution of India, the rights are concurrently preserved in the field of natural law or common law. Remedies available in common law for actualising such rights are also preserved. There are therefore two spheres of rights, and corresponding remedies: first, relatable to the Fundamental Rights enshrined under Part III the Constitution of India, which correspond to the remedies under Article 32 and Article 226 of the Constitution of India; second, inalienable/natural/common law rights, which are preconstitutional rights, and may be protected by having recourse to common law remedies. iii) While the content of a certain common law right, may be identical to a Fundamental Right, the two rights would be distinct in two respects: first, incidence of the duty to respect such right; and second, the forum which would be called upon to adjudicate on the failure to respect suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be so governed even after the commencement of the Constitution because as recognised hereinabove, the common rights and remedies were not obliterated even after the Constitution was enacted. These inalienable rights, although subsequently placed in Part III of the Constitution, retained their identity in the arena of common law and continued to regulate relationships between citizens and entities, other than the State or its instrumentalities. It is therefore observed that the incidence of the duty to respect Constitutional and Fundamental Rights of citizens is on the State and the Constitution provides remedies against violation of Fundamental Rights by the State. These observations are in consonance with the recognition by this Court in People's Union for Civil Liberties vs. Union of India, (2005) 2 SCC 436 ("People's Union for Civil Liberties") that the objective of Part III is to place citizens at centre stage and make the state accountable to them. 41. On the other hand, common law rights, regulate the relationship between citizens inter-se. Although the content of a common law right may be similar to a Fundamental Right, the two rights are distinct in so far as, the incidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lie in an ordinary court. 254. Privacy has the nature of being both a common law right as well as a fundamental right. Its content, in both forms, is identical. All that differs is the incidence of burden and the forum for enforcement for each form." [Emphasis by me] It has therefore been unequivocally declared by this Court that while the content of a right recognised under Part III of the Constitution may coincide or overlap with a common law right, the remedies available against violation of the respective form of right, operate in different spheres of law. That is, although the content of a common law right and a fundamental right may be almost identical, the remedy against violation of a common law right, shall lie under common law and not under the Constitution; similarly, the remedy against violation of a Fundamental Right is provided for under the Constitution itself expressly against the State under Article 19(2) thereof. 42. 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 Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as they then stood, against a private entity. In that context, it was held that the language and structure of Article 19 and its setting in Part III of the Constitution clearly show that the Article was intended to protect those freedoms against State action. This Court declared that violation of rights of property by individuals or entities other than the State and its instrumentalities, was not within the purview of Article 19(1)(f). Further, this Court made a comparison between Article 31(1), as it then stood, and Article 21 as both Articles cast a negative duty on the State. In that context it was held that although there is no express reference to the State in Article 21, it could not be suggested that the Article was intended to afford protection to life and liberty against violation by private individuals. That the words "except by procedure established by law" exclude such suggestion that Article 21 would operate horizontally. The aforesaid decision is illustrative of this Court's reluctance to hold that the Fundamental Rights under Articles 19 or 21 of the Constitution, would operate horizontally. It is also to be noted that in the aforesaid case, this Court has ackno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the strict sense to mean "agency of the Government," but also against entities imbued with public character, or entitles which perform functions which closely resemble governmental functions. [See: Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology, (2002) 5 SCC 111; Zee Telefilms Ltd. vs. Union of India, (2005) 4 SCC 649; Janet Jeyapaul vs. S.R.M. University, (2015) 16 SCC 530] This Court has progressively expanded the scope of Article 12 of the Constitution so as to ensure that a private entity, which performs a public duty/function and therefore informs our national life, does not get away scott-free merely because it is not "State" stricto sensu. Such entitles are imbued with constitutional obligations on account of the public or statutory functions performed by them. At this juncture, it is necessary to reflect on the difference between holding that Fundamental Rights may be enforced against a private entity on account of the public nature of its functions, as contrasted with universal operation of fundamental rights claims against all persons. A private body, acting in private capacity, fulfilling a private function, cannot be axiomatically amenable to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. iv) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention. A writ of habeas corpus is granted ex debito justiae and the applicant must only demonstrate prima-facie, unlawful detention of himself or any other person. If there is no justification for the detention and the same is unlawful, a writ is issued as of right vide Union of India vs. Paul Manickam, (2003) 8 SCC 342. The importance of a writ of habeas corpus is the duty being cast on a Constitutional Court to issue the writ to safeguard the freedom of a citizen against illegal and arbitrary detention. In my humble view, an illegal detention is a violation of Article 21 of the Constitution, irrespective of whether the detention is by the State or by a private person. A petition under Article 226 of the Constitution would therefore lie before the High Court, not only when the person has been detained by the State but also when he/she is detained by a private individual vide Mohd. Ikram Hussain vs. State of Uttar Pradesh, A.I.R. 1964 SC 1625 at 1630. In my view, such a petition under Article 32 of the Constitution would also lie before this Court for seeking a writ of habeas corpus in terms of Article 32 (2). Such a writ could be issued not just against the State which may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pus have been issued by this Court on previous occasions, against private individuals, particularly in cases of kidnapping, child custody etc. [See for instance: Nirmaljit Kaur (2) vs. State of Punjab, (2006) 9 SCC 364] In such cases, resorting to the process of instituting a criminal case before a police station, may prove to be futile because the need of the hour in such cases is swift action. The writ of habeas corpus under Article 226 as well as Article 32 of the Constitution, is festium remidium, i.e., a speedy remedy, and such remedy needs to be made available even as against a private individual. It is appropriate that the High Court concerned under whose jurisdiction the illegal detention has occurred should be approached first. In order to invoke jurisdiction of this Court under Article 32 of the Constitution by approaching this Court directly, it has to be shown by the Petitioner as to why the concerned High Court has not been approached. In cases where it would be futile to approach the High Court, and where satisfactory reasons are indicated in this regard, a petition seeking issuance of a writ of habeas corpus, may be entertained. However, in the absence of such circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996) 1 SCC 742, this Court considered a writ petition filed under Article 32 of the Constitution, pertaining to the threats held out by the All Arunachal Pradesh Students' Union, to force Chakmas out of the State of Arunachal Pradesh. It was the case of the Petitioner therein that a large number of Chakmas from erstwhile East Pakistan (now Bangladesh) were displaced by the Kaptai Hydel Power Project in 1964. They had taken shelter in Assam and Tripura. Most of them were settled in these States and became Indian citizens in due course of time. Since a large number of refugees had taken shelter in Assam, the State Government had expressed its inability to rehabilitate all of them and requested assistance in this regard from certain other States. As a result of such consultations between the North Eastern States, some population of Chakmas began residing in Arunachal Pradesh. It was also stated that many of such persons had made representations for the grant of citizenship under Section 5(1)(a) of the Citizenship Act, 1955, however, no decision was communicated in this regard. In the interim, relations between citizens residing in Arunachal Pradesh and the Chakmas deteriorated and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect of depriving persons of their right to life and liberty; b) Where the State had failed to carry out its obligations under a statute or a policy or scheme, and such failure could have had the effect of depriving persons of their right to life and liberty. c) It is therefore clear that the acknowledgement of this Court of the duty of the State under Article 21, only pertains to a negative duty not to deprive a person of his right to life and personal liberty, except in accordance with law. This Court has not recognised an affirmative duty on the part of the State under Article 21 of the Constitution to protect the rights of a citizen, against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency. Of course, there exist a plethora of statutes which cast an obligation on the State and its machinery to contain hostile situations between private actors; to repel any action by private actors which would undermine the life and liberty of other persons etc. This Court has, on several occasions, issued writs of mandamus directing State authorities to carry out such statutory obligations. In directing so, this Court may have referred to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the personal views of the individual Minister making them, but also embody the views of the Government, then, such statements can be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility. In other words, if such views are endorsed not only in the statements made by an individual Minister, but are also reflective of the Government's stance, such statements may be attributed vicariously to the Government. However, if such statements are stray opinions of an individual Minister and are not consistent with the views of the Government, then they shall be attributable to the Minister personally and not to the Government. Therefore, Question No. 4 is answered as follows: "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." Re: Question No. 5: Whether a statement by a Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 32 before the Supreme Court but under Article 226 of the Constitution, the jurisdiction of the High Courts is wider than the jurisdiction of the Supreme Court inasmuch as the said Article may be invoked for enforcement of fundamental rights as also "for any other purpose". Tortious liability: 49. In India, the government can be held liable for tortious acts of its servants and can be ordered to be paid compensation to the persons suffering as a result of the legal wrong. Article 294(b) of the Constitution declares that the liability of the Union Government or the State Government may arise "out of any contract or otherwise". The word otherwise implies that the said liability may arise for tortious acts as well. Article 300 enables institution of appropriate proceedings against the government for enforcing such liability. 50. Even prior to the commencement of the Constitution, the liability of the Government for tortious acts of its servants or agents were recognised vide Peninsular & Oriental Steam Navigation Co. vs. Secy. Of State, (1868-69) 5 Bom HCR APP 1. After the commencement of the Constitution, there have been several cases in which the Union of India and State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result of acts or omissions on the part of officials of the State. Therefore, Constitutional law and tort law came to be merged by this Court under the rubric of PIL, and this Court began allowing successful petitioners to recover monetary damages from the State for infraction of their fundamental rights. In such cases, there may have been statutory rights of persons also which would then be an enunciation of an aspect of Fundamental Rights particularly under Article 21 of the Constitution. 54. In Rudul Sah vs. State of Bihar, (1983) 4 SCC 141, Y.V. Chandrachud, CJ., gave further momentum to fundamental rights to combat state lawlessness by granting cash compensation to a victim of unlawful incarceration for fourteen years. It is to be noticed that His Lordship, in the said case, took note of the dilemma in allowing a litigant to seek damages in a writ petition/PIL action against the State. His Lordship noted that this could have the effect of ordinary civil action being circumvented on a routine basis, by invoking writ jurisdiction of the High Courts and the Supreme Court as an alternative to ordinary civil action. However, it was recognized that granting such remedies would enh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent of the rights available to the aggrieved party to claim compensation under private law in an action based on tort. Therefore, a suit may be instituted in a competent court of law or proceedings may be initiated to prosecute the offender under the penal law. 56. Though, in D.K.Basu vs. State of West Bengal, (1997) 1 SCC 416 monetary compensation was granted, in Hindustan Paper Corporation Ltd. vs. Ananta Bhattacharjee, (2004) 6 SCC 213 this Court cautioned that a direction to pay compensation under Article 226 of the Constitution is permissible as a public law remedy and resorted to only when there is a violation by the State or its agents acting in official capacity of the fundamental right guaranteed by Article 21 of the Constitution, and not otherwise. It was further observed that it is not every violation of the provisions of the Constitution or a statute which would enable the court to direct grant of compensation. The power of the court to grant compensation in public law is limited. Therefore, normally in case of tortious liability, the person aggrieved has to approach a civil court for ventilating his grievances and he cannot invoke the writ jurisdiction of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsation for violation of fundamental rights was no longer an action in lieu of a private law claim, but was to serve an independent and more important purpose. However, it cannot be ignored that the decisions of Courts to award compensation in such cases, proceed on the basis of lower evidentiary standards, as noted by this Court in Kumari vs. State of Tamil Nadu, (1992) 2 SCC 223. 60. In Tamil Nadu Electricity Board vs. Sumathi Das, (2000) 4 SCC 543, this Court held that exercise of writ jurisdiction would be inappropriate where there were disputed questions of fact that required proof through substantial evidence. However, it has been clarified that the restriction applied only to the higher judiciary's writ jurisdiction under Articles 32 and 226, and that it did not restrain this Court's power to address the matter under Article 142, which allows this Court to pass any order 'necessary for doing complete justice in any cause or matter.' Therefore, this Court has recognised that factual disputes could operate as a limit on the Courts' ability to treat a matter as being actionable as a Constitutional tort but has nevertheless awarded monetary compensation in certain cases possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be apposite to sound a word of caution as regards the approach of the Courts in granting monetary compensation as a means for vindication of fundamental rights. It is to be noted that in the absence of a clear, cogent and comprehensive legal framework based on judicial precedent, which would clarify what harm or injury is actionable as a constitutional tort, such a device is to be resorted to only in cases where there are brutal violations of fundamental rights, such as the violations that were involved in Rudul Sah and Chandrima Das. This Court has acknowledged such a view in Sebastian M. Hongray, by noting that compensation was being awarded in the said case having regard to "torture, the agony and the mental oppression" which the family of the victim therein had to endure due his death by an encounter. Similarly, this Court, in Bhim Singh stated that the compensation was awarded by taking note of the "bizzare acts" of police lawlessness. As already highlighted, compensation was awarded in Delhi Jal Board, by exercising power under Article 142. Thus, the remedy provided is on a case to case basis on an evolution of the concept of constitutional tort through judicial dicta. 65. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, who is prejudiced by any form of attack, as a result of speech/expression through any medium, targeted against her/him or by speech which constitutes 'hate speech' or any species thereof, whether such attack or speech is by a public functionary or otherwise, may approach the Court of Law under Criminal and Civil statutes and seek appropriate remedies. Whenever permissible, civil remedies in the nature of declaratory remedies, injunctions as well as pecuniary damages may be awarded as prescribed under the relevant statutes.
However, answers given to Question Nos. 4 and 5 may have a bearing in the context of collective responsibility of government and Constitutional tort.
Writ Petition (Crl.) No.113 of 2016 and Special Leave Petition (Civil) bearing Diary No.34629 of 2017 are directed to be listed before an appropriate Bench after seeking orders of Hon'ble the Chief Justice of India.
[1] Sourced from the article "Arguments from Colonial Continuity the Constitution (First Amendment) Act, 1951" (2008) of Burra, Arudra, Assistant Professor, Department of Humanities and Social Sciences , IIT (Delhi),
[2] Subject matter of challenge pending before this Court X X X X Extracts X X X X X X X X Extracts X X X X
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