Pope in English reads thus: “In flesh by fire inflamed, nature may thoroughly heal the sore; In soul by tongue inflamed, the ulcer healeth never more.” A Sanskrit Text contains a piece of advice on what to speak and how to speak. By an order dated 05.10.2017, a Three Member Bench of this Court directed Writ Petition (Criminal) No.113 of 2016 to be placed before the Constitution Bench, after two learned senior counsel, appointed as amicus curiae, submitted that the questions arising for consideration in the writ petition were 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. 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 case of the petitioner in Writ Petition (Criminal) No.113 of 2016 in brief was that on 29.7.2016 when he and the members of his family were travelling from Noida to Shahjahanpur on National Highway 91 to attend the death ceremony of a relative, they were waylaid by a gang.
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. 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. Therefore, challenging the said common order, the petitioner in one of those public interest writ petitions has come up with Special Leave Petition (Diary) No.34629 of 2017.
The learned Attorney General for India submitted a preliminary note containing his submissions question-wise, which can be summed up as follows:- Question No.1 (i) On question No.1 it is his submission 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 up through a legislative process. Claims against persons other than the State, either through enacted law or otherwise must be confined to constitutionally enacted subjects or matters. The concept of vicarious liability is incapable of being applied to situations and no government can ever be vicariously liable for malfeasance or misconduct of Minister not traceable to statutory duty or statutory violations for the purpose of legal remedies. State of Bihar, this Court has treated misconduct of public servants or officers and consequent infringement of Constitutional rights as ground for grant of compensation. 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.
Union of India, 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). The argument that free speech under Article 19(1)(a) was a higher right than the right to reputation under Article 21 was rejected by this Court in Subramanian Swamy vs. Union of India, while rejecting the contention of the State that it was the obligation of the private party i.e., the contractor to follow the mandate of Article 24 of the Constitution and the relevant laws, it was clarified that the primary obligation to protect fundamental rights was that of the State even in the absence of an effective legislation.
Union of India, while elaborating on the duty of the State and non-State actors to protect the rights of citizens, pointed out that recognition and enforcement of claims qua non-State actors may require legislative intervention. Question No 3 (iii) Fundamental rights of citizens enshrined in the Constitution are not only negative rights against the State but also constitute a positive obligation on the State to protect those rights. Union of India, it was held that even the doctors in Government hospitals are duty bound to fulfil the constitutional obligation of the State under Article 21.
The State also has a positive obligation to protect the rights of citizens under Article 21, whether the violation is by its own functionaries or a private person. Daulat Mal Jain, while dealing with a case involving the misuse of public office by a Minister, this Court elaborated on the responsibility and liability of the Ministerial office under the Constitution. Therefore, a Constitutional functionary is duty bound to act in a manner which is in consonance with this constitutional obligation of the State. Shri Kaleeswaram Raj, learned counsel appearing for the petitioner in the special leave petition submitted an elaborate note. (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. vs The Union of India, freedom of speech can be restricted only in the interest of 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. (ix) While the South African Constitution has adopted a horizontal application by providing in Section 9(4) of the Bill of Rights of Final Constitution of 1996 that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of sub-Section (3) which sets out the grounds that bind the State, the judiciary itself has adopted a direct horizontal effect, in Ireland as could be seen from the decisions in John Meskell vs. Countries like Canada and Germany have developed indirect horizontal application, meaning thereby that the rights regulate the 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. Broadly those cases fall under two categories, namely, (i) private players performing public duties/functions; and (ii) non- State actors performing statutory activities that impact the rights of citizens. Cases which fall under these two categories have been held by this Court to be amenable to writ jurisdiction as seen from several decisions including M.C.
; (xiv) Even in jurisdictions where socio economic rights have been elevated in status to that of constitutional rights, the enforcement of those rights were made available only against the State and not against private actors, as held by this Court in Society for Unaided Private Schools of Rajasthan vs. Rights thereby act as restrictions on the government on how to pursue values, including constitutional values. 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 unanimous in support of its policies and exhibit such unanimity in public; and (ii) that they are personally and morally responsible for its success and failure; (xix) Individual aberrations on the part of Ministers are serious threats to constitutional governance and as such the head of the Council of Ministers has a duty to ensure that such breaches do not happen; (xx) A code of conduct to self-regulate the speeches and actions of Ministers is constitutionally justifiable and this Court can definitely examine its requirement. The Court may keep in mind the fact that this Court in Sahara India Real Estate Corporation Limited (supra) cautioned against framing guidelines across the board to restrict the freedom of Press; (xxii) Coming to hate speeches, there has been a steep increase in the number of hate speeches since 2014. any kind of communication in speech, writing or behavior, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.” The Role and Responsibilities of Political Leaders in Combating Hate Speech and Intolerance (Provisional version) dated 12 March 2019, was submitted by the Committee on Equality and Non-Discrimination to the Parliamentary Assembly of the Council of Europe.
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? Since the country had witnessed large scale communal riots at that time, Sir Alladi Krishnaswamy Iyer forcefully argued for the inclusion of security and defence of the State or national security as one of the restrictions. There shall be liberty for the exercise of the following rights subject to public order and morality: (a) The right of every citizen to freedom of speech and expression.
Interim Report of the Advisory Committee, April 30, 1947 There shall be liberty for the exercise of the following rights subject to public order and morality or to the existence of grave emergency declared to be such by the Government of the Union or the Unit concerned whereby the security of the Union or the Unit, 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. (1) Subject to the other provisions of this Article, all citizens shall have the right – (a) to freedom of speech and expression;… (2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the security of, or tends to overthrow, the State. Immediately after the adoption of the Constitution, this Court had an occasion to deal with a challenge to an order passed by the Government of Madras in exercise of the powers conferred by Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, banning the entry and circulation of a weekly journal called ‘ Cross Roads ’ printed and published in Bombay. An argument was advanced in Romesh Thappar (supra) that Section 9(1-A) 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). It also arose out of a writ petition under Article 32 challenging an order passed by the Chief Commissioner of Delhi in exercise of the powers conferred by Section 7(1)(c) of the East Punjab Public Safety Act, 1949, requiring the Printer and the Publisher as well as the Editor of an English weekly by name ‘ Organizer ’, to submit for scrutiny, before publication, all communal matters and news and views about Pakistan including photographs and cartoons, other than those derived from the official sources. In the Statement of Objects and Reasons to the First Amendment, it was indicated that the citizen’s right to freedom of speech and expression guaranteed by Article 19(1)(a) has been held by some Courts to be so comprehensive as not to render a person culpable, even if he advocates murder and other crimes of violence.
(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 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. 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. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable.” This National Integration Council had a Committee on national integration and regionalism. 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).
In the form in which the Constitution was adopted in 1949, the restrictions related to (i) libel; (ii) slander; (iii) defamation; (iv) contempt of court; (v) any matter which offends against decency or morality; and (vi) any matter which undermines the security of the State or tends to overthrow the State. This can be demonstrated by providing in a table, the provisions of the Indian Penal Code that make some speech or expression a punishable offence, thereby impeding the right to free speech, the heads of restriction under which they fall and the category/class of person/persons sought to be protected by the restriction: Table of Provisions under IPC restricting freedom of speech and expression 27. The restrictions under clause (2) of Article 19 are comprehensive enough to cover all possible attacks on the individual, groups/classes of people, the society, the court, the country and the State.
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. Undesirable lapses in upholding of fundamental rights by the legislature, or the executive, can be rectified by assertion of constitutional principles by this Court. Such logic would then lead to seeking exceptions, from protective walls of all fundamental rights, on grounds of expediency and claims that there are no solutions to problems that the society is confronting without the evisceration of fundamental rights. 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 India Article 19(1)(a) – Constitution of India Article 19(2) – Constitution of India 1. Territorial integrity or public safety, 3. But Judicial Review by the Supreme Court has admitted certain restrictions Recognised forms of Unprotected Speech: 1. The right to freedom of opinion and expression is contained in Articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR)and Articles 4 and 5 of 1. Article 19(3), 20 of the ICCPR contains mandatory limitations on freedom of expression, and requires countries, subject to reservation/declar ation, to outlaw vilification of persons on national, racial or religious grounds.
Public Morality Under the Criminal Code Act, 1995 1.Offences relating to urging by force or violence the overthrow of the Constitution or the lawful authority of the Government; and 2. 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. In any event, the law imposing any restriction in terms of clause (2) of Article 19 can only be made by the State and not by the Court.
The second part of Question No.1 is as to whether additional restrictions on the right to free speech can be imposed on grounds not found in Article 19(2) by invoking other fundamental rights. 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 Sakal Papers, in the following words: “It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgement on the same grounds as are set out in cl. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. 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. 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.
This obligation flows from the Preamble to our Constitution, which seeks to secure all its citizens liberty of thought, expression, belief and worship………..Under our Constitutional scheme, the State is not merely under an obligation to respect the fundamental rights guaranteed by Part-III but under an equal obligation to ensure conditions in which those rights can be meaningfully and effectively enjoyed by one and all.” The above passage from the opinion of Jeevan Reddy, J., in Cricket Association of Bengal, was quoted with approval by the Constitution Bench in Sahara India Real Estate Corporation Limited case. Interestingly, the competing claims arose in many of those cases, in the context of Article 19(1) (a) right of one person qua Article 21 right of another. 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. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. (5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.
…” (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. 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 others. The rights of citizens, to effectively seek the protection of fundamental rights, under clause (1) of Article 32 have to be balanced against the rights of citizens and persons under Article 21. An inquisitorial order, where citizens’ fundamental right to privacy is breached by fellow citizens is destructive of social order.
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. These presumptions existed at the time when the Constitution was framed [existing law under Article 19(2)] and they continue till date not only as part of rule of law under Article 14 but also as an Article 21 right. However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. 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.” Freedom of speech and expression in a spirited democracy is a highly treasured value. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra-conflict between the same fundamental right.
However, when there is intra-conflict 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”. Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. …”
(ix) In Railway Board representing the Union of India vs.
Therefore, the right must be so exercised as not to come in direct conflict with the right of another citizen.” The series of decisions discussed above shows that whenever two or more fundamental rights appeared either to be on a collision course or to be seeking preference over one another, this Court has dealt with the same by applying well-established legal tools. 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. But wherever Constitutional rights impact even the relations between private individuals, they are said to have “ a horizontal effect ”. Even in countries where the individual reigns supreme, as in the United States, the Thirteenth Amendment making slavery and involuntary servitude a punishable offence, has actually made inroads into individual autonomy.
Supreme Court held in (year 1883) what came to be known as “Civil Rights Cases ” that the Thirteenth and Fourteenth Amendments did not empower Congress to outlaw racial discrimination by private individuals. The covenant restricted the sale of any property or part thereof for a term of 50 years to African-Americans and Asian- Americans. Supreme Court reversed the decision and held that the First Amendment which prohibited a public official from recovering damages for a defamatory falsehood relating to the public official’s official conduct except in the case of actual malice, bound the plaintiff from exercising his private right.
Sub- Article (3) of Article 40 states that “ The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen ”. 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. The Constitution of the Republic of South Africa, 1996 also provides horizontal effect to certain rights.
If Section 9.3 is a mandate against the State, what follows in Section 9.4 is a mandate against every person. National legislation must be enacted to prevent or prohibit unfair discrimination.” Again, Section 10 recognises the right to human dignity. 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. Unless and until there is a resort to law, private individuals are at liberty to conduct their private affairs exactly as they please as far as the fundamental rights and freedoms are concerned.
One cannot claim rescission of a contract or specific performance thereof if such claim, albeit well-founded at common law, infringes a Chapter 3 right. 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. Given the intensity of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the state or organs of state, it is clear that the right to freedom of expression is of direct horizontal application in this case as contemplated by section 8(2) of the Constitution. The relevant portion reads thus: “[57] In order to determine whether the right to a basic education in terms of section 29(1)(a) binds the Trust, section 8(2) requires that the nature of the right of the learners to a basic education and the duty imposed by that right be taken into account. There was also no obligation on the Trust to make its property available to the MEC for use as a public school.
But the rights conferred by the Convention had to be enforced by British citizens only in the European Court of Human Rights, for a long time. This Act sought to incorporate into the domestic law, the rights conferred by the European Convention, so that the citizens need not go to the European Court of Human Rights in Strasbourg. The question before the Court of Appeal (Civil Division) was whether there was violation of right to privacy, among others and whether it could be enforced against a private person. Some, such as the late Professor Sir William Wade, in Wade & Forsyth Administrative Law (8 Ed.) p 983, and Jonathan Morgan, in Privacy, Confidence and Horizontal Effect:” Hello” Trouble (2003) That law, as extended to cover private and personal information, protected information about the Douglases’ wedding.” In X vs Y, 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. (2) If the facts of the case fall within the ambit of article 8, the state is also under a positive obligation under article 14 to secure to private individuals the enjoyment of the right without discrimination, including discrimination on the ground of sexual orientation. On 28 December 1980, the anti- abortion NGO “rzte fr das Leben” ( Physicians for Life ) organised a religious service and a march to the clinic of a doctor who carried out abortions in Stadl-Paura. The European Court on Human Rights held: “32.
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. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see the Airey judgment of 9 October 1979, Series A no. There are some Articles in Part-III where the mandate is directly to the State and there are other Articles where without injuncting the State, certain rights are recognized to be inherent, either in the citizens of the country or in persons. – 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 Citizen 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. – Article 17 abolishes untouchability and forbids the practice of the same in any form and declares it to be a punishable offence.
Article 21A mandates the State to provide free and compulsory education to all children of the age of six to fourteen years. Article 24 prohibits the employment of children below the age of fourteen years in any factory or mine. A right not to be denied admission into any This applies to institutions Citizen 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). (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.
For instance, the rights conferred by Articles 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) etc., are obviously enforceable against non-State actors also. Shamdasani (supra), a Five Member Bench of this Court was dealing with a writ petition under Article 32, filed by a person who lost a series of proceedings both civil and otherwise, against the Central Bank of India Limited, which was at that time a company incorporated under Companies Act. 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. Shiv Narain Varma 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. Though the property in question was private, the Court said that the operation of a town was a public function and that therefore, the private rights of the corporation must be exercised within constitutional limitations. Article 13(2) provides that no State shall make any law which takes away or abridges the rights guaranteed by Part III. In other words, it is against State action that fundamental rights are guaranteed. In other words, until some law is passed or some action is taken through officers or agents of the State, there is no action by the State…” (iv) In Peoples’ Union for Democratic Rights (supra) this Court pointed out that the fundamental right guaranteed under Article 24 is enforceable against everyone, including the contractors. 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. Therefore, when the court moulds the relief by granting “compensation” in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.” (vii)
In Lucknow Development Authority vs. 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.
Union of India, this Court held the owner of the private motel to be liable to pay compensation towards the cost of restoration of the ecology of the area. In response, the motel contended before this Court that though in proceedings under Article 32 it was open to this Court to grant compensation to the victims whose fundamental rights were violated or who are victims of arbitrary Executive action or victims of atrocious behavior of public authorities, the Court cannot impose any fine on those who are guilty of that action. , 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. , this Court laid down guidelines, in the absence of a legislation, for the enforcement of the right to gender equality of working women, in a class action petition that was filed to enforce fundamental rights of working women and to prevent sexual harassment of women in workplace. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.” (xii) In Githa Hariharan (Ms.) & Anr.
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 ”. In this regard, the exposition purport of the above clause (2) of Article 15, when read in the context of egalitarian jurisprudence inherent in Articles 14, 15, 16 and Article 38, and read with our national aspirations of establishing a society in which equality of status and opportunity, and justice, social, economic and political, would imply that the private sector which offers such facilities ought not to be conducting their affairs in a manner which promote existing discriminations and disadvantages.” (xiv) In Society for Unaided Private Schools of Rajasthan (supra), the constitutionality of Section 12 of the Right to Free and Compulsory Education Act, 2009 was challenged on the ground that it violated Articles 19(1)(g) and 30 of those who had established schools in the private sector. For non-State actors to respect children’s rights casts a negative duty of non-violation to protect children’s rights and a positive duty on them to prevent the violation of children’s rights by others, and also to fulfil children’s rights and take measures for progressive improvement. Union of India, 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 Article 32 is not available, the aggrieved party can always seek a remedy before the ordinary courts of law or by way of a writ petition under Article 226. Once we have arrived at this understanding of the nature of fundamental rights, we can dismantle a core assumption of the Union’s argument: that a right must either be a common law right or a fundamental right.
Where the interference with a recognised interest is by the State or any other like entity recognised by Article 12, a claim for the violation of a fundamental right would lie. Krishnan vs State of Madras “ 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 “. Therefore, we would answer Question No 2 as follows: “A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities ” Question No 3 79. Going by the scheme of Part-III which we have outlined both in the preceding paragraphs and in the Table in paragraph 73, it is clear that the State has two obligations, (i) not to deprive a person of his life and liberty except according to procedure established by law; and (ii) to ensure that the life and liberty of a person is not deprived even otherwise.
But with the expanding horizons of our philosophical understanding of law, life and liberty and the advancement of science and technology, we have come to realize that “ life is not an empty dream ” and “ our hearts are not muffled drums beating funeral marches to the grave”, nor is “ life a tale told by an idiot, full of sound and fury signifying nothing ”. But the moment the right to life under Article 21 was developed into a bouquet of rights and science and technology intruded into all spheres to life, the deprivation of the right by non-State actors also became possible. Question No 3 is so worded that the focus is not on ‘deprivation of life’ but on (i) ‘ deprivation of personal liberty ’ and that too by the acts or omissions of another person or private agency; and (ii) the duty of the State to affirmatively protect it. The expression “ personal liberty ” appearing in Article 21 was held by this Court in A.K. 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. held that the concept of personal liberty in Article 21 is comprehensive enough to include privacy. Giving a completely new dimension to personal liberty, K. In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones.
If physical restraints on a person’s movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Police Regulations were challenged in Kharak Singh, identical Regulations issued by the State of Madhya Pradesh were challenged in Gobind vs. Though this Court upheld the impugned Regulations, K.K. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might be engaging in such activities and that such ‘harm’ is not constitutionally protectible by the State. Ramarathnam, Assistant Passport Officer, New Delhi where a Constitution Bench of this Court held by a majority, that the right to personal liberty included the right of locomotion and right to travel abroad. After The Passports Act came into force, the decision of the 7-Judge Bench in Maneka Gandhi vs. … 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, which is, under our constitutional scheme, charged with the mission of bringing about a new socio- economic order where there will be social and economic justice for everyone and equality of status and opportunity for all, would welcome an enquiry by the Court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act, 1976 but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such a situation can be set right by the State Government.
The first breakthrough was the opinion, though of a minority, that physical restraint was not a necessary sine qua non for the deprivation of personal liberty and that even a psychological restraint may amount to deprivation of personal liberty. The National Human Rights Commission itself filed a writ petition under Article 32. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics. In such a situation, public disclosure of even true private facts may amount to an invasion of the right of privacy which may sometimes lead to the clash of one person’s “right to be let alone” with another person’s right to be informed. Parmanand Katara (supra), a human rights activist filed a writ petition under Article 32 seeking a direction to the Union of India that every injured person brought for treatment to a hospital should instantaneously be given medical aid to preserve life and that the procedural Criminal Law should be allowed to operate thereafter. A doctor at the government hospital positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for preserving life. …” That the State has an obligation to help preserve life, guaranteed under Article 21 was spelt out clearly in Pt. This right was read as part of the right to life and liberty under Article 21. , this Court considered certain issues concerning the entire range of conduct and management, under the auspices of State Governments, of sterilization procedures, either in camps or in accredited centres and held that the right to health and reproductive rights of a person are part of the right under Article 21.
, what was under challenge was an amendment made to The Indian Stamp Act, 1899 by the State of Andhra Pradesh, empowering a public officer to inspect the registers, books, papers and documents kept in any premises, including a private place where such registers, books etc., are kept. Amendment permits inspection being carried out by the Collector by having access to the documents which are in private custody i.e. Rajagopal case [(1994) 6 SCC 632] 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. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. Such offences are resultant of the State’s incapacity or inability to protect the fundamental rights of its citizens.” In fact, this Court observed in the aforesaid decision that the obligation of the State does not get extinguished upon payment of compensation and that the rehabilitation of the victims of such nature was a must. 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. Before we conclude this chapter, we must point out that some academics feel that the same level of justification for infringement by the State, for all rights recognized by the Court, end up being problematic and that the idea of a hierarchy of rights, as articulated by Das, J. If a pyramidical structure is to be imagined, with life on top, personal liberty (and all the rights it encompasses under the new doctrine) immediately below it and other fundamental rights below personal liberty it is obvious that this judgment will apply only to death sentence cases.
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. Article 75(3) states that “ the Council of Ministers shall be collectively responsible to the House of the People.” Similarly, Article 164(2) states “ the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State”. Since it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government, the Governor is authorized under Article 166(3) to make Rules for the more convenient transaction of the business of the Government of the State and for allocation amongst its Ministers the business of the Government. Similarly an individual Minister is responsible to the Legislature for every action taken or omitted to be taken in his ministry. 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. But, inasmuch as the Council of Ministers is able to stay in office only so long as it commands the support and confidence of a majority of members of the Legislature of the State, the whole Council of Ministers must be held to be politically responsible for the decisions and policies of each of the Ministers and of his department which could be presumed to have the support of the whole Ministry. The principle of individual as well as collective ministerial responsibility can work most efficiently only when cases requiring proper sifting and evaluation of evidence and discussion of questions involved have taken place, where this is required, in proceedings before a Commission appointed under Section 3 of the Act.
Text-book writers on Constitutional Law have indicated how collective 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. 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. But after rule nisi was issued in the first writ petition, the Government appointed someone as the President of the Tribunal. While dealing with the executive power of the President and the role of the Council of Ministers, K.Ramasamy, J., said “ The principle of ministerial responsibility has a variety meanings precise and imprecise, authentic and vague ”. 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. The question as to what happens when an individual Minister is in total disagreement with the collective decision of the Cabinet was also spelt out in R.K. If such support is too great a strain on a Minister’s conscience or incompatible to his/her perceptions of commitment and he/she finds it difficult to support the decision, it would be open to him/her to resign. The Governor runs the Executive Government of a State with the aid and advice of the Chief Minister and the Council of Ministers which 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.
The acts done and duties performed are public acts or duties as the holder of public office. , this Court was concerned with a public interest litigation under Article 32 complaining about the inaction on the part of the Central Bureau of Investigation in a matter relating to the disclosures contained in what came to be known as “Jain Diaries”. After the Minister responded to the show-cause notice, an order was passed, reported in (1996) 6 SCC 593, directing the Minister to pay exemplary damages and also directing the initiation of prosecution. 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.
“Collective responsibility” has two meanings: the first meaning which can legitimately be ascribed to it is that all members of a Government are unanimous in support of its policies and would exhibit unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet. Even in England, all Ministers and servants of the Crown are accountable to the courts for the legality of their actions, and may be held civilly and criminally liable, in their individual capacities, for tortious or criminal acts. What follows from the above discussion is, (i) that the concept of 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. 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. But in a country like ours where there is a multi-party system and where coalition Governments are often formed, it is not possible at all times for a Prime Minister/Chief Minister to take the whip, whenever a statement is made by someone in the Council of Ministers. It is interesting to note that in a Report submitted by the Constitution Committee (UK) in the year 2014, under the title, “ Constitutional Implications of Coalition Government ” it was pointed out that “ collective ministerial responsibility has been the convention most affected by coalition Government ”.
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. According to Felicity Matthews, despite her “extraordinary breach” of collective responsibility, Clare Short was persuaded and allowed to retain her ministerial portfolio. As all the literature on the issue shows, collective responsibility is that of the Council of Ministers. 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. Therefore, our answer to Question No.4 would be that a statement made by a Minister even if traceable to any affairs of the State or for protecting the Government, cannot be attributed vicariously to the Government by invoking the principle of collective responsibility.
A statement may also be made by a Minister either touching upon the affairs of the Ministry/ department of which he is in control or touching generally upon the policies of the Government of which he is a part. The fact that due to his insensitivity or lack of understanding or low constitutional morality, he speaks a language that has the potential to demean the constitutional rights of women, cannot be a ground for action in Constitutional tort. 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. In Chapter VIII containing the conclusions and proposals, the First Report of the Law Commission suggested: (i) that in the context of a welfare State, it is necessary to establish a just relation between the rights of the individual and the responsibilities of the State; (ii) that when the Constitution was framed, the question to what extent, if any, the Union and the States should be made liable for the tortious acts of their servants or agents was left for future legislation; (iii) that the question of demarcating the line up to which the State should be made liable for the tortious acts, involves a nice balancing of considerations, so as not to unduly restrict the sphere of the activities of the State and at the same time to afford sufficient protection to the citizen; (iv) that it is necessary that the law should, as far as possible, be made certain and definite, instead of leaving it to courts to develop the law according to the views of the judges; and (v) that the old distinction between sovereign and the non-sovereign functions or Governmental and the non- Governmental functions should no longer be invoked to determine the liability of the State. Paragraph 66 of the First Report of the Law Commission contained the principles on which appropriate legislation should proceed. (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. (iii) The State should be liable if in the discharge of statutory duties imposed upon it or its employees, the employees act negligently or maliciously, whether or not discretion is involved in the exercise of such duty.
3 of the Crown Proceedings Act may be adopted. 4 of the Crown Proceedings Act may be adopted. (ii) Contributory negligence: In England, the Law Reform (Contributory Negligence) Act,1945 was enacted amending the law relating to contributory negligence and in view of the provisions of the Crown Proceedings Act the said Act also binds the Crown. (iii) Acts done in the exercise of political functions of the State such as acts relating to : (a) Foreign Affairs (entry 10, List I, Seventh Schedule of the Constitution); (b) Diplomatic, Consular and trade representation (entry 11); (c) United Nations Organisation(entry 12); (d)Participation in international conferences, associations and other bodies and implementing of decisions made thereat (entry 13); (e) entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries (entry 14); (f) war and peace (entry 15); (g) foreign jurisdiction (entry 16); (h) anything done by the President, Governor or Rajpramukh in the exercise of the following functions: Power of summoning, proroguing and dissolving the Legislature, vetoing of laws and anything done by the President in the exercise of the powers to issue Proclamations under the Constitution; (i) Acts done under the Trading with the Enemy Act, 1947; (j) Acts done or omitted to be done under a Proclamation of Emergency when the security of the State is threatened.
10 of the Crown Proceedings Act) (v) Miscellaneous: (a) any claim arising out of defamation, malicious prosecution and malicious arrest, (b) any claim arising out of the operation of quarantine law, (c) existing immunity under the Indian Telegraph Act, 1885 and Indian Post Offices Act, 1898, (d) foreign torts. The judicial journey actually started off on a right note with the decision in The State of Bihar vs. 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 warrant for holding that it has any validity in this country, particularly after the Constitution.
The suit filed by Kasturi Lal for recovery of the value of the gold, was resisted on the ground that this was not a case of negligence of the servants of the State and that even if negligence was held proved against the police officers the State could not be held liable. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. 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. Union of India 3 SCC 82 (1984) 2. Peoples’ Union for Democratic Rights vs. (1990) 1 SCC 422 5. Supreme Court Legal Aid Committee through its Hony. (1991) 3 SCC 482 6. Nilabati Behera (Smt.) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) vs. (1994) 6 SCC 205 9.
Case Title: KAUSHAL KISHOR Vs. THE STATE OF UTTAR PRADESH GOVT. OF U.P. HOME SECRETARY (2023 INSC 4)
Case Number: W.P.(Crl.) No.-000113-000113 / 2016
