Supreme Court Constitution Bench Rules Exhaustive Grounds for Free Speech Restrictions, Affirms State Duty to Protect Rights Against Non-State Actors

Landmark judgment clarifies that additional restrictions on free speech beyond Article 19(2) are impermissible; fundamental rights enforceable against private individuals; Ministers’ statements not vicariously attributable to Government unless endorsed collectively; introduces nuanced view on constitutional tort.

In a significant Constitution Bench judgment delivered on January 3, 2023, the Supreme Court of India addressed critical questions concerning the right to freedom of speech and expression under Article 19(1)(a) of the Constitution and its reasonable restrictions under Article 19(2). The judgment arose from two cases — Writ Petition (Criminal) No. 113 of 2016 and Special Leave Petition (Diary) No. 34629 of 2017 — which dealt with controversial statements made by Ministers in Uttar Pradesh and Kerala respectively, and the broader constitutional principles governing free speech, state liability, and the enforceability of fundamental rights against non-State actors.

The Court unanimously held that the grounds enumerated in Article 19(2) for imposing reasonable restrictions on free speech are exhaustive. Courts cannot expand these grounds by invoking other fundamental rights or by resolving conflicts between fundamental rights in a manner that effectively imposes additional restrictions beyond the Constitution’s text. This ruling underscores that any restriction on free speech must be imposed only by the State through law, not by the judiciary, thereby reaffirming the constitutional separation of powers.

The Court clarified that fundamental rights under Articles 19 and 21 can be enforced not only against the State and its instrumentalities but also against private individuals and entities in certain circumstances. While the vertical application of fundamental rights is well established, the judgment acknowledges a horizontal dimension, especially in contexts where private actors threaten fundamental rights such as life and personal liberty. However, the Court emphasized that horizontal enforcement of fundamental rights under Articles 19 and 21 is generally limited and should be approached cautiously, as common law remedies remain the primary recourse against private wrongdoers.

Addressing the State’s obligations, the Court held that the State has a positive duty to affirmatively protect the rights guaranteed under Article 21, including protecting citizens’ personal liberty from threats posed by private individuals or agencies. This duty arises especially where the State has statutory or constitutional obligations, and failure to act could amount to a violation of fundamental rights.

On the vexed issue of whether statements made by Ministers can be attributed vicariously to the Government under the principle of collective responsibility, the Court ruled in the negative. Collective responsibility is a political convention applicable to the Council of Ministers as a whole and does not extend to every individual statement made by a Minister outside the legislative forum. A Minister’s statement is attributable to the Government only if it represents the collective view of the Council; otherwise, it is the Minister’s personal statement.

Regarding constitutional torts, the Court held that a mere statement by a Minister inconsistent with a citizen’s fundamental rights does not automatically amount to a constitutional tort actionable in court. However, if such a statement leads to acts or omissions by officials that cause harm or loss to a person, such resulting conduct may be actionable as constitutional tort. The Court called for a proper legislative framework to define constitutional torts clearly and guide remedies, cautioning against expansive or vague judicial interpretations.

The judgment extensively analyzed the evolution of Article 19(2) restrictions from the Constituent Assembly debates and legislative history, comparing international standards of permissible speech restrictions. It reaffirmed the importance of protecting free speech in a democracy while recognizing the constitutional values of human dignity, fraternity, and equality, which justify reasonable limitations on speech that disparages or harms others.

The Court also emphasized the necessity of self-restraint and responsibility in speech by all citizens, particularly public functionaries and persons of influence, given their wider reach and impact. It encouraged the legislature and political parties to frame codes of conduct to regulate the speech of Ministers and public officials in line with constitutional morality.

This landmark ruling provides clarity on the complex interplay between free speech, fundamental rights, and state responsibility, balancing individual liberties with societal interests and the rule of law.

Statutory provisions

Constitution of India Articles 19(1)(a), 19(2), 21, 32, 226, 75(3), 164(2); Indian Penal Code Sections 124A, 153A, 153B, 295A, 298, 505; Code of Criminal Procedure Sections 95, 107, 144; Protection of Civil Rights Act, 1955 Section 7; Religious Institutions (Prevention of Misuse) Act, 1988 Section 3(g); Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 3(1)(x); Representation of People Act, 1951 Sections 8, 123(3A); Cable Television Networks (Regulation) Act, 1995; Cinematograph Act, 1952; Information Technology Act, 2000; Disaster Management Act, 2005; Protection of Human Rights Act, 1993.

Kaushal Kishor v. State of Uttar Pradesh, (SC)(Constitution Bench) : Law Finder Doc Id # 2100449