Summary
A Constitution Bench answered five questions arising from two ministers' remarks. One, a UP minister, called a highway gang rape a political conspiracy; the other, a Kerala minister, made remarks demeaning women. By a 4:1 majority, Ramasubramanian J. held that Article 19(2) lists the grounds for restricting speech exhaustively. Rights under Articles 19 and 21 can be enforced against non-State actors, and the State must actively protect personal liberty against private threats. A minister's statement cannot be attributed to the Government through collective responsibility. A mere statement is not a constitutional tort unless officials act on it and cause harm. Nagarathna J. agreed on the first question but differed on the rest.
Issues
- Whether the grounds in Article 19(2) for restricting free speech are exhaustive, or whether further restrictions can be imposed by invoking other fundamental rights.
- Whether fundamental rights under Articles 19 and 21 can be claimed against persons other than the State or its instrumentalities.
- Whether the State is under a duty to affirmatively protect Article 21 rights against threats to liberty by private persons or agencies.
- Whether a Minister's statement traceable to affairs of State, or made to protect the Government, can be attributed vicariously to the Government on the principle of collective responsibility.
- Whether a Minister's statement inconsistent with Part III rights is itself a violation of those rights actionable as a constitutional tort.
Provisions considered
- Article 19(1)(a) and 19(2), Constitution of IndiaTracing the drafting history and the First and Sixteenth Amendments, the majority held that the eight heads of restriction cover attacks on individuals, groups, women and children, the State, the country and the court, and that only the State, by law, can impose restrictions within them. (¶¶ 13, 21, 24, 25, 26, 28, 32, 33)
- Articles 12, 15(2), 17, 21, 23 and 24, Constitution of IndiaThe majority read the structure of Part III, in which some rights are not framed as commands to the State, and the evolution of the tests for 'State' and for writ jurisdiction, as allowing horizontal enforcement of Articles 19 and 21. (¶¶ 72, 73, 74, 75, 77, 78)
- Articles 75(3) and 164(2), Constitution of IndiaCollective responsibility of the Council of Ministers to the legislature is a political concept that attaches to Cabinet decisions and acts, flows from the Council to individual Ministers and not in reverse, and cannot extend to every oral statement made by a Minister outside the House. (¶¶ 108, 112, 116, 126, 135)
Held
- The grounds in Article 19(2) are exhaustive; following Express Newspapers, Sakal Papers, Cricket Association of Bengal and Ramlila Maidan, additional restrictions cannot be imposed on the right under Article 19(1)(a) by invoking other fundamental rights or by treating two fundamental rights as competing, though courts continue to balance rights where their exercise collides, as in R. Rajagopal, Noise Pollution and Sahara. (¶¶ 28, 29, 30, 33, 37, 40, 43, 44, 45)
- Some Part III rights are by their terms enforceable against private persons, and the Court has progressively moved from asking who the respondent is to the nature of its duties, enforcing rights against private parties in cases such as Bodhisattwa Gautam, M.C. Mehta v. Kamal Nath, Vishaka and Jeeja Ghosh; a fundamental right under Article 19 or 21 can therefore be enforced even against persons other than the State or its instrumentalities. (¶¶ 74, 75, 76, 77, 78)
- Article 21 says that no person shall be deprived of life or personal liberty, not merely that the State shall not deprive; reading 'citizen' as 'person', the State is under a duty to affirmatively protect Article 21 rights whenever personal liberty is threatened, even by a non-State actor, as recognised in Bandhua Mukti Morcha, the Chakma case and Shakti Vahini. (¶¶ 80, 81, 84, 92, 93, 100, 103)
- A Minister's statement, even if traceable to affairs of State or made to protect the Government, cannot be attributed vicariously to the Government by invoking collective responsibility; ministerial codes of conduct are not enforceable in court, and the Prime Minister or Chief Minister has no disciplinary control over Ministers, though no public official may make irresponsible statements or hate speech with impunity. (¶¶ 126, 127, 128, 134, 135, 137)
- Holding an opinion contrary to constitutional values is not actionable; a mere statement by a Minister inconsistent with Part III rights is not a constitutional tort, but if officers commit acts or omissions in consequence of it that cause harm or loss, that may be actionable as a constitutional tort, the Court noting that Parliament has not legislated on State tort liability despite the First Law Commission Report of 1956. (¶¶ 140, 143, 145, 153, 154)
- Nagarathna J., in a separate opinion, agreed on the first question while holding that derogatory, vitriolic speech lies outside the content of Article 19(1)(a) and that persons of influence owe a duty of restraint. She held that Articles 19 and 21 operate horizontally only through common law or statute, except for habeas corpus against private detention; that Article 21 imposes a negative duty on the State, with affirmative obligations arising under statute; that a Minister's statement reflecting the Government's view is attributable to the Government; and that constitutional tort requires a proper legal framework, leaving a code of conduct to Parliament and the political parties.
Result
Reference answered by majority (V. Ramasubramanian J., for four Judges; B.V. Nagarathna J. partly dissenting); Writ Petition (Crl.) No. 113 of 2016 and SLP (Diary) No. 34629 of 2017 directed to be listed before the appropriate Bench after orders of the Chief Justice of India.