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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 ..... Presenjeet Mohapatra, Adv., Mr. Rajat Nair, Adv., Mr. Ankur Talwar, Adv., Mr. Kanu Agrawal, Adv., Mr. Anirudh Bhatt, Adv., Mr. Shyam Gopal, Adv., Ms. Monica Benjamin, Adv., Ms. Sujatha Bagadhi, Adv., Ms. Shraddha Deshmukh, Adv., Mr. Udai Khanna, Adv., Ms. Anu S., Adv., Mr. Mayank Pandey, Adv., Mr. Vinayak Mehrotra, Adv., Mr. Chitvan Singhal, Adv., Ms. Sonali Jain, Adv., Mr. Abhishek Kumar Pandey, Adv., Mr. Arvind Kumar Sharma, AOR, Mr. Mukesh Kumar Maroria, AOR, Mrs. Garima Prasad, A.A.G., Mr. Ajay Vikram Singh, AOR, Mr. Vikas Bansal, Adv., Mrs. Priyanka Singh, Adv., Mr. Sharjheel Ahmad, Adv., Mrs. Swarupama Chaturvedi, AOR, Mr. Pradeep Misra, AOR, Mr. Abhishek, AOR, Mr. Lakshmi Raman Singh, AOR, Mr. Renjith B.Marar, Adv., Ms. Lakshmi N. Kaimal, AOR, Mr. Arun Poomuli, Adv., Ms. Ashu jain, Adv., Mr. Davesh Kumar Sharma, Adv. JUDGMENT V. RAMASUBRAMANIAN, J. PRELUDE தீயினாற் சுட்டபுண் உxள்ளாறும் ஆறாதே நாவினாற் சுட்ட ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of great importance. Though the Bench recorded, in its order dated 05.10.2017, the questions that were submitted by the learned amicus curiae, the Three Member Bench did not frame any particular question, but directed the matter to be placed before the Constitution Bench. 2. At this juncture, a Special Leave Petition (Diary) No.34629 of 2017 arising out a judgment of the Kerala High Court came up before the same Three Member Bench. Finding that the questions raised in the said SLP were also similar, this Court passed an order on 10.11.2017, directing the said SLP also to be tagged with Writ Petition (Criminal) No.113 of 2016. 3. Thereafter, the Constitution Bench, by an order dated 24.10.2019, formulated the following five questions to be decided by this Court: "...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 law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights? 2) Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the 'Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere may not be a fair investigation. The petitioner claims that he was also offended by the irresponsible statement made by the Minister and hence he was compelled to file the said writ petition for the reliefs stated supra. 6. Insofar as Special Leave Petition (Diary) No.34629 of 2017 is concerned, the same arose out of a judgment of the Division Bench of the Kerala High Court dismissing two writ petitions. The writ petitions were filed in public interest on the ground that the then Minister for Electricity in the State of Kerala issued certain statements in February 2016, 7.4.2017 and 22.4.2017. These statements were highly derogatory of women. Though according to the petitioners in the public interest litigation, the political party to which the Minister belonged, issued a public censure, no action was taken officially against the Minister. Therefore, the petitioner in one writ petition prayed among other things for a direction to the Chief Minister to frame a Code of Conduct for the Ministers who have subscribed to the oath of office as prescribed by the Constitution with a further direction to the Chief Minister to take suitable action if any of the Ministers failed to live u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposition, to add or insert subjects or matters in respect of which claims can be made against persons other than the State, would amount to Constitutional change. The concept of State action propounded and applied in US Constitutional Law and the enactment of 42 US Code § 1983 have to be seen in the context of peculiar state of affairs dealing with governmental and official immunities from legal proceedings. In view of specific provisions in Articles 15(2), 17, 23 and 24 of the Indian Constitution, there may not be a strict need to take recourse to the law obtaining in the USA. Claims against persons other than the State, either through enacted law or otherwise must be confined to constitutionally enacted subjects or matters. Question No. 3 (iii) There are sufficient Constitutional and legal remedies available for a citizen whose liberty is threatened by any person. Beyond the Constitutional and legal remedy and protection available, there may not be any other additional duty to affirmatively protect the right of a citizen under Article 21. Cases of infringement of fundamental rights are taken care of under Articles 32 and 226. Question No. 4 (iv) Conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental rights compete, the Court will balance the two to allow the meaningful exercise of both. This conundrum is not new, as the rights under Article 21 and under Article 19(1)(a) have been interpreted and balanced on numerous occasions. Take for instance the Right to Information Act, 2005. The Act balances the citizen's right to know under Article 19(1)(a) with the right to fair investigation and right to privacy under Article 21. This careful balancing was explained by this Court in Thalappalam Service Cooperative Bank Ltd. vs. State of Kerala [(2013) 16 SCC 82] . The decision of this Court in R. Rajagopal alias R.R. Gopal vs. State of T.N.[ (1994) 6 SCC 632 ] is another example of reading down the restrictions (in the form of defamation) on the right to free speech under Article 19(2), in its application to public officials and public figures in larger public interest. Again, in People's Union for Civil Liberties (PUCL) vs. Union of India [(2003) 4 SCC 399 ], the right to privacy of the spouse of the candidate contesting the election was declared as subordinate to the citizens' right to know under Article 19(1)(a). In Jumuna Prasad Mukhariya vs. Lachhi Ram [(1955) 1 SCR 608], a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the primary obligation to protect fundamental rights was that of the State even in the absence of an effective legislation. In Bodhisattwa Gautam vs. Subhra Chakraborty (Ms.) [(1996) 1 SC 490], interim compensation was awarded holding that fundamental rights under Article 21 can be enforced even against private bodies and individuals. Public law remedy has been repeatedly resorted to even against non State actors when their acts have violated the fundamental rights of other citizens. Award of damages against nonState actors for violation of the right to clean environment under Article 21 was laid down in M.C. Mehta vs. Kamal Nath.[ 2000) 6 SCC 213] Similarly, the majority and concurring opinion in Justice K.S. Puttaswamy vs. Union of India.[ (2017) 10 SCC 1], while elaborating on the duty of the State and nonState actors to protect the rights of citizens, pointed out that recognition and enforcement of claims qua nonState actors may require legislative intervention. However, when it comes to Article 19, a Constitution Bench in P.D. Shamdasani vs. Central Bank of India Ltd.[ 1952 SCR 391], has held it to be inapplicable against private persons. Question No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d need to be established on the facts of a given case. It would involve a detailed inquiry into questions such as (a) whether the statement by the Minister was made in his personal or official capacity; (b) whether the statement was made on a public or private issue; (c) whether the statement was made on a public or private platform. In Amish Devgan vs. Union of India.[ (2021) 1 SCC 1] while dealing with hate speech, the impact of the speech of "a person of influence" such as a Government functionary, was explained. State of Maharashtra vs. Sarangdharsingh Shivdassingh Chavan.[ (2011) 1 SCC 577], provides a clear instance of direct interference with the investigation by a Chief Minister. The Court held the action of the Chief Minister to be "wholly unconstitutional" and contrary to the oath of allegiance to the Constitution and imposed costs on the State. The concurring opinion emphasizes the responsibility that the oath of office casts on the Minister under the Constitution. In Secretary, Jaipur Development Authority, Jaipur vs. Daulat Mal Jain.[ (1997) 1 SCC 35], while dealing with a case involving the misuse of public office by a Minister, this Court elaborated on the responsibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote are summarized as follows: (i) The Constitutional mandate of freedom of expression and free speech is to be preserved without imposing unconstitutional restrictions. It is a right available to everyone including political personalities. (ii) But even while upholding such a right, efforts should be taken to frame a voluntary code of conduct for Ministers etc., to ensure better accountability and transparency; (iii) There is an imperative need to evolve a device such as Ombudsman to act as a Constitutional check on the misuse of the freedom of expression by public functionaries using the apparatus of the State; (iv) The right under Article 19(1)(a) is limited by restrictions expressly indicated in Article 19(2), under which the restrictions should be reasonable and must be provided for by law, by the State. Therefore this Court cannot provide for any additional restriction by an interpretative exercise or otherwise; (v) It is too remote to suggest that the right of a victim under Article 21 stands violated if there is a statement by someone that the case was born out of political conspiracy. Therefore, there is actually no conflict of any other right with Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws and statutes, which in turn regulate the conduct of citizens; (x) In the Indian context, direct horizontal effect has limited application as can be seen from Articles 15(2), 17 and 24; (xi) Paradigm cases of horizontality should be distinguished from ordinary cases. For instance, the U.S. Supreme Court held in Shelly vs. Kraemer.[334 U.S. 1 (1948)] a covenant contained in a contract prohibiting the sale of houses in a neighbourhood to AfricanAmericans, as unenforceable, for they have the effect of denying equal protection under the laws. The Federal Constitutional Court of Germany took a similar view in L th ϋ.[Luth (1958) BVerfGE 7, 198] case (1958) where a call for boycott of a film directed by a person who had worked on antisemitic Nazi propaganda was challenged. The German Court held that there was an objective order of values that must affect all spheres of law; (xii) It has been repeatedly held by this Court that the power under Article 226 is available not only against the Government and its instrumentalities but also against "any person or authority". A reference may be made in this regard to two decisions namely Praga Tools Corporation vs. Shri C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition has been accepted by this Court; (xvii) As held by this Court in Justice K.S. Puttaswamy, the Court will strike a balance, wherever a conflict between two sets of fundamental rights is projected. Strictly speaking, what is actually conceived by some and noted in several decisions including Justice K.S. Puttaswamy, is not the conflict of rights in abstractum, at a doctrinal level, but the conflict in the notion/invocation/practice of rights; (xviii) On the issue of statements made by Ministers and collective responsibility, a reference has to be made to Articles 75(3) and 164(2). Both these Articles speak of collective responsibility of the Council of Ministers. Though the language employed in these Articles indicate that such a collective responsibility is to the House of the People/ Legislative Assembly, it is actually a responsibility to the people at large. Since every utterance by a Minister will have a direct bearing on the policy of the Government, there is an imperative need for a voluntary code of conduct. As pointed out by this Court in Common Cause (supra), collective responsibility has two meanings, namely, (i) that all members of the Council of Ministers are u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Committee on Equality and NonDiscrimination to the Parliamentary Assembly of the Council of Europe. The Assembly passed the resolution adopting the text proposed by rapporteur Ms. Elvira Kovacs, Serbia; (xxv) Finally, the way forward is, (i) for the legislature to adopt a voluntary model code of conduct for persons holding public offices, which would reflect Constitutional morality and values of good governance; and (ii) the creation of an appropriate mechanism such as Ombudsman, in accordance with the Venice principles and Paris principles. Till such an Ombudsman is constituted, the National and State Human Rights Commissions have to take proactive measures, in terms of the provisions of Protection of Human Rights Act, 1993. IV. Discussion and Analysis Question No. 1 12. Question No.1 referred to us, is as to whether the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law are exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights? History of evolution of clause (2) of Article 19 13. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit, as the case may be, is threatened: (a) The right of every citizen to freedom of speech and expression: Provision may be made by law to make the publication or utterance of seditious, obscene, blasphemous, slanderous, libellous or defamatory matter actionable or punishable. Draft Constitution prepared by B. N. Rau, October 1947 (BSR III, 89) 15. (1) There shall be liberty for the exercise of the following rights subject to public order and morality, namely: (a) the right of every citizen to freedom of speech and expression; ... (2) Nothing in this section shall restrict the power of the State to make any law or to take any executive action which under this Constitution it has power to make or to take, during the period when a Proclamation of Emergency issued under subsection (I) of section 182 is in force, or, in the case of a unit during the period of any grave emergency declared by the Government of the unit whereby the security of the unit is threatened. Draft Constitution prepared by the Drafting Committee and submitted to the President of the Constituent Assembly, February 1948 (BSR III, 522) 13. (1) Subject to the other provisions of this Article, all c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Art. 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. ..." 16. An argument was advanced in Romesh Thappar (supra) that Section 9(1A) of the 1949 Act could not be considered wholly void, as the securing of public safety or maintenance of public order would include the security of the State and that therefore the said provision, as applied to the latter purpose was covered by Article 19(2). However, the said argument was rejected on the ground that where a law purports to authorise the imposition of restrictions on a fundamental right, in language wide enough to cover restrictions, both within or without the limits of Constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the Constitutional limits, as it is not severable. 17. On the same date on which the decision in Romesh Thappar was delivered, the Constitution Bench of this Court also delivered another judgment in Brij Bhushan vs. The St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent 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 security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. 19. It is significant to note that Section 3(1)(a) of the Constitution (First Amendment) Act, 1951, declared that the newly substituted clause (2) of Article 19 shall be deemed always to have been enacted in the amended form, meaning thereby that the amended clause (2) was given retrospective effect. 20. Another important feature to be noted in the amended clause (2) of Article 19 is the inclusion of the words 'reasonable restrictions'. Thus, the test of reasonableness was introduced by the first amendment and the same fell for jural exploration within no time, in State of Madras vs. V.G. Row.[(1952) 1 SCC 410]. The said case arose out of a judgment of the Madras High Court quashing a Government Order declaring a society known as 'People's Education Society' as an unlawful association and also declaring as unconstitutional, Section 15( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the words "the sovereignty and integrity of India" as one of the restrictions; and (ii) the amendment of 8 Forms of oath or affirmation contained in the Third Schedule. Until 1963, no one taking a constitutional oath was required to swear that they would "uphold the sovereignty and integrity of India". But, the Constitution (Sixteenth Amendment) Act, 1963 expanded the forms of oath to ensure that "every candidate for the membership of a State Legislature or Parliament, and every aspirant to, and incumbent of, public office" - to quote its Statement of Objects and Reasons - "pledges himself . . . to preserve the integrity and sovereignty of the Union of India." Thus, by the Constitution (Sixteenth Amendment) Act, 1963, "the sovereignty and integrity of India", was included as an additional ground of restriction on the right guaranteed under Article 19(1)(a). 22. Having seen the history of evolution of clause (2) of Article 19, let us now turn to the first question. Two parts of Question No.1 23. Question No.1 is actually in two parts. The first part raises a poser as to whether reasonable restrictions on the right to free speech enumerated in Article 19(2) could be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Illustration: A affixes in a public place a placard instigating a sect consisting of more than ten members to meet at a certain time and place, for the purpose of attacking the members of an adverse sect, while engaged in a procession. A has committed the offence defined in this section. 1. Public Order 2. Incitement to an Offence Individual Persons Protection from incitement to commit offence. Section 124A of the IPC Sedition[2]. 1. Public Order 2. Decency and Morality State - Protection against disaffection Section 153A(1)(a) of the IPC Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony 1.Public Order 2. Decency and Morality Groups of Persons Protection from disrupting harmony among different sections of society. Section 153B of the IPC Imputations, assertions prejudicial to the national integration 1. Sovereignty and Integrity of the State 2. Public Order 3. Decency and Morality 1. Nation 2. Group of persons belonging to different religions, races, languages, etc,. Section 171C of the IPC Undue Influence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Modesty of a Woman. Section 355 of the IPC Assault or criminal force with intent to dishonour person, otherwise than on grave provocation. Note: The Definition of Assault includes use of words 1. Public Order 2. Decency and morality 3. Defamation Individual Persons - Protection of reputation. Section 383 of the IPC - Extortion (The illustration under the Section includes threat to publish defamatory libel) Illustration: A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. A has committed extortion 1. Public Order 2. Decency and Morality Individuals - Protection from fear of injury/ Protection of Property. Section 390 of the IPC - Robbery Note: In all robbery there is either theft or extortion 1. Public Order 2. Decency and Morality Individuals - Protection from fear of injury/ Protection of Property. Section 499 of the IPC - Defamation Defamation Individual Persons and Group of People - Reputation sought to be protected. Section 504 of the IPC - Intentional insult with intent to provoke breach of peace 1. Incitement to an offense 2. Public Order 3. Decency and morality The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in the form of Executive or Departmental instruction was emphasised by this Court in Bijoe Emmanuel vs. State of Kerala.[(1986) 3 SCC 615] The Court made it clear that the reasonable restrictions sought to be imposed must be through "a law" having statutory force and not a mere Executive or Departmental instruction. The restraint upon the Executive not to have a backdoor intrusion applies equally to Courts. While Courts may be entitled to interpret the law in such a manner that the rights existing in blue print have expansive connotations, the Court cannot impose additional restrictions by using tools of interpretation. What this Court can do and how far it can afford to go, was articulated by B. Sudharshan Reddy, J., in Ram Jethmalani (supra) as follows: "85. An argument can be made that this Court can make exceptions under the peculiar circumstances of this case, wherein the State has acknowledged that it has not acted with the requisite speed and vigour in the case of large volumes of suspected unaccounted for monies of certain individuals. There is an inherent danger in making exceptions to fundamental principles and rights on the fly. Those exceptions, bit by bit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where a higher threshold is maintained, are almost similar. To drive home this point, we are presenting in the following table, a comparative note relating to different jurisdictions: Jurisdiction The Document from which the Right to Freedom of Speech and Expression flows The Document from which the restrictions on the right to freedom of Speech and Expression flow Nature of Restrictions Article 19(1)(a) Constitution of India Article 19(2) Constitution of India Article 19(1)(a) Constitution of India Article 19(2) Constitution of India 1. Sovereignty and integrity of the State, 2. Security of the State, 3. Friendly relations with foreign countries, 4. Public order, 5. Decency and morality, 6. Contempt of court, 7. Defamation, 8. Incitement to an offense. UK Article 10(1) of the Human Rights Act, 1998 Article 10(2) of the Human Rights Act, 1998 1. National security, 2. Territorial integrity or public safety, 3. For the prevention of disorder or crime, for the protection of health or morals, 4. For the protection of the reputation or rights of others, 5. For preventing the disclosure of information received in confidence, or 6. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the use of a telecommunications carriage service in a way which is intentionally menacing, harassing or offensive, and using a carriage service to communicate content which is menacing, harassing or offensive. Speech or Expression amounting to Racial Discrimination under the Racial Discrimination Act, 1975 European Union Article 10(1), European Convention on Human Rights, 1950 Article 10(2), European Convention on Human Rights, 1950 1. In the interests of national security, territorial integrity or public safety, 2. For the prevention of disorder or crime, 3. For the protection of health or morals, 4. For the protection of the reputation or rights of others, 5. For preventing the disclosure of information received in confidence, or 6. For maintaining the authority and impartiality of the judiciary. Republic of South Africa Bill of Rights, Article 16(1) of the Constitution of the Republic of South Africa, 1996 Bill of Rights, Article 16(2) of the Constitution of the Republic of South Africa, 1996 1. Propaganda for war, 2. Incitement of imminent violence, 3. Advocacy of hatred that is based on race, ethnicity, gender, religion, and that constitutes incitement to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 19(2), by invoking other fundamental rights, also stands answered by this Court in Sakal Papers. In Sakal Papers, the Central Government issued an order called Daily Newspaper (Price and Page) Order, 1960 in exercise of the power conferred under the Newspaper (Price and Page) Act, 1956, fixing the maximum number of pages that might be published by a newspaper according to the price charged. Therefore, the publisher of a Marathi Newspaper challenged the constitutionality of both the Act and the Order. One of the arguments raised on behalf of the State in the said case was that there are two aspects of the activities of newspapers namely, (i) the dissemination of news and views; and (ii) the commercial aspect. While the former would fall under Article 19(1)(a), the latter would fall under Article 19(1)(g). 37. Since these two rights are independent and since the restrictions on the right under Article 19(1)(g) can be placed in the interest of the general public under Article 19(6), it was contended by the State in Sakal Papers that the Act and the Order are saved by clause (6) of Article 19. But the said argument of the State was rejected by the Constitution Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands Constitutionally on different parameters. 39. In Sakal Papers the conflict was neither between one individual's fundamental right qua another individual's fundamental right nor one fundamental right qua another fundamental right of the same individual. It was a case where a restriction validly made upon a fundamental right was held invalid qua another fundamental right of the same individual. In the cases on hand, what is sought to be projected is a possible conflict arising out of the exercise of a fundamental right by one individual, in a manner infringing upon the free exercise of the fundamental right of another person. But this conflict is age old. 40. The exercise of all fundamental rights by all citizens is possible only when each individual respects the other person's rights. As acknowledged by the learned Attorney General and Ms. Aparjita Singh, learned Amicus, this Court has always struck a balance whenever it was found that the exercise of fundamental rights by an individual, caused inroads into the space available for the exercise of fundamental rights by another individual. The emphasis even in the Preamble on "fraternity" is an indication that the survival of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing from the above discussion: (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on qua the voter's right to information. In his separate but near concurring opinion, P. Venkatarama Reddi, J. articulated the position thus: "121. ... ...When there is a competition between the right to privacy of an individual and the right to information of the citizen, the former right has to be subordinated to the latter right as it serves the larger public interest. ..." (iii) In Noise Pollution (V.), in Re (supra), the rights that competed with one another, were the rights enshrined in Article 19(1)(a) and Article 21. The clash was between individuals and the persons in the neighborhood. This Court held: "11. Those who make noise often take shelter behind Article 19(1)(a) pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore a Court, would constitute a restriction under Article 19(1)(a) and as to whether such restriction is saved under Article 19(2). This question was answered by the Constitution Bench in para 42 as follows: "42. At the outset, we must understand the nature of such orders of postponement. Publicity postponement orders should be seen in the context of Article 19(1)(a) not being an absolute right. The US clash model based on collision between freedom of expression (including free press) and the right to a fair trial will not apply to the Indian Constitution. In certain cases, even the accused seeks publicity (not in the pejorative sense) as openness and transparency is the basis of a fair trial in which all the stakeholders who are a party to a litigation including the Judges are under scrutiny and at the same time people get to know what is going on inside the courtrooms. These aspects come within the scope of Article 19(1) and Article 21. When rights of equal weight clash, the Courts have to evolve balancing techniques or measures based on recalibration under which both the rights are given equal space in the constitutional scheme and this is what the "postponement order" does, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal and has no relationship with any public activity or interest or it will not subserve larger public interest, the public authority or the officer concerned is not legally obliged to provide those information. Reference may be made to a recent judgment of this Court in Girish Ramchandra Deshpande v. Central Information Commr., (2013) 1 SCC 212, wherein this Court held that since there is no bona fide public interest in seeking information, the disclosure of said information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the Act. Further, if the authority finds that information sought for can be made available in the larger public interest, then the officer should record his reasons in writing before providing the information, because the person from whom information is sought for, has also a right to privacy guaranteed under Article 21 of the Constitution." (vii) In Subramanian Swamy (supra), the right to freedom of speech of an individual guaranteed under Article 19(1)(a) qua the right to dignity and reputation of another individual guaranteed under Article 21 were the competing rights. In this case, the Court held as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolute and it can have limitations in certain circumstances. Thus, permissible limitations are imposed by the State. The said limitations are to be within the bounds of law. However, when there is intraconflict of the right conferred under the same article, like fair trial in this case, the test that is required to be applied, we are disposed to think, it would be "paramount collective interest" or "sustenance of public confidence in the justice dispensation system". An example can be cited. A group of persons in the name of "class honour", as has been stated in Vikas Yadav v. State of U.P., (2016) 9 SCC 541: (2016) 3 SCC (Cri) 621], cannot curtail or throttle the choice of a woman. It is because choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of "class honour" or "group thinking". It is because the sense of class honour has no legitimacy even if it is practised by the collective under some kind of a notion. Therefore, if the collective interest or the public interest that serves the publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has dealt with the same by applying wellestablished legal tools. Therefore, we are of the view that under the guise of invoking other fundamental rights, additional restrictions, over and above those prescribed in Article 19(2), cannot be imposed upon the exercise of one's fundamental rights. 45. In fine, we answer Question No.1 in the following manner: "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." Question No.2 46. The second question referred to us is as to whether a fundamental right under Article 19 or 21 can be claimed against anyone other than the State or its instrumentalities. Actually, the question is not about "claim" but about "enforceability". 47. To use the phraseology adopted by the philosophers of Law, the question on hand is as to whether Part III of the Constitution has a "vertical" or "horizontal" e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and the U.S. Supreme Court held in (year 1883) what came to be known as "Civil Rights Cases.[109 US 3 (1883]that the Thirteenth and Fourteenth Amendments did not empower Congress to outlaw racial discrimination by private individuals. But after nearly 85 years, this decision was overturned in Jones vs. Alfred H. Mayer Co.[392 US 409 (1968] wherein it was held that Congress could regulate sale of private property to prevent racial discrimination. This was done in terms of 42 U.S. Code § 1982 which entitled all citizens of the United States to have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. 52. But a good 20 years before the decision in Jones (supra) was delivered, the U.S. Supreme Court had an occasion to consider a clash between contractual rights and Constitutional rights. It was in Shelly (supra) where an AfricanAmerican family (Shellys) who purchased a property in a neighbourhood in St. Louis, Missouri was sought to be restrained from taking possession, because of a racially restrictive covenant contained in an Agreement of the year 1911 to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt as imposing a positive obligation on all State actors, including the Courts to protect and enforce the rights of individuals. It appears that full horizontal effect was given by the Irish Supreme Court to Constitutional rights such as freedom of association, freedom from sex discrimination and the right to earn a livelihood. For instance, the Irish Supreme Court had an occasion to consider in John Meskell, the Constitutional rights of citizens to form associations and unions guaranteed by Article 40.6.1. This case arose out of an agreement reached between certain trade unions and the employer to terminate the services of all workers and to reemploy them on condition that they agree to be members of the specified trade unions at all times. One employee whose services were terminated was not reemployed, as he refused to accept the special condition. Therefore, he sued the company for damages and claimed a declaration that his dismissal was a violation of the Constitutional rights. Holding that the Constitutional right of citizens to form associations and unions necessarily recognized a correlative right to abstain from joining associations and unions, the Irish Supreme Court awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion to deal with a defamation action in Du Plessis and Others vs. De Klerk and Another.[1996 ZACC 10] . The defamation action was instituted by an Airline company, against a newspaper for publishing an article implicating the Airline in the unlawful supply of arms to UNITA (National Union for the Total Independence of Angola). After the Interim Constitution came into force, the defendant newspaper raised a defence that they were insulated against the defamation action, under Section 15 of the Constitution which protected the freedom of the press. The Transvaal Provincial Division of the Supreme Court referred two issues to the Constitutional Court. One of the issues was whether Chapter 3 (fundamental rights) of the Constitution was applicable to legal relationships between private parties. The majority (11:2) of the Court held that Chapter 3 could not be applied directly to the common law in actions between private parties. But they left open the question whether there were particular provisions of the Chapter that could be so applied. However, the Court held that in terms of Section 35(3) of the Interim Constitution, Courts were obliged in the application and developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. That is a far cry from the spectre of the state placing its hand on private relationships. On the contrary, if it were to try to do so by legislation or administrative action, sections 4, 7(1) and the whole of Chapter 3 would stand as a bastion of personal rights." 64. After the Final Constitution was adopted and it came into force on February 4, 1997, the first case to come up on this issue was Khumalo vs. Holomisa.[(2002) ZACC 12] . In this case, Bantu Holomisa, the leader of the South African opposition political party sued a newspaper for publishing an article alleging as though he was under a police investigation for his involvement with a gang of bank robbers. Heavy reliance was placed in this case on the majority decision of the Constitutional Court of South Africa in Du Plessis (supra). But as pointed out earlier, Du Plessis was a case which was decided at a time when South Africa had only an Interim Constitution. Therefore, while dealing with Khumalo (supra), the Constitutional Court of South Africa applied the Final Constitution, as it had come into force by then. What is relevant for our purpose is the opinion of the Constitutional Court in paragraph 33 which dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or use as a public school. A private landowner may do so, however, in accordance with section 14(1) of the Act which provides that a public school may be provided on private property only in terms of an agreement between the MEC and the owner of the property. [58] This Court, in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, made it clear that socioeconomic rights (like the right to a basic education) may be negatively protected from improper invasion. Breach of this obligation occurs directly when there is a failure to respect the right, or indirectly, when there is a failure to prevent the direct infringement of the right by another or a failure to respect the existing protection of the right by taking measures that diminish that protection. It needs to be stressed however that the purpose of section 8(2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the state in protecting the Bill of Rights. It is rather to require private parties not to interfere with or diminish the enjoyment of a right. Its application also depends on the intensity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Law (8th Ed.) p 983, and Jonathan Morgan, in Privacy, Confidence and Horizontal Effect:" Hello" Trouble (2003) CLJ 443, contend that the Human Rights Act should be given 'full, direct, horizontal effect'. The courts have not been prepared to go this far.... ... 102. To summarise our conclusion at this stage: disregarding the effect of the OK! contract, we are satisfied that the Douglases' claim for invasion of their privacy falls to be determined according to the English law of confidence. That law, as extended to cover private and personal information, protected information about the Douglases' wedding." 68. In X vs. Y.[[2004] EWCA Civ 662], the Court of Appeals dealt with the case of an employee X, who was cautioned by the Police for committing a sex offence with another man in a public bathroom. The offence occurred when X was off duty. On finding about the incident, the employer Y suspended X and dismissed him after a disciplinary hearing. The dismissal was challenged as violative of Convention Rights. An argument was raised that these rights are not enforceable against private parties. Though on facts, the claim of the dismissed employee was dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The European Court on Human Rights held: "32. A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counterdemonstrate cannot extend to inhibiting the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 (art. 11). Like Article 8 (art. 8), Article 11 (art. 11) sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, § 23)" 70. In X and Y vs. The Netherlands.[[1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omy is between (i) citizens; and (ii) persons. This can be illustrated easily in the form of a table as follows: Sl. Nos Provisions containing a mandate to the State Provisions declaring the rights of the individuals without reference to "the State" on whom the right is conferred 1. Article 14 mandates the State not to deny to any person equality before law or the equal protection of the laws within the territory of India. - Any person 2. Article 15(1) mandates the State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. - Any citizen 3. - Article 15(2) mandates that no citizen shall be subject to any disability, liability, restriction or condition, with regard to- (i) access to shops, public restaurants, hotels and places of public entertainment; or (ii) the use of 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, only on grounds of religion, race, caste, sex, place of birth or any of them. Citizen 4. Article 16(1) declares that there shall be equality of opportunity for all citizens in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f those established under any endowment or trust. Person 18. - A right not to take part in any religious instruction imparted in an educational institution recognised by the State or receiving aid out of State funds, is conferred by Article 28(3). Person 19. - A right to conserve the language, script or culture distinct to any part of the territory of India is conferred by Article 29(1). Citizens 20. A right not to be denied admission into any educational institution maintained by the State or receiving aid out of State funds, on grounds only of religion, race, caste, language or any of them is conferred by Article 29(2). This applies to institutions maintained by the State or even to institutions receiving aid out of State funds. Citizen 21. (i) A right to establish and administer educational institutions of their choice is conferred by Article 30(1) upon the religious as well as linguistic minorities. (ii) The State is mandated under Article 30(2) not to discriminate against any educational institution while granting aid. - Religious and linguistic minorities 22. - The right to move the Supreme Court for the enforcement of the rights conferred by Part I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company were sold by the bank in exercise of its right of lien for recovery of a debt. Therefore, the petitioner pitched his claim under Article 19(1)(f) and Article 31(1)(which was available at that time). But while making a comparison between Article 31(1) (as it stood at that time) and Article 21, both of which contained a declaration in the same negative form, this Court observed in P.D. Shamdasani as follows: "There is no express reference to the State in Article 21. But could it be suggested on that account that that Article was intended to afford protection to life and personal liberty against violation by private individuals? The words "except by procedure established by law" plainly exclude such a suggestion". (ii) The aforesaid principle in P.D. Shamdasani was reiterated by another Five Member Bench of this Court in Smt. Vidya Varma vs. Dr. Shiv Narain Varma.[ AIR 1956 SC 108] holding that the language of Article 31(1) and Article 21 are similar and that they do not apply to invasions of a right by a private individual and that consequently no writ will lie in such cases. (iii) In Sukhdev Singh vs. Bhagatram Sardar Singh Raghuvanshi67.[(1975) 1 SCC 421] two questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by holding that the Union of India, the Delhi Administration and the Delhi Development Authority have a duty to ensure that this Constitutional obligation is obeyed by the contractors. Going further, this Court held that certain fundamental rights such as those found in Articles 17, 23 and 24 are enforceable against the whole world. (v) S. Rangarajan (supra) was a case where a division Bench of the Madras High Court revoked the 'U' certificate issued to a Tamil feature film, on the ground that it offended the reservation policy. The Government of Tamil Nadu supported the decision of the High Court on the ground that several organizations in Tamil Nadu were agitating that the film should be banned as it hurt the sentiments of people belonging to the reserved categories. After pointing out that this Court was amused and troubled by the stand taken by the State Government, this Court indicated that it is the duty of the State to protect the freedom of expression since it is a liberty granted against the State and that the State cannot plead its inability to handle the hostile audience problem. Holding that the State cannot negate the rule of law and surrender to blackmail and inti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petent jurisdiction or/and prosecute the offender under the penal law." (vii) In Lucknow Development Authority vs. M.K. Gupta.[(1994) 1 SCC 243] this Court pointed out that the administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides and that it is now accepted by both by this Court and English Courts that the State is liable to compensate for the loss or injury suffered by a citizen due to arbitrary actions of its employees. (viii) The decision in Bodhisattwa Gautam (supra), arose under special circumstances. A girl student of a college lodged a complaint against a Lecturer for alleged offences under Sections 312, 420, 493, 496 and 498A IPC. The Lecturer moved the High Court under Section 482 Cr.P.C. for quashing the complaint. The High Court dismissed the quash petition. When the Lecturer filed a special leave petition, this Court not only dismissed the SLP but also issued notice suo motu on the question as to why he should not be asked to pay reasonable monthly maintenance during the pendency of the prosecution. Finally, this Court ordered payment of a monthly interim compensation after holding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main, the Court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the "POLLUTERPAYS PRINCIPLE" which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment." (x) In Consumer Education & Research Centre & Ors. vs. Union of India &Ors.[(1995) 3 SCC 42], this Court held that in appropriate cases the Court could give appropriate directions to the employer, be it the State or its undertaking or private employer, to make the right to life meaningful, to prevent pollution of work place, protection of environment, protection of the health of the workmen and to preserve free and unpolluted water for the safety and health of the people. The Court was dealing in that case with the occupational health hazards and diseases afflicting the workmen employed in asbestos ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian of the person and property of a minor son and unmarried daughter. The mother was recognised as the natural guardian under these provisions "after the father". These provisions resulted in hardship to spouses separated from each other while dealing with the wards. Reading the obligations of the State under certain International Conventions like CEDAW into the right to dignity of women and gender equality, traceable to Article 21 and 14, this Court read down the word "after" to mean "in the absence of". By such interpretation, this Court invoked fundamental rights to interpret a word in the sphere of family law. (xiii) In Indian Medical Association vs. Union of India.[(2011) 7 SCC 179], the policy of an Army College of Medical Sciences to admit only those who are wards of army personnel, based on scores obtained in an entrance test, was under challenge. The question that came up for consideration was whether this discriminatory practice by a private entity would be in violation of Article 15 of the Constitution. This Court in Paragraph 187 stated: "187. Inasmuch as education, pursuant to T.M.A. Pai [(2002) 8 SCC 481], is an occupation under subclause (g) of clause (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ordered off a SpiceJet aircraft by the flight crew on account of the disability. The petition was filed for putting in place a system to ensure such a violation of human dignity and inequality is not meted out to similarly placed persons. This Court observed as follows: "10. It is submitted by the petitioner that the Union of India (Respondent 1) has an obligation to ensure that its citizens are not subject to such arbitrary and humiliating discrimination. It is a violation of their fundamental rights, including the right to life, right to equality, right to move freely throughout the territory of India, and right to practise their profession. The State has an obligation to ensure that these rights are protected - particularly for those who are disabled. ..." This Court awarded compensation to the petitioner against the private Airline on the ground that the airline, though a private enterprise, ought not to have violated her fundamental right. (xvi) In Zee Telefilms Ltd. vs. Union of India.[(2005) 4 SCC 649], this Court held that though BCCI does not fall within the purview of the term "State", it discharges public duties and that therefore even if a remedy under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 78. Thus, the answer to Question No. 2 is partly found in the 9 Judge Bench decision in Justice K.S. Puttaswamy itself. We have seen from the line of judicial pronouncements listed above that after A.K. Gopalan vs. State of Madras.[ AIR 1950 SC 27] lost its hold, this Court has expanded the width of Article 21 in several areas such as health, environment, transportation, Education and Prisoner's life etc. As Vivian Bose, J., put it in a poetic language in S. Krishnan vs State of Madras.[AIR 1951 SC 301] "Brush aside for a moment the pettifogging of the law and forget for the nonce all the learned disputations about this and that, and "and" or "or ", or "may" and "must ". Look past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution.". The original thinking of this Court that these rights can be enforced only against the State, changed over a period of time. The transformation was from "State" to "Authorities" to "instrumentalities of State" to "agency of the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are not muffled drums beating funeral marches to the grave".[From H.W. Longfellow in "A Psalm of life"], nor is "life a tale told by an idiot, full of sound and fury signifying nothing".[From Shakespeare in Macbeth] 83. Over a period of time, this Court has interpreted 'the right to life' to include, (i) livelihood; (ii) all those aspects of life which go to make a man's life meaningful, complete and worth living; (iii) something more than mere survival or animal existence; (iv) right to live (and die) with human dignity; (v) right to food, water, decent environment, medical care and shelter etc.; (vi) all that gives meaning to a man's life, such as his tradition, culture, heritage and protection of that heritage in its full measure; and (vii) the right to Privacy. There are certain jurisdictions which have taken this right to include "the right to be forgotten" or the "right not to be remembered". 84. When the word "life" was understood to mean only physical existence, the deprivation of the same was generally conceived to be possible only by the State, except in cases where someone committed an offence punishable under the Penal Code. But the moment the right to life under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originally charged for the offence of dacoity and later released for lack of evidence, was put under surveillance by the Police, and his name included in the historysheet under the U.P. Police Regulations. As a result, he was required to make frequent visits to the Police Station. Sometimes the Police made domiciliary visits at night to his house. They would knock at the door, disturb his sleep and ask to report to the Police, whenever he went out of the village. Though by a majority, the Constitution Bench held in Kharak Singh (supra) that the regulation permitting domiciliary visits is unconstitutional, the majority upheld the Police surveillance on the ground that (at that time) right to privacy had not become part of the fundamental rights. But K. Subba Rao, J. speaking for himself and J.C. Shah, J. held that the concept of personal liberty in Article 21 is comprehensive enough to include privacy. The thinking reflected in A.K. Gopalan that physical restraint was necessary to constitute infringement of personal liberty, was completely changed by K. Subba Rao, J. in his minority opinion in Kharak Singh. Giving a completely new dimension to personal liberty, K. Subba Rao, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors.[(2014) 9 SCC 737] "The minority judgment of Subba Rao and Shah, JJ. eventually became law in Rustom Cavasjee Cooper vs. Union of India.[(1970) 1 SCC 248](Bank Nationalisation case), where the 11Judge Bench finally discarded the view expressed in A.K. Gopalan and held that various fundamental rights contained in different articles are not mutually exclusive ...". 87. If U.P. Police Regulations were challenged in Kharak Singh, identical Regulations issued by the State of Madhya Pradesh were challenged in Gobind vs. State of Madhya Pradesh [(1975) 2 SCC 148].Though this Court upheld the impugned Regulations, K.K. Mathew, J. pointed out: "25. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality, and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. "Liberty against Government" a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal liberty and that the same cannot be deprived except according to the procedure established by law. 91. Next came the decision in Bandhua Mukti Morcha vs. Union of India & Ors.[1984) 3 SCC 161]. It was a case where a letter addressed by an NGO to the Court exposing the plight of persons working in stone quarries under inhuman conditions, was treated as a public interest litigation. Some of those workers were actually bonded labourers. After this Court issued notice to the State Governments and the lessees of the quarries, a preliminary objection was raised as to the maintainability of the writ petition. While rejecting the preliminary objection, this Court broadly indicated how the fundamental rights of those bonded labourers were violated and what were the duties of the State and the Court in cases of that nature. The relevant portion of the decision reads thus: "9. ... We should have thought that if any citizen brings before the Court a complaint that a large number of peasants or workers are bonded serfs or are being subjected to exploitation by a few mine lessees or contractors or employers or are being denied the benefits of social welfare laws, the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt indicated the role of the State in the following words: "20....Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is dutybound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and wellbeing of Chakmas residing in the State without being inhibited by local politics. ..." 94. In Mr. 'X' vs. Hospital 'Z'.[(1998) 8 SCC 296], the appellant had accompanied a patient to the hospital for treatment and offered to donate blood, for the purpose of surgery. Before allowing him to donate blood, samples were taken from "X". It was detected that he was HIV positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital on the ground that they were not authorized to handle medicolegal cases. Before the victim could be taken to an authorized hospital located 20 kilometers away, he died, which prompted the writ petition. While issuing directions, this Court expressed an opinion about the affirmative duty of court in paragraph 8 as follows: "8. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasized and reiterated with gradually increasing emphasis that position. A doctor at the government hospital positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch registers, books etc., are kept. Taking cue from the decision in R. Rajagopal and Maneka Gandhi, this Court held in paragraphs 55 and 56 of the decision as follows: "55. The A.P. Amendment permits inspection being carried out by the Collector by having access to the documents which are in private custody i.e. custody other than that of a public officer. It is clear that this provision empowers invasion of the home of the person in whose possession the documents "tending" to or leading to the various facts stated in Section 73 are in existence and Section 73 being one without any safeguards as to probable or reasonable cause or reasonable basis or materials violates the right to privacy both of the house and of the person. We have already referred to R. Rajagopal case wherein the learned Judges have held that the right to personal liberty also means life free from encroachments unsustainable in law, and such right flowing from Article 21 of the Constitution. 56. In Maneka Gandhi v. Union of India [(1978) 1 SCC 248] a sevenJudge Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression "personal liberty" in Article 21 is of the wides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the victims of such nature was a must. 100. In Shakti Vahini vs. Union of India & Ors.[(2018) 7 SCC 192], while dealing with a writ petition seeking a direction to the State Governments and Central Government to take preventive measures to combat honour crimes and to submit a National/State plan of action, this Court issued a slew of directions directing the State Governments to take both punitive and remedial measures, on the ground that the State has a positive obligation to protect the life and liberty of persons. In paragraph 49 this Court said, "We are disposed to think so, as it is the obligation of the State to have an atmosphere where the citizens are in a position to enjoy their fundamental rights." After quoting the previous decision in S. Rangarajan (supra), which arose out of the infringement of the freedom of expression in respect of a cinematograph film, this Court said in Shakti Vahini (supra) as follows: "49. ... We are absolutely conscious that the aforesaid passage has been stated in respect of a different fundamental right, but the said principle applies with more vigour when the life and liberty of individuals is involved. We say so reminding the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question revolves around the role and responsibility of a Minister and the vicarious liability/responsibility of a Government to any statement made by him. For answering the said question, we may need to understand the role of a Minister under our Constitutional scheme. 106. Part V of the Constitution providing for matters connected with "The Union" contains five chapters, dealing respectively with, (i) the Executive; (ii) Parliament; (iii) Legislative powers of the President; (iv) the Union Judiciary; and (v) Comptroller and Auditor General of India. Part VI of the Constitution dealing with "The States" contains six chapters, dealing respectively with, (i) general provision containing the definitions; (ii) the Executive; (iii) the State Legislature; (iv) Legislative power of the Governor; (v) the High Courts in the States; and (vi) Subordinate Courts. 107. While Articles 74 and 75 provide for, (i) 'Council of Ministers to aid and advise the President'; and (ii) 'Other provisions as to Ministers', insofar as the Union is concerned, Articles 163 and 164 provide for, (i) 'Council of Ministers to aid and advise the Governor'; and (ii) 'Other provisions as to Ministers', insofar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or any of the Governmental functions. Similarly an individual Minister is responsible to the Legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. ..." 112. The expression "collective responsibility" can be traced to some extent, to Article 75(3) insofar as the Union is concerned and to Article 164(2) insofar as the States are concerned. But in both the Articles, it is the Council of Ministers who are stated to be collectively responsible to the House of the People/Legislative Assembly of the State. Generally collective responsibility of the Council of Ministers either to the House of the People or to the Assembly should be understood to correlate to the decisions and actions of the Council of Ministers and not to every statement made by every individual Minister. 113. In State of Karnataka vs. Union of India.[(1977) 4 SCC 608], a Seven Member Constitution Bench of this Court, while dealing with a challenge made by the State of Karnataka in the form of a civil suit under Article 131, to the appointment by the Central Government, of a commission of enquiry against the Chief Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ministerial responsibility to Parliament, which has essentially a political purpose and effects, developed later than individual responsibility of Ministers to Parliament which was also political in origin and operation. It is true that an individual Minister could, in England, where the principle of individual and collective responsibility of Ministers was evolved, be responsible either for wrongful acts done by him without the authority of the whole cabinet or of the monarch to support them, or under orders of the King who could, in the eye of law, do no wrong. But, apart from an impeachment, which has become obsolete, or punishment for contempts of a House, which constitute only a limited kind of offences, the Parliament does not punish the offender. For establishing his legal liability recourse to ordinary courts of law is indispensable." 114. Quoting from Wade and Phillips on Constitutional Law, this Court pointed out in the State of Karnataka (supra) that "responsibility to Parliament only means that the Minster may be compelled by convention to resign." 115. The extent to which the enforcement of collective responsibility can be taken was also indicated in the above dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of the majority. They are answerable to the Parliament and accountable to the people. They bear collective responsibility and shall be bound to maintain secrecy. Their executive function comprises of both the determination of the policy as well as carrying it into execution, the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, direction of foreign policy. In short the carrying on or supervision of the general administration of the affairs of Union of India which includes political activity and carrying on all trading activities, the acquisition, holding and disposal of property and the making of contracts for any purpose. In short the primary function of the Cabinet is to formulate the policies of the Government in conformity with the directive principles of the Constitution for the governance of the nation; place the same before the Parliament for acceptance and to carry on the executive function of the State as per the provisions of the Constitution and the laws. 30. Collective responsibility under Article 75(3) of the Constitution inheres maintenance of confidentiality as enjoined in oaths of office and of secrecy set fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise the powers and performs its duties by the individual Ministers as public officers with the assistance of the bureaucracy working in various departments and corporate sectors etc. Though they are expressed in the name of the Governor, each Minister is personally and collectively responsible for the actions, acts and policies. They are accountable and answerable to the people. Their powers and duties are regulated by the law and the rules. The legal and moral responsibility or liability for the acts done or omissions, duties performed and policy laid down rest solely on the Minister of the Department. Therefore, they are indictable for their conduct or omission, or misconduct or misappropriation. The Council of Ministers are jointly and severally responsible to the Legislature. He/they is/are also publicly accountable for the acts or conducts in the performance of duties." 120. Again, in paragraph 11, this Court outlined the responsibility of the Ministers as follows: "11. The Minister holds public office though he gets constitutional status and performs functions under the Constitution, law or executive policy. The acts done and duties performed are public acts or dutie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or review was filed by the Minister for recalling the order which directed payment of exemplary damages and also the registration of a case by the Central Bureau of Investigation. The decision in the petition for review, reported in (1999) 6 SCC 667, dealt with the question of collective responsibility in the context of the contention raised. It was argued by the delinquent Minister in the said case that under the business rules of the Cabinet, the act of a Minister is to be treated as the act of the President or the Governor as the case may be and that therefore the allotment made by him should be treated to have been made while acting only on behalf of the President. As an extension of this argument, it was also contended that the Minister having acted as a part of the Council of Ministers, his act should be treated to be the act of the entire Cabinet on the principle of collective responsibility. While rejecting the said contention, this Court held in Common Cause that the immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 77(1) or 77(2). Dealing with the concept of collecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f collective responsibility is essentially a political concept; (ii) that the collective responsibility is that of the Council of Ministers; and (iii) that such collective responsibility is to the House of the People/Legislative Assembly of the State. Generally, such responsibility correlates to (i) the decisions taken; and (ii) the acts of omission and commission done. It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly. 127. Shri Kaleeswaram Raj, learned counsel appearing for the special leave petitioner drew our attention to the code of conduct for Ministers of the Government of Australia, code of conduct for Ministers of the Government of India and the Ministerial Code of the United Kingdom. However, attractive such prescriptions may be, it is not possible to enforce such code of conduct in a court of law. Government servants stand on a different footing, as any misconduct on their part with reference to the Government Servants (Conduct) Rules, may attract disciplinary action under the Civil Services (Discipline and Appeal) Rules. Even in the case of Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the concept of collective responsibility; (ii) what is collective responsibility; (iii) the conventions of collective responsibility; and (iv) departures from collective responsibility are dealt with. This Paper traces early beginnings of the doctrine of collective responsibility to the reign of George III (17601820). According to the Briefing Paper, the development of today's concept of collective responsibility arose during the Victorian golden age of Parliamentary Government. In fact, the Briefing Paper quotes some commentators who have questioned whether the convention of collective responsibility remains appropriate for the Government of today. The Briefing Paper quotes Barry Winetrobe, a Research Fellow at the Constitution Unit who said that the doctrine of collective responsibility was developed at a time when a sense of coherence was required to be maintained among disparate ministerial forces in the face of the Monarch and that it is not necessarily appropriate in an age, not just of democracy, but of greater and more direct participative democracy. 132. It will be useful to quote a portion of Chapter 2.3 under the heading "Enforcing collective responsibility" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reverse, namely, from the individual Ministers to the Council of Ministers. 136. Our attention was also drawn to the decision of this Court in Amish Devgan. Though the said decision considered extensively the impact of the speech of "a person of influence", we are not, in this reference dealing with the same. This is for the reason that the said decision concerned "hate speech". None of the questions referred to us, including Question No.4 with which we are presently concerned, relates to hate speech, and understandably so. The writ petition as well as the special leave petition out of which this reference arose, concerned speeches made by the Ministers of the State of Uttar Pradesh and the State of Kerala. The speech made by the Minister of the State of Uttar Pradesh attempted to paint a case of robbery and gangrape as a political conspiracy. The speech of the Minister of the State of Kerala portrayed women in a disrespectful way. Since the statements concerned in both the cases were attributed to the Ministers, Question No.4 referred to us, specifically relates to "statement made by a Minister". Amish Devgan did not deal with the statement of a Minister traceable to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranslated into action and such action results in injury or harm or loss that an action in tort will lie. With this caveat, let us now get into the core of the issue. 141. A tort is a civil wrong, that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act. Halsbury's Law of England states: "Those civil rights of action which are available for the recovery of unliquidated damages by persons who have sustained injury or loss from acts, statements or omissions of others in breach of duty or contravention of right imposed or conferred by law rather than by agreement are rights of action in tort." 142. If Crown Proceedings Act, 1947 changed the course of the law relating to tort in England, the Federal Tort Claims Act, 1946 changed in America, the course of law relating to the liability of the State for the tortious acts of its servants. Nevertheless, the claims for damages continued to be resisted for a long time both here and elsewhere on the principle of sovereign immunity. It is interesting to note that on the initiative of the President of India, the Law Ministry took up for consideration the question whether legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equity and good conscience, with statutory modifications of that law now in force in India (vide the Principles of General Law, Appendix VI)- (i) The State as employer should be liable for the torts committed by its employees and agents while acting within the scope of their office or, employment. (ii) The State as employer should be liable in respect of breach of those duties which a person owes to his employees or agents under the general law by reason of being their employer. (iii) The State should be liable for torts committed by an independent contractor only in cases referred to in Appendix VI. (iv) The State also should be liable for torts where a corporation owned or controlled by the State would be liable. (v) The State should be liable in respect of breach of duties attached under the general law to the ownership, occupation, possession or control of immoveable properly from the moment the State occupies or takes possession or assumes control of the property. (vi) The State should be subject to the general law liability for injury caused by dangerous things (chattels). In respect of (i) to (vi) the State should be entitled to raise the same defences, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and that there is no legal impediment to one tortfeasor recovering compensation from another. But the law should not be left in an uncertain state and there should be legislation on the lines of the English Act. (iii) Appropriate provision should be made while revising the Civil Procedure Code to make it obligatory to implead as party to a suit in which a claim for damages against the State is made, the employee, agent or independent contractor for whose act the State is sought to be made liable. Any claim based on indemnity or contribution by the State may also be settled in such proceeding as all the parties will be before the court. V. Exceptions: (i)Acts of State: The defence of "Act of State" should be made available to the State for any act, neglect or default of its servants or agents. "Act of State" means an act of the sovereign power directed against another sovereign power or the subjects of another sovereign power not owning temporary allegiance, in pursuance of sovereign rights. (ii) Judicial acts and execution of judicial process:The State shall not be liable for acts done by judicial officers and persons executing warrants and orders of judicial officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l known as the Government (Liability in Torts) Bill was introduced in 1967, but the same did not become the law. As a consequence, a huge burden was cast on the Courts to develop the law through judicial precedents, some of which we shall see now. 146. The judicial journey actually started off on a right note with the decision in The State of Bihar vs. Abdul Majid.[AIR 1954 SC 245], where a Government servant who was dismissed but later reinstated, filed a suit for recovery of arrears of salary. Though the State raised a defence on the basis of the doctrine of pleasure, this Court rejected the same on the ground that said doctrine based on the Latin phrase "durante bene placito" (during pleasure) has no application in India. This decision was followed in State of Rajasthan vs. Mst. Vidhyawati.[AIR 1962 SC 933], which involved a claim for compensation by the widow of a person who was fatally knocked down by a jeep owned and maintained by the State. When sovereign immunity was pleaded, this Court observed in Vidhyawati (supra): "when the rule of immunity in favour of the Crown, based on common law in the United Kingdom has disappeared from the land of its birth, there is no legal wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual for the same purpose." 149. In fact, it was suggested by this Court in Kasturi Lal that the Legislatures in India should seriously consider making legislative enactments to regulate and control their claim for immunity. Before proceeding further with the journey in the chronological sequence, it must be mentioned that the decision in Kasturi Lal was diluted to some extent after nearly 30 years which we shall take note of at the appropriate stage. 150. In Khatri (II) vs. State of Bihar.[(1981) 1 SCC 627], which came to be popularly known as Bhagalpur blinding case, this Court was dealing with a brutal incident of Police atrocity which resulted in twentyfour prisoners being blinded. Though an opportunity was provided to this Court to signal the arrival of Constitutional tort in the said case and though the petitioners sought compensation for the violation of their Article 21 right, this Court simply postponed the decision to a future date by holding that they are issues of the gravest Constitutional importance, involving the exploration of new dimension of the right to life and personal liberty. 151. But within a couple of years, another opportunity arose in Rudul Sah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice officers against members of a peaceful assembly. * Several were injured and 21 died (including children) due to this incident. * While the State had paid a compensation of Rs.10,000 each to heirs of the deceased, this Court found it insufficient and directed payment of Rs.20,000 to dependants of each deceased and Rs.5,000 to each injured person. 4. Saheli, a Women's Resources Centre through Ms. Nalini Bhanot & Ors. vs. Commissioner of Police, Delhi Police Headquarters & Ors. (1990) 1 SCC 422 * Two women were forcefully evicted from their homes. The landlord was aided by the SHO and SI in the assault that led to demise of the nineyearold son of one of the women. * This Court awarded compensation of Rs.75,000 to the mother of the deceased child. 5. Supreme Court Legal Aid Committee through its Hony. Secretary vs. State of Bihar & Ors. (1991) 3 SCC 482 * A person injured in a train robbery, was taken to the nearest hospital by the Police by tying him to the footboard of a vehicle. This led to his death. * This Court observed that had timely care been given to the victim he might have been saved. * The State of Bihar was directed to pay Rs.20,000 to the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation involving incidents of custodial violence in West Bengal, this Court issued guidelines for law enforcement agencies to follow when arresting and detaining any person. * This Court also discussed the award of compensation as a remedy for violation of fundamental rights as a punitive measure against State action. 12. People's Union for Civil Liberties vs. Union of India & Anr. (1997) 3 SCC 433 * Two persons alleged to be terrorists were killed by the police in a false encounter. * This Court directed the State of Manipur to pay Rs.1 lac to the family of the deceased and Rs.10,000 to PUCL for pursuing the case for many years. 13. Municipal Corporation of Delhi, Delhi vs. Uphaar Tragedy Victims Association & Ors. (2011) 14 SCC 481 * A fire in a cinema hall resulted in injury to over 100 persons and death of 59 cinemagoers. * The fire was caused by a transformer installed by Delhi Vidyut Board (DVB). * HC had found the Municipal Corporation, Delhi Police, and the DVB responsible for the accident. * This Court held only DVB and theatre owner liable to pay compensation in the ratio of 15:85. * While doing so, this Court dealt extensively with the concept of Constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 19 or 21 of the Constitution of India be claimed other than against the 'State' or its instrumentalities? A fundamental right under Article 19/21 can be enforced even against persons other than the State 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? 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 nonState actor. 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 principle of collective responsibility. 5 Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain individuals such as women who may be victims of crime. Such indiscreet speech is a cause of concern in recent times as it is thought to be hurtful and insulting. The questions raised in these matters are with regard to remedies available in law so as to counter such kind of hurtful or disparaging speech made, particularly, by public functionaries. 4. The facts giving rise to the present petitions may be encapsulated as under: 4.1. Writ Petition (Crl.) No. 113 of 2016, relates to the unsavory public comments made by a former Uttar Pradesh Cabinet Minister, in the context of an alleged gang rape of a woman and her minor daughter that took place on 29th July, 2016 on the NoidaShahjahanpur National Highway (NH 91). Relying on certain news articles, the petitioner in Writ Petition (Crl.) No. 113 of 2016 has brought to the notice of this Court the remarks made by the said public functionary, terming the alleged incident as an "opposition conspiracy," which was proliferated merely because "elections were near, and the desperate opposition could stoop to any level to defame the government." 4.2. In relation to such statements, a First Information Report, being FIR No. 0838 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition (C) No. 15869 and Writ Petition (C) No. 14712 of 2017. The said Writ Petitions were filed before the High Court alleging inaction on the part of Government of Kerala in connection with the derogatory statements made on separate occasions, by the then Minister of Electricity, Government of Kerala, against a woman Principal of a polytechnic college in Kerala, the mother of a student who allegedly committed suicide due to the alleged harassment by the college authorities and against women labourers of a tea plantation. Aggrieved by the dismissal of the said Writ Petition, SLP bearing Diary No. 34629 of 2017 came to be filed before this Court, which was directed to be tagged with Writ Petition (Crl.) No. 113 of 2016. 5. The questions raised for the consideration of this Constitution Bench are enumerated as under: "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 law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights? 2) Can a fundamental right under Article 19 or 21 of the Constitution of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which have also been statutorily recognised. Therefore, a fundamental right under Article 19/21 cannot be enforced against persons other than the State or its instrumentalities. However, they may be the basis for seeking common law remedies. But a remedy in the form of writ of Habeas Corpus, if sought against a private person on the basis of Article 21 of the Constitution can be before a Constitutional Court i.e., by way of Article 226 before the High Court or Article 32 read with Article 142 before the Supreme Court. As far as non-State entities or those entities which do not fall within the scope of Article 12 of the Constitution are concerned, a writ petition to enforce fundamental rights would not be entertained as against them. This is primarily because such matters would involve disputed questions of fact. 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? The State is under a duty to affirmatively protect the rights of a person under Article 21, whenever there is a threat to pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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. Public functionaries could be proceeded against personally if their statement is inconsistent with the views of the Government. If, however, such views are consistent with the views of the Government, or are endorsed by the Government, then the same may be vicariously attributed to the State on the basis of the principle of collective responsibility and appropriate remedies may be sought before a court of law. Submissions: 7. We have heard learned Senior Counsel, Sri Kaleeswaram Raj, for the Petitioners and learned Attorney General for the Respondents, and learned Senior Counsel Ms. Aparajita Singh, amicus curiae. Arguments on behalf of the petitioners: 8. The submissions of learned Senior Counsel, Sri Kaleeswaram Raj, appearing on behalf of the Petitioners may be epitomized as under: 8.1. That while upholding the constitutional right to freedom of speech and expression of Ministers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney General fairly submitted that restrictions on the freedom of speech enumerated under Article 19 (2) have to be taken to be exhaustive and thus, the court cannot invoke any other fundamental right, namely, Article 21 to impose restrictions on grounds which are not enumerated under Article 19(2). Further, that as a matter of constitutional principle, any addition, alteration or change in the norms or criteria for imposition of restrictions, on any fundamental right has to come through a legislative process. That the balancing of fundamental rights, either to avoid overlapping or to ensure mutual enjoyment, is different from treating one right as a restriction on another right. 9.2. It was next submitted that the Constitution of India sets out the scheme of claims of fundamental rights against the State or its instrumentalities and such scheme also addresses breaches or violations of fundamental rights by persons other than the State or its instrumentalities. Thus, any proposition to add or insert subjects or matters in respect of which claims can be made against persons other than the State, would amount to a constitutional change. That any enlargement of such constitutional pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private citizen from violating the fundamental rights of other citizens, its own Minister can do so with impunity. However, learned amicus curiae qualified such submission by stating that the factum of violation would need to be established on the facts of a given case and hence the law has to evolve from case to case. It would involve a detailed inquiry into questions such as i) whether the statement by the Minister was made in his personal or official capacity; ii) whether the statement was made on a public or private issue; iii) whether the statement was made on a public or private platform. 10.4. It was submitted that a Minister is personally bound by the oath of office to bear true faith and allegiance to the Constitution of India under Articles 75(4) and 164(3) of the Constitution. That 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 the constitutional obligations. 10.5. It was lastly submitted that the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r additional accountability and thus, a legal obligation can be cast upon public functionaries with respect to the permissible extent of free speech. Further, it is also necessary to examine the difference between restraints on the exercise of freedom of speech and expression, vis-à-vis restrictions thereon, and in that background examine the degree of self-restraint that needs to be exercised by every citizen, whether a public functionary or not, in exercising his/her right to freedom of speech and expression in a Country like ours which is so unique because of its diversity and pluralism. Article 19(1)(a) and Article 19(2): An overview 12. At this stage, it would be useful to dilate on Article 19(1)(a) and Article 19(2) as under: 12.1. Article 19(1)(a) to (f) of the Constitution guarantees certain fundamental rights to the citizens of India. These fundamental rights are however, subject to reasonable restrictions as enumerated in Articles 19(2) to (6) thereof which could be imposed by the State. These fundamental rights are in the nature of inalienable rights of man or basic human rights which inhere in all citizens of a free country. Yet, these rights are not unrestr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority of law but not by exercise of executive power in the absence of any law. Further, the nature of restrictions on right to free speech must be reasonable, and in the interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. (Article 19(2)). 12.4. For a country like ours which is a Parliamentary Democracy, freedom of speech and expression is a necessary right as well as a concomitant for the purpose of not only ensuring a healthy democracy but also to ensure that the citizens could be well informed and educated on governance. The dissemination of information through various media, including print and electronic media or audio visual form, is to ensure that the citizens are enlightened about their rights and duties, the manner in which they should conduct themselves in a democracy and for enabling a debate on the policies and actions of the Governments and ultimately for the development of the Indian society in an egalitarian way. 12.5. The right to freedom of speech and expression in Article 19(1)(a) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was further observed that insofar as the first apparent difference is concerned, the United States Supreme Court has never given effect to the declaration that Congress shall, under some circumstances, make any law abridging the freedom of speech. Insofar as the second apparent difference is concerned, para 17 of Shreya Singhal is extracted as under: "17. So far as the second apparent difference is concerned, the American Supreme Court has included "expression" as part of freedom of speech and this Court has included "the press" as being covered under Article 19(1)(a), so that, as a matter of judicial interpretation, both the US and India protect the freedom of speech and expression as well as press freedom. Insofar as abridgement and reasonable restrictions are concerned, both the US Supreme Court and this Court have held that a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary. It is only when it comes to the eight subject-matters that there is a vast difference. In the US, if there is a compelling necessity to achieve an important governmental or societal goal, a law abr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a free speech right. This includes what type of legal right to free speech is formally recognized or at issue: for example, common law, statutory, or constitutional. This in turn helps to determine whether and how easily a free speech right can be legally superseded. Another aspect of force is whether and how the right is judicially enforceable. The second component is the 'subject' of free speech rights, or who are the rights-holders: for example, all persons within a jurisdiction or only citizens; legal persons including corporations or only natural persons? The third is the 'scope' of a free speech right: a right to say or do what exactly? Does it include falsehoods, hate speech, or baking a cake? The fourth, as a distinct structural element concerning content, addresses whether the right includes not only negative prohibitions on relevant others but also positive obligations, such as a duty to affirmatively protect the free speech of rights-holders from third-party threats? The fifth component is the 'object' of a free speech right: who are these 'relevant others' that are bound by the holder's rights? Against whom can the right be validly assert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the content of speech. For instance, in respect of speech that is likely to be adverse to the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality; or speech that constitutes contempt of court, defamation or is of such nature as would be likely to incite the commission of an offence, the duty of the State to abstain from interference, is nil. This principle is Constitutionally reflected under Article 19(2) which enables the State to enact law which would impose reasonable restrictions on such speech as described under the eight grounds listed hereinabove which are the basis for reasonable restrictions. b) Per contra, in respect of speech and expression which constitutes an exchange of ideas, including dissent or disagreement, and such ideas are expressed in a manner compatible with the ethos cultivated in a civilised society, the duty of the State to abstain from interference, is high. c) Similarly, in respect of commercial speech, the State is completely free to recall or curb commercial speech which is false, misleading, unfair or deceptive. Therefore, the threshold of tolerance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such speech does not constitute an exchange of ideas, in a manner compatible with the ethos cultivated in a civilised society. Such restraints need not be traceable only to Article 19(2), which exhaustively lists eight grounds on which restrictions may be imposed on the right to freedom of speech and expression by the state. The Content of Article 19(1)(a): 15. The freedom of speech and expression under Article 19(1)(a) is a right with diverse facets, both with regard to the content of speech and expression, and the medium through which communication takes place. It is also a dynamic concept that has evolved with time and advances in technology. In short, Article 19(1)(a) covers the right to express oneself by word of mouth, through writing, pictorial form, graphics, or in any other manner. It includes the freedom of communication and the right to propagate or publish one's views and opinions. The communication of ideas may be through any medium such as a book, newspaper, magazine or movie, including electronic and audio-visual media. 15.1. Right to Circulate: Freedom of the press takes within its fold a number of rights and one such right is the freedom of publica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) In Romesh Thappar, this Court recognised that criticism or dissent directed against the Government, was not to be curtailed and any attempt to do so could not be justified as a reasonable restriction under Article 19 (2) of the Constitution. This declaration by this Court cemented the idea that the freedom of speech and expression covers the right to dissent or criticise, even when such right is employed with respect to criticism of governmental policy or action or inaction. It is now recognised that the right to dissent is an essential pre-requisite of a healthy democracy and a facet of free speech. (ii) In Kedar Nath Singh vs. State of Bihar, A.I.R. 1962 SC 955 ("Kedar Nath Singh") this Court considered a challenge to Sections 124-A and 505 of the IPC, which criminalised attempts targeted at exciting disaffection towards the Government, by words, or through writing and publications which may disturb public tranquillity. Although this Court dismissed the challenge to the vires of the aforestated provisions, it was clarified that criticism of measures adopted by the government, would be within the limits of, and consistent with the freedom of speech and expression. (iii) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omic or furtherance of literature or human thought; but the commendation of the efficacy, value and importance of the product it seeks to advertise. In the said case, this Court did not recognize commercial speech on par with other forms of speech by holding that it did not have the same value as political or creative expression. That broadly, the right to publish and distribute commercial advertisements advertising an individual's personal business is a part of freedom of speech guaranteed by the Constitution, but not every advertisement is a matter which comes within the scope of freedom of speech, nor can it be said that it is an expression of ideas. In every case, one has to see what is the nature of advertisement and what is the business/commercial activity falling under Article 19(1)(g) it seeks to further. In the aforesaid case, what was challenged was the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. It was held that the object of the Act was the prevention of selfmedication and self-treatment by prohibiting advertisements, which may be used to advocate the same or which tended to spread the evil. It was further held that the advertisements of Ham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in some cases, warn a potential consumer about the nature of the product. Such compelled speech cannot be a violation of the freedom of speech and expression. But if the State compels a citizen to carry out propaganda or a point of view contrary to his wish then it may be a restriction on his freedom of speech and expression, which must be justified as per Article 19(2) of the Constitution. But, if the "must carry" provision furthers informed decision making, which is the essence of free speech and expression, then it will not amount to a violation of Article 19(1)(a). The following judgments could be cited in the aforesaid context: (i) In Union of India vs. Motion Picture Association, A.I.R. 1999 SC 2334 ("Motion Picture Association"), this Court held that whether compelled speech will or will not amount to a violation of the freedom of speech and expression, would depend upon the nature of a "must carry" provision. It observed that, if a "must carry" provision further informed decision-making, which is the essence of the right to free speech and expression, it will not amount to any violation of the fundamental freedom of speech and expression. However, if such a provision com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot restrict the scope of consideration in the instant cases only to speech made by public functionaries, but the same shall also extend to speech by ordinary citizens, especially on social media. 16.2. This Court, in Pravasi Bhalai Sangathan vs. Union of India, (2014) 11 SC 477 ("Pravasi Bhalai Sangathan") speaking through Dr. B.S. Chauhan, J., has dealt with 'hate speech' as having an innate relationship with the idea of discrimination. That the impact of such speech is not measured by its abusive value alone, but rather by how successfully and systematically it marginalises people. The definition of 'hate speech' as propounded by this Court in the aforesaid case, is extracted hereinunder: "Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on [the] vulnerable that can range from discri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t gives assurance of participatory equality in inter-personal relationships between the citizens, and between the State and the citizens, and thereby fosters self-worth. Dignity in this sense does not refer to any particular level of honour or esteem as an individual, as in the case of defamation which is individualistic. 47. Preamble to the Constitution consciously puts together fraternity assuring dignity of the individual and the unity and integrity of the nation. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual's obligation to others to ensure unity and integrity of the nation. The unity and integrity of the nation cannot be overlooked and slighted, as the acts that 'promote' or are 'likely' to 'promote' divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law. The purpose is not to curtail right to expression and speech, albeit not gloss over spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re interconnected and linked. Only when they are present that they produce structural continuity to constitute 'hate speech'." It was further clarified that the effect of the words must be judged from the standard of "reasonable, strong-minded, firm and courageous men and not those who are weak and ones with vacillating minds, nor those who scent danger in every hostile point of view." That in order to ensure maximisation of free speech, the assessment should be from the perspective of a reasonable member of the public. 16.4. Further, in a landmark Judgment of the United States' Supreme Court in the matter of Chaplinsky vs. State of New Hampshire, 315 U.S. 568 (1942) ("Chaplinsky") "hate speech" was defined by Murphy J. to mean "fighting words, which by their very utterance inflict injury or tend to incite an immediate breach of peace. It has been observed that such utterances are no essential part of any exposition of ideas, and are of slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." 16.5. The term 'hate speech' does not find a specific place in Article 19(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations or otherwise. iv) Section 3(g) of the Religious Institutions (Prevention of Misuse) Act, 1988 prohibits religious institutions to allow the use of any premises belonging to, or under their control for promoting or attempting to promote disharmony, feelings of enmity, hatred, ill-will between different religious, racial, linguistic or regional groups or castes or communities. v) Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 punishes an intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or Tribe in any place within public view. vi) Section 8 of the Representation of the People Act, 1951 disqualifies a person from contesting elections if he is convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression. Section 123(3-A) of the same Act declares "the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtheran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation by the authorities in the interest of public order, or the sovereignty and integrity of India, or for the purpose of preventing incitement to the commission of a cognizable offence. Section 66-A of the same Act which sought to penalise information that is "grossly offensive" or of "menacing character" or despite knowledge that it is false, is sent to cause annoyance, inconvenience, danger, obstruction, insult, criminal intimidation, enmity, hatred or ill-will, was struck down in Shreya Singhal on the ground of, inter alia, vagueness. x) Norms of Journalistic Conduct, 2010 issued by the Press Council of India (constituted under the Press Council Act, 1978) contain extensive guidelines on the reporting of communal incidents. The content of speech is sought to be controlled in all the aforesaid statutes when the same is made not only by public functionaries but any ordinary citizen also through whatever medium of dissemination. 16.6. One of the recommendations of the 267th Law Commission was to insert Sections 153C and 505A and associated provisions in the CrPC to deal with 'Hate Speech'. As per the Law Commission report, the proposed provisions would read as under: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my opinion, we are concerned with a more overarching area of derogatory, vitriolic and disparaging speech, which is actually not 'hate speech' simplicitor as has been traditionally sought to be defined and understood. I am concerned with speech that may not be linked to systematic discrimination and eventual political marginalisation of a community, but which may nonetheless have insidious effects on the societal perception of human dignity, values of social cohesion, fraternity and equality cherished by "We the people" of India. 16.8. Andrew F. Sellars, in his essay published by Harvard University, titled 'Defining Hate Speech,' has examined the concept of 'hate speech' in different democratic jurisdictions. The author has identified that certain remarks, which, although may not be 'hate speech' in the strict sense of the term, border on the said term. That even tacit elements of intent of the speaker to cause harm, may constitute some species of hate speech. Intent may refer to non-physical aspects like to demean, vilify, humiliate, or being persecutorial, disregarding or hateful. The author has also recognised that in some contexts, "at home speeches" may themselves amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian position, as discernible from the Canadian Supreme Court's verdict in R vs. James Keegstra, (1990) 3 SCR 697 ("Keegstra") (Canada) considers the likely impact of hate speech on both the targeted groups and nontargeted groups. The former are likely to be degraded and humiliated and experience injuries to their sense of self-worth and acceptance in the larger society and may well, as a consequence, avoid contact with members of the other group within the polity. The non-targeted members of the group, sometimes representing society at large, on the other hand, may gradually become de- sensitised and may in the long run start accepting and believing the messages of hate directed towards racial and religious groups. These insidious effects pose serious threats to social cohesion in the long run rather than merely projecting immediate threats to violence. Further, Dixon C.J. of the Canadian Supreme Court in Canada Human Rights Commission vs. Taylor, (1990) 3 SCR 892 ("Taylor") (Canada) has observed as follows, as regards the interrelationship between messages of hate propaganda and the values of dignity and equality: "...messages of hate propaganda undermine the dignity and self ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnity and multiculturalism. Further, value of personal honour always triumphs over the right to utter untrue statements or facts made with the knowledge of their falsity. Also, if true statements of fact invade the intimate personal sphere of an individual, the right to personal honour triumphs over the freedom of speech. If the expression of opinion as opposed to a fact constitutes a serious affront to the dignity of a person, the value of dignity triumphs over the speech. Therefore, German application strikes a balance between rights and duties, between the individual and the community on the one hand and between the selfexpression needs of the speaker and the self-respect and dignity of the listeners on the other. It recognises the content-based speech regulation and also recognises the difference between fact and opinion. The inalienability of 'human dignity' under the Constitution of India vis-à-vis the right to freedom of speech and expression: 22. In Charu Khurana vs. Union of India, (2015) 1 SCC 192 ("Charu Khurana"), this Court declared that dignity is the quintessential quality of personality and a basic constituent of the rights guaranteed and protected under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive Rule of law "is the Rule of proper law, which balances the needs of society and the individual". This is the Rule of law that strikes a balance between society's need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. The Judge must protect this rich concept of the Rule of law." (Emphasis by me) 24. As recognised by this Court in K.S. Puttaswamy (Retd.) vs. Union of India, (2019) 1 SCC 1 ("Puttaswamy"), a substantive aspect of the Rule of Law is the balance between the individual and society. In that background, this Court discussed the scope of Constitutional rights under our Constitutional scheme and the extent of their protection. While emphasising that there are no absolute constitutional rights, this Court laid down, in the following words that one of the only rights which is treated as "absolute" is the right to human dignity: "62. It is now almost accepted that there are no absolute constitutional rights [Though, debate on this vexed issue still continues and some constitutional experts claim that there are cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing those very rights through their representatives. These two constitute a fundamental component of the notion of democracy, though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is not resolved by eliminating the "losing" facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles. This is one of the expressions of the multi-faceted nature of democracy. Indeed, the inherent tension between democracy's different facets is a "constructive tension". It enables each facet to develop while harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balancing enables each facet to develop alongside the other facets, not in their place. This tension between the two fundamental aspects-- rights on the one hand and its limitation on the other hand--is to be resolved by balancing the two so that they harmoniously coexist with each other. This balancing is to be done keeping in mind the relative social values of each competitive aspects when considered in proper context." [Emphasis by me] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity under the Constitution expects every citizen to respect the dignity of the other. Mutual respect is the fulcrum of fraternity that assures dignity. This Court qualified its observations with the caveat that 'fraternity' does not mean that there cannot be dissent or difference, more so because all citizens have the right to freedom of speech and expression. However, it was unequivocally declared that a constitutional value which is embedded in the idea of fraternity is dignity of the individual, which is required to be respected by fellow citizens. That the Preamble consciously chooses to assure the dignity of the individual, in the context of fraternity and therefore, rights enshrined in Part III have to be exercised by individuals against the backdrop of the ideal of fraternity. This Court observed that the fraternal ideal also finds resonance in Part IVA of the Constitution. In upholding the permissibility of the law on criminal defamation, on the touchstone of the concept of constitutional fraternity, this Court speaking through Dipak Misra, J. (as his Lordship then was) observed in paragraphs 155 and 163, as follows: "155. It is a constitutional value which is to be cult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence can be regarded as an unreasonable restriction." (Emphasis by me) 27.2. The decision of this Court in Subramanian Swamy establishes precedent of justifying a restraint on free speech, on the ground of promotion of fraternity. It has been recognized that the constitutional value of fraternity imputes an obligation on all citizens to subserve collective interest and respect the dignity and equality of fellow citizen. Restraints on free speech prescribed to secure these ends, have been held to be justified, as being aimed at preserving the Preambular ideal of fraternity. It is also to be noted that this Court in the said case recognized that fraternity as a value is to be cultivated by citizens themselves as a part of their social behavior by refraining from uttering defamatory statements. This chord of the said judgment, acknowledges the idea of self-restraint or inherent restraints as being read into the right to freedom of speech and expression. 27.3. Democracy, being one of the basic features of our Constitution, it is implicit that in a rule by majority there would be a sense of security and inclusiveness. Further, the Preamble of the Constitution which envisages, int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and achievement;" Fundamental duties also constitute core Constitutional values for good citizenship in a democracy such as ours. The duties enumerated above, enjoin all citizens with the obligations of promoting fraternity, harmony, unity, collective welfare etc. Fundamental duties have a keen bond of sorority with the Constitutional goals and must therefore be recognised not merely as Constitutional norms or precepts but as obligations, corelative to rights. In short, the permissible content of the right to freedom of speech and expression, ought to be tested on the touchstone of fraternity and fundamental duties as envisaged under our Constitution. 29. Although the questions for consideration before the Constitution bench, were with specific regard to the possible restraints on unwarranted and disparaging speech by public functionaries, the observations made hereinabove, will apply with equal force to public functionaries, celebrities/influencers as well as all citizens of India, more so because technology is being used as a medium of communication which has a wide spectrum of impact across the globe. 30. The internet represents a communication revolution and has enabled us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contribute in eliminating instances of societal discord, friction and disharmony, on account of disparaging, vitriolic and derogatory speech, particularly when made by public functionaries and/or public figures. This does not in any way imply that ordinary citizens who form the great mass of the citizenry of this Country can shun responsibility for vitriolic, unnecessarily critical, diabolical speech, bordering on all those aspects mentioned under Article 19 (2) either against public functionaries / figures or against other citizens in general or against particular individuals. 34. Every citizen of India must consciously be restrained in speech, and exercise the right to freedom of speech and expression under Article 19(1)(a) only in the sense that it was intended by the framers of the Constitution, to be exercised. This is the true content of Article 19(1)(a) which does not vest with citizens unbridled liberty to utter statements which are vitriolic, derogatory, unwarranted, have no redeeming purpose and which, in no way amount to a communication of ideas. Article 19(1)(a) vests a multi-faceted right, which protects several species of speech and expression from interference by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized under Part III of the Constitution of India. Fundamental Rights were selected from what were previously natural rights and were later termed as common law rights. However, it is to be noted that Part III of the Constitution, is not the sole repository of such rights. Even after some of such inalienable rights have come to be Constitutionally recognised as Fundamental Rights under the Constitution of India, the congruent rights under common law or natural law have not been obliterated. It also follows, that the corresponding remedies available in common law, are also not obliterated. The object of elevating certain natural and common law rights, as Fundamental Rights under the Constitution was to make them specifically enforceable against the State and its agencies through a Courts of law. These observations gain legitimacy from the judgment of Mathew, J. in His Holiness Kesavanada Bharati Sripadagalvaru vs. State of Kerala, (1973) 4 SCC 225 (Kesavanada Bharati) wherein His Lordship recognized the object of Constitutions to declare recognised natural rights as applicable qua the state. Adopting the picturesque language of Roscoe Pound, the following observations were made: "1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no Constitutional provision for fundamental rights before January 26, 1950 and yet can it be said that there did not exist conditions for dignified way of living for Indians during the period between August 15, 1947 and January 26,. 1950. The plea that provisions of the Constitution, including those of Part III, should be given retrospective effect has been rejected by this Court. Article 19 which makes provision for fundamental rights, is not applicable to persons who are not citizens of India. Can it, in view of that, be said that the non-citizens cannot while staying in India lead a dignified life? It would, in my opinion, be not a correct approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings of basic dignity and would result in the extinguishment of essential values of life." [Emphasis by me] 37. This proposition was further highlighted in the enlightened minority opinion of His Lordship, H.R. Khanna, J, in Additional District Magistrate, Jabalpur vs. Shivakant Shukla, A.I.R. 1976 SC 1207 ("ADM Jabalpur") wherein while refusing to subscribe to the view that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs in civilised societies governed by the rule of law. Many modern constitutions incorporate certain fundamental rights, including the one relating to personal freedom." xxx "155. Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence. Likewise, the principle that no one shall be deprived of ins life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force, of the Constitution. The idea about the sanctity of life and liberty as well as the principle that no one shall be deprived of his life and liberty without the authority of law are essentially two facets of the same concept. This concept grew and acquired dimensions in response to the inner urges and nobler impulses with the march of civilisation. Great writers and teachers, philosophers and political thinkers nourished and helped in the efflorescence of the concept by rousing the consc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal rights guaranteed by Part III of the Constitution. Recognition as fundamental right of one aspect of the pre-Constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had not been recognised as fundamental right because, of the vulnerability of fundamental rights accruing from Article 359. I am also unable to agree that in view of the Presidential Order in the matter of sanctity of life and liberty, things would be worse off compared to the state of law as it existed before the coining into force of the Constitution." x x x "162. It has been pointed out above that even before the coming into force of the Constitution, the position under the common law both in England and in India was that the State could not deprive a person of ins life and liberty without the authority of law. The same was the position under the penal laws of India. It was an offence under the Indian Penal Code, as already mentioned, to deprive a person of ins life or liberty unless such a course was sanctioned by the laws of the land. An action was also maintainable unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus. Section 491 of the CrPC continued to be part of that Code till that Code was replaced by the new Code. Although the remedy of writ of habeas corpus is not now available under the new CrPC, 1973, the same remedy is still available under Article 226 of the Constitution." [Emphasis by me] In holding thus, H.R. Khanna, J. refused to subscribe to the majority view in the said case that once a right is recognised and embodied in the Constitution and forms part of it, it could not have any separate existence apart from the Constitution, unless it were also enacted as a statutory principle by some positive law of the State. His Lordship rejected the proposition that the intention of the Constitution was not to preserve something concurrently in the field of natural law or common law; it was to exclude all other control or to make the Constitution the sole repository of ultimate control over those aspects of human freedom which were guaranteed therein. 38. The strength of H.R. Khanna, J's minority opinion was subsequently acknowledged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the state on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the Rule of law which imposes restraints upon the powers vested in the modern state when it deals with the liberties of the individual. The power of the Court to issue a Writ of Habeas Corpus is a precious and undeniable feature of the Rule of law. 120. A constitutional democracy can survive when citizens have 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 to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions." [Emphasis by me] 39. What emerges from the aforesaid decisions of this Court, may be culled out as follows: i) That some natural/primordial rights of man have been accorded a secure position under the Constitution so as to protect such rights against undue encroachments by organs of State. The object of elevation of such common law rights/natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: "251. Constitutions address the rise of the new political hegemon that they create by providing for a means by which to guard against its capacity for invading the liberties available and guaranteed to all civilized peoples. Under our constitutional scheme, these means - declared to be fundamental rights - reside in Part III, and are made effective by the power of this Court and the High Courts Under Articles 32 and 226 respectively. This narrative of the progressive expansion of the types of rights available to individuals seeking to defend their liberties from invasion - from natural rights to common law rights and finally to fundamental rights - is consistent with the account of the development of rights that important strands in constitutional theory present." Therefore, the primary object of Part III of the Constitution was to forge a new relationship between the citizens and the State, which was the new site of Governmental power. The realm of interaction between citizens inter-se, was governed by common law prior to the enactment of the Constitution and continued to be so governed even after the commencement of the Constitution because as recognised hereinabove, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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 man, he can be named and proceeded against in an ordinary court of law. Constitutional and fundamental rights, on the other hand, provide remedy against the violation of a valued interest by the 'state', as an abstract entity, whether through legislation or otherwise, as well as by identifiable public officials, being individuals clothed with the powers of the state. It is perfectly possible for an interest to simultaneously be recognized as a common law right and a fundamental right. Where the interference with a recognized interest is by the state or any other like entity recognized by Article 12, a claim for the violation of a fundamental right would lie. Where the author of an identical interference is a non-state actor, an action at common law would lie in an ordinary court. 254. Privacy has the nature of being both a common law right as well as a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect a Fundamental Right is on the State and its instrumentalities. Recognition of horizontal enforceability of Fundamental Rights would also ignore the status of the violator of the right except when a Fundamental Right is also recognised as a statutory right against another person or citizen. Therefore, such a recognition is misplaced as it proceeds with total disregard to the elementary differences in status of the two forms of rights, incidence of duty to respect each of such forms of rights, and the forum which would be called upon to adjudicate on the failure to respect each of such rights. ii) The following decisions of this Court are demonstrative of its disinclination or reluctance in recognising that Fundamental Rights enshrined under Article 19 and 21 are permitted to operate horizontally: a) In P.D. Shamdasani vs. Central Bank of India Ltd., A.I.R. 1952 SC 59, a Constitution Bench of this Court refused to entertain a Writ Petition filed under Article 32 of the Constitution, wherein a prayer was made to enforce the right under Article 19(1)(f) and Article 31(1), as they then stood, against a private entity. In that context, it was held that the language and struct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re only "binding between the persons affected by them." That a private contractual agreement is not subject to general scrutiny under Part III of the Constitution. This Court further distinguished between a discriminatory legislation passed by the State and a discriminatory bye-laws of a society or association, which is not 'State'. Accordingly, it held that while a legislation may be subject to a challenge on the touchstone of Part III of the Constitution, bye-laws of a society or association, could not. This decision is also demonstrative of this Court's disapproval of horizontal operation of fundamental rights, making them directly applicable to interactions, whether contractual or otherwise, between private parties. iii) I am however mindful of the fact that over the years, the conception of "State" as defined under Article 12 of the Constitution has undergone significant metamorphosis. Through its jurisprudential labour, this Court has devised several principles and doctrines, so as to enable citizens to enforce their fundamental rights not only against "State" as defined in the strict sense to mean "agency of the Government," but also against entities imbued with public c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate authorities." It was held that medical services were provided by private as well as State entities and therefore, the nature of medical services was not such that they could be carried out solely by State authorities. Thus, according to the decision of this Court in Ramakrishna Mission, regulation by the State either through a statute or otherwise; receipt of a meagre amount of aid from the State; receipt of concessions by the State; do not make a private entity amenable to the writ jurisdiction of Courts under Article 226 of the Constitution. Thus, recognising a horizontal approach of Fundamental Rights between citizens inter se would set at naught and render redundant, all the tests and doctrines forged by this Court to identify "State" for the purpose of entertaining claims of fundamental rights violations. Had the intention of this Court been to allow Fundamental Rights, including the rights under Articles 19 and 21, to operate horizontally, this Court would not have engaged in evolving and refining tests to determine the true meaning and scope of "State" as defined under Article 12. This Court would have simply entertained claims of fundamental rights violations again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to dignity and reputation. Such remedies are also statutorily recognised under the Specific Relief Act, 1963 and the Indian Penal Code. Therefore, on account of availability of an alternate remedy under common law, the Courts would be reluctant to entertain a writ petition under Articles 226 or 32, as the case may be. v) Further, it is trite that Writ Courts do not enter into adjudication of disputed questions of fact. But, questions regarding infringement of the fundamental rights under Article 19/21, by a private entity, would invariably involve disputed questions of fact. Therefore, this is another difficulty that must be borne in mind while determining the horizontal operation of such rights in a writ proceeding. However, there is another aspect of the matter that requires to be discussed. A writ of habeas corpus is an order directing the person who has detained another to produce the detainee before the court in order for the court to ascertain on what ground or for what reason he has been confined, and to release him if there is no legal justification for the detention. A writ of habeas corpus is granted ex debito justiae and the applicant must only demonstrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd unless as to discovery, etc. - ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe." Therefore, a writ of habeas corpus could be issued by this Court under Article 32 of the Constitution, not only against the 'State' as defined under Article 12 of the Constitution but also against a private individual. This is because illegal detention by a private person is a tort and of a nature similar to a constitutional tort. The reason for saying so is because an illegal detention whether by a State or a private person has a direct and identical effect on the detainee. The detainee loses his liberty and there may be a threat to his life. Directions in the nature of writs of habeas corpus have been issued by this Court on previous occasions, against private individuals, particularly in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agency? 44. In order to answer this question, it may be prudent to consider the circumstances under which this Court has previously observed that the State is bound to protect the life and liberty of every human being, from the following judgments: i) In Pt. Parmanand Katara vs. Union of India, A.I.R. 1989 SC 2039, this Court was confronted with the question as to whether a doctor has the professional obligation to instantaneously extend his services to a person brought for medical treatment, without any delay on the pretext of compliance with procedural criminal law. This court declared that the obligation of a doctor to extend his services with due expertise, for protecting life was paramount and absolute and any laws of procedure which would interfere with the discharge of this obligation, would be antithetical to Article 21 of the Constitution. It was further observed that where there is delay on the part of medical professionals to administer treatment in emergencies, state action can intervene. ii) In National Human Rights Commission vs. State of Arunachal Pradesh, (1996) 1 SCC 742, this Court considered a writ petition filed under Article 32 of the Constitution, perta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was in that context that this Court declared that the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise. iii) In Gaurav Kumar Bansal vs. Union of India, (2015) 2 SCC 130, this Court, in directing the respondents therein to provide ex gratia monetary compensation to the families of the deceased who have succumbed to the pandemic of Covid-19, in view of Section 12 of the Disaster Management Act, 2005, relied on Article 21 of the Constitution. iv) Similarly, in Swaraj Abhiyan vs. Union of India, (2016) 7 SCC 498, this Court relied on Article 21 of the Constitution, in issuing a writ of mandamus to the Union of India, to effectively implement the National Food Security, 2013 in certain parts of the country which had been affected due to drought. The aforesaid cases illustrate that this Court has observed that the State is bound to protect the life and liberty of every human being, in the following contexts: a) Where inaction on the part of the State, to contain a hostile situation between private actors, could have had the effect of depriving persons of their right to life and liberty; b) Where the State had failed to carry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilure to carry out the duties enjoined upon the State under statutory law to protect the rights of a citizen, could have the effect of depriving a citizen of his right to life and personal liberty. When a citizen is so deprived of his right to life and personal liberties, the State would have breached the negative duty cast upon it under Article 21." Re: Question No. 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? 45. A Minster may make statements in two capacities: first, in his personal capacity; second, in his official capacity and as a delegate of the Government. It is a no brainer that in respect of the former category of statements, no vicarious liability may be attributed to the Government itself. The latter category of statements may be traceable to any affair of the State or may be made with a view to protect the Government. If such statements are disparaging or derogatory and represent not only the personal views of the individual Minister making them, but also embody the views of the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to redress a harm or injury by awarding monetary compensation by a competent court of law. Writ Petition: Principles of Procedure 48. Normally the filing of a writ petition invoking Article 32 of the Constitution before the Supreme Court or Article 226 before the High Court is resorted to seeking an extraordinary remedy. The prerogative powers of the High Court are not exercised for enforcement of private rights of the parties but are for the purpose of ensuring that public authorities act within the limits of law. Writ remedy is thus not a private law remedy except writ of habeas corpus. Thus, writ petition would lie against the State including local authorities and other authorities as defined under Article 12 of the Constitution which is an inclusive definition which takes within its scope and ambit all statutory bodies instrumentalities and authorities or persons charged with, or expected to exercise, public functions or discharge public duties. A writ petition may be instituted for the enforcement of any fundamental rights guaranteed by Part III of the Constitution under Article 32 before the Supreme Court but under Article 226 of the Constitution, the jurisdiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umanth, (2000) 4 SCC 543; Railway Board vs. Chandrima Das, (2000) 2 SCC 465. 52. Article 21 has played a significant role in shaping the law on tortious liability of the Government. This Court has asserted that the concept of sovereign function, which acts as an exception to attracting tortious liability, ends where Article 21 begins. Therefore, this Court has been willing to defend life and liberty of persons against state lawlessness by holding that where Article 21 is violated, the State has to pay compensation and the concept of sovereign function does not prevail in this area. 53. This proposition may be specifically traced to early PILs, which began in India in the 1980s, primarily in cases where officials of the State, such as prison officials had mistreated prisoners. The focus of the first phase of PIL in India was on exposure of repression by the agencies of the state, notably the police, prison, and other custodial authorities. These early PILs were essentially Constitutional tort actions which concerned allegations of violation of protected fundamental rights, as a result of acts or omissions on the part of officials of the State. Therefore, Constitutional law and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns by the State. The purpose of public law is not only to civilise governmental power and but also to assure the citizens that they live under a legal system which gains to protect their interest and preserve their rights. Therefore, when the court moulds the relief by granting compensation, in proceedings under Article 32 and Article 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under public law by way of employing elements of the law of torts and fixing the liability on the State which has been negligent and has failed in its public duty to protect the fundamental rights of the citizens. The payment of compensation under such cases is not to be understood as it is generally understood in a civil action for damages under private law, but in the broader sense of providing relief by ordering monetary amounts to be paid for the wrong done due to breach of public duty which would have the effect of violation of fundamental rights of citizens. Such grant of damages in exercise of a writ jurisdiction by the constitutional courts is independent of the rights available to the aggrieved party to claim compensation under private law in an action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etary compensation for the victim, payable by the Government, alleging that its failure to protect the victim and prevent the crime, had violated the victim's fundamental right. The High Court awarded a sum of Rs. 10 Lakhs as compensation to the victim of rape, as it was of the opinion that the offence was committed at the building (Rail Yatri Niwas) belonging to the Railways and was perpetrated by the Railway employees. An appeal against the said judgment was preferred before this Court. 58. This Court dismissed the appeal holding that where public functionaries are involved and the matter relates to violation of Fundamental Rights, or the enforcement of public duties, the remedy would be available under public law, notwithstanding that a suit could be filed under private law, for damages. Since the crime of rape amounted to a violation of the victim's right to life under Article 21 of the Constitution, this Court concluded that a public law remedy was wholly appropriate. 59. The decisions in Rudul Sah and Chandrima Das establish that a public law action seeking monetary compensation for violation of fundamental rights was no longer an action in lieu of a private law claim, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n act or omission as a constitutional tort only where there has been an infraction of fundamental right as a direct result of such act or omission. Therefore the causal connection between the act or omission and the resultant infraction of fundamental rights, is central to any determination of an action of constitutional tort. 63. In Delhi Jal Board vs. National Campaign for Dignity & Rights of Sewerage & Allied Workers, (2011) 8 SCC 568, this Court refused to entertain a matter against an interim order passed by the Delhi High Court in a writ petition, whereby the Petitioner Board had been directed to deposit compensation in favour of the family of a sewerage worker who had died while performing his duties. Dismissing the case, this Court held that since the deceased had died due to insensitivity on the part of the State apparatus, to the safety and wellbeing of its employees, the State would be liable to pay compensation to the family of the deceased. This Court invoked Article 142 of the Constitution to enhance the amount of compensation payable. 64. At this juncture, it may be apposite to sound a word of caution as regards the approach of the Courts in granting monetary compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctionary resulting in harm or loss to a person/citizen, as a constitutional tort, except in the context of the answer given to Question No. 4 above." 67. In light of the above discussion as well as the answers given to the questions referred, the following other conclusions are drawn: a) It is for the Parliament in its wisdom to enact a legislation or code to restrain, citizens in general and public functionaries, in particular, from making disparaging or vitriolic remarks against fellow citizens, having regard to the strict parameters of Article 19(2) and bearing in mind the freedom under Article 19(1) (a) of the Constitution of India. Hence, I am not inclined to issue any guideline in this regard, but the observations made hereinabove may be borne in mind. b) It is also for the respective political parties to regulate and control the actions and speech of its functionaries and members. This could be through enactment of a Code of Conduct which would prescribe the limits of permissible speech by functionaries and members of the respective political parties. c) Any citizen, who is prejudiced by any form of attack, as a result of speech/expression through any medium, targete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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