Case Summary: Kaushal Kishor Vs. State of Uttar Pradesh, AIR 2023 SC

• Case Title: Kaushal Kishor Vs. State of Uttar Pradesh, AIR 2023  SC 
• Citation: (2023) 4SCC 1; 2023 INSC 4
• Court: Supreme Court of India
• Bench: Justice S. Abdul Nazeer, Justice B.R. Gavai, Justice A.S.Bopanna, Justice V.
• Date of Judgement: January 3, 2023
• Relevant Provisions/ Statutes: Article 19 (1) (a), Article 19 (2), Article 21, Article 32 and 226, The Principle of Collective Responsibility, Constitutional law, tort

Facts of the Case

In this matter, the Supreme Court brought together two separate cases involving derogatory remarks made by State Ministers from Uttar Pradesh and Kerala, each in unrelated incidents. At the heart of the dispute was a clash between the Ministers’ right to freedom of speech and the Petitioners’ right to dignity, safeguarded under Article 21 of the Constitution.

In one instance, a Minister from Uttar Pradesh made insensitive comments about two victims of sexual assault, dismissing the incident as a mere political stunt aimed at discrediting the government. In the other, a Kerala Minister made statements that were deeply offensive to women, sparking public outrage. Both petitions claimed that such remarks by public officials crossed the line and violated the fundamental right to dignity.

Initially placed before a three-judge bench, the petitions raised weighty constitutional questions. Since the issues were cut from the same cloth and involved significant interpretation of constitutional rights, the Court decided to kick it upstairs—referring the matter to a five-judge Constitution Bench for authoritative resolution.

Legal Issues Involved

1. Can the Court go beyond the limitations already specified in Article 19(2) and impose further restrictions on freedom of speech and expression by relying on other fundamental rights?
2. Are the rights under Article 19 (freedom of speech and expression) and Article 21 (right to life and personal liberty) enforceable not only against the “State” but also against private individuals or non-state actors?
3. Does the State have a positive obligation to safeguard citizens’ Article 21 rights even when the threat to liberty comes from private persons or non-governmental entities?
4. Should statements made by a minister in connection with government affairs or in defense of government policy be treated as statements of the government itself, by applying the doctrine of collective responsibility?
5. If a minister makes a statement that undermines the fundamental rights of citizens guaranteed under Part III of the Constitution, does it amount to a violation of such rights and give rise to liability in the form of a “constitutional tort”?

Arguments presented by the Petitioner

Question No.1 – Article 19(2) lays down the reasonable restrictions on the right to freedom of speech and expression guaranteed under Article 19(1)(a). Whenever two fundamental rights come into conflict in a particular situation, the courts strive to strike a fair balance so that both rights are given effective meaning. To illustrate this principle, the learned counsel referred to several judgments, such as R. Rajagopal v. State of Tamil Nadu (1994), People’s Union for Civil Liberties (PUCL) v. Union of India (1996), and Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India (2012), among others.

Question No. 2 addresses whether fundamental rights can be enforced against private individuals. While enforcement typically lies with the State under Article 12, rights under Articles 15(2), 17, 23, 24, and parts of Article 21—like the right to a clean environment—apply to all “persons,” not just the State. Courts have affirmed the State’s duty to protect these rights even from private actors, as seen in Bodhisattwa Gautam v. Subhra Chakraborty (1995) and M.C. Mehta v. Kamal Nath (1996).

Question 3 Fundamental rights entail both negative and positive duties, requiring the State to actively protect citizens. Courts in Puttaswamy (2018), Rangarajan (1989), and Parmanand Katara (1989) affirmed that the State cannot evade this duty, including providing urgent medical aid under Article 21.

In Question No. 4, the counsel argued that cabinet ministers, as State agents, may render the State liable if their actions violate Article 21. The Court emphasized the need to assess whether a minister’s statement is official or personal, and whether it pertains to public or private matters.

Key cases cited:

• Amish Devgan (2020) – highlighted the impact of public office holders.
• Sarabgdharsingh Chavan (2010) – held the State liable for a Chief Minister’s interference.
• Daulat Mal Jain (1996) and Manoj Narula (2014) – reinforced ministers’ constitutional duties.
• R. Sai Bharathi (2003) – clarified that the ministerial code of conduct is not legally enforceable.

The amicus curiae concluded that ministers must uphold the constitutional responsibilities of the State.

Question No.5 The State, acting through its agents, is liable under constitutional tort for violations of fundamental rights, including those by ministers. Sovereign immunity cannot shield such breaches, as affirmed in Nilabati Behera (1993) and Common Cause (2018).

Arguments presented by the Respondent

Question No.1 – The Attorney General argued that restrictions under Article 19(2) and (6) are exhaustive and courts cannot add to them, as that’s a legislative role. Fundamental rights cannot override one another, but when they conflict, courts aim to balance them for meaningful coexistence.

Question No.2 – The Attorney General argued that while some fundamental rights apply to private entities (e.g., Articles 15(2), 17, 23, 24), most are enforceable only against the State. Expanding this scope would alter the Constitution and risk excessive litigation; claims against non-state actors must remain within constitutional or legal bounds.

Question No.3 – The Attorney General contended that the courts have no obligation to extend additional protection under Article 21 when a fundamental right is violated by a private individual, particularly where adequate safeguards already exist through constitutional and legal remedies. A citizen seeking to enforce their fundamental rights can approach the courts under Article 32 of the Constitution by filing a writ petition in the Supreme Court or under Article 226 by filing a petition in the respective High Court.

In Question No. 4, the Attorney General argued that ministers’ conduct is subject to judicial review, and misconduct under the “colour of office” may be punished if it breaches public duty. However, the State isn’t vicariously liable unless a statutory violation occurs—such acts are considered personal wrongs. The Supreme Court may award compensation for rights violations by public officers, as seen in Kasturilal (1964) and Rudul Sah (1983). The Attorney General recommended clear statutory provisions to address such cases.

Question No.5 – The Attorney General noted that the principle of constitutional tort, first recognised in Smt. Nilabati Behera v. State of Orissa (1993), has been applied to offer remedies for violations of fundamental rights. However, he stressed the need for a clear statutory framework to define its principles and procedures, avoiding uncertainty and ambiguity in its application.

Questions raised in Kaushal Kishore Vs. State of Uttar Pradesh& Ors. (2023)

On January 3, 2023, a Constitution Bench consisting of Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, and B.V. Nagarathna delivered a comprehensive ruling, addressing every question presented before it. The Bench resolved all uncertainties surrounding the constitutional provisions raised by the petitioners, providing clear and definitive answers to each issue.

Supreme Court’s holding

1. Restrictions on free speech under Article 19(1)(a) must strictly align with Article 19(2); no additional limits can be imposed by invoking other rights or competing claims. 
2. “A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.”
3. The State must actively safeguard personal liberty under Article 21, even from non-State actors, as this right holds primacy over those in Articles 19 and 14.
4. 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.”
5. A Minister’s statement alone, even if inconsistent with Part III rights, doesn’t amount to a constitutional tort. However, if it leads to official action or inaction causing harm, it may become actionable.

Ratio Decidendi

The Supreme Court held that Article 19(2) provides exhaustive grounds for restricting free speech. While it preserves pre-existing laws, any restriction must fall within its specified limits. Laws like the IPC (e.g., Sections 124A, 295A, 499) and statutes such as the SC/ST (Prevention of Atrocities) Act, 1989 and the Prevention of Insults to National Honour Act, 1971 are valid only if they align with Article 19(2)’s criteria—like public order, decency, or defamation. The State cannot impose additional restrictions beyond these grounds.the Supreme Court clarified by stating that “the role envisaged in the Constitutional scheme for the Court, is to be a gatekeeper (and a conscience keeper) to check strictly the entry of restrictions, into the temple of fundamental rights. The role of the Court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges.”

The second issue taken up by the Supreme Court revolved around whether fundamental rights under Article 19 and Article 21 can be enforced not just against the State, but also against private individuals or entities. In other words, the Court was asked to determine whether these rights operate in a vertical or horizontal manner.

 It noted that every country walks a fine line between these two models, often adopting elements of both.

• Vertical effect refers to situations where constitutional rights apply only in disputes involving the State or its organs. This model tends to put the individual in the driver’s seat, prioritizing personal liberty, autonomy, and privacy when facing the power of the State.
• Horizontal effect refers to the application of constitutional provisions in situations where both parties involved are private individuals or entities, rather than the State. In this framework, the Constitution doesn’t just govern the relationship between citizens and the government—it also sets the tone for how individuals interact with one another. The goal is to ensure that constitutional principles like dignity, equality, and freedom permeate everyday life, encouraging every person to uphold these values in their conduct.

The obligation of the State to protect Article 21 and Article 19

Earlier, writ petitions depended on whether the respondent was the State. Now, courts assess the respondent’s functions and impact on rights. The focus is on personal liberty under Article 21, especially its violation by non-state actors and the State’s duty to protect it.

Obligation of the state for Minister’s  statements

The Supreme Court first examined whether a minister’s statement, made in relation to state affairs or to defend the government, could be vicariously attributed to the government under the principle of collective responsibility.

It reviewed constitutional provisions in Part V and VI, including Articles 74, 75, 77, and 78 at the Union level, and Articles 163, 164, 166, and 167 at the State level. The Court noted that collective responsibility, as per Articles 75(3) and 164(2), applies to the decisions and actions of the council of ministers as a whole, not to every individual statement made by a minister.

Dissenting opinion of Justice B.V. Nagarathna

The Court held that Articles 19 and 21 don’t apply horizontally unless backed by statute, so writs can’t target private individuals—though common law remedies remain. Under Article 21, the State has both a duty to avoid infringing and to protect personal liberty. Ministerial statements may trigger State liability if tied to official policy; otherwise, the minister is personally liable. Harmful statements only qualify as constitutional torts if endorsed by the government.

The Court emphasized the need for clear legislation to define constitutional torts, specify remedies, and establish a redressal framework.

Final Decision

India’s Constitution guarantees fundamental rights to all citizens, including freedom of speech under Article 19(1)(a), which is subject to specific restrictions listed in Article 19(2). The Supreme Court emphasized that these restrictions are exhaustive, and cannot be expanded by invoking other rights like Article 21. Allowing such expansions could risk eroding free speech in the future.

In a constitutional democracy, it is the legislature’s role—not the judiciary’s—to define limits on civil liberties. Judges must uphold rights and balance conflicts without creating new restrictions.

In this case, the Court ruled that statements made toward rape victims are already covered under Article 19(2) and do not require additional limitations via Article 21.

Additionally, the Court clarified that the State has a duty to protect fundamental rights, even against private actors. However, the State is not automatically liable for every minister’s statement—liability arises only if the speech causes harm and reflects official policy, potentially qualifying as a constitutional tort.

References

1. The Wire, ‘Supreme Court Explains Free Speech of Ministers and Government Neutrality’ (29 September 2025) https://thewire.in/law/supreme-court-free-speech-azam-khan-neutrality accessed 29 September 2025.
2. State of Bihar v Lal Krishna Advani AIR 2003 SC 3357, https://indiankanoon.org/doc/1489350/ accessed 29 September 2025.
3. SCC Online, ‘7 Landmark Constitutional Law Judgments of 2023: Supreme Court of India (Part II)’ (26 January 2024) https://www.scconline.com/blog/post/2024/01/26/7-landmark-constitutional-law-judgments-2023-supreme-court-india-part-ii/  accessed 29 September 2025.
4.  “No One Can Be Penalised For Holding An Opinion Not In Conformity With Constitutional Values: Kaushal Kishore v State of Uttar Pradesh” LiveLaw (2 Jan 2023) https://www.livelaw.in/top-stories/supreme-court-constitutional-values-opinion-tort-kaushal-kishore-vs-state-of-uttar-pradesh-2023-livelaw-sc-4-218000 accessed 29 September 2025.
5.  “Freedom of Speech of Public Functionaries, Right to Life & Personal Liberty of Citizens” SCC Online Blog (3 Jan 2023) https://www.scconline.com/blog/post/2023/01/03/freedom-of-speech-of-public-functionaries-right-to-life-personal-liberty-of-citizens-impedes-same-legal-news-legal-reasearch-updates/ accessed 29 September 2025.
6.  J N Pandey, Constitutional Law of India (edn 10, Central Law Agency).