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Constitution of India – Arts. 19(1)(a) and 19(2) – Are thegrounds specified in Article 19(2) in relation to which reasonablerestrictions on the right to free speech can be imposed by law,exhaustive, or can restrictions on the right to free speech be imposedon grounds not found in Article 19(2) by invoking other fundamentalrights – Held: The grounds lined up in Art.19(2) for restricting theright to free speech are exhaustive – Under the guise of invokingother fundamental rights or under the guise of two fundamentalrights staking a competing claim against each other, additionalrestrictions not found in Article 19(2), cannot be imposed on theexercise of the right conferred by Article 19(1)(a) upon anyindividual.Constitution of India – Arts. 19 and 21 – Can a fundamentalright 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): Afundamental right under Article 19/21 can be enforced even againstpersons other than the State or its instrumentalities – Held (perB.V. Nagarathna, J.): The rights in the realm of common law, whichmay be similar or identical in their content to the Fundamental Rightsunder Article 19/21, operate horizontally – However, theFundamental Rights under Arts. 19 and 21, may not be justiciablehorizontally before the Constitutional Courts except those rightswhich have been statutorily recognised and in accordance with theapplicable law – However, they may be the basis for seeking commonlaw 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 bebefore a Constitutional Court i.e., by way of Article 226 before theHigh Court or Article 32 read with Article 142 before the SupremeCourt. Constitution of India – Art. 21 – Whether the State is under aduty to affirmatively protect the rights of a citizen under Art.21even against a threat to the liberty of a citizen by the acts or omissionsof another ci tizen 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 affirmativelyprotect the rights of a person under Article 21, whenever there is athreat to personal liberty, even by a non-State actor – Held (perB.V. Nagarathna, J.): The duty cast upon the State under Article 21is a negative duty not to deprive a person of his life and personalliberty except in accordance with law – The State has an affirmativeduty to carry out obligations cast upon it under statutory andconstitutional law, which are based on the Fundamental Rightguaranteed under Article 21 of the Constitution – Such obligationsmay require interference by the State where acts of a private actormay threaten the life or liberty of another individual –Failure tocarry out the duties enjoined upon the State under statutory law toprotect the rights of a citizen, could have the effect of depriving acitizen of his right to life and personal liberty – When a citizen is sodeprived of his right to life and personal liberties, the State wouldhave 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 ofState or for protecting the Government, be attributed vicariously tothe Government itself, especially in view of the principle of CollectiveResponsibility – Held (per V. Ramasubramanian, J.) (for S. AbdulNazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself) : A statementmade by a Minister even if traceable to any affairs of the State orfor protecting the Government, cannot be attributed vicariously tothe Government by invoking the principle of collective responsibility– Held (per B.V. Nagarathna, J.): A statement made by a Minister iftraceable to any affairs of the State or for protect ing theGovernment, can be attributed vicariously to the Government byinvoking the principle of collective responsibility, so long as suchstatement represents the view of the Government also – If such astatement is not consistent with the view of the Government, then itis attributable to the Minister personally. Tort – Constitutional Tort – Whether a statement by a Minister,inconsistent with the rights of a citizen under Part III of theConstitution, constitutes a violation of such constitutional rightsand is actionable as ‘Constitutional Tort” – Held (per V.Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and A.S.Bopanna, JJ., and himself) : A mere statement made by a Minister,inconsistent with the rights of a citizen under Part III of theConstitution, may not constitute a violation of the constitutionalrights and become actionable as Constitutional tort – But if as aconsequence of such a statement, any act of omission or commissionis done by the officers resulting in harm or loss to a person/citizen,then the same may be actionable as a constitutional tort – Held(Per B.V. Nagarathna, J.): A proper legal framework is necessaryto define the acts or omissions which would amount to constitutionaltort and the manner in which the same would be redressed orremedied on the basis of judicial precedent. |
