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Kaushal Kishore v. State of Uttar Pradesh

Case details and hearing information from the Constitution Bench Pendency Portal.

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Kaushal Kishore v. State of Uttar Pradesh

2025-02-24T11:01:58.687260+05:30

This case determines the extent of restrictions which can be imposed on the right to free speech when exercised by instrumentalities of the state, such as individuals presently holding office.

Petitioners Arguments: The Constitution Bench in the case of M.C. Mehta v. Union of India made a prima facie suggestion that fundamental rights could be horizontally applicable i.e. enforced against private corporations, whose activities have the potential of affecting the life and health of the people. Therefore, in certain cases even provisions of Article 19(1)(a) should be subject to the discipline of Article 21. Restrictions on speech under Article 19(1)(a) are not necessarily violations of the right to free speech and expression. There are certain constitutional posts, such as judges, who cannot freely express their personal opinion and hence have restricted speech. The State has a positive duty to enforce Article 21 which could extend to regulating private entities, especially in light of greater power being exercised by the private actors obtaining and publishing private information. Akin to the introduction of recommendatory guidelines in Vishakha v. State of Rajasthan , the court should formulate regulatory guidelines under Article 19(2).
Responders Arguments: The current reference should not be answered by the bench, as the questions have already been settled by the courts in the past. Articles 19 and 21 have been read together ever since the bank nationalisation case and M. Nagaraj vs Union of India. Restrictions to Article 19(1)(a) would need to arise from Article 19(2) , including those from Article 21. Such restrictions would also necessitate the introduction of a law, failing which restricting speech could amount to judicial overreach and make Article 19(2) redundant. Fundamental rights should only be enforced against State action and not individuals. There is sufficient case law and evidence to support that the reasonable restrictions on Article 19(1)(a) could only be on the grounds stated under Article 19(2) and none else. The same holds true even when potentially competing rights are balanced between Article 19(1)(a) and Article 21. Restriction on free speech can be made on account of it being defamatory and therefore subject to Article 19(2).
Last Listed On: 2023-01-03
Start Date: 2016-08-20
End Date: 2023-01-03
Card Stage Date: 2023-01-03
Review Petition No: W.P.(Crl.) No. 113/2016
Case Status: Archive
Bench Status: Constituted
Subject Matter: Constitution
Disposal Time: 6 years, 4 months, 15 days

5 Judge Bench

2024-01-04T12:23:31.606715+05:30

Judgment delivered

2025-02-17T06:51:54.854088+05:30

Consider As Stage Of Pendency: false

Date of reference to 5 Judge Bench

2024-12-30T08:38:36.514676+05:30

Date of institution of case

2024-02-07T08:07:40.886454+05:30

Judgement pronounced

2024-07-02T08:07:04.926234+05:30

2025-02-24T11:06:25.534903+05:30

On 29-07-2016 , a woman along with her 13-year old daughter were looted and gang-raped in the town of Bulandshahr, which falls on the deserted National Highway 91 between Noida and Shahjahanpur in Uttar Pradesh. Reacting to the news, a few days later on 01-08-2016, while attending a press conference, the then State Urban Development Minister and Samajwadi Party leader Mr. Azam Khan, called the incident a ‘ political controversy against the State Government ’. This led to immense backlash from civil society. Given the civil society uproar and heightened media scrutiny, the Allahabad High Court took suo motu cognizance of the matter to monitor the case’s investigation. On 12-08-2016 , on finding that the investigation was ‘far from being credible’ and not ‘inspiring any confidence at all’ it transferred the matter to the Central Bureau of Investigation (in Criminal Writ Public Interest Litigation No. 18005/2016). It also noted that multiple other cases of violence have previously taken place in the same area, but no police action was taken in any of those cases. Simultaneously, the father of the minor girl, concerned about the fairness of the investigation, filed the present writ petition before the Supreme Court requesting for a transfer of the case from Uttar Pradesh to Delhi. In response, on 08-09-2016 , the Supreme Court upheld the Allahabad High Court’s decision to let the CBI continue the investigation while leaving questions regarding the transfer of the case to Delhi and observations on the speech by Mr. Azam Khan, alive and open. Almost a year later in October, 2017 , recognising that the present case brought out complex issues concerning the limitations on the right of free speech under Article 19(1)(a) , the Supreme Court referred the matter to a larger bench. In November, 2017 , the five-judge bench tagged a PIL filed against an impugned order of Kerala High Court, concerning the framing of a Code of Conduct for ministers in the light of derogatory utterances made by them, against women, in the public.

2025-02-24T11:07:10.764464+05:30

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? Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities? Does the State have a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency? 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’? Can a statement by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, constitute a violation of such constitutional rights and be actionable as a ‘constitutional tort’?

Article 19 of the Constitution

2025-02-24T11:02:37.258970+05:30

Article 21 of the Constitution

2026-08-13T15:44:05.570008+05:30

Article 75(3) of the Constitution

2026-08-13T15:44:05.570834+05:30

Article 164(2) of the Constitution

2026-08-13T15:44:05.571491+05:30

2025-02-24T11:09:27.340069+05:30

Having received assistance from many senior members of the bar and the Amicus Curie Mr. Fali S. Nariman, the court held that the matter involved was of great importance to the interpretation of Article 19(1)(a) and Article 21 of the Constitution and therefore needed to be referred to a Constitution Bench in its entirety.