KAUSHAL KISHOR versus STATE OF UTTAR PRADESH & ORS.

Citation: [2023] 8 S.C.R. 581 · Decided: 03-01-2023 · Supreme Court of India · Bench: S. ABDUL NAZEER · Disposal: Reference answered

Cited by 4 judgment(s) · cites 80 · see the full citation network in Lexace

Judgment (excerpt)

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KAUSHAL KISHOR
v.
STATE OF UTTAR PRADESH & ORS.
(Writ Petition (Criminal) No. 113 of 2016)
JANUARY 03, 2023
[S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA,
V. RAMASUBRAMANIAN AND B. V. NAGARATHNA, JJ.]
Constitution of India – Arts. 19(1)(a) and 19(2) – Are the
grounds specified in Article 19(2) in relation to which reasonable
restrictions on the right to free speech can be imposed by law,
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 – Held: The  grounds lined up in Art.19(2) for restricting the
right to free speech are exhaustive – 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.
Constitution of India – Arts. 19 and 21 – Can a fundamental
right under Article 19 or 21 be claimed other than against the ‘State’
or its instrumentalities – Held (per V. Ramasubramanian, J.) (for S.
Abdul Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself):  A
fundamental right under Article 19/21 can be enforced even against
persons other than the State or   its instrumentalities – Held (per
B.V. Nagarathna, J.): The rights in the realm of common law, which
may be similar or identical in their content to the Fundamental Rights
under Article 19/21, operate horizontally – However, the
Fundamental Rights under Arts. 19 and 21, may not be justiciable
horizontally before the Constitutional Courts except those rights
which have been statutorily recognised and in accordance with the
applicable law – However, they may be the basis for seeking common
law remedies – But a remedy in the form of writ of Habeas Corpus,
if sought against a private person on the basis of Article 21 can be
before a Constitutional Court i.e., by way of Article 226 before the
High Court or Article 32 read with Article 142 before the Supreme
Court.
   [2023] 8 S.C.R. 581
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SUPREME COURT REPORTS
[2023] 8 S.C.R.
Constitution of India – Art. 21 – Whether the State is under a
duty to affirmatively protect the rights of a citizen under Art.21
even against a threat to the liberty of a citizen by the acts or omissions
of another citizen or private agency – Held (per V.
Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S.
Bopanna, JJ., and himself): The State is under a duty to affirmatively
protect the rights of a person under Article 21, whenever there is a
threat to personal liberty, even by a non-State actor – Held (per
B.V. Nagarathna, J.): The duty cast upon the State under Article 21
is a negative duty not to deprive a person of his life and personal
liberty except in accordance with law – The State has an affirmative
duty to carry out obligations cast upon it under statutory and
constitutional law, which are based on the Fundamental Right
guaranteed under Article 21 of the Constitution – Such obligations
may require interference by the State where acts of a private actor
may threaten the life or liberty of another individual –Failure to
carry out the duties enjoined upon the State under statutory law to
protect the rights of a citizen, could have the effect of depriving a
citizen of his right to life and personal liberty – When a citizen is so
deprived of his right to life and personal liberties, the State would
have breached the negative duty cast upon it under Art.21.
Doctrines / Principles – Principle of Collective Responsibility
– Can a statement made by a Minister, traceable to any affairs of
State or for protecting the Government, be attributed vicariously to
the   Government itself, especially in view of the principle of Collective
Responsibility – Held (per V. Ramasubramanian, J.) (for S. Abdul
Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself) : 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
– Held (per B.V. Nagarathna, J.): A statement made by a Minister if
traceable to any affairs of the State or for protecting the
Government, can be attributed vicariously to the Government by
invoking the principle of collective responsibility, so long as such
statement represents the view of the Government also – If 

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