KAUSHAL KISHORE V STATE OF UTTAR PRADESH 

CITATION:- (2023) 4 SCC 1 

BENCH – Justice B.R. Gavai, Justice A.S. Bopanna, Justice B.V. Nagarathna 

FACTS – A 13 year old girl and her mother was gang- raped on National Highway in Uttar Pradesh, the said gang robbed the cash and jewelry which were in their possession this happened on 29th July 2016 and on 30th July 2016 the FIR was lodged in Bulandshahr Police Station for the offences of gang rape under IPC sections  read with section of POSCO. 

This was followed by media and the Minister of Samajwadi Party named Azam Khan made an allege statement about this gang rape, he said-

 “It must be investigated whether people, with the opposite ideology or those who want to come to power, are behind this incident in order to malign the government.” 

This statement affected the victims reputation, the Hon’ble Supreme Court made Azam Khan one of the respondent as after his alleged speech an FIR was lodged against him under the gang rape section of IPC. 

Further in 2016, the Writ Petition was filed in the Supreme Court under Article 32 of the Constitution by the father and the husband of the gang rape survivors to seek relief from the court.

Due to the involvement of the political figure in this case it was said that for fair trial procedure the proceedings of the case was outside the State of Uttar Pradesh and to monitor the criminal investigation this case was handed to the CBI. 

ISSUES RAISED 

1. WHETHER THE COURT CAN IMPOSE RESTRICTIONS ON THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION BEYOND EXISTING REASONABLE RESTRICTIONS PROVIDED UNDER ARTICLE 19(2) BY INVOKING AND OTHER FUNDAMENTAL RIGHTS. 
2. CAN A FUNDAMENTAL RIGHT ARTICLE 19 AND 21 BE ENFORCED AGAINST ANYONE OTHER THAN THE ‘STATE’ OR ITS INTRUMENTALITIES. 
3. WHETHER THE STATE IS UNDER A DUTY TO AFFIRMATIELY PROTECT THE RIGHTS OF THE CITIZENS UNDER ARTICLE 21 IF IT IS AGAINST THE THREAT TO THE LIBERTY OF THE CITIZEN BY THE ACT OR OMISSIONS OF ANOTHER CITIZEN OR PRIVATE AGENCY. 
4. WHETHER THE STATEMENT OF A MINISTER IS TRACEABLE TO ANY AFFAIRS OF THE STATEOR FOR PROTECTING THE GOVERNMENT, SHOULD BE ATTRIBUTED VICARIOUSLY TO THE GOVERNMENT ITSELF.  
5. WHETHER A STATEMENT MADE BY THE MINISTER WHICH IS INCONSISTENT WITH FUNDAMENTAL RIGHTS IS ACTIONABLE AS A ‘CONSTITUTIONAL TORT’.

PETITIONER’S ARGUMENT  

Reply of Q1 – when there is a conflict between any two fundamental right the court strikes a balance between the two fundamental rights. 

Reply of Q2 – It is pertinent that the word ‘state’ mentioned in the provisions of Part III of the Indian Constitution, it is to be noted that the state is not only obligated to protect the citizens fundamental right but also to ensure that private persons and entities do not violate the fundamental rights of the citizen. In such cases where a public entity or private individual violates the fundamental right the court has imposed the compensation on the private entities in a landmark case of M.C Mehta v Union of India. 

Reply of Q3 – The fundamental rights are both negative and positive rights. Positive because the state is under the obligation to protect the rights of citizens from being violated and the same was explained by the court in the case of K.S Puttaswamy v Union of India. 

Reply of Q4 – It was contended that cabinet minister acts on behalf of the State, thus the state made liable for the acts done by the minister. It was further stated that the violation should be determined by the court by considering the facts of the case that minister made an alleged statement in its official capacity or what kind of matter it is like gang rape in the instant matter or where such statement has been made public or private. It was finally argued that the minister whether in Centre or State should act in accordance with the prescribed Constitution.

Reply of Q5 – It was contented that a group of persons, bodies, and other instrumentalities constitute a State, similarly the State government function through its cabinet ministers and other public servants. It was further contented that the State would be held liable for the Constitutional tort for the wrongs committed by the agencies and they cannot escape from the liability and cannot infringe fundamental rights.  

RESPONDENTS ARGUMENT 

Reply of Q1 – It was stated that the reasonable restrictions under Article 19(2) to (6) should always be considered exhaustive and more rules cannot be added as it is a legislative function. In Constitutional scheme, one fundamental right cannot come in conflict with the other. The court always tries to strike a balance between both the fundamental rights. 

Reply of Q2 – It was said that few fundamental rights can be exercised against the State/ or the agencies, whereas few fundamental rights are available even against the private person/ or bodies i.e, other than the State instrumentalities. 

Reply of Q3 – It is stated that there is no obligation on the part of state to provide additional protection to the citizen under Article 21 of the Constitution. If any person wants to enforce fundamental rights on the grounds of violation, then they can avail the Constitutional remedies by invoking the Jurisdiction under Article 32 and 226 of the Constitution for the Supreme Court  and High Court respectively. 

Reply of Q4 – The conduct of minister is subject to judicial review and such a person can be inflicted with the punishment if it is proved that the statement made was maliciously and government cannot be held vicariously liable by following the principle of collective responsibility, as the misconduct will be deemed as an individual wrong. It was also stated that the Supreme Court can grant compensation to the persons whose Constitutional rights are infringed due to the misconduct of the public officers in case like Kasturilal Ralia Ram Jain v The State of Uttar Pradesh. 

Reply of Q5 – The principle of Constitutional tort emerged in the case of Smt. Nilabati Behera alias Lalita Behera v State of Orissa & Ors and was applicable in various matters to provide constitutional remedies.  

JUDGEMENT 

1. Additional restrictions not found in Article 19(2) cannot be imposed on exercise of Article 19(1)(a) upon the individual.    
2. The fundamental right under Article 19 and 21 of the Constitution can be enforced against private bodies/ persons other than the state and its instrumentalities. 
3. It is the duty of the State to protect the fundamental rights under Article 21 of the Constitution when there is a threat to personal liberty even by non-state actors. It was also held by the Supreme Court that ‘the importance of personal liberty’ is over and above all the rights guaranteed under Article 19 and 14 need to be over-emphasized. 
4. A statement made by the minister even if traceable to any affairs of State for protecting the government, cannot attributed vicariously to the government by invoking the principle of collective responsibility. 
5. It was also held by the Supreme Court that mere statement made by the minister cannot be constituted as the violation of the fundamental rights under Part III of the Constitution and became actionable as Constitutional tort. But if as a consequence of the statement any act or omission of an officer results as a loss to the citizen or people then it is actionable as a Constitutional tort. 

RATIO DECENDI OF THE JUDGEMENT OF THE CASE 

• Enforceability of fundamental rights against non-state actors 

The question before the court was whether the fundamental rights have vertical or horizontal effects. The court explained and gave the meaning to both the terms – 

1. Vertical Effect – Constitutional provision regulates only when one party is State or its instrumentalities or its agencies the provision is said to have a vertical effect of application. 
2. Horizontal Effect – Constitutional provision regulates where both parties are private persons or entities the provision is said to have a horizontal effect of application. This horizontal approach aims to maintain the value of constitutional provision and sense in every individual. 

• Collective Responsibility 

When the issue of ‘collective responsibility’ arises, it refers to the Article 75(3) and 164(2) of the Constitution which states that the council of ministers will be held liable collectively responsible towards Lok Sabha. Therefore, in the instant matter the Court contemplated that these provisions are referring to the decisions and activities of the ministers and not the every statement given by them.  Hon’ble Supreme Court made some observations in the present case as – 

1. The concept of collective responsibility is primarily political. 
2. The responsibility of the council of ministers is towards the legislature that is Lok Sabha for Union in the Parliament or the State Legislative assembly for the State. 
3. The court concluded that “it is not possible to extend this concept of collective responsibility to any and every statement orally made by Minister outside the house of people/ Legislative Assembly.  

Separate opinion of Justice B.V. Nagarathna in this case 

There can be no horizontal approach in the right under Article 19 and 14, except those which were statutorily conferred. These fundamental rights cannot be enforced against non- state actors by way of writ petition as it involves question of fact. He also opined that along with affirmative it is the negative duty of the State not to violate the right to life and if such right is violated it is said that the state has failed to carry out its duties. 

He also gave his opinion upon the Ministers statement, if the statement made by the minister is consistent with the government’s view and attributed to any State affair then the principle of collective responsibility would be applicable and the State will be vicariously liable by the principle of collective responsibility. But if the statement made by the minister is inconsistent with the view of the government then only the minister will be liable personally.  

CONCLUSION 

The hon’ble Supreme Court held that the obligation to protect and preserve the fundamental rights is upon the State and can be enforced against the State and non-state actors as well. In this case the court also ruled that State will not be liable for every utterance made by the minister.