Arguments Before The Apex Court In The Case Of Kaushal Skishor Vs The State Of Uttar Pradesh (2017)

Case title:
Kaushal Kishor v/s State of UP

Date of Order:
5.10.2017

Bench:
A five bench judge

Parties:
Petitioner: Kaushal Kishor
Defendant: State of UP

FACTS

• A young girl and her mother were gang-raped on the major highway that ran through Uttar Pradesh on July 28, 2016. This took place in the middle of their trip from Noida to Shahjahanpur.
• They brutally beat the men who were travelling with them while they were bound up in the field. For the crimes of gangrape under the Protection of Children from Sexual Offense (POCSO) Act and the Indian Penal Code, the First Information Report was filed at the Bulandshahr Police Station.
• After that, the incident was covered by the media, which led to headlines. Speaking to the public, Azam Khan, the minister for urban development in the state of Uttar Pradesh, called the gangrape event a "political scheme and nothing else."
• When one of the victims complained that she was not receiving justice, he criticised her and said that she had undoubtedly received the notoriety she required. He continued by discussing the consequences for the victims of spreading word about the occurrence.
• The husband and father of the two gangrape survivors filed a petition in support of their claim that the Central Bureau of Investigation should conduct an investigation and that the trials should take place outside of the
• State of Uttar Pradesh because Azam Khan's Statement destroyed any chance of a fair trial there.
• They claimed that Azam Khan's public Statement damaged the victims' image. Azam Khan was added as a respondent to the case by the Supreme Court Bench as a result of this petition.
• Later, he extended his profound regret to the petitioner and made an unqualified-apologies before the Supreme Court.
• The court acknowledged the apologies and then turned its attention to the case's more important issues. The case was continued, and in an order dated October 5, 2017, the Supreme Court's Constitution Bench of five judges was instructed to consider whether or not the right to free speech on controversial subjects is compatible with the pursuit of a decent life.

ISSUES RAISED

• Whether the Court has the authority to impose restrictions on the right to freedom of expression that go beyond those already set forth in Article 19(2) of the Constitution.
• Can a fundamental right be protected by the Constitution's Articles 19 (freedom of speech and expression) and 21 (right to life and personal liberty) be asserted against someone other than the "State" or its agents?
• Whether the State has a responsibility to actively defend a citizen's right under Article 21 of the constitution, even if that right is being threatened by the actions or inactions of another person or a private organisation.
• Whether the government itself should be held vicariously responsible for the statement of a minister, which can be linked to any State-related affairs since it disregarded the concept of collective responsibility.
• The question of whether a minister's statement violates a citizen's fundamental rights and qualifies as a "constitutional tort" that can be prosecuted. Part III of the Constitution grants citizens certain rights (civil wrong).

AGRUMENTS

• Fali Nariman and Harish Salve, who were assisting the court and later appointed as amicus curiae, were asked by former Chief Justice Deepak Misra to comment on the issues before the court. Concerning the first issue, both Nariman and Salve submitted an argument that the right to a fair trial is essential for the freedom of speech and expression. They both argued that restricting one's ability to criticise government conduct is one thing, but that it is quite another when "non-State" actors violate someone's right to privacy.
• According to Salve, anyone who poses a harm to another person's right to privacy is not allowed to use their right to free expression under Article 19(1). (a). The Court deferred to Madhavi Divan, the attorney for the Union of India, to explain this matter and to broaden the reasons for limiting free expression as stated in Article 19 of the Constitution. The right to freedom of expression, which is protected by Article 19(1), she claimed, would be gravely jeopardised by opening up new channels of restriction under Article 21(a). In court, she emphasised that it was evident that certain limits on the grounds clearly listed in Article 19(1)(a) were in place.
• She referenced a 2012 Sahara Guideline case in which it was determined that Article 19 might be used to limit or delay media reporting. Then, in the 2005 Noise pollution case, Article 19(1)(a) was deemed to be sufficiently broad to cover both the right to free speech and the right to silence. She also brought up the 1986 case of Bijoe Emmanuel v. State of Kerala, in which Article 19(1) of the Constitution allowed for the right to free speech to include the freedom to refrain from chanting the national anthem.
• Even after Divan has convinced the bench, it is still not convinced. With regard to the second matter, senior attorney Harish Salve claimed that the notion or idea that one must be an agent of the State or another instrumentality in order to perform public obligations has long since passed away. This is because those tasks that are primarily the responsibility of the State are being carried out by private individuals and businesses. He urged reconsideration of the idea that only public servants carry out civic duties. He went on to add that society had advanced greatly and that the government's and the state's involvement in people's lives had diminished, altering as a result. He also mentioned the work being done by private parties.
• The bench countered Advocate Salve's statement by arguing that if private companies are given public responsibilities like managing toll collections and railroads, they should also be held accountable for respecting fundamental rights. As a result, Advocate Salve stated that it is now necessary to "marry" the constitutional principle with the powers granted to private organisations in order to protect the citizens' fundamental rights.
• The Subramanium Swamy case (2016), which affirmed the ruling that freedom of speech must be reconciled with the right to reputation, which is a crucial component of the right to life under Article 21, was highlighted in relation to the third concern.
• Article 19(1)(a) has its own inherent limitations and may not be the exclusive controlling law for the freedom of speech and expression, according to advocate Harish Salve.
• Regarding the fourth concern, Advocate Salve stated that democracy is extremely brittle and only lasts as long as the populace has faith in the system. He asserted that the purpose of the law of contempt is to safeguard the public's trust in the institution, not to defend an individual. In this system, a minister is obligated by the Constitution's pledge to uphold and uphold the values of the Constitution, and he or she is also a citizen who must exercise their right to free speech and expression. He continued by saying that the freedom of speech did not grant the minister the autonomy to make claims that would "emasculate" victims' rights to a fair trial and to life itself.
• He contends that the State has a constitutional duty to guarantee that citizens' rights are not violated, and that if the State does not carry out this duty, the injured party may seek damages from such public officials under the tort law.
• Azam will be held accountable under tort law, which includes the public law remedy, if the accusations against him are proven, according to advocate Nariman's addition to the fifth quarry. He continued by discussing the seriousness of a minister's pledge to defend the civil liberties that are guaranteed by Article III of the Constitution.

ANALYSIS

On April 20, 2017, the court asked a five-judge constitution bench to hear the case involving Azam Khan's statement regarding gangrape victims, and asked the amicus curiae to develop legal arguments, present legal questions, and try to come up with a resolution that the bench could take into consideration.

A constitution bench made up of justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah, and Ravindra Bhat started hearing the case on October 23, 2019, but they were unable to reach a decision.

The judges continue to be unsure of their ability to extend the limitations on writing to freedom of speech and expression as well as whether Article 21 can be used to limit Article 19(1). (a). After receiving the required direction from the Chief Justice of India, the matter would be brought before the constitution bench.