The Supreme Court ruled that additional restrictions not found in Article 19(2) cannot be imposed on Ministers, MPs, and MLAs exercising their right to free speech under Article 19(1)(a). It ruled that the grounds for restricting free speech mentioned in Article 19(2) are exhaustive. By a 4:1 majority, the Constitution Bench of Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, and B.V. Nagarathna added that statements made by Ministers, even if traceable to state affairs or protecting the government, cannot be attributed vicariously to the government, even when implementing the principle of collective responsibility. "The grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive. Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2) cannot be imposed on the exercise of the right conferred by Article 19(1)(a)," the Constitution Bench has held unanimously.

The case arises from the Bulandshahar rape incident wherein the then Minister of the State of Uttar Pradesh and Samajwadi Party leader, Azam Khan had downplayed the act by denouncing the incident as a 'political conspiracy and nothing else'. Following that, the survivors petitioned the Supreme Court for action against Khan. In light of this, the Court ordered Khan to submit an abject apology. While doing so, it noted that the case raises serious concerns about state obligations and freedom of speech and expression, and a referral to a Constitution Bench was made in 2017 based on certain questions framed by Senior Advocates Fali S Nariman and Harish Salve, who were appointed as amici curiae.

The Court had reserved the judgment on November 15, 2022. It had framed five questions in the matter:
1. Whether a fundamental right under Articles 19 or 21 of the Constitution of India be claimed other than against the state or its instrumentalities? The Bench held:
"A fundamental right under Article 19 or 21 can be enforced even against persons other than the state or its instrumentalities." However, it clarified that a mere statement made by Minister inconsistent with the rights of the citizens may not be actionable as a constitutional tort. But if it leads to omission or commission of offence by a public official then it is a constitutional tort, it added.
2. Whether the state is under a duty to affirmatively protect the rights of citizens under Article 21 of the Constitution even against a threat to the liberty of citizens by the acts or omissions of another citizen or private agency, the Bench held:
"The state is under a duty to affirmatively protect the rights of a person under Article 21 whenever there is a threat to personal liberty even by a non-state actor."
3. Can a statement made by minister traceable to any affairs of the state or for the protection of the government be attributed vicariously to the government itself, especially in view of the principle of collective responsibility?
"A statement made by a minister even if traceable to any affairs of the state or for protection of the government cannot be attributed vicariously to the government by invoking the principle of collective responsibility," the majority ruled.
4. Whether a statement by a minister inconsistent with the rights of a citizen under Part III of the Constitution constitutes a violation of such constitutional rights and is actionable as a constitutional tort?

"A mere statement made by a minister inconsistent with the rights of a citizen of Part III of the Constitution may not constitute a violation of constitutional rights and become actionable as a constitutional tort. But, if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person or citizen, then the same may be actionable as a constitutional tort."

In her dissenting judgment, Justice B.V. Nagarathna stated that statements made by a Minister that are easily detectable to government affairs or to protect the government are vicariously attributable to the government, and if they are disparaging, the government is vicariously liable. She also expressed concern about the rise in hate speech cases and noted that, while fundamental rights under Articles 19(1)(a) and 21 may not be horizontally applicable in constitutional courts, citizens can seek Common Law remedies.

However, the Judge expressed reluctance to issue guidelines to limit disparaging or vitriolic statements made by public officials, stating that this is a matter for Parliament to address. "It is for the party to control the speeches made by their ministers which can be done by forming a code of conduct. Any citizen who feels attacked by such speeches made or hate speech by public functionary etc can approach the court for civil remedies," she said.

Case Title: Kaushal Kishor V. The State Of Uttar Pradesh GOVT OF UP Home Secretary
Citation: WP(c) 113/2016