KAUSHAL KISHOR V.

STATE OF UTTAR PRADESH

Citation: WRIT PETITION (CRIMINAL) NO. 113 OF 2016
Bench: ABDUL NAZEER J, B.R. GAVAI J, A.S. BOPANNA J, V RAMASUBRAM
ANIAN, B.V. NAGARATHNA
Ratio:
The Constitution bench, in this case, decided the outcome of the controversial remarks made
by two men holding the ministerial post in two different states exercising their right to
freedom of speech and expression but at the same time infringing the right to life and
personal liberty of the victims. 1
FACTS
o The petitioner filed a writ petition under Article 322 for seeking relief against Azam
Khan, Minister for Urban Development of the Government of Uttar Pradesh for
calling the Bulandshahar rape incident a political conspiracy by opposition parties to
defame his government. According to the writ petitioner, he and his family on
national highway 91 were attacked by highway robbers that took away money and
cash in the possession of the petitioner and brutally gang-raped his wife and
13-year-old minor daughter. Media has reported this heinous offense that had been
committed in the state of Uttar Pradesh and Azam Khan in the press conference called
this incident a political conspiracy.
o After his controversial remarks, the petitioner feared a fair investigation won't be
conducted, and hence he was compelled to file a writ petition against the minister for
his irresponsible remarks against the modesty of the women and for infringing the
fundamental rights of the victims. Later on, Azam Khan issued an unconditional
apology after the Supreme Court order. At this juncture, a special writ petition3 has
been tagged with this case as both involve similar sorts of questions before the
constitutional bench of the Supreme Court. The division bench of the Kerala High
Court dismissed two public writ petitions filed by the petitioner against the Minister
for Electricity in the State of Kerala for saying highly derogatory remarks against
women and no action was officially taken against the minister. The petitioner prayed
in one petition to issue directions to the chief minister to take action against ministers
who failed to live up to the constitutional oath and in the second petition prayed to
take action against the minister for his derogatory remarks against women. But both
petitions were dismissed by a division bench of the Kerala High Court citing that
framing the code of conduct for ministers in the cabinet is not within the court and
cannot issue directions for the same.

1
Kaushal Kishore v The state of Uttar Pradesh Writ Petition (Crim) No 113/2016
2
Constitution of India 1950, art 32
3
Kaushal Kishore v The state of Uttar Pradesh Special Leave Petition No 34629/2017
ISSUES
Whether the Court can impose restrictions on the right to freedom of speech and expression
beyond the present restrictions provided under Article 19(2)4of the Constitution.
1. Can a Fundamental Right under Article 19 (that is freedom of speech and
expression) and Article 215 (that is right to life and Personal Liberty) of the
Constitution, can be claimed against anyone other than the ‘State’ or its
instrumentalities.
2. Whether the State is under a duty to affirmatively protect the right of the citizens
under Article 21 of the constitution even if it is against a threat to the liberty of the
citizen by the acts or omissions of another citizen or private agency.
3. Whether the Statement of a minister, traceable to any affairs of the State, should be
attributed vicariously to the government itself for not keeping in mind the principle
of collective responsibility.
4. Whether a Statement made by a minister, which is inconsistent with the rights
granted to the citizen under Part III of the Constitution (that is Fundamental
Rights), constitutes as a violation of such Fundamental Rights and is actionable as
‘Constitutional Tort’ (civil wrong).

PROVISIONS
The Constitution of India
Article 19(1)(a),(2)
(1) All citizens shall have the right (a) to freedom of speech and expression;
(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub clause
in the interests of the sovereignty and integrity of India, 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 offense

Article 21. Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law
ARGUMENTS
Petitioner:

● On the legal issues, the petitioner argued that in respect of the freedom of speech and
expression of the ministers, efforts should be made to draft a voluntary code of
conduct for public officials like ministers to exercise their Article 19

4
Constitution of India 1950, art 19(2)
5
Constitution of India 1950, art 21
 ● The petitioner argued that fundamental rights impose duties on the states for
non-infringement of such rights but the absence of a provision to regulate the speech
of individual ministers makes the speech non-actionable for violation of fundamental
rights in a court of law. Hence, a voluntary code of conduct is a mandate.
● The Petitioner also pointed out common cause judgment6 for the elaborate meaning of
collective responsibility.
Respondent:

● The respondent argued that no further restrictions can be placed on Article 19. The
reasonable restrictions placed under Article 19(2) are exhaustive and further
restrictions can be added through only the legislative process.
● On the other issue, the respondent argued that if non-state entities are actionable for
infringing the fundamental rights of the person then that would amount to a
fundamental change to the constitutional principles. Such a change would open a gate
for litigation on non-state entities.
● The respondent further submitted that for protection of article 21, the constitution has
given sufficient legal remedies to the citizens for infringement of article 21 under
articles 327 and 2268 and hence no additional duty can be placed on the state to protect
such rights. On the collective responsibility of the government, the petitioner relied on
Article 75(3) 9of the Constitution to show ministers have a collective responsibility
towards the legislative government because every utterance by the minister impacts
the public in general hence the government should be collectively responsible for the
minister's remarks.
● Respondents also argued that minister remarks which are not related to state and
public duty, such as misconduct remarks cannot be linked to the principle of collective
responsibility.
JUDGEMENT
Ratio:

The bench decided that the grounds listed in Article 19(2) for exercising freedom of speech
and expression are an exhaustive list. No additional restrictions can be placed even if two
fundamental rights are competing against each other. Articles 19 and 21 are not enforceable
against non-state entities which do not fall under the definition of Article 12. The bench
placed an affirmative duty on the state to protect the life and liberty of the citizens from
private entities as well. But Article 21 places a kind of negative duty on the state to not
deprive any person of life and personal liberty except by the procedure of the law.

6
Common Cause, A Registered Society v Union of India (1999) 6 SCC 667
7
Constitution of India 1950, art 32
8
Constitution of India 1950, art 226
9
Constitution of India 1950, art 75(3)
Dissenting Opinion:
Justice B.V. Nagarathna, with a different opinion from the majority, contended that a
statement made by the minister related to the affairs of the government makes the state
vicariously liable for it and if the statement is not consistent with the view of the government
then there is no vicarious liability on the state. Moreover, the bench decided that if a
statement made by the minister infringes on the fundamental rights of the citizen then it may
not be actionable under the constitutional tort unless such remarks resulted in harm or loss to
the citizen/person. The appropriate remedy can be sought before the court by invoking the
principle of collective responsibility in such remarks.
HELD
A statement made by a minister related to affairs of the state cannot make the government
vicariously liable for it.
KEY TAKEAWAY
In order to preserve a balance, our constitution has established certain limitations on people.
The limitations set forth in Article 19(2), which are based on decency, morality, and contempt
of court, are sufficiently broad to cover remarks made to rape victims. It is incredibly useless
to use phrases like "constitutional sensitivity." Today's limitation on free expression is based
on the dignity clause of Article 21, but tomorrow's judges may take a different factor into
account and restrict citizens' rights. This case brought up some significant issues for the
court. A final choice has not yet been made. The case began with Azam Khan's statement and
ended with questions about the judiciary's role in limiting a fundamental right, the
responsibility of a minister, the State's liability when elected officials use their free speech to
make statements that could influence an ongoing case, and whether such a person is subject
to legal action for constitutional torts. The argument over these concerns is still ongoing, and
when a decision will be made, either the scope of fundamental rights will be expanded or the
existing scope will be made more tolerant.