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Kaushal Kishor v. State of Uttar Pradesh, 2023 
CITATION(2023) 4 SCC 1 ; 2023/INSC/4 
DATE OF JUDGMENTJanuary 03, 2023 
COURTDelhi High Court
APPELLANTKaushal Kishor 
RESPONDENTState Of Uttar Pradesh & Ors. 
BENCHJustices S. Abdul Nazeer,B.R. Gavai, A.S. Bopanna,V. Ramasubramanian,B.V. Nagarathna 


An sad occurrence involving the rape of a girl and her mother occurred in the state of Uttar Pradesh on a highway. Azam Khan, the leader of the Samajwadi Party, called it a “political conspiracy” and said other hurtful things. The victims petitioned the Supreme Court in August 2016 in response to those remarks, asking that the case be moved to a state other than Uttar Pradesh. The probe was put on hold by the court’s ruling. The Court ordered Mr. Khan to offer an unequivocal apology in November 2016 for his remarks. The Court asked the Amicus Curiae to draft legal issues for the five-judge constitution bench to examine when it referred the case to them on April 20, 2017.


  1. The controversial remarks made by two men who held ministerial positions in two different states, exercising their right to freedom of speech and expression while simultaneously violating the victims’ right to life and personal liberty, were resolved by the Constitution bench in this case. 
  2. The petitioner filed a writ suit under Article 324 to get relief against Azam Khan, the Uttar Pradesh government’s minister for urban development, for claiming that opposition parties were involved in a political plot to discredit his administration by referring to the Bulandshahr rape episode. 
  3. The writ petitioner claims that while travelling on US 91, he and his family were ambushed by highway bandits who took away the petitioner’s money and valuables and viciously gang-raped his wife and 13-year-old daughter. Azam Khan described the tragedy as a political conspiracy during the news conference, following media reports of the horrific crime that had been committed in the state of Uttar Pradesh.
  4. The petitioner was forced to launch a writ suit against the minister for his careless comments against women’s modesty and for violating the victims’ fundamental rights because he worried a fair investigation would not be carried out following his contentious remarks. Azam Khan later apologised without conditions following the Supreme Court’s ruling.
  5. Currently, this case is associated with a special writ petition5, since both address comparable problems before the Supreme Court’s constitutional bench. The Kerala High Court’s division bench denied the petitioner’s two public writ cases against the state’s minister of electricity for making extremely offensive remarks about women while the minister remained unpunished. 
  6. In two petitions, the petitioner requested action against a minister for making disparaging remarks about women and directed the chief minister to take action against ministers who violated the constitutional oath. The Kerala High Court’s division bench, however, dismissed both petitions, stating that it is outside the court’s purview to establish a code of conduct for cabinet members and that it is not authorised to give orders in this regard.


  1. Are the grounds listed in Article 19(2) for justifiable legal restrictions on the right to free expression exhaustive, or can other fundamental rights be invoked to impose restrictions on the right to free speech on grounds not covered by Article 19(2)?
  2. Is It possible to assert a basic right under Article 19 or 21 of the Indian Constitution in ways other than as a means of opposing the “State” or its agents?
  3. Is the State required under Article 21 of the Indian Constitution to actively defend a citizen’s rights, even when such rights are threatened by the actions or inactions of private individuals or other citizens?
  4. In light of the concept of collective responsibility, can a minister’s remarks that are linked to any state matters or that are intended to shield the government be held vicariously accountable by the government? 
  5. Does a Minister’s speech that goes against a citizen’s rights under Part Three of the Constitution violate such rights and give rise to a “Constitutional Tort” lawsuit?


  1. The petitioner contended that in order for public servants, such as ministers, to utilise their Article 19 rights, efforts should be taken to create a voluntary code of behaviour.
  2. The petitioner contended that although states are required by basic rights to uphold those rights, the lack of a clause restricting ministers’ speech makes the speech is not actionable in a court of law for violating basic rights. A voluntary code of behaviour is therefore required.
  3. Regarding the government’s collective responsibility, the petitioner cited Article 75(3)11 of the Constitution to demonstrate that ministers have a duty to the legislative branch because each statement a minister makes affects the public at large; therefore, the government should bear joint responsibility for the minister’s statements. The petitioner used the common cause12 ruling to clarify the complex definition of collective responsibility.


  1. The respondent contended that Article 19 cannot be subject to any other limitations. Article 19(2)7 lays forth a comprehensive list of appropriate restrictions, and the only way to add more is through the legislative process.
  2. Regarding the other point, the respondent contended that a fundamental alteration to the constitutional principles would occur if non-state enterprises may be held legally accountable for violating an individual’s fundamental rights. A modification of this kind would allow for lawsuits against non-state organisations. 
  3. The respondent further argued that since the constitution’s articles 329 and 22610 provide persons with adequate legal recourse for article 21 violations, the state is not further required to uphold these rights in order to defend article 218. 
  4. The respondent contended that statements made by the minister that have nothing to do with state and public duty that is, misbehaviour remarks cannot be connected to the idea of collective responsibility.


Adbul Nazeer J, B.R. Gavai J, A.S. Bopanna J, V Ramasubramanian J, and B.V. Nagarathna J, the five judges who make up the constitution bench, each provided a thoughtful response to one of the five points posed in the legal issues to look into the abuse of free expression. The panel determined that the reasons mentioned in 

Article 19(2) provides a comprehensive list of ways to exercise the right to free speech and expression. Even in cases where there is a conflict between two fundamental rights, no more limitations can be imposed. 

Additionally, it determines that Articles 19 and 21 are enforceable against non-state entities. However, Justice B.V. Nagarathna dissented, stating that there is already an adequate remedy to file a habeas corpus writ petition in the event that Article 21 is violated against a private entity. Therefore, Non-state enterprises that do not fit within the scope of Article 12 are not subject to the enforcement of Articles 19 and 21.

The bench also Imposed an affirmative duty on the state to defend individuals’ lives and liberties against private parties. However, article 21 imposes a form of negative duty on the state to ensure that no one is deprived of their life or personal freedom other than by legal means. With this in mind, Justice BV Nagarathna expressed the opinion that the state’s intervention in safeguarding Article 21 against private parties would violate the state’s negative obligation. Regarding the idea of 

Collective responsibility, the majority bench determined that the government cannot be held vicariously accountable for a minister’s remarks about state matters. Contrary to the majority, however, Justice B.V. Nagarathna argued that if a minister made a statement about government matters, the state would be held vicariously liable for it; if the statement did not align with the government’s position, the state would not be held vicariously liable.

Furthermore, the bench determined that a minister’s speech might not be actionable under the constitutional tort if it violates a citizen’s fundamental rights. 

Unless such comments caused the individual or citizen injury or loss. In such statements, one may invoke the principle of collective responsibility to seek the appropriate remedy in court. The diverse opinions expressed by Justice B.V. Nagarthana and the unanimous ruling on these five legal matters were crucial to the constitution.


It is anticipated that the judiciary will be freed from the state’s arbitrary actions. It is expected of the judiciary to uphold human civil liberties. The judiciary has consistently advocated for the welfare of its citizens, and one of those positions is the decision to refrain from further restricting the right to free speech and expression. Because Article 21 has such a wide scope, the system would have crumbled if the opposite had occurred. Furthermore, Article 21 may become even more expansive in the future, at which point the freedom to express oneself will essentially vanish. 

In the era of social media, when individuals communicate with one another more than ever, it is critical to recognise ideas like hate speech. Law enforcement officials must be able to distinguish between hate speech and free speech. Hate speech is defined as any statement or speech that is motivated only by hatred for a specific community or set of individuals. When considered, the effects of hate speech are negative. Although liberty is essential to a democracy, constitutional principles must take precedence over it so that it does not become uncivilised and barbarous. 


Every person has the right to fundamental freedoms and rights guaranteed by our constitution. However, in order to preserve equilibrium, certain limitations have been placed on the citizens’ ability to use these rights. Article 19(2) already imposes limitations on the freedom of speech and expression under Article 19(1)(a). The right to free expression, which is a fundamental right guaranteed to all people, is gradually being undermined by attempts to reinforce these limitations through other fundamental rights like Article 21. 

A judge’s job is to protect citizens’ rights in a constitutional democracy like India, not to approve new limitations on civil liberties. The limitations outlined in Article 19(2) on the grounds of morality, decency, and contempt of court are sufficiently broad to take into consideration a speech or statement directed towards a victim of rape. It is superfluous to use terms like constitutional sensitivity. Judges may decide to impose other restrictions on citizens’ freedom of speech in the future, but for now, the limitation is based on the Article 21 protection of dignity.


  1. https://thewire.in/law/supreme-court-free-speech-azam-khan-neutrality
  2. https://indiankanoon.org/doc/1489350/
  3. https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.legitquest.com/&ved=2ahUKEwj4js-lhZyEAxXJnGMGHRFuA7gQFnoECAcQAQ&usg=AOvVaw3st_qgHziGEIJ2DtFx4VTr
  4. http://privacylibrary.ccgnlud.org/case/kaushal-kishore-vs-state-of-uttar-pradesh-ors
  5. https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.manupatra.com/corporate/Blog/pdf/Kaushal-Kishor-vs-State-of-Uttar-Pradesh.pdf&ved=2ahUKEwiQ8bWjhZyEAxW8d2wGHT_DATc4ChAWegQIBBAB&usg=AOvVaw2iU3Dsoo5iVY_3RqTmhEnJ

This Article is written by Abraham Mutazu, law student at Lovely Professional University ; Intern at Legal Vidhiya.

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