This article is written by Utkarsh Singh, from Amity Law School, Noida. This is an exhaustive article that deals with an analysis of the case of Kaushal Kishore vs. State of Uttar Pradesh including the debate on the restrictions to Article 19(1)(a). 

Introduction

The citizens of India have been rewarded with certain fundamental rights that are enshrined in the Constitution among them one such right is Article 19(1)(a) that guarantees the right to freedom of speech and expression to all its citizens. The essence of this free speech is the ability to think and speak freely in order to obtain and share opinions and information. However, certain restrictions have to be imposed on this freedom so that such a speech does not become the cause of anarchy and political cure. Article 19(2) lays down the reasonable restrictions that can be imposed on the exercise of this right. The grounds mentioned for imposing restrictions over the right to freedom of speech and expression include- upholding the sovereignty and integrity of India, security of the State public order, friendly relations with foreign States, decency, contempt of court, defamation or incitement to an offence. The real question that stands here is whether these restrictions are enough to safeguard the rights of the people? Should more restrictions be imposed on this freedom? No one can say for sure but, overly restricting the freedom of speech and expression of the citizens is basically denying the people the rights that have been given to them according to the Constitution. The case of Kaushal Kishore v. State of UP 2019, highlighted an irony where the judiciary which is regarded as the defender of the constitutional rights, was inventing new ways to restrict speech while the government opposed this expression of restriction beyond Article 19(2). The proceeding of this case led the courts to wonder whether Freedom of Speech and expression could be restricted on grounds of Constitutional sensitivity and Constitutional Compassion under Article 19(2) and also by the Fundamental Right of Article 21 that is Right to Life and Personal Liberty.

Background facts

On 28 July 2016, a young girl and her mother were gang-raped on the national highway that passed through the city of Uttar Pradesh. This happened in between their journey from Noida to Shahjahanpur. The men that were travelling with them were tied up in the field and beaten harshly. The First Information Report was registered at the Bulandshahr Police Station for the offences of gangrape under Indian Penal Code read with the Protection of Children from Sexual Offence (POCSO) Act. Following this, the media got involved with this incident and it made the headlines. Azam Khan who as a minister for the urban development in Uttar Pradesh, while addressing the public described this gangrape incident as a ‘political conspiracy and nothing else’. 

He criticised one of the victims when she complained about not getting justice and Stated that the victim had surely got the publicity that she needed. He went on talking about how the victims will face the world if they go around spreading the details of this incident. The husband and father of the two gangrape survivors filed a petition of their plea seeking a probe by the Central Bureau of Investigation and that the trials should be held outside the State of Uttar Pradesh as Azam Khan’s Statement spoiled the chance of a fair hearing in that State. 

They argued that Azam Khan’s public Statement adversely affected the reputation of the victims. Following this petition, the Supreme Court Bench made Azam Khan a respondent to the case. He later presented an unconditional apology before the apex court and offered his sincere remorse to the petitioner. 

The court accepted this apology and moved on to consider the larger questions that were involved in the case. The case continued and is an order dated 5th October 2017, the matter to a 5- judge constitution bench of the Supreme Court to decide on certainly the Right to Free Speech on sensitive matters that are under investigation and whether it offers an individual’s right to a dignified life. This was with respect to the Statement made by the minister.

Main issues

1. Whether the Court can impose restrictions on the right to freedom of speech and expression beyond the present restrictions provided under Article 19(2) of the Constitution.
2. Can a Fundamental Right under Article 19 (that is freedom of speech and expression) and Article 21 (that is right to life and Personal Liberty) of the Constitution, can be claimed against anyone other than the ‘State’ or its instrumentalities.
3. Whether the State is under a duty to affirmatively protect the right of the citizens under Article 21 of the constitution even if it is against a threat to the liberty of the citizen by the acts or omissions of another citizen or private agency.
4. Whether the Statement of a minister, traceable to any affairs of the State, should be attributed vicariously to the government itself for not keeping in mind the principle of collective responsibility.
5. Whether a Statement made by a minister, which is inconsistent with the rights granted to the citizen under Part III of the Constitution (that is Fundamental Rights), constitutes as a violation of such Fundamental Rights and is actionable as ‘Constitutional Tort’ (civil wrong). 

Arguments

• The former Chief Justice Deepak Misra asked Mr. Fali Nariman and Mr. Harish Salve who were giving their assistance to the Court and was then appointed as the amicus curiae, to comment on the issues that stood in front of the court regarding the first issue, both Nariman and Salve submitted an argument that the right to a fair trial is a must for the freedom of speech and expression. They both contended that opposing the State action is one thing that curbs the freedom of expression and it is different when ‘non-State’ actors cause an invasion of an individual’s right to privacy. 
• Salve said that every citizen has a right to protect their reputation and anyone who threatens this right to privacy cannot invoke his freedom of expression under Article 19(1)(a). The Court left this issue to be explained by Madhavi Divan who was the counsel for the Union of India, to expand the grounds for restriction of freedom of speech mentioned under Article 19(2). She suggested that creating new avenues of restriction under Article 21 would seriously imperialize the right to freedom of expression that is guaranteed under Article 19(1)(a). She pointed out in the court that it was clear that Article 19(1)(a) is subjected to certain restrictions on grounds specifically mentioned under Article 19(2). 
• She cited the Sahara Guideline’s case of the year 2012, in which it was held that reporting of media could be restricted or postponed by invoking Article 19(2). Then in the Noise pollution case of 2005 Article 19(1)(a) was considered broad enough to accommodate both the freedom of speech and right to silence. She also mentioned the case of Bijoe Emmanuel vs State of Kerala (1986), in which the right to refrain from singing the national anthem was read into the right to free speech under Article 19(1)(a). 
• The bench remains unconvinced even after the persuasion of Divan. Regarding the second issue, senior advocate Harish Salve argued that the concept or idea that one has to be a State employee or an instrumentality to carry out the public duties has died decades ago. This is because private individuals and firms are conducting those functions that are primarily State functions. He called out the theory of only government employees performing public service to be relooked. He continued saying that the society has made huge progress, the role of the State and the government authorities has shrunken in the lives of the people thus, changing accordingly and referred to the work being conducted by the private parties. 
• The bench counter questioned the Statement by Advocate Salve by saying that if private entities are given the public duties of handling railways and toll collections, then they should be made responsible for upholding the Fundamental Rights. Thus, Advocate Salve commented that the time has come to ‘marry’ the constitutional principle along with the privileges to private entities, ensuring the fundamental rights of the citizens. 
• With regard to the third issue, the Subramanium Swamy case (2016) was cited which upheld the decision that freedom of speech must be balanced with the right to reputation which is an important part of the right to life under Article 21. 
• Advocate Harish Salve submitted that Article 19(2) may be the only controlling provision for the freedom of speech and expression, however, Article 19(1)(a) has its own inherent contours and is not boundless. 
• With respect to the fourth issue, Advocate Salve Stated that democracy is very fragile and it only exists as long as the public has faith in the system. The law of contempt, he said, is not to protect an individual but for protecting the faith of the public in the institution. In this system, a minister is bound by the oath under the Constitution to preserve and follow the constitutional values a minister is also a citizen who has to exercise his freedom of speech and expression along with his constitutional oath. He further added that the freedom of speech does not give the minister an independent right to make Statements that would “emasculate” the right to life and fair trail of victims. 
• In his view, if the State fails to discharge its constitutional obligation then the aggrieved person can seek damages against such actions of public servants under the law of tort it is the constitutional duty of the State to ensure the rights of the citizens are not violated. 
• Now advocate Nariman added to the fifth quarry that if the allegations against Azam are proved then he will be liable under tort law that includes the public law remedy. He further argued about the gravity of a minister’s oath to protect the fundamental rights of the citizens guaranteed under part III of the constitution.

Judgment

On 20th April 2017, the court referred the matter regarding the Statement of  Azam khan on the victims of the gangrape to a five-judge constitution bench requesting the amicus curiae to formulate questions of law, present arguments and try finding a solution that the bench can consider. On 23 October 2019, a constitution bench comprising justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R shah, and Ravindra Bhat began hearing the matter but could not come to a conclusion. The judges are still not sure about the extent to which they can expand the restrictions on writing to freedom of speech and expression and whether Article 21 can become a restriction of Article 19(1)(a). The matter is to be placed before the constitution bench after taking necessary instructions from the chief justice of India.

Conclusion 

Our constitution has ensured that every citizen is entitled to their basic rights and freedom in the form of fundamental rights and has also laid down certain restrictions on the freedom of the citizens to exercise their right so that a balance is maintained. The freedom of speech and expression under Article 19(1)(a) is already subjected to restrictions by Article 19(2). Making efforts to strengthen these restrictions by other fundamental rights like Article 21 is slowly chipping away the right to free speech that is guaranteed to all citizens. In a constitutional democracy like India, a judge’s role is to defend the rights of the citizens and not authorize more restrictions on civil liberties. The restrictions under Article 19(2) with grounds of decency, morality and contempt of Court are wide enough to account for a speech or Statement made towards a rape victim. The usage of words like constitutional sensitivity is highly unnecessary. Today the restriction to free speech is on the basis of dignity read under Article 21, tomorrow there can be something else that the judges will consider to limit the freedom of the citizens.

This case highlighted some important questions in front of the judiciary. However, a final decision is yet to be taken. The case started with the Statement of Azam Khan and ended with questioning the role of the judiciary regarding restrictions of a fundamental right, the responsibility of a minister, the liability of the State when it government officials exercise their free speech to make such statements that can affect an ongoing trial and whether such a person is actionable under a constitutional tort. The debate regarding these issues is being continued to date and when a final judgement will come on these issues, then either widen the boundaries on fundamental rights or make the existing boundaries more accommodative.

References 

• https://thewire.in/law/supreme-court-free-speech-azam-khan-neutrality
• https://indiankanoon.org/doc/1489350/

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