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Kaushal Kishor v. State Of Uttar Pradesh And Others
Factual and Procedural Background
The case arises out of allegations that statements made by Respondent 2 during a press conference seriously damaged the dignity and reputation of the petitioner. Media houses—including Zee News, NDTV, The Indian Express, Hindustan Times, The Times of India and News 18—reported these statements. A prior order dated 29-08-2016 (2016 9 SCC 395) framed four issues for determination. In the present order the Supreme Court records that:
- Mr. Fali S. Nariman, learned Amicus Curiae, has filed a detailed written note of submissions summarising the facts reported in the electronic and print media.
- Mr. Lakshmi Raman Singh, Advocate-on-Record for Respondent 2, is permitted to file a counter-affidavit.
- The matter is adjourned to 17-11-2016 and will be taken up as the first item at 2 p.m.
Legal Issues Presented
- Whether public comments by a public personality or public servant, made during an ongoing investigation, undermine public confidence in the fairness of the trial.
- Whether such comments amount to interference with the police investigation, and what legal principles regulate non-interference with investigative agencies.
- What remedial measures are available when the court is satisfied that a public personality’s comments have affected the investigation or the victim’s dignity, particularly in the absence of an existing judicial opinion on the point.
- Whether Respondent 2 can be held liable in tort, including public-law compensation, for harm caused to the petitioner.
Arguments of the Parties
Submissions of the Amicus Curiae (Mr. Fali S. Nariman)
- The Court should operationalise the concepts of “constitutional morality,” “constitutional trust,” “good governance,” and the “oath of office” articulated in Manoj Narula v. Union of India, moving them from abstraction to enforceable standards.
- Respondent 2’s statements, if proved, may attract tortious liability under public law. Multiple precedents on State liability for violation of fundamental rights are cited to support this view.
- Comparative jurisprudence shows that the Supreme Court of Canada recognises a tort of “negligent investigation,” whereas the Supreme Court of the United Kingdom does not. The Court may need to consider this divergence.
- If factual allegations are disputed, the media outlets that published the statements should be impleaded so their versions can assist the Court in resolving the controversy.
- The Court, being “constitutionally obliged to evolve new tools to enhance the cause of justice,” should craft appropriate directions in the event of proven misconduct.
Petitioner's Counsel (Mr. Kislay Pandey)
- Contends that the petitioner’s dignity has been “extremely maligned,” causing irreparable personal harm and damage to her reputation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Order dated 29-08-2016 (2016 9 SCC 395) | Previously framed four issues for determination in this matter. | Referred to as the governing framework for the present proceedings; no fresh application decided yet. |
| Manoj Narula v. Union of India | Concepts of constitutional morality, trust, good governance and oath of office. | Cited by the Amicus to argue that these principles must be given practical effect. |
| State of U.P. v. Kishori Lal Minocha (1980 3 SCC 8) | State liability and compensation principles. | Cited by the Amicus; the Court has reserved consideration. |
| Khatri (2) v. State of Bihar (1981 1 SCC 627) | Public law compensation for violation of fundamental rights (Bhagalpur Blinding case). | Cited by the Amicus; no ruling yet. |
| Rudul Sah v. State of Bihar (1983 4 SCC 141) | Compensation for wrongful detention under Article 21. | Cited by the Amicus; issue kept open. |
| Nilabati Behera v. State of Orissa (1993 2 SCC 746) | State’s duty to compensate for custodial violence/death. | Cited by the Amicus; Court yet to apply. |
| D.K. Basu v. State of W.B. (1997 1 SCC 416) | Guidelines to prevent custodial violence; liability for infringement of fundamental rights. | Cited by the Amicus; consideration deferred. |
| Sube Singh v. State of Haryana (2006 3 SCC 178) | Parameters for awarding compensation in public law actions. | Cited by the Amicus; no present application. |
| Sanjay Gupta v. State of U.P. (2015 5 SCC 283) – “Great Meerut Fire Tragedy” | Liability and compensation for large-scale negligence causing public harm. | Cited by the Amicus; application yet to be determined. |
Court's Reasoning and Analysis
The order does not undertake substantive adjudication but records procedural directions and preliminary observations:
- The Court acknowledges the detailed written submissions of the Amicus Curiae, noting the legal concepts and comparative jurisprudence he has placed on record.
- Recognises that further debate on tortious liability and the doctrine of negligent investigation will take place after Respondent 2 files a counter-affidavit.
- Indicates openness to impleading media organisations if factual disputes remain unresolved.
- Emphasises the need for a structured response from Respondent 2 before the Court can proceed to evaluate the merits.
Holding and Implications
ORDER: The matter is adjourned to 17-11-2016; Respondent 2 is granted time to file a counter-affidavit, and the case will be taken up as the first item at 2 p.m. on the scheduled date.
Immediate implications are confined to case management: the Court will consider the substantive issues only after receiving Respondent 2’s response. No final rights are adjudicated, and no new precedent is established at this stage.
Order
1. Let the matter be listed on 17-11-2016, to enable Mr Lakshmi Raman Singh, learned Advocate-on-Record, who is assisting Mr Kapil Sibal, learned Senior Counsel, to file the counter-affidavit on behalf of Respondent 2.
2. We may note that Mr Fali S. Nariman, learned Amicus Curiae, has filed a written note of submissions which states the facts in detail by mentioning whatever had been stated by the electronic and print media, namely, Zee News, NDTV, The Indian Express, Hindustan Times, The Times of India and News18. He has also referred to the order dated 29-8-2016 (2016) 9 SCC 395 whereby this Court had framed four issues for determination. He has also stated with regard to the concepts, namely, (a) public confidence in the fairness of trial, (b) circumstances interfering with the police investigation of the case and principle of law stated thereon, (c) necessity to abide by the principle of non-interference with the investigation or the investigating agency, and (d) in the absence of any opinion of this Court, what is to be done in a case if the court is satisfied that there are comments on the investigation or on the victim by a public personality or a public servant. The learned Senior Counsel would say “this Court is constitutionally obliged to evolve new tools to enhance the cause of justice”.
3. According to Mr Nariman, learned Amicus Curiae, the observations made by the Constitution Bench in Manoj Narula v. Union of India (2014) 9 SCC 1 about the “constitutional morality”, “constitutional trust”, “good governance” and “oath of office”, cannot be allowed to remain in the realm of abstraction but have to be practically implemented and activated if the factual score of a case so warrants. He has also brought to our notice the language used in the oath of Ministers and the gravity of the said oath. He has referred to a passage from Halsbury's Laws of England, Vol. 20, 5th Edn., 2014—the report on Committee of Standards in public life (popularly known as Nolan's Principles) and thereafter, the principles laid down by the former Prime Minister of United Kingdom and the Code of Conduct prevalent in India which has been framed for the purpose of the Union and the State Ministers.
4. Apart from the aforesaid submissions, Mr Nariman, learned Amicus Curiae, would submit that Respondent 2, if the factual allegations are proved or established, may be liable under tort law that includes the public law remedy and for the said purpose, he has commended us to the Hamlyn Lecture in 1949 titled “Freedom under the Law” by Lord Denning, the decisions in State of U.P. v. Kishori Lal Minocha (1980) 3 SCC 8, Bhagalpur Blinding case [Khatri (2) v. State of Bihar (1981) 1 SCC 627], Rudul Sah v. State of Bihar (1983) 4 SCC 141, Nilabati Behera v. State of Orissa (1993) 2 SCC 746, D.K. Basu v. State of W.B. (1997) 1 SCC 416, Sube Singh v. State of Haryana (2006) 3 SCC 178 and Sanjay Gupta v. State of U.P. (2015) 5 SCC 283 (popularly known as “the Great Meerut Fire Tragedy”).
5. Mr Nariman has also drawn our attention to the views of the Supreme Court of Canada which has gone to the extent of propounding the doctrine of the “negligent investigation” that attracts principles of tort and view of the Supreme Court of United Kingdom which has not accepted the said principle. Be that as it may, we will debate on this issue after we get the response from Respondent 2. At this juncture, it is requisite to note that on a query being made in case the factual score is disputed in toto or is stated to have a different context, what should be the method to resolve the controversy, Mr Nariman, learned Amicus Curiae, would submit that the electronic and print media that have published the press conference report of Respondent 2 should be added as party-respondents in the instant case and their stand should be taken into consideration and eventually necessary directions can be issued.
6. Mr Kislay Pandey, learned counsel for the petitioner, would submit that dignity of the petitioner has been extremely maligned and the individual hazard that has been faced by her is irredeemable by such kind of comments, and the reputation of the victim has been enormously affected. We have noted the submission as it has been reiterated today.
7. As agreed to by the learned counsel for the parties, the matter shall be taken up as the first item at 2 p.m. on the date fixed.
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